exv10w2



 








EXHIBIT 10.2




EMPLOYMENT AGREEMENT




THIS EMPLOYMENT AGREEMENT (the “Agreement”) has been executed as of October 15, 2003 by and between
IndyMac Resources (“Employer”) and Frank Sillman (“Officer”).




WITNESSETH:




WHEREAS, Employer desires to obtain the benefit of continued services of Officer and Officer
desires to continue to render services to Employer and its affiliates.



WHEREAS, Employer and Officer desire to set forth the terms and conditions of Officer’s employment
with Employer and its affiliates under this Agreement.



NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, the parties
hereto agree as follows:




	1.	 	Term. Employer agrees to employ Officer and Officer agrees to serve Employer and its
affiliates, in accordance with the terms hereof, for a term beginning on the date first
written above and ending on December 31, 2006, unless earlier terminated in accordance with
the provisions hereof.






	2.	 	Position, Duties and Responsibilities. Employer and Officer hereby agree that, subject
to the provisions of this Agreement, Employer will employ Officer and Officer will serve
Employer, as an Executive Vice President of Employer, or its affiliated companies, as
determined by Employer. Affiliated companies shall include, without limitation, any direct or
indirect subsidiary of Employer in which Employer holds less than 100% but at least a majority
of the beneficial interest and voting control (a “New Public Company”). Employer agrees that
Officer’s duties hereunder shall be the usual and customary duties of such office and such
further duties shall not be inconsistent with the provisions of applicable law. Officer
agrees that Employer may add to or change Officer’s duties as business considerations dictate,
provided such changes are consistent with an Executive Vice President position of Employer as
determined by the Chief Executive Officer of Employer. Officer shall have such official power
and authority as shall reasonably be required to enable him to discharge his duties in the
offices which he may hold. All compensation paid to Officer by Employer or any of its
affiliates shall be aggregated in determining whether Officer has received the benefits
provided for herein, but without prejudice to the allocation of costs among the entities to
which Officer renders services hereunder.






	3.	 	Scope of this Agreement and Outside Affiliations. During the term of this Agreement,
Officer shall devote his full business time and energy, except as expressly provided below, to
the business, affairs and interests of Employer and its affiliates, and matters related
thereto, and shall use his best efforts and abilities to promote their respective interests.
Officer agrees that he will diligently endeavor to promote the business, affairs and interests
of Employer and its affiliates and perform services contemplated hereby, in accordance with
the policies established by the Board of




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	 	 	Directors of the applicable entity, which policies
shall be consistent with this Agreement. If so requested by Employer, Officer agrees to serve
without additional remuneration as an officer of one or
more (direct or indirect) subsidiaries, affiliates or successors of Employer, subject to
appropriate authorization by the affiliate, subsidiary or successor involved and any
limitation under applicable law.
	 
	 	 	During the course of Officer’s employment as a full-time officer hereunder, Officer shall
not, without the consent of Employer, compete, directly or indirectly, with Employer in the
business then conducted by Employer or any of its affiliates or successors.
	 
	 	 	Officer may make and manage personal business investments of his choice and serve in any
capacity with any civic, educational or charitable organization, or any governmental entity
or trade association, without seeking or obtaining approval by the Board of Directors,
provided such activities and services do not materially interfere or conflict with the
performance of his duties hereunder.







	4.	 	Compensation and Benefits.






	 	a.	 	Base Salary. Employer shall pay to Officer a base salary in respect of the
fiscal year of Employer (a “Fiscal Year”) ending December 31, 2003 at the annual rate
as set forth on Appendix A (the “Annual Rate”). In respect of the Fiscal Years ending
in 2004, 2005 and 2006, the Chief Executive Officer of Employer may increase the Annual
Rate. While any such increase shall be at the discretion of the Chief Executive
Officer, it is anticipated that, for any Fiscal Year, if Employer obtains its earnings
per share goal and the Officer receives a performance rating of “meets expectations
consistently,” the Annual Rate would possibly be increased between 0% and 10%. During
the term of this Agreement, Employer may not decrease the Annual Rate below the amount
set forth in Appendix A.
	 
	 	b.	 	Incentive Compensation. Employer shall pay to Officer for each of the Fiscal
Years ending during the term of this Agreement an incentive compensation award in an
amount determined pursuant to the Annual Incentive Plan attached hereto as Appendix A.
The terms of the Annual Incentive Plan shall be determined in the first quarter of each
Fiscal year during the term of this Agreement, as mutually agreed upon by Employer and
Officer. If a new annual incentive plan is not executed by Employer and Officer for
any reason by the end of the first quarter of the Fiscal Year, then the maximum
incentive compensation award for the new Fiscal Year shall be deemed set at 25% of
Officer’s base salary. In order to be eligible for the incentive compensation award,
Officer must still be employed as of March 31st of the Fiscal Year following
the relevant Fiscal Year. The incentive compensation award payable to Officer for any
Fiscal Year shall be paid no later than thirty (30) days after completion and
publication of the applicable audited financial statements for such Fiscal Year.




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	 	c.	 	Guaranteed Minimum Annual Compensation. For each of the Fiscal Years ending
during the term of this Agreement, Officer shall receive a guaranteed minimum annual
cash compensation equal to 125% of the base salary, the components of which shall
include his base salary for such Fiscal Year and any
incentive compensation award applicable to such Fiscal Year, provided Officer is
still employed by Employer as of March 31 of the following Fiscal Year.
	 
	 	d.	 	Stock Options and Restricted Stock. Beginning with the 2003 Fiscal Year and in
respect of each of the following Fiscal Years during the term of this Agreement,
Employer’s public company affiliate, IndyMac Bancorp, Inc., or any successor public
company (“Public Company”), may grant to Officer stock options and/or restricted stock
for such number of shares of the Public Company’s common stock as the Compensation
Committee of the Board of Directors of the Public Company (“Compensation Committee”) in
its sole discretion determines, taking into account Officer’s and the Public Company’s
performance and the competitive practices then prevailing regarding the granting of
stock options. Subject to the foregoing, it is anticipated that the number of shares
in respect of each annual stock option and/or restricted stock grant shall be in
accordance with the number of shares granted to officers of Employer at a level similar
to Officer’s level. The stock options and/or restricted stock described in this
Section 4(d) in respect of a Fiscal Year shall be granted at the same time as the
Public Company grants stock options and/or restricted stock to its other officers in
respect of such Fiscal Year.
	 
	 	 	 	Officer agrees that any stock options or restricted stock granted to him under his
prior Employment Agreement(s), or granted separate from any such Employment
Agreement(s), shall be subject to the terms of the 2002 Stock Option Plan except as
may be expressly provided otherwise in this Agreement.
	 
	 	 	 	All stock options and restricted stock granted in accordance with this Section 4(d):
(i) shall be granted pursuant to the Public Company’s current stock option plan, or
such other stock option plan or plans as may be or come into effect during the term
of this Agreement, (ii) shall be priced and vest in accordance with the terms set by
the Compensation Committee, (iii) shall be subject to such other reasonable terms
and conditions as may be determined by the Compensation Committee and set forth in
the agreement or other document evidencing the award, (iv) in the event that
Officer’s employment is terminated due to death or Disability, shall, if then
unvested, become immediately and fully vested, (v) in the event that Officer’s
employment is terminated through resignation or by Employer for either Cause (as
defined in Section 5(c)) or Poor Performance (as defined in Section 5(d)), shall, if
not then vested, immediately terminate, and (vi) in the event that Officer’s
employment is terminated by Employer other than for Cause (as defined in Section
5(e)), shall, if not then vested, become immediately and fully vested only to the
extent that such restricted stock or stock options would, under the terms of such
restricted stock or stock options, vest within one (1) year of such termination.




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	 	 	 	All stock options granted in accordance with this Section 4(d) shall give Officer
the right, upon termination of his employment hereunder, other than for Cause or
Poor Performance (as defined in Section 5(e)), to exercise such options for a period
of between 3 months and 12 months after such termination as provide
hereinafter (but in no event later than their expiration date). In the event the
vested options held by Officer immediately after such termination represent shares
of common stock in an amount equal to or greater than 500,000, then the maximum
period for the exercise of any options shall be 12 months. In the event the vested
options held by Officer immediately after such termination represent shares of
common stock in an amount equal to or greater than 100,000 but less than 500,000,
then the maximum period for the exercise of any options shall be 6 months. In the
event the vested options held by Officer immediately after such termination
represent shares of common stock in an amount less than 100,000, then the maximum
period for their exercise shall be 3 months.
	 
	 	 	 	If the Board of Directors of Employer determines, in its sole and absolute
discretion, that Officer is exhibiting “Poor Performance,” as described in Section
5(d), but there is not a resulting termination of Officer’s employment, the
Compensation Committee may, in its sole and absolute discretion, cancel any
outstanding, but unvested stock options or restricted stock that were previously
granted to Officer.
	 
	 	 	 	In the event that a New Public Company is formed and Officer is assigned by the
Chief Executive Officer to be employed by that New Public Company, if such New
Public Company is traded on the New York Stock Exchange or the NASDAQ, then, in the
discretion of the Chief Executive Officer, up to 50% of the not-yet-vested stock
options and restricted stock of Officer (whether previously granted hereunder or
otherwise) may be terminated and replaced with such alternate incentive compensation
(which may include stock options and/or restricted stock of the New Public Company)
as the Chief Executive Officer may determine in his sole and absolute discretion,
provided such replacement compensation is equivalent to the value of the replaced
stock options and restricted stock. Such alternate incentive compensation may be
granted on such terms and conditions as determined by the Chief Executive Officer,
which terms and conditions may differ from those in this Agreement for comparable
compensation, provided such terms and conditions provide an equivalent value to the
replaced compensation. The Company shall select and retain a nationally recognized
firm to determine the value of the stock options and restricted stock to be replaced
and the value of the replacement compensation, and such firm’s final valuation shall
be accepted by both parties.
	 
	 	e.	 	Additional Benefits. Officer shall also be entitled to all rights and benefits
for which he is otherwise eligible under any bonus plan, stock purchase plan,
participation or extra compensation plan, executive compensation plan, pension plan,
profit-sharing plan, deferred compensation plan, life and medical




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	 	 	 	insurance policy, or
other plans or benefits, which Employer or its subsidiaries may provide for him, or
provided he is eligible to participate therein, for senior officers generally or for
employees generally, during the term of this Agreement (collectively, “Additional
Benefits”). Officer shall also be entitled to three (3) weeks of vacation each Fiscal
Year, subject to all applicable policies of Employer relating to vacation time. This
Agreement shall not affect the provision of any
other compensation, retirement or other benefit program or plan of Employer. If
Officer’s employment is terminated hereunder, pursuant to Section 5(a), 5(b) or
5(e), Employer shall continue for the period specified in Section 5(a), 5(b) or 5(e)
hereof, to provide benefits substantially equivalent to the life, disability and
medical insurance policies on behalf of Officer and his dependents and beneficiaries
which were being provided to them immediately prior to Officer’s Termination Date,
but only to the extent that Officer is not entitled to comparable benefits from
other employment.






	5.	 	Termination. The compensation and benefits provided for herein and the employment of
Officer by Employer shall be terminated only as provided for below in this Section 5:






	 	a.	 	Disability. In the event that Officer shall fail (with or without reasonable
accommodation), because of illness, injury or similar incapacity (“Disability”), to
render for four (4) consecutive calendar months, or for shorter periods aggregating
eighty (80) or more business days in any twelve (12) month period, services
contemplated by this Agreement, Officer’s full-time employment hereunder may be
terminated, by written Notice of Termination from Employer to Officer; and thereafter,
Employer shall continue, from the Termination Date until Officer’s death or December
31, 2006, whichever first occurs (the “Disability Payment Period”), (i) to pay
compensation to Officer, in the same manner as in effect immediately prior to the
Termination Date, in an amount equal to (1) fifty percent (50%) of the then existing
base salary payable immediately prior to the termination, minus (2) the amount of any
cash payments due to him under the terms of Employer’s disability insurance or other
disability benefit plans (which are paid for by Employer) or Employer’s tax-qualified
Defined Benefit Pension Plan, and any compensation he may receive pursuant to any other
employment, and (ii) to provide during the Disability Payment Period the additional
benefits specified in the last sentence of Section 4(e) hereof. To the extent not
otherwise vested, all outstanding stock options and restricted stock granted to Officer
pursuant to Section 4(d) will vest upon his termination because of Disability.
	 
	 	 	 	The determination of Disability shall be made only after 30 days’ notice to Officer
(which may run concurrently with the Notice of Termination). In order to determine
Disability, both Employer and Officer shall have the right to provide medical
evidence to support their respective positions, with the ultimate decision regarding
Disability to be made by a majority of the members of Employer’s Benefits Committee.




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	 	b.	 	Death. In the event that Officer shall die during the term of this Agreement,
Employer shall pay to such person or persons as Officer shall have directed in writing
or, in the absence of a designation, to his estate (the “Beneficiary”) an amount equal
to two times the guaranteed annual compensation as defined in Section 4(c). Such
payment shall be made within 45 days of the death of Officer. Employer shall also
provide during the twelve-month period following the date of Officer’s death the
additional benefits specified in the last sentence of Section 4(e) hereof. If
Officer’s death occurs while he is receiving payments for Disability
under Section 5(a) above, such payments shall cease and the Beneficiary shall be
entitled to the payments and benefits under this Section 5(b). This Agreement in
all other respects will terminate upon the death of Officer; provided, however, that
(i) the termination of the Agreement shall not affect Officer’s entitlement to all
other benefits in which he has become vested or which are otherwise payable in
respect of periods ending prior to its termination, and (ii) to the extent not
otherwise vested, all outstanding stock options and restricted stock granted to
Officer pursuant to Section 4(d) will vest upon his death.
	 
	 	c.	 	Cause. Employer may terminate Officer’s employment under this Agreement for
“Cause.” A termination for Cause is a termination by reason of (i) a material breach
of this Agreement by Officer (other than as a result of incapacity due to physical or
mental illness) which is committed in bad faith or without reasonable belief that such
breach is in the best interests of Employer, (ii) Officer’s breach of the terms of any
promissory note executed by the Officer for any loan to the Officer made by Employer
pursuant to the Employer’s Loan Plan, including a failure to meet a margin call (iii)
an act or omission to act by the Officer involving (a) negligence or misconduct
resulting in a material loss or material loss in revenue (material to be determined in
the sole discretion of the CEO) (negligence or misconduct shall include, but not be
limited to, the failure to properly supervise staff, the failure to establish, maintain
and enforce proper written policies and procedures, and the failure to properly staff
and train to ensure the proper and consistent enforcement of policies and procedures),
(b) gross negligence, (c) gross misconduct with respect to or intentional failure to
perform Officer’s stated duties, (d) commission of a fraud, theft, dishonesty, or any
knowing or deliberate action or inaction in contravention of a direct order from the
Officer’s direct supervisor which is within the scope of this Agreement and does not
involve the performance of an illegal act or omission to act, (iv) Officer’s
willful violation of any law, rule or regulation of a governmental authority (other
than traffic violations or similar offenses) or final cease-and-desist order, or
(v) entry of an order duly issued by any federal or state regulatory agency
having jurisdiction in the matter removing Officer from office of Employer or its
affiliates or permanently prohibiting him from participation in the conduct of the
affairs of Employer of any of its affiliates. If Officer shall be convicted of a
felony or misdemeanor carrying a jail term, or shall be removed from office and/or
suspended or temporarily prohibited from participating in the conduct 




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	 	 	 	of Employer’s or
any of its affiliates’ affairs by any federal or state regulatory authority having
jurisdiction in the matter, Employer’s obligations under Sections 4(a), 4(b), 4(c), and
4(d) hereof shall be automatically suspended; provided, however, that if the charges
resulting in such removal or prohibition are finally dismissed or if a final judgment
on the merits of such charges is issued in favor of Officer, or if the conviction is
overturned on appeal, then Officer shall be reinstated in full with back pay for the
removal period plus accrued interest at the rate then payable on judgments. During the
period that Employer’s obligations under Sections 4(a), 4(b), 4(c), and 4(d) hereof are
suspended, Officer shall continue to be entitled to receive Additional Benefits under
Section 4(e) until the conviction of the felony, or misdemeanor carrying a jail term,
or removal from office has become final and non-appealable. When the
conviction of the felony or removal from office has become final and non-appealable,
all of Employer’s obligations hereunder shall terminate; provided, however, that the
termination of Officer’s employment pursuant to this Section 5(c) shall not affect
Officer’s entitlement to all benefits in which he has become vested or which are
otherwise payable in respect of periods ending prior to his termination of
employment. Following a termination for Cause, Officer shall be entitled to payment
of his base salary through his last day of employment, and any accrued vacation pay,
but no other payments or benefits hereunder or otherwise whatsoever.
	 
	 	d.	 	Poor Performance. Employer may terminate Officer’s employment under this
Agreement for “Poor Performance.” Poor Performance is a failure of the Officer to
properly meet the duties and responsibilities of his position in a competent fashion,
as determined by the Chief Executive Officer. Following a termination for Poor
Performance, the Officer shall be entitled to payment of his base salary through his
last day of employment, and, within 30 days after such last day, a single payment in an
amount equal to the guaranteed minimum annual compensation as defined in Section 4(c),
but no other payments or benefits hereunder or otherwise whatsoever, subject to the
terms of Section 5(e)(iii).
	 
	 	e.	 	Termination Other Than For Cause or Poor Performance.






	 	(i)	 	Except as provided in Section 5(e)(ii) below, if during the term of
this Agreement, Officer’s employment shall be terminated by Employer other than
for Cause or Poor Performance, then Officer shall be entitled to:






	 	(1)	 	payment of his base salary through his last day
of employment, but no payment on account of any further incentive
compensation hereunder, and
	 
	 	(2)	 	within 30 days after such last day, a single
payment in an amount equal to an amount in cash equal to two times the
guaranteed minimum annual compensation as defined in




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	 	 	 	Section 4(c);
provided, however, if such termination shall occur within two (2) years
after a change in control, as declared by the Board of Directors, and
during the term of this Agreement, then such payment shall be in an
amount equal to an amount in cash equal to two (2) times Officer’s
total compensation (base salary plus bonus) for the Fiscal Year
proceeding such termination, and
	 
	 	(3)	 	for a period of one year following such last
day, the benefits specified in the last sentence of Section 4(e)
hereof.






	 	(ii)	 	Not withstanding anything in this Agreement to the contrary, in the
event it shall be determined that any payment or distribution by Employer or
any other person or entity to or for the benefit of Officer (within the meaning
of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended
(the “Code”)), whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise in connection with, or
arising out of, his employment with Employer or a change in ownership or
effective control of Employer or a substantial portion of its assets (a
“Payment”), would be subject to the excise tax imposed by Section 4999 of
the Code (the “Excise Tax”), the Payments shall include gross-up for any
excise taxes due under IRC 280G or similar “golden parachute” provisions
plus any excise, income, or payroll taxes owed on the payment on the excise
payment amount.
	 
	 	(iii)	 	In order to receive the amounts provided by Sections 5(d) or
5(e), other than Base Salary through the last day of employment, Officer agrees
that for a period of one year after termination of employment either for Poor
Performance or other than for Cause, Officer shall not engage in any business,
whether as an employee, consultant, partner, principal, agent, representative
or stockholder (other than as a stockholder of less than 1% equity interest) or
in any other corporate or representative capacity with any other business
whether in corporate, proprietorship, or partnership form or otherwise, where
such business is engaged in any activity which competes with the business of
Employer or its subsidiaries or affiliates, as conducted on the date Officer’s
employment terminated or which will compete with any proposed business activity
of Employer or its subsidiaries or affiliates, in the planning stage on such
date.
	 
	 	 	 	If the foregoing agreement is determined invalid or unenforceable by a Court
in an interpretation of this Agreement, then Officer agrees that he shall
return the amounts received pursuant to Sections 5(d) and 5(e), other than
the Base Salary through the last day of employment.






	 	f.	 	Resignation. If during the term of this Agreement, Officer shall resign
voluntarily, Officer shall be entitled to payment of his base salary through his




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	 	 	 	last
day of employment, but all other rights to payment or benefits hereunder shall
immediately terminate; provided, however, that the termination of Officer’s employment
pursuant to this Section 5(f) shall not affect Officer’s entitlement to all benefits in
which he has become vested or which are otherwise payable in respect of periods ending
prior to his termination of employment, and all obligations of Officer under Sections
9(f) and 9(j) shall expressly survive such termination. If Officer resigns as a result
of a material breach by Employer, which breach is not cured by Employer within 30 days’
receipt of written notice, then Officer’s resignation will be considered as a
Termination Other Than For Cause pursuant to Section 5(e) for all purposes of this
Agreement.
	 
	 	g.	 	Notice of Termination. Any purported termination by Employer or by Officer
(including any resignation) shall be communicated by a written Notice of Termination to
the other party hereto which indicates the specific termination provision in this
Agreement, if any, relied upon and which sets forth in reasonable detail the facts and
circumstances, if any, claimed to provide a basis for
termination of Officer’s employment under the provision so indicated. For purposes
of this Agreement, no such purported termination shall be effective without such
Notice of Termination. The “Termination Date” shall mean the date specified in the
Notice of Termination, which shall be no less than 30 or more than 60 days from the
date of the Notice of Termination. Notwithstanding any other provision of this
Agreement, in the event of any termination of Officer’s employment hereunder for any
reason, Employer shall pay Officer his full base salary through the Termination
Date, plus any Additional Benefits which have been earned or become payable, but
which have not yet been paid, as of such Termination Date.






	6.	 	Location of Services. Officer is required to perform his services under this Agreement
at such present or future business location of Company as may be designated by the Chief
Executive Officer in the Counties of Los Angeles, Orange or Ventura, California or wherever
the Corporate Headquarters of Employer may be located.






	 	a.	 	In general. If Employer requests Officer to relocate outside of the locations
referenced above, Officer shall have the option of agreeing to such relocation and the
terms of this Agreement shall continue in full force and effect. If Officer declines
to relocate outside of the locations referenced above, either the Officer or Employer
shall provide the other party with a Notice of Termination in accordance with Section
5(g) and the Officer will be deemed to have been terminated pursuant to Section 5(e).
	 
	 	b.	 	Change in Control. For two years following a change in control of the Company,
as declared by the Board of Directors, Employer may only require Officer to relocate
within the three counties identified above and only if such relocation is to the
Corporate Headquarters location of Employer. During this time period, if Employer
requests that Officer relocate outside of the three counties identified above, or
within the three counties, but not to the Corporate




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	 	 	 	Headquarters location, Officer
shall have the option of agreeing to such relocation and the terms of this Agreement
shall continue in full force and effect. If Officer declines to relocate outside of
the locations referenced above, either the Officer or Employer shall provide the other
party with a Notice of Termination in accordance with Section 5(g) and the Officer will
be deemed to have been terminated pursuant to Section 5(e).






	7.	 	Reimbursement of Business Expenses. During the term of this Agreement, Employer shall
reimburse Officer promptly for all business expenditures to the extent that such expenditures
meet the requirements of the Code for deductibility by Employer for federal income tax
purposes or are otherwise in compliance with the rules and policies of Employer and are
substantiated by Officer as required by the Internal Revenue Service and rules and policies of
Employer.






	8.	 	Indemnity. To the extent permitted by applicable law, the Certificate of
Incorporation and the By-Laws of Employer (as from time to time in effect) and any indemnity
agreements entered into from time to time between Employer and Officer, Employer
shall defend and indemnify Officer and hold him harmless for any acts or decisions made by
him in good faith while performing services for Employer (including any subsidiary or
affiliate of Employer), and shall use reasonable efforts to obtain coverage for him under
liability insurance policies now in force or hereafter obtained during the term of this
Agreement covering the other officers or directors of Employer.





9. Miscellaneous.





	 	a.	 	Successorship. This Agreement shall inure to the benefit of and shall be
binding upon Employer, its successors and assigns, but without the prior written
consent of Officer, this Agreement may not be assigned other than in connection with a
merger or sale of Employer or the sale of substantially all the assets of Employer or
similar transaction. Notwithstanding the foregoing, Employer may assign, whether by
assignment agreement, merger, operation of law or otherwise, this Agreement to the
Public Company or to any successor or affiliate of Employer or the Public Company,
subject to such assignee’s express assumption of all obligations of Employer hereunder.
The failure of any successor to or assignee of the Employer’s business and/or assets
in such transaction to expressly assume all obligations of Employer hereunder shall be
deemed a Termination Other Than For Cause pursuant to Section 5(e).
	 
	 	 	 	The obligations and duties of Officer hereby shall be personal and not assignable.
	 
	 	b.	 	Notices. Any notices provided for in this Agreement shall be sent to Employer
at its corporate headquarters, Attention: General Counsel, with a copy to the Director
of Human Resources at the same address, or to such other address as Employer may from
time to time in writing designate, and to Officer at such address as he may from time
to time in writing designate (or his business




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	 	 	 	address of record in the absence of such
designation). All notices shall be deemed to have been given two (2) business days
after they have been deposited as certified mail, return receipt requested, postage
paid and properly addressed to the designated address of the party to receive the
notices.
	 
	 	c.	 	Entire Agreement. This instrument contains the entire agreement of the parties
relating to the subject matter hereof, and it replaces and supersedes any prior
agreements between the parties relating to said subject matter; provided, however, that
all provisions of Employer’s Employee Handbook shall be incorporated herein by this
reference and Officer hereby expressly acknowledges that all provisions of the Employee
Handbook are applicable to his employment relationship with Employer, except to the
extent that any such provisions directly conflict with any term contained in this
Agreement; provided, further, that Officer hereby expressly acknowledges that Officer
has executed Employer’s standard Arbitration Agreement which generally requires that
any dispute under this Agreement will be arbitrated. No modifications or amendments of
this Agreement shall be valid unless made in writing and signed by the parties hereto.
	 
	 	d.	 	Waiver. The waiver of the breach of any term or of any condition of this
Agreement shall not be deemed to constitute the waiver of any other breach of the same
or any other term or condition.
	 
	 	e.	 	California Law. This Agreement shall be construed and interpreted in
accordance with the laws of California, without reference to its conflicts of laws
principles.
	 
	 	f.	 	Confidentiality. Officer hereby acknowledges and agrees that Employer and its
affiliates have developed and own valuable information related to their business,
personnel and customers, including, but not limited to, concepts, ideas, customer
lists, business lists, business and strategic plans, financial data, accounting
procedures, secondary marketing and hedging models, trade secrets, computer programs
and plans, and information related to officers, directors, employees and agents.
Officer hereby agrees that all such information, and all codes, concepts, copies and
forms relating to such information, Employer’s plans and intentions with respect
thereto, and any information provided by Employer or its affiliates to Officer with
respect to any of the foregoing, shall be considered “Confidential Information” for the
purpose of this Agreement. Officer acknowledges and agrees that all such Confidential
Information is a valuable asset of Employer, and if developed by Officer, is developed
by Officer in the course of Officer’s employment with Employer, and is the sole
property of Employer. Officer agrees that he will not divulge or otherwise disclose,
directly or indirectly, any Confidential Information concerning the business or
policies of Employer or any of its affiliates which he may have learned as a result of
his employment during the term of this Agreement or prior thereto as an employee,
officer or director of or consultant to Employer or any of its affiliates, except to
the extent such use or




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	 	 	 	disclosure is (i) necessary or appropriate to the performance of
this Agreement and in furtherance of Employer’s best interests, (ii) required by
applicable law or in response to a lawful inquiry from a governmental or regulatory
authority, (iii) lawfully obtainable from other sources, or (iv) authorized by
Employer. Furthermore, in order to protect the trade secret or confidential information
of Employer, Officer hereby agrees not to accept any employment or engage in any
activities competitive with the Employer for a period of one year after termination of
employment if the loyal and complete fulfillment of the duties of the competitive
employment or activities would inherently call upon Officer to reveal or use any of the
trade secret or Confidential Information of Employer to which Officer had access during
employment by Employer. The provisions of this subsection shall survive the
expiration, suspension or termination, for any reason, of this Agreement.
	 
	 	g.	 	Remedies of Employer. Officer acknowledges that the services he is obligated
to render under the provisions of this Agreement are of a special, unique, unusual,
extraordinary and intellectual character, which gives this Agreement peculiar value to
Employer. The loss of these services cannot be reasonably or adequately compensated in
damages in an action at law and it would be difficult (if not impossible) to replace
these services. By reason thereof, Officer agrees and
consents that if he violates any of the material provisions of this Agreement,
Employer, in addition to any other rights and remedies available under this
Agreement or under applicable law, shall be entitled during the remainder of the
term to seek injunctive relief, from a tribunal of competent jurisdiction,
restraining Officer from committing or continuing any violation of this Agreement.
The provisions of this subsection shall survive the expiration, suspension or
termination, for any reason, of this Agreement.
	 
	 	h.	 	Severability. If any provision of this Agreement is held invalid or
unenforceable, the remainder of this Agreement shall nevertheless remain in full force
and effect, and if any provision is held invalid or unenforceable with respect to
particular circumstances, it shall nevertheless remain in full force and effect in all
other circumstances.
	 
	 	i.	 	No Obligation to Mitigate. Officer shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment or
otherwise and, except as provided in Section 5(a) hereof, no payment hereunder shall be
offset or reduced by the amount of any compensation or benefits provided to Officer in
any subsequent employment.




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	 	j.	 	No Solicitation.






	 	(i)	 	In General. Officer agrees that during employment and for a
period of one year after termination of such employment, Officer
 shall not:






	 	(1)	 	Solicit, or cause to be solicited, any customers
of Employer for purposes of promoting or selling any products or services
competitive with those of Employer;
	 
	 	(2)	 	Solicit business from, or perform services for,
any company or other business entity which at any time during the two
year period immediately preceding Officer’s termination of employment
with Employer was a client of Employer, or its subsidiaries or
affiliates; or
	 
	 	(3)	 	Solicit for employment, offer, or cause to be
offered, employment, either on a full time, part time, or consulting
basis, to any person who was employed by Employer or its subsidiaries or
affiliates on the date Officer’s employment terminated, unless Officer
shall have received the prior written consent of Employer.






	 	(ii)	 	Consideration. The consideration for the foregoing covenants, the
sufficiency of which is hereby acknowledged, is Employer’s agreement to
continue to employ Officer and provide compensation and benefits pursuant to
this Agreement, including but not limited to Section 5 (d), (e), and (f).
	 
	 	(iii)	 	Equitable Relief and Other Remedies. Officer acknowledges and
agrees that Employer’s remedies at law for a breach or threatened breach of any
of the provisions of this Section would be inadequate and, in recognition of
this fact, Officer agrees that, in the event of such a breach or threatened
breach, in addition to any remedies at law, Employer, without posting any bond,
shall be entitled to obtain equitable relief in the form of specific
performance, a temporary restraining order, a temporary or permanent injunction
or any other equitable remedy which may then be available.
	 
	 	(iv)	 	Reformation. The foregoing No Solicitation provisions are intended to
restrict Officer only to the extent permitted by law in the jurisdiction where
Officer is then a resident. To the extent the No Solicitation Provisions would
otherwise be determined invalid or unenforceable by a Court of competent
jurisdiction, such Court shall exercise its discretion in reforming the
provisions of this Section to the end that Officer shall be subject to
reasonable no solicitation provisions that are enforceable by Employer under
the laws of the jurisdiction where Officer is then a resident. If the laws of
the state where the Officer is then a resident completely prohibit any form of
the foregoing




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	 	 	 	covenants, then Employer and Officer understand and agree that
the foregoing covenants are of no effect.






	10.	 	Regulatory Intervention. Notwithstanding anything in this Agreement to the contrary, this
Agreement is subject to the following terms and conditions:






	 	(i)	 	If Officer is suspended and/or temporarily prohibited from
participating in the conduct of Employer’s affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C. 1818
(e)(3) and (g)(1)), Employer’s obligations hereunder shall be suspended as of
the date of service unless stayed by appropriate proceedings. If the charges
in the notice are dismissed, Employer shall (x) pay Officer all or part of the
compensation withheld while Employer’s contract obligations were suspended, and
(y) reinstate any of Employer’s obligations which were suspended.
	 
	 	(ii)	 	If Officer is removed and/or permanently prohibited from
participating in the conduct of Employer’s affairs by an order issued under
Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C. 1818
(e)(4) and (g)(1)), all obligations of Employer under this Agreement shall
terminate as of the effective date of the order, but vested rights of the
parties shall not be affected.
	 
	 	(iii)	 	If Employer is in default (as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act (12 U.S.C. 1813 (x)(1)), all obligations
under this Agreement shall terminate as of the date of default, but any vested
rights of Officer shall not be affected.
	 
	 	(iv)	 	All obligations under this Agreement shall be terminated, except to
the extent determined that continuation of the contract is necessary for the
continued operation of Employer, (x) by the Office of Thrift Supervision
(“OTS”) at the time the Federal Deposit Insurance Corporation (“FDIC”) enters
into an agreement to provide assistance to or on behalf of Employer under the
authority contained in Section 13(c) of the Federal Deposit Insurance Act (12
U.S.C. 1823 (c)); or (y) by the OTS at the time the OTS approves a supervisory
merger to resolve problems related to operation of Employer or when Employer is
determined by the OTS to be in an unsafe or unsound condition. Any rights of
Officer that shall have vested under this Agreement shall not be affected by
such action.
	 
	 	(v)	 	With regard to the provisions of this Section 10(i) through
(iv):






	 	 A.	 	Employer agrees to use its best efforts to oppose any
such notice of charges as to which there are reasonable defenses;




14









 






	 	 B.	 	In the event the notice of charges is dismissed or
otherwise resolved in a manner that will permit Employer to resume its
obligations to pay compensation hereunder, Employer will promptly make such
payment hereunder; and
	 
	 	 C.	 	During the period of suspension, the vested rights of
the contracting parties shall not be affected except to the extent
precluded by such notice.






	 	(vi)	 	Any payments made to Officer by Employer pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with 12 U.S.C. 1828(k) and any regulations promulgated there under.




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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.




EMPLOYER




	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 
	 	 
	Name: Michael W. Perry	 	 
	 
	 	 	 	 	 	 
	Title: Chairman and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	Officer:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	in his individual capacity






Parent Company Guaranty




IndyMac Bancorp, Inc. (“Bancorp”) is the parent holding company of Employer and benefits directly
from the strength and continuity of the management of Employer. Accordingly, Bancorp hereby
assures and guaranties the full and timely satisfaction of all monetary and other obligations of
Employer to Officer under the Agreement. This guaranty is a guaranty of payment and not
collection. This guaranty shall continue in full force and effect notwithstanding any future
modifications, extensions or renewals to the Agreement that may be made by Employer. Bancorp
hereby waives any and all suretyship or other similar defenses that may be available to it with
respect to this guaranty to the full extent permitted by applicable law.



IndyMac Bancorp, Inc.




	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 
	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Printed Name and Title
	 	 
	 
	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 
	 	 	 
	 	 






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APPENDIX A




ANNUAL INCENTIVE PLAN




	 	 	 	 	 
	Officer Name:

	 	Frank Sillman

	Annual Base Rate for 2003:

	 	$	 200,000	 
	Target Bonus for 2003:

	 	$	 250,000	 






Annual Incentive Awards:




	 	1.	 	Officer shall be eligible for an Annual Incentive Award based on the applicable
year’s compensation plan to be agreed upon between Officer and Officer’s Senior
Manager.




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