exv10w3



 








EXHIBIT 10.3




EMPLOYMENT AGREEMENT




     This Employment Agreement (the “Agreement”) is entered into effective July 1, 2005, by and
between IndyMac Bank F.S.B. (“Employer”) and Terrence O. Hughes (“Officer”).



     1. Term. Employer agrees to employ Officer and Officer agrees to serve Employer and its
affiliates, in accordance with the terms and conditions of this Agreement, for a period of three
(3) years, commencing on the date first set forth above, unless Officer’s employment is earlier
terminated as herein provided.



     2. Position, Duties and Responsibilities. Officer shall serve as an Executive Vice President
of Employer, or of one of Employer’s affiliated companies, as determined by Employer. Officer
agrees to devote Officer’s full-time best efforts to the business and affairs of Employer and its
affiliates, to perform such executive and managerial duties as may be assigned to Officer, and to
diligently promote the business, affairs and interests of Employer and its affiliates. If so
requested by Employer, Officer agrees to serve concurrently, and without additional compensation,
as an officer of both Employer and of one or more of Employer’s affiliates, including its
subsidiaries.



     3. Outside Affiliations. During the term of this Agreement, Officer shall not compete, either
directly or indirectly, with the business of Employer or its affiliates. Except as otherwise
provided in this Agreement, Officer may make and manage personal business investments of Officer’s
choice and may serve in any capacity with any civic, educational or charitable organization, or
with any governmental entity or trade association, provided that such activities do not interfere
with or conflict with Officer’s duties under this Agreement. Officer may not sit on the board of
directors of any civic, educational or charitable organization without first obtaining Employer’s
written consent.



     4. Compensation and Benefits. In consideration of the performance of Officer’s duties under
this Agreement, Employer or its affiliates shall provide to Officer the compensation set forth
below. All compensation paid to Officer by Employer or by any of its affiliates shall be
aggregated in determining whether Officer has received the benefits described herein, but without
prejudice to the allocation of costs among the entities to which Officer renders services under
this Agreement.



          4.1 Base Salary. Employer shall pay to Officer a base salary at the annual rate set forth in
Appendix A. Officer’s base salary shall be payable in equal installments no less frequently than
every month. Employer may, in its sole discretion, increase Officer’s base salary during the term
of this Agreement, but Employer will not decrease Officer’s base salary below the amount set forth
in Appendix A.




          4.2 Incentive Compensation. For each calendar year during the term of this Agreement,
Employer shall pay to Officer an incentive compensation award in an amount to be determined
pursuant to the then-applicable Incentive Plan set forth in Appendix A. The terms of the Incentive
Plan shall be agreed upon by Employer and Officer during the first quarter of each



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new calendar year during the term of this Agreement. Any incentive compensation award payable
to Officer pursuant to the Incentive Plan shall be paid no later than thirty (30) days after
completion and publication of the applicable audited financial statements for the relevant calendar
year or calendar quarter. Except as otherwise provided herein, any incentive compensation award
described in the Incentive Plan, and Officer’s base salary to the extent that the incentive
compensation award is a percentage of Officer’s base salary, shall be prorated to the extent that
Officer is employed for less than twelve (12) full months during the relevant calendar year.




          4.3 Stock Options and Restricted Stock. 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, if any, shall be granted
according to the Public Company’s annual equity incentive plan and the management of the plan for
Officer’s of a similar level, as of the time of the grant. The stock options and/or restricted
stock herein described shall be granted at the same time as the Public Company grants stock options
and/or restricted stock to its other officers.




          All stock options and restricted stock granted herein: (i) shall be granted pursuant to the
Public Company’s current stock option plan, or such other stock option plan or plans as may come
into effect during the term of this Agreement, (ii) shall be priced and shall vest in accordance
with the terms set by the Compensation Committee or as otherwise set forth in this Agreement, and
(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.




          The effect of Officer’s termination on the vesting of any stock options or restricted stock
granted under this Agreement is described in Section 5.2. In the event that 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 twelve
(12) months. In the event that 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 six (6) months. In the
event that 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
three (3) months.




          4.4 Additional Benefits. Officer shall be entitled to paid vacation, subject to Employer’s
vacation policies in effect from time to time. Officer shall also be entitled to participate in
Employer’s life and medical insurance plans, and in any stock purchase, executive compensation,
pension, profit-sharing, deferred compensation, or other benefit or bonus plans that are offered to
Employer’s employees generally, or to officers of Employer at a level similar




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to Officer’s level, subject to the terms and conditions, including any applicable eligibility
requirements, of any such plan. This Agreement shall not affect or otherwise modify the provisions
of any other compensation, retirement or other benefit program or plan of Employer.




     5. Termination of Employment. This Agreement, the compensation and benefits provided under
this Agreement, and Officer’s employment with Employer, are terminable as herein provided.



          5.1 Grounds for Termination. Employer may, in its sole and absolute discretion, terminate
this Agreement and Officer’s employment on the following grounds:




                    5.1.1 Disability. In the event of Officer’s inability to perform his or her duties (with or
without reasonable accommodation) because of illness, injury or similar incapacity for four (4)
consecutive calendar months, or for shorter periods aggregating eighty (80) or more business days
in any twelve (12)-month period and upon a finding by Employer, in its sole discretion, that
allowing Officer to remain on a leave status beyond that period of time will result in an undue
hardship to the Employer (“Disability”), this Agreement and Officer’s employment may be terminated
by Employer by giving Notice of Termination as provided in Section 9.1.



                    5.1.2 Death. In the event of Officer’s death during the term of this Agreement (“Death”),
this Agreement and Officer’s employment shall immediately and automatically terminate.



                    5.1.3 Cause. Employer may terminate this Agreement and Officer’s employment by giving Notice
of Termination at any time for cause. “Cause” means any act or omission to act by Officer which
constitutes, in the sole discretion of Employer, (i) a material breach of this Agreement that is
committed in bad faith or without reasonable belief that such act or omission is in the best
interests of Employer, (ii) negligence or misconduct resulting in a material loss to Employer,
(iii) gross negligence, (iv) an intentional and material failure to perform Officer’s assigned
duties, (v) fraud, theft or dishonesty, (vi) willful violation of any law, rule or regulation of a
governmental authority, other than traffic violations, (vii) regular alcohol or drug abuse, (viii)
violation of the Company’s Code of Conduct, (ix) such other conduct as is reasonably likely to
cause Employer public disgrace or disrepute, or (x) entry of an order by any state or federal
regulatory agency either removing Officer from Officer’s position with Employer or its affiliates
or prohibiting Officer from participating in the conduct of the affairs of Employer or any of its
affiliates.



                    5.1.4 Poor Performance. Employer may terminate this Agreement and Officer’s employment by
giving Notice of Termination at any time for poor performance. “Poor Performance” means a failure
of Officer to properly meet, in the sole discretion of Employer, the duties and responsibilities of
Officer’s position in a competent fashion.



                    5.1.5 No Cause. Employer may, in its sole and absolute discretion, terminate this Agreement
and Officer’s employment by giving Notice of Termination at any time for no reason, or for any
reason whatsoever other than Death, Disability, Cause or Poor Performance (“No Cause”).



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                    5.1.6 Resignation. Should Officer voluntarily resign Officer’s employment, either by giving
Notice of Termination during the term of this Agreement or otherwise (“Resignation”), Officer’s
employment shall terminate immediately, unless Officer and Employer mutually agree on a later
effective date of termination.



     5.2 Benefits Upon Termination. Notwithstanding any other agreements to the contrary, the
following benefits shall be the only termination benefits Officer is entitled to from Employer.



                    5.2.1 Disability. Regardless of Officer’s position or years of service with Employer or its
affiliates, in the event that Officer’s employment terminates by reason of Disability, as defined
in Section 5.1.1, Officer shall be entitled to receive (i) all accrued but unpaid vacation benefits
as of the Termination Date, as defined in Section 9.1, (ii) any other benefits already vested as of
the Termination Date under any of Employer’s applicable stock option, pension, bonus or other
similar plans in which Officer participated immediately prior to termination (“Vested Benefits”),
(iii) the immediate vesting, to the extent not otherwise vested, of all outstanding stock options
or similar awards previously granted to Officer under Section 4.3, and (iv) Officer’s incentive
compensation award for the year in which Officer became disabled, prorated to the Termination Date.
Officer shall also be entitled to receive the following benefits for a period of time commencing
from the Termination Date and continuing for the number of months remaining in the term of this
Agreement, or until Officer’s death, whichever first occurs: (v) continuation of Officer’s base
salary, reduced by 50%, minus the amount of any cash payments due to Officer under the terms of
Employer’s disability insurance or other disability benefit plan funded by Employer or Employer’s
tax-qualified Defined Benefit Pension Plan, all subject to Section 5.2.8, and (vi) continuation of
benefits substantially equivalent to the life, disability and medical insurance policies maintained
by Employer on behalf of Officer and Officer’s spouse and dependents, if any, immediately prior to
the Notice of Termination, but then only to the extent that Officer is not entitled to comparable
benefits from other employment.



                    5.2.2 Death. Regardless of Officer’s position or years of service with Employer or its
affiliates, in the event of Officer’s Death, as defined in Section 5.1.2, Employer shall pay to
such person or persons as Officer shall have designated in writing or, in the absence of such a
designation, to Officer’s estate, (i) all accrued but unpaid vacation benefits as of the date of
Death, (ii) any Vested Benefits, (iii) to the extent not otherwise vested, all outstanding stock
options or similar awards previously granted to Officer, which will vest immediately upon Officer’s
Death, and (iv) Officer’s incentive compensation award for the year in which Death occurs, prorated
to date of Death. Employer shall also, within forty-five (45) days following Officer’s Death, pay
to Officer’s designee or to Officer’s estate an amount equal to two times Officer’s last annual
base salary. Employer shall also, for a period of twelve (12) months following the date of
Officer’s Death, pay the cost of any continued coverage under Employer’s group medical insurance
plan for the benefit of Officer’s spouse and dependents, if any, should they elect continued
coverage under COBRA, provided they were covered under the plan immediately prior to Officer’s
Death.



                    5.2.3 Cause. Regardless of Officer’s position or years of service with Employer or its
affiliates, in the event of Officer’s termination for Cause, as defined in Section 5.1.3, Officer
shall be entitled to payment of Officer’s base salary through the



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Termination Date, to any accrued but unpaid vacation benefits, and to any other Vested
Benefits, but to no other payments or benefits whatsoever.




                    5.2.4 Poor Performance. In the event of Officer’s termination for Poor Performance, as
defined in Section 5.1.4, the benefits payable to Officer shall depend upon Officer’s position and
years of continuous service to Employer or its affiliates. If Officer had five (5) or fewer years
of continuous service as of the Termination Date, Officer shall be entitled to payment of Officer’s
base salary through the Termination Date, and to continuation of Officer’s base salary, reduced by
50%, for the lesser of one year or the number of months remaining in the term of this Agreement as
of the Termination Date, subject to Section 5.2.8.



                    If Officer had more than five (5) years of continuous service as of the Termination Date, or
if Officer is a director, officer or principal stockholder of Employer or of any of its affiliates
as described in Section 16(a) of the Exchange Act (“Section 16 Employee”), Officer shall be
entitled to payment of Officer’s base salary through the Termination Date, and to continuation of
Officer’s base salary for the lesser of one year or the number of months remaining in the term of
this Agreement as of the Termination Date, subject to Section 5.2.8, and to the additional benefit
described in Section 5.2.9, if allowed by law.



                    Regardless of Officer’s position or years of service, Officer shall also be entitled to any
accrued but unpaid vacation benefits, to any other Vested Benefits, and to Officer’s incentive
compensation award for the year in which Officer was terminated, prorated to the Termination Date,
but to no other payments or benefits whatsoever.



                    5.2.5 No Cause. In the event Officer’s employment is terminated for No Cause, as defined in
Section 5.1.5, Officer shall be entitled to (a) payment of Officer’s base salary through the
Termination Date, (b) to continuation of Officer’s base salary, increased by 100%, for six months
and then continuation of Officer’s base salary for an additional six months, provided however that
in the event that termination under this Section 5.2.5 occurs within the last twelve months of the
term of this Agreement, the Officer’s salary continuation benefits shall be reduced prorate by the
number of months remaining in the term of this Agreement as of the Termination Date. All payments
under this section 5.2.5 shall be subject to Section 5.2.8, and to the additional benefit described
in Section 5.2.9, if allowed by law and by this Agreement.



                    Regardless of Officer’s position or years of service, Officer shall also be entitled to any
accrued but unpaid vacation benefits, to any other Vested Benefits, to Officer’s incentive
compensation award for the year in which Officer was terminated, prorated to the Termination Date,
and to the immediate vesting, to the extent not otherwise vested, of all outstanding stock options
or similar awards previously granted to Officer under Section 4.3, but only to the extent that any
such outstanding stock options or similar awards would, by their terms, vest within one (1) year of
the Termination Date. In addition, Officer shall be entitled, for a period of twelve (12) months
following the Termination Date, to continuation of benefits substantially equivalent to the life,
disability and medical insurance policies maintained by Employer on behalf of Officer and Officer’s
spouse, or domestic partner, and dependents, if any, immediately prior to the Notice of
Termination, but only to the extent that Officer is not entitled to comparable benefits from other
employment.



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                    5.2.6 Resignation. In the event of Officer’s Resignation, as defined in Section 5.1.6,
Officer shall be entitled to payment of Officer’s base salary through the Termination Date, to any
accrued but unpaid vacation benefits, and to any other Vested Benefits, but to no other payments or
benefits whatsoever.



                    5.2.7 Change in Control.



                    5.2.7.1 Determination of Change in Control. For purposes of this section 5.2.7, “Company”
shall mean any of the Employer, IndyMac Resources, Inc., IndyMac Intermediate Holdings, Inc. or
IndyMac Bancorp, Inc. Subject to Section 5.2.7.2, a “Change in Control” shall be deemed to occur
for purposes of this Agreement upon the occurrence of any one of the following events:




(A) An acquisition of any common stock or other
“Voting Securities” (as hereinafter defined) of the
Company by any “Person” (as the term person is used for
purposes of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)),
immediately after which such Person has “Beneficial
Ownership” (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of twenty five percent (25%) or
more of the then outstanding shares of the Company’s
common stock or the combined voting power of the
Company’s then outstanding Voting Securities; provided,
however, in determining whether a Change in Control has
occurred, Voting Securities which are acquired in a
“Non-Control Acquisition” (as hereinafter defined) shall
not constitute an acquisition which would cause a Change
in Control. For purposes of this Plan, (1) “Voting
Securities” shall mean the Company’s outstanding voting
securities entitled to vote generally in the election of
directors and (2) a “Non-Control Acquisition” shall mean
an acquisition by (a) the Company or any of its
Subsidiaries, (b) an employee benefit plan (or a trust
forming a part thereof) maintained by (x) the Company, or
(y) any corporation or other Person of which a majority
of its voting power or its voting equity securities or
equity interest is owned, directly or indirectly, by the
Company (for purposes of the definition in this
subsection 5.2.7.1, a “Subsidiary”), or (c) any Person in
connection with a “Non-Control Transaction” (as
hereinafter defined).




(B) The individuals who, as of the Effective
Date, were members of the Board of Directors of IndyMac
Bancorp, Inc. (the “Incumbent Board”), cease for any
reason to constitute at least a majority of the members
of the Board; provided, however, that if the election, or
nomination for election by the Company’s common
stockholders, of any new director was approved by a vote
of at least two-thirds of the Incumbent Board, such new
director shall, for purposes of this Agreement be
considered as a member of the Incumbent Board; provided
further, however, that no individual shall be considered
a member of the Incumbent Board if such individual
initially assumed office as a result of either an actual
or threatened “Election Contest” (as described in Rule
14a-11 promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents
by or on behalf of a Person other
than the Board (a “Proxy Contest”) including by reason of
any agreement intended to avoid or settle any Election
Contest or Proxy Contest; or




(C) The consummation of:




	 	(1)	 	A merger, consolidation, or
reorganization involving the Company or the sale
or other disposition of all or substantially all
of the assets of the Company to any Person or
Persons other than a transfer to a Subsidiary,
(a “Business Transaction”), unless such Business
Transaction is a “Non-Control Transaction.” A
“Non Control Transaction” shall mean a Business
Transaction where:






	 	(a)	 	the stockholders of the Company,
immediately before such Business
Transaction, own directly or indirectly
immediately following such Business
Transaction more than sixty percent (60%)
of the combined voting power of the
outstanding Voting Securities of the
corporation resulting from such merger,
consolidation or reorganization or
purchasing




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	 	 	 	such assets or stock (the
“Surviving Corporation”) in substantially
the same proportion as their ownership of
the Voting Securities immediately before
such Business Transaction;
	 
	 	(b)	 	the individuals who were members
of the Incumbent Board immediately prior
to the execution of the agreement
providing for such Business Transaction
constitute at least a majority of the
members of the board of directors of the
Surviving Corporation, or in the event
that, immediately following the
consummation of such Business
Transaction, a corporation beneficially
owns, directly or indirectly, a majority
of the Voting Securities of the Surviving
Corporation, the board of directors of
such corporation; and
	 
	 	(c)	 	no Person other than (i) the
Company, (ii) any Subsidiary, (iii) any
employee benefit plan (or any trust
forming a part thereof) maintained by the
Company, the Surviving Corporation or any
Subsidiary, or (iv) any Person who,
immediately prior to such Business
Transaction had Beneficial Ownership of
twenty-five percent (25%) or more of the
then outstanding Voting Securities or
common stock of the Company, has
Beneficial Ownership of twenty-five
percent (25%) or more of the combined
voting power of the Surviving
Corporation’s then outstanding Voting
Securities or its common stock; or






	 	(D)	 	The Company’s stockholders approve a complete liquidation or dissolution of the Company.





                    Notwithstanding the foregoing provisions of this subsection 5.2.7.1, a Change in Control
shall not be deemed to occur solely because any Person (the “Subject Person”) acquired Beneficial
Ownership of more than the permitted amount of the then outstanding common stock or Voting
Securities as a result of the acquisition of common stock or Voting Securities by the Company
which, by reducing the number of shares of common stock or Voting Securities then outstanding,
increases the proportional number of shares Beneficially Owned by the Subject Person; provided,
however, that if a Change in Control would occur (but for the operation of this sentence) as a
result of the acquisition of common stock or Voting Securities by the Company, and after such share
acquisition by the Company, the Subject Person becomes the Beneficial Owner of any additional
common stock or Voting Securities which increases the percentage of the then outstanding common
stock or Voting Securities Beneficially Owned by the Subject Person, then a Change in Control shall
occur.



                    5.2.7.2 Notwithstanding the provisions of this section 5.2.7.2, the Board, in the exercise of
its reasonable discretion, may, but need not, make an affirmative determination prior to the
consummation of a Business Transaction (as defined in subsection 5.2.7.1 (C)) that, in light of all
circumstances, such Business Transaction will be not be treated as a Change in Control for purposes
of this Agreement, by reason of it being in essence a “combination of equals” or for any other
reason. In making any such determination, the Board shall give due consideration, without
limitation, to the likely effect of such transaction(s) on the makeup of the stockholder base, the
Board and the senior management of the Company.



                    5.2.7.3 Effect of Change of Control. As used herein, a “Change in Control” shall be deemed
to have occurred if any person or entity other than IndyMac Bank Corp., Inc. becomes the beneficial
owner, as defined in Rule 13d-3 under the Exchange Act, of more than 50% of the combined voting
power of the outstanding stock of Employer, or acquires all or substantially all of the assets of
Employer.



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                    If a Change in Control should occur during the term of this Agreement, and should Officer’s
employment be terminated within one (1) year following the Change in Control (i) by reason of
Officer’s Disability or Death, or (ii) either for No Cause or because this Agreement expires and is
not renewed by Employer or its successor on terms that are substantially comparable to the terms of
this Agreement, then all outstanding stock options or similar awards previously granted to Officer
under Section 4.3 that have not already vested shall vest on the Termination Date.



                    If a Change in Control should occur during the term of this Agreement, and should Officer’s
employment continue without termination beyond the first anniversary of the Change in Control, then
all outstanding stock options or similar awards previously granted to Officer under Section 4.3
that have not already vested shall vest upon the first anniversary of the Change in Control.



                    If a Change in Control should occur during the term of this Agreement, and should Officer’s
employment be terminated within two (2) years following the Change in


Control either for No Cause or because this Agreement expires and is not renewed by Employer
or its successor on terms that are substantially comparable to the terms of this Agreement, then
Officer shall be entitled, in addition to the foregoing and in lieu of any other benefits described
elsewhere in this Agreement, to (i) any accrued but unpaid vacation benefits, (ii) any other Vested
Benefits, (iii) payment of Officer’s base salary through the Termination Date, (iv) continuation of
Officer’s base salary, increased by 100%, for a period of twelve (12) months following the
Termination Date, (v) payment of Officer’s incentive compensation award, without proration, for the
year in which Officer was terminated, also increased by 100%, within fifteen (15) days of Officer’s
Termination Date, (vi) the additional benefit described in Section 5.2.9, if allowed by law, and
(vii) continuation, for a period of twelve (12) months following the Termination Date, of benefits
substantially equivalent to the life, disability and medical insurance policies maintained by
Employer on behalf of Officer and Officer’s spouse and dependents, if any, immediately prior to the
Notice of Termination, but only to the extent that Officer is not entitled to comparable benefits
from other employment.



                    5.2.8 Other Employment. Employer’s obligation to pay salary continuation benefits to Officer
in the event of Officer’s termination for Disability, Poor Performance or No Cause shall
immediately cease in the event that Officer obtains employment for compensation (whether as an
employee, independent contractor, consultant or otherwise) with any person or entity.



                    5.2.9 Excise Tax. In the event it should be determined that any payment or distribution by
Employer as the result of Officer’s termination due to Poor Performance or No Cause would be
subject to the excise tax imposed by Section 4999 of the Internal Revenue Code, the affected
payments or distributions shall include gross-up for any excise taxes due under Section 280G of the
Code or similar “golden parachute” provisions, plus any excise, income, or payroll taxes owed on
the excise payment amount. In order to be eligible for this benefit, Officer must have had more
than five (5) years of continuous service to Employer or its affiliates as of the Termination Date,
or must be a Section 16 Employee. If the law prohibits any form of the foregoing benefit, then
Employer and Officer understand and agree that this Section 5.2.9 is of no effect.



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                    5.2.10 Release of Claims. Employer’s obligation to pay any salary continuation, benefits
continuation or other non-vested benefits in the event of the termination of Officer’s employment
due to Disability, Poor Performance or No Cause, as defined in Sections 5.1.1, 5.1.4 and 5.1.5, is
expressly conditional upon Officer first executing a general release of all claims or causes of
action, whether known or unknown, that Officer may have or hold against Employer including, but not
limited to, any claims for breach of contract, for employment discrimination or harassment, for
wrongful termination or for other tortious conduct in connection with Officer’s employment or its
termination. Such release agreement shall be prepared by Employer, and shall include an express
waiver by Officer of California Civil Code section 1542.



     6. No Solicitation, Non-Competition and Confidentiality. In order to receive and retain the
salary continuation, benefits continuation or other non-vested benefits payable to Officer in the
event of termination by reason of Disability, Poor Performance or No Cause, as defined in Sections
5.1.1, 5.1.4 and 5.1.5, Officer agrees to the following:



          6.1 Non-Competition. During employment and (a) if the termination is by reason of Disability
or Poor Performance, for a period of three (3) months after termination of employment, or (b) if
the termination is by reason of No Cause, for a period of six (6) months after termination of
employment, Officer shall not engage in any business, whether as an employee, consultant, partner,
principal, agent, representative or stock holder (other than as a holder of less than one percent
(1%) equity interest), or in any other corporate or representative capacity, with any other
business that is engaged in any activity that competes with the business of Employer or its
affiliates, as conducted as of the date of the termination of Officer’s employment.




          6.2 No Solicitation. During employment and for a period of one (1) year after termination of
employment, Officer shall not:




                    6.2.1 Solicit, or cause to be solicited, any customers of Employer or its affiliates for
purposes of promoting or selling any products or services competitive with those of Employer or its
affiliates;



                    6.2.2 Solicit business from, or perform services for, any company or other business entity
which at any time during the two (2) year period immediately preceding Officer’s termination of
employment with Employer was a client of Employer or its affiliates; or



                    6.2.3 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 affiliates on the
date Officer’s employment terminated, unless Officer shall have received the prior written consent
of Employer.



     6.3 Basis for Non-Competition and Non-Solicitation Agreements. Officer understands and agrees
that the non-competition and non-solicitation agreements contained in sections 6.1 and 6.2 above
are necessary to Employer because Officer has access to, and in order to protect the
confidentiality of, Employer’s “Confidential Information” (as that term is defined in section 6.4
below) from intentional and/or inadvertent disclosure or use upon or after the



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termination of
Officer’s employment with Employer.




          6.4 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 Officer 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
Officer may have learned as a result of Officer’s 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 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.




          6.5 Reimbursement. If any part of this Section 6 is determined to be invalid or unenforceable
for any reason by a court of competent jurisdiction, then Officer and Employer agree that these
covenants shall be of no effect, that Officer shall immediately return to Employer the salary
continuation, benefits continuation or other non-vested compensation described in Section 5.2 that
has been paid to Officer after termination of Officer’s employment, and that Officer shall not be
entitled to any further sums from Employer.




     7. Reimbursement of Business Expenses. During the term of this Agreement, Employer shall
promptly reimburse to Officer all business expenses reasonably incurred by Officer in the
performance of Officer’s duties under this Agreement to the extent that such expenditures meet
Internal Revenue Code requirements 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 in accordance with applicable requirements of the Code and Treasury Regulations, and the
applicable rules and policies of Employer.



     8. Indemnity. To the extent permitted by applicable law and by Employer’s articles, bylaws or
other governing instruments, Employer shall defend and indemnify Officer and hold Officer harmless
for any acts or decisions made by Officer in good faith and while performing approved services for
Employer or its affiliates, and Employer shall use reasonable efforts to obtain coverage for
Officer under liability insurance policies then in effect which cover the other officers or
directors of Employer.



     9. Miscellaneous.



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          9.1 Notice of Termination and Termination Date. Any termination of this Agreement by Employer
or by Officer (including any Resignation) shall be communicated by a written Notice of Termination
to the other party, stating the specific termination provision in this Agreement relied upon, if
any, and setting forth in reasonable detail the facts and circumstances, if applicable, claimed to
provide a basis for termination. The effective date of termination (“Termination Date”) shall be
(i) the date specified in the Notice of Termination, or (ii) in the event of Officer’s Death, the
date of Death, or (iii) in the event of Officer’s resignation without providing Notice of
Termination, Officer’s last day of employment, or (iv) in the event of a Change in Control, either
the date specified in the Notice of Termination or the last day of the term of this Agreement
should same not be renewed on substantially comparable terms within two (2) years following the
Change in Control.




          9.2 Successorship. This Agreement shall inure to the benefit of and shall be binding upon
Employer, its successors and assigns. This Agreement may not be assigned without the prior written
consent of the parties, 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, without Officer’s consent, 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 for No Cause, pursuant to Section
5.1.5.




          9.3 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 Human Resources department
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 Officer may from time to time in writing designate (or
Officer’s business 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.




          9.4 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 and any other written personnel policies of Employer shall be incorporated herein
by this reference, and Officer hereby expressly acknowledges that all provisions of the Employee
Handbook and other written policies are applicable to Officer’s 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 MUTUAL AGREEMENT TO ARBITRATE CLAIMS CONCURRENTLY HEREWITH, WHICH
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.





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          9.5 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.




          9.6 California Law. This Agreement shall be construed and interpreted in accordance with the
laws of California, without reference to its conflict of laws principles.




          9.7 Injunctive Relief. Employer and Officer acknowledge that the services Officer 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,
if either party violates any of the material provisions of this Agreement, the parties shall, in
addition to any other rights and remedies available under this Agreement, or under applicable law
or the Mutual Agreement to Arbitrate Claims, be entitled to seek injunctive
relief, as permitted by law, from a court or tribunal of competent jurisdiction, restraining
the other from committing or continuing any violation of this Agreement. The provisions hereof
shall survive the expiration, suspension or termination, for any reason, of this Agreement.




          9.8 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.




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




                    9.9.1 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 (i) pay Officer all or part of the compensation withheld
while Employer’s contract obligations were suspended, and (ii) reinstate any of Employer’s
obligations which were suspended.



                    9.9.2 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 Officer’s vested rights shall not be
affected.



                    9.9.3 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 Officer’s vested rights shall not be affected.



                    9.9.4 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,
(i) by the Office of Thrift Supervision (“OTS”) at the time the Federal Deposit



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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 (ii) 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.




                    9.9.5 With regard to the provisions of this Section 9.9:



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



                         (ii) 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



                         (iii) During the period of suspension, the vested rights of the contracting parties shall not
be affected except to the extent precluded by such notice.



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                    9.9.6 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. Section 1828(k) and any regulations
promulgated thereunder.



EMPLOYER:




	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	Dated:	 	 
	 

	 	 

	 	 	 	 	 	 

	 

	 	          Michael W. Perry	 	 	 	 	 	 
	 

	 	          Chairman and Chief Executive Officer	 	 	 	 	 	 






OFFICER:




	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Dated:	 	 
	 	 	 	 	 	 	 
	Name:

	 	Terrence O. Hughes	 	 	 	 	 	 






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APPENDIX A




ANNUAL INCENTIVE PLAN




	 	 	 	 	 
	Officer Name:

	 	Terrence O. Hughes

	Annual Base Rate for 2005:

	 	$	400,000	 
	Target Bonus for 2005:

	 	$	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.




Other Terms Applicable to Compensation and Benefits for Calendar Year 2005.




1. For 2005, Officer’s
Actual Target Bonus shall be $125,000, as a result of Officer’s July 1, 2005
start date.




2. For purposes of determining Officer’s equity incentive grants for 2005, expected to be granted
in March 2006, Officer’s base salary and actual bonus for 2005 shall be annualized.




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