exv10w2



 




Exhibit 10.2



INDYMAC BANCORP, INC.

CASH INCENTIVE AWARD PROGRAM

UNDER THE

2002 INCENTIVE PLAN, AS AMENDED AND RESTATED




ARTICLE 1

ESTABLISHMENT OF PROGRAM




     1.1 Background of Plan. The Cash Incentive Award Program (the “Program”)
is a subplan of the IndyMac Bancorp, Inc. 2002 Incentive Plan, as Amended and
Restated (the “Plan”), consisting of a program for the grant of Cash Incentive
Awards under Section 4 of the Plan. The Program has been established and
approved, and will be administered by, the Management Development and
Compensation Committee pursuant to the terms of the Plan. It is intended that
Awards under the Program shall be fully deductible by the Company without
regard to the limitations of Code Section 162(m). The Effective Date of the
Program is March 1, 2004.



     1.2 Purpose. The purpose of the Program is to increase Participants’
economic interest in the success of the Company, to encourage Participants to
continue employment with the Company, and to reward Participants for achieving
long-term performance goals established by the Committee.



ARTICLE 2

ADMINISTRATION




     2.1 Committee. The Program shall be administered by the Management
Development and Compensation Committee of the Board of Directors of the
Company.



     2.2 Authority of Committee. The Committee has the authority and
discretion to administer the Plan pursuant to the terms of Section 7.2 of the
Plan, including the exclusive power, authority and discretion to: (a) designate
Participants; (b) grant Cash Incentive Awards under the Program and establish
the terms, conditions, Performance Goals, restrictions, and other provisions of
such Awards, (c) reduce any Cash Incentive Award, regardless of the achievement
of designated Performance Goals; (d) interpret the Program, establish, amend,
and rescind any rules and regulations relating to the Program, and determine
the terms and provisions specified in any Award Matrix under the Program; (e)
make all other decisions and determinations that may be required under the
Program or as the Committee deems necessary or advisable to administer the
Program; and (f) subject to Article 6 hereof, amend, modify, or terminate the
Program as provided herein.



     2.3. Decisions Binding. The Committee’s interpretation of the Program and
all decisions and determinations by the Committee with respect to the Program
are final, binding, and conclusive on all parties.



ARTICLE 3

ELIGIBILITY




     3.1. General. Participation in the Program is limited to key executives
of the Company and any Subsidiary who are members of a select group of highly
compensated or management employees who, through the effective execution of
their assigned duties and responsibilities, are in a position to have a direct
and measurable impact on the Company’s financial results, and are designated by
the Committee to be eligible for a Cash Incentive Award. Initially,
Participants shall be the executives comprising the



-1-









 




Company’s Executive
Committee, other than Messrs. Perry and Wohl. The Committee will consider each
of Messrs. Perry and Wohl for participation when and if their employment
agreements are renegotiated.




     3.2. Demotions. If a Participant is demoted during a Performance Period,
the Committee will determine, in its sole discretion, whether the Participant
shall end participation in the Program at that time, or shall continue as a
Participant, perhaps at a reduced level. If participation ends, any Cash
Incentive Awards earned during the time of participation will be prorated for
the applicable Performance Periods, and will be paid only if the Participant is
still an employee at the time that payouts of his or her Cash Incentive Awards
are made. Any such proration shall be based on the number of full months the
Participant participated in the Program during the applicable Performance
Period. Payouts of Cash Incentive Awards in this situation shall be calculated
and paid after the end of the relevant Performance Periods, the same as for
other Participants.



ARTICLE 4

DEFINITIONS




     4.1 Definitions. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned such terms in the Plan. In addition, the
following terms shall have the following meanings for purposes of the Program:




	 	(a)	 	“Award Matrix” means a matrix adopted by the Committee with
respect to a Performance Period equating the value of a Cash
Incentive Award to the attainment of Performance Goals. The Payout
Matrix for the initial three-year Performance Period (2004-2006) is
set forth on Exhibit A hereto.
	 
	 	(b)	 	“Cash Incentive Award” means a cash award payable to a
Participant in the Program based on the achievement of threshold
performance or better during a Performance Period.
	 
	 	(c)	 	“Committee” means the Management Development and Compensation
Committee of the Board of Directors of the Company.
	 
	 	(d)	 	“Covered Employee” means a covered employee as defined in
Code Section 162(m)(3).
	 
	 	(e)	 	“EPS CAGR” means the compound annual growth rate in the
Company’s earnings per common share, calculated on a fully diluted
basis, as determined under Generally Accepted Accounting Principles
(GAAP) as reported in the Company’s financial statements.
	 
	 	(f)	 	“Payout Date” means the date on which the Committee effects
the payout of a Cash Incentive Award. In normal circumstances, such
date must be within thirty (30) days following the end of the
relevant Performance Period; provided, however, that in no event
will a Payout Date for a Covered Employee occur prior to the
certification by the Committee of the value of the Cash Incentive
Awards based on the achievement of Performance Goals over the
Performance Period. In the event of a Change in Control, the Payout
Date means the earlier of (i) the one-year anniversary of the Change
in Control, or (ii) the date of such Participant’s termination of
employment following such Change in Control due to his or her death,
Disability, termination without Cause, or resignation for Good
Reason.
	 
	 	(g)	 	“Performance Goals” are goals established by the Committee
with respect to a Performance Period that determine the value of a
Cash Incentive Award for such Performance Period. In accordance
with Sections 4.3 and 9(q) of the Plan, Performance Goals shall be
determined





-2-









 








	 	 	 	solely on the basis of on any one or more of the
following, as selected by the Committee: core earnings; net worth;
asset quality; efficiency ratio; loan origination; deposit growth;
interest rate risk; earnings per share; return on average common
equity; return on average equity; net operating expense, either
before or after amortization of intangible assets (goodwill);
operating earnings (earnings before transaction-related expense) per
diluted share of common stock, either before or after amortization
of intangible assets (goodwill); return on average assets, ratio of
non-performing assets to total assets; customer service; and
regulatory compliance. The Performance Goals for the initial
three-year Performance Period are based on ROE and EPS CAGR as, set
forth in the Award Matrix attached hereto as Exhibit A.






	 	(h)	 	“Performance Period” means a three-year period established by
the Committee from time to time over which performance will be
measured to determine the value of Cash Incentive Awards. The
initial Performance Period under the Program is the three-year
period including fiscal years 2004, 2005, and 2006. The Committee
may determine and declare subsequent Performance Periods from time
to time. Performance Periods may, but need not, overlap.
	 
	 	(i)	 	“Retirement” means retirement or resignation after at least
ten (10) years of employment with the Company or a Subsidiary and
the attainment of age 55.
	 
	 	(j)	 	“ROE” means return on average equity as determined under
Generally Accepted Accounting Principles (GAAP) as reported in the
Company’s financial statements.
	 
	 	(k)	 	“Target Units” means the number of shares of Stock in which a
Cash Incentive Award is initially denominated, as determined
pursuant to Section 5.1.





ARTICLE 5

OPERATION OF THE PLAN




     5.1 Target Units. Cash Incentive Awards initially shall be denominated in
a number of shares of Stock determined by the Committee, which shall serve as
the Target Units for the relevant Performance Period. The number of Target
Units relating to each Cash Incentive Award normally will be equal to that
number of shares of Stock having a Fair Market Value on the grant date equal to
50% of the annual cash bonus earned by a Participant for performance in the
prior fiscal year (but not less than 25% of, or greater than 75% of, the
Participant’s target bonus for such prior fiscal year), but may be determined
otherwise in the sole discretion of the Committee. Each Participant’s Target
Units for the initial Performance Period (2004-2006) is set forth on Exhibit B
hereto.



     5.2 Vesting. Cash Incentive Awards will cliff vest at the end of the
relevant Performance Period, and there will be no partial or ratable vesting
prior to such date. Notwithstanding the foregoing, in the event of a
Participant’s termination of employment by reason of death, Disability or
Retirement under Section 5.8 hereof, his or her Cash Incentive Awards will vest
upon the date of such termination, and in the event of a Change in Control
under Section 5.9 hereof, a Participant’s Cash Incentive Awards will vest in
full on the applicable Payout Date.



     5.3 Award Matrix. The Performance Goals and payout amounts applicable to
the initial Performance Period are based on the average EPS CAGR and ROE over
the Performance Period, as set forth in the Award Matrix attached hereto as
Exhibit A. The Committee may establish different Award Matrices for future
Performance Periods. Pursuant to Section 4.3 of the Plan, the Committee shall
establish Performance Goals and the applicable Award Matrix not later than 90
days after the beginning



-3-









 




of the Performance Period for which such Performance
Goals relate (but in no event after 25% of the Performance Period has elapsed).




     5.4 Determination of Performance Results. As soon as reasonably possible
after the close of the fiscal year marking the end of a Performance Period, the
Committee will determine and certify in writing the degree to which the
Performance Goals have been attained. The Committee shall have the sole
authority to determine to what the extent the Performance Goals have been
attained. Any payment of a Cash Incentive Award shall be conditioned on the
written certification of the Committee in each case that the Performance Goals
and any other material conditions were satisfied. In determining whether the
Performance Goals have been met, the Committee may in its discretion adjust the
financial results for a Performance Period to exclude the effect of unusual
charges or income items or other events (including, without limitation,
acquisitions or divestitures), which are distortive of financial results for
the Performance Period; provided, however, that with respect to Covered
Employees, measurement of the Company’s performance against the Performance
Goals established by the Committee shall be objectively determinable and, to
the extent they are expressed in standard accounting terms, shall be determined
according to generally accepted accounting principles as in existence on the
date on which the Performance Goals are established and without regard to any
changes in such principles after such date. No adjustment will be made with
respect to a Covered Employee if the Committee determines that such adjustment
will cause a Cash Incentive Award to such Covered Employee to fail to qualify
as performance-based compensation under Code Section 162(m).



     5.5 Payout of Awards. Cash Incentive Awards will be paid in cash on the
relevant Payout Date in an amount equal to the product obtained by multiplying
(a) the Target Units for the Performance Period, as determined in Section 5.1
hereof, by (b) the applicable multiple set forth in the Award Matrix for the
Performance Period, by (c) the Fair Market Value per share of Stock as of the
last day the fiscal year marking the end of the Performance Period. Except as
provided in Section 7.1 hereof, dividends paid on Company common stock during
the Performance Period will not be considered in calculating such payout
amount. The Committee may, in its discretion, reduce the cash payout amount of
a Cash Incentive Award otherwise payable to one or more Participants under the
Program, notwithstanding the achievement of a Performance Goal. In the event
that the minimum Performance Goals for a Performance Period are not met, such
that the conditions for the threshold payout set forth in the relevant Award
Matrix are not satisfied, the Cash Incentive Awards relating to such
Performance Period shall have no value and, at the end of such Performance
Period, shall lapse and be of no further effect.



     5.6 Payout Deferrals. Unless otherwise determined by the Committee, a
Participant who is eligible to participate in a deferred compensation plan
maintained by the Company may elect to defer receipt of the payout of his or
her Cash Incentive Award, if any, with respect to such Performance Period
subject to the terms and conditions of such deferred compensation plan. Any
amount so deferred will be governed by the terms of the applicable deferred
compensation plan.



     5.7 Payout Limit. In no event shall any Participant receive a cash payout
for a Cash Incentive Award which exceeds the annual limit provided in Section
4.2 of the Plan, as it may be amended from time to time. As of the Effective
Date of the Program, this limit is equal to $2 million for each year of the
relevant Performance Period. Subject to Code section 162(m), if the payout of
a Cash Incentive Award is deferred by the Participant pursuant to Section 5.6
hereof, any additional amounts attributable to earnings during the deferral
period shall be disregarded for purposes of applying this annual cash limit.



     5.8 Termination of Employment. If a Participant ceases being an employee
of the Company or any Subsidiary for any reason other than death, Disability,
or Retirement, then his or her participation in the Program shall automatically
be terminated and the Participant will forfeit any right to



-4-









 




any unvested Cash
Incentive Awards. A Participant’s transfer of employment from the Company to
one of its Subsidiaries, from a Subsidiary to the Company, or from one
Subsidiary to another Subsidiary shall not constitute a termination of
employment for purposes of the Program. In the event of a Participant’s
termination of employment by reason of death, Disability or Retirement, his or
her outstanding Cash Incentive Awards will vest in full, and the Company will
within ten (10) days following such termination effect a payout of the
Participant’s then-outstanding Cash Incentive Awards equal to the aggregate
number of Target Units subject to such Cash Incentive Awards multiplied by the
Fair Market Value per share of Stock on the date of such termination. Amounts
paid on behalf of a deceased Participant will be paid to the Participant’s
Beneficiary.




     5.8 Change in Control. Notwithstanding any provision to the contrary
herein or in the Plan, in the event of a Change in Control, each Participant’s
Cash Incentive Awards shall vest in full upon the Payout Date, at which time
the Company or its successor shall effect a payout of the Participant’s
then-outstanding Cash Incentive Awards equal to the aggregate number of Target
Units subject to such Cash Incentive Awards multiplied by 125% of the Fair
Market Value per share of Stock on the Payout Date.



ARTICLE 6

AMENDMENT, MODIFICATION AND TERMINATION




     6.1. Amendment, Modification and Termination. The Committee may, at any
time and from time to time, amend, modify or terminate the Program. The
Committee may condition any amendment or modification on the approval of
shareholders of the Company if such approval is necessary or deemed advisable
with respect to applicable laws, policies or regulations.



     6.2 Termination After or During the Performance Period. Termination of
the Program after a Performance Period but before the payout of the relevant
Cash Incentive Award is made will not reduce a Participant’s rights to receive
the payout of his or her Cash Incentive Award for the Performance Period.
Termination or amendment of the Program during a Performance Period may be
retroactive to the beginning of the Performance Period, at the discretion of
the Committee. If any amendment or termination occurs during a Performance
Period, the Committee, in its sole discretion, shall determine when and to what
extent Cash Incentive Awards shall be paid for the portion of the Performance
Period preceding the amendment or termination.



ARTICLE 7

CHANGES IN CAPITAL STRUCTURE




     7.1. Adjustments. If, during a Performance Period, the Company’s
corporate structure or capitalization should be materially altered by virtue of
a reorganization, recapitalization, stock split, stock dividend, combination of
shares, rights offer, liquidation, dissolution, merger, consolidation, spin-off
or sale of assets, or any other change in or affecting the corporate structure
or capitalization of the Company, which does not constitute a Change in
Control, the Committee may redefine any Award Matrix or adjust any Performance
Period, to reflect the impact of such change. The nature of any such
adjustment shall be to protect the purpose and integrity of the Program,
reducing the potential for windfall gains or losses for Participants.



ARTICLE 8

GENERAL PROVISIONS




     8.1. Nonassignability. Participant rights under the Program may not be
transferred, assigned, pledged or encumbered, without the express prior consent
of the Committee.



-5-









 





     8.2. No Right to Participate. No officer or employee shall have any right
to be selected to participate in the Program.



     8.3. No Right to Employment. Nothing in the Program shall interfere with
or limit in any way the right of the Company or any Subsidiary to terminate any
Participant’s employment at any time, nor confer upon any Participant any right
to continue in the employ of the Company or any Subsidiary or at any particular
position or rate of compensation.



     8.4. Withholding. In accordance with Section 5.4 of the Plan, the Company
or any Subsidiary shall have the authority and the right to deduct or withhold,
or require a Participant to remit to the Company, an amount sufficient to
satisfy federal, state, and local taxes (including the Participant’s FICA
obligation) required by law to be withheld with respect to any taxable event
arising as a result of Cash Incentive Awards granted under the Program.



     8.5. Unfunded Status of Awards. The Program is intended to be an
“unfunded” plan for incentive and deferred compensation. With respect to any
payments not yet made to a Participant pursuant to the Program, nothing
contained in the Program shall give the Participant any rights that are greater
than those of a general creditor of the Company or any Subsidiary.



     8.6. Expenses. The expenses of administering the Program shall be borne
by the Company and its Subsidiaries.



     8.7. Titles and Headings. The titles and headings of the Sections in the
Program are for convenience of reference only, and in the event of any
conflict, the text of the Program, rather than such titles or headings, shall
control.



     8.8. Governing Law. The Program shall be construed in accordance with and
governed by the laws of the State of Delaware, without regarding to the
conflict of law provisions in any jurisdiction.



     8.9 Severability. If any provision of this Program is held to be illegal,
invalid, or unenforceable under present or future laws effective during the
term hereof, the remaining provisions hereof shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision. Furthermore, in lieu of such illegal or unenforceable provision,
there shall be added automatically as a part of this Program a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible and still be legal, valid and enforceable.



     8.10 Plan Controls. This Program is adopted pursuant to and shall be
governed by and construed in accordance with the Plan. In the event of any
actual or alleged conflict between the provisions of the Plan and the
provisions of this Program, the provisions of the Plan shall be controlling and
determinative.



     The foregoing is hereby acknowledged as being the IndyMac Bancorp, Inc.
Cash Incentive Award Program as adopted by the Committee on March 1, 2004.



	 	 	 
	

	 	INDYMAC BANCORP, INC.
	 
	 

	 	By:
	

	 	
 

	 
	

	 	Name:
	

	 	
 

	 
	

	 	Title:
	

	 	
 








-6-









 






EXHIBIT A




AWARD MATRIX




For the three-year Performance Period for fiscal years 2004-2006




-1-









 








EXHIBIT B




TARGET UNITS




For the three-year Performance Period for fiscal years 2004-2006




	 	 	 
	
	 	 
	Participant	 	Target Units
	
	 	 
	 
	
	 	 
	 
	
	 	 
	 
	
	 	 
	 
	
	 	 
	 
	
	 	 






Note: Unless otherwise determined by the Committee, the number of each
Participant’s Target Units for the 2004-2006 Performance Period is intended to
be that number of shares of Stock having a Fair Market Value on the grant date
equal to 50% of the annual cash bonus earned by such Participant for
performance in 2003 (but not less than 25% of, or greater than 75% of, the
Participant’s target bonus for 2003).





-2-