Employment Agreement [Amendment] - IndyMac Inc. and S. Blair Abernathy
AMENDMENT TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (the "Amendment") is made, dated and
effective as of September 1, 1998 by and between IndyMac, Inc. ("Employer") and
S. Blair Abernathy ("Officer"). Capitalized terms not otherwise defined herein
shall have the respective meanings given such terms in the Employment Agreement
(as defined below).
WITNESSETH
WHEREAS, Employer and Officer have entered into that certain Employment
Agreement dated as of September 1, 1997 (the "Employment Agreement"), pursuant
to which Officer has agreed to serve, among other positions, as Executive Vice
President and Chief Investment Officer of Employer;
WHEREAS, Employer has proposed and Officer has agreed to amend the
Employment Agreement to provide for the grant of restricted stock, in addition
to stock options, and to clarify certain provisions of the Employment Agreement;
and
WHEREAS, Employer and Officer wish to amend the Employment Agreement on the
terms and subject to the conditions set forth herein below.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Section 4(c) of the Employment Agreement is hereby amended to read in
its entirety as follows:
"Stock Options and Restricted Stock. Beginning with the 1997 Fiscal Year
and in respect of each of the following Fiscal Years during the term of
this Agreement, Holdings may grant to Officer stock options and/or
restricted stock for such number of shares of Holdings' common stock as the
Compensation Committee in its sole discretion determines, taking into
account Officer's and Holdings' performance and the competitive practices
then prevailing regarding the granting of stock options and restricted
stock. 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(c) in respect of a Fiscal Year
shall be granted at the same time as Holdings grants stock options and/or
restricted stock to its other officers in such Fiscal Year.
<PAGE>
All stock options granted in accordance with this Section 4(c): (i) shall
be granted pursuant to Holdings' current stock option plan, or such other
stock option plan or plans as may be in effect or come into effect during
the term of this Agreement, (ii) shall have a per share exercise price
equal to the fair market value (as defined in the current Plan or such
other plan or plans) of the common stock at the time of grant, (iii) shall
become exercisable in three equal installments on each of the first three
anniversaries of the date of grant, (iv) shall become immediately and fully
exercisable in the event that Officer's employment is terminated due to
death or Disability or by Employer other than for Cause (as defined in
Section 5(c)), or in the event that this Agreement terminates according to
its terms (as provided in Section 5(g)), and (v) shall be subject to such
other reasonable and consistent terms and conditions as may be determined
by the Compensation Committee and set forth in the agreement or other
document evidencing the award. All restricted stock granted in accordance
with this Section 4(c): (i) shall be granted pursuant to Holdings' current
stock option plan, or such other stock option plan or plans as may be in
effect 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 become immediately and fully vested in the event
that Officer's employment is terminated due to death or Disability or by
Employer other than for Cause (as defined in Section 5(c)), or in the event
that this Agreement terminates according to its terms (as provided in
Section 5(g)), provided, however, that with respect to a termination by
Employer other than for Cause, restricted stock granted in accordance with
this Section 4(c) shall become immediately and fully vested only to the
extent that such restricted stock would, under the terms of such restricted
stock, vest within twelve (12) months of such termination, and (iv) shall
be subject to such other reasonable and consistent terms and conditions as
may be determined by the Compensation Committee and set forth in the
agreement or other document evidencing the award."
2. The last sentence of Section 5(b) is hereby amended to read in its
entirety as follows:
"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/she 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(c) will vest upon his/her death."
3. Section 5(d)(i) of the Employment Agreement is hereby amended to read
in its entirety as follows:
2
<PAGE>
"If during the term of this Agreement, Officer's employment shall be
terminated by Employer other than for Cause, or by Officer because Employer
has committed a "Material Breach" of this Agreement, then Employer shall:
(1) pay Officer in a single payment as soon as practicable after the
Termination Date, but in no event later than thirty (30) days
thereafter, (A) an amount in cash equal to one year of Officer's base
salary at the Annual Rate at the Termination Date and (B) an amount
equal to the incentive compensation paid or payable to Officer
pursuant to Section 4(b) in respect of the Fiscal Year immediately
preceding the Fiscal Year in which Officer's Termination Date occurs;
provided, however, that in the event the first anniversary of the
Termination Date occurs on a date prior to the end of a Fiscal Year,
Employer shall also pay Officer an amount equal to the product of (x)
the incentive compensation paid or payable to Officer pursuant to
Section 4(b) in respect of the Fiscal Year immediately preceding the
Fiscal Year in which Officer's Termination Date occurs and (y) a
fraction, the numerator of which is (i) the number of days elapsed
since the end of the immediately preceding Fiscal Year through
Officer's Termination Date and (ii) the denominator of which is 365,
and
(2) until the first anniversary of such Termination Date, provide the
benefits specified in the last sentence of Section 4(d) hereof.
Employer shall also pay in a single payment as soon as practicable after
the Termination Date, but in no event later than thirty (30) days
thereafter, any unpaid incentive compensation payable to Officer pursuant
to Section 4(b) in respect of the Fiscal Year immediately preceding the
Fiscal Year in which Officer's Termination Date occurs, as calculated
pursuant to the terms and conditions of this Agreement, including, but not
limited to, the terms of Appendix A. For the purpose of this provision,
the term "Material Breach" shall mean a material breach of this Agreement
by Employer which is committed in bad faith and which is not remedied
within a reasonable period of time after receipt of written notice from
Officer specifying such breach.
4. Section 8(k)(i)(A) of the Employment Agreement is hereby amended to
read in its entirety as follows:
"engage in any business, whether as an employee, consultant, partner,
principal, agent, representative or stockholder (other than as a
stockholder of less than a one percent (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, including Countrywide Credit
Industries, Inc. and its subsidiaries) as conducted on the date Officer's
3
<PAGE>
employment terminated or which will compete with any proposed business
activity of Employer (or its subsidiaries or affiliates, including
Countrywide Credit Industries, Inc. and its subsidiaries) in the planning
stage on such date;"
5. No Other Amendment. Except as expressly amended herein, the Employment
------------------
Agreement shall remain in full force and effect as currently written.
6. Counterparts. This Amendment may be executed in any number of
------------
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first above written.
INDYMAC, INC.
By: \s\ Christina Ching
-------------------------
Name: Christina Ching
Title: Senior Vice President
By: \s\ S. Blair Abernathy
-------------------------
Name: S. Blair Abernathy
Title: Executive Vice President
4