Employment Agreement [Rider] - IndyMac Bank FSB and Carmella Grahn
RIDER TO EMPLOYMENT AGREEMENT
This Rider to Employment Agreement ("Rider") is executed as of
December 15, 2000 by and between IndyMac Bank, F.S.B., successor in interest to
IndyMac, Inc., ("Employer") and Carmella Grahn ("Officer"). This Rider is an
addendum to the Employment Agreement ("Agreement") executed by Employer and
Officer as of November 1, 2000.
WHEREAS, Employer and Officer desire to amend the Agreement in
certain respects, therefore, in consideration of mutual promises and covenants
contained herein, the parties agree as follows:
1. The phrase "the lesser of 25% of the prior year's target incentive
compensation or" contained in Section 4(b) of the Agreement is hereby
deleted.
2. The reference to "IndyMac Mortgage Holding's Inc." contained in Section
4(d) of the Agreement is hereby amended to read "IndyMac Bancorp, Inc.".
3. The phrase "and consistent" contained in clause (iii) of the third
grammatical paragraph of Section 4(d) of the Agreement is hereby
deleted.
4. The following language is hereby added as a new grammatical paragraph in
Section 4(d) of the Agreement that will immediately follow the present
third grammatical paragraph of such section:
"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
provided 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."
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5. Section 5(a) of the Agreement is hereby amended to add the phrase
"(which are paid for by Employer)" immediately following the phrase
"Employer's disability insurance or other disability benefit plans"
contained in such section.
6. Section 5(c) of the Agreement is hereby amended to add the a new clause
(ii) therein which shall read as follows, and to renumber existing
clauses (ii), (iii), (iv) and (v) accordingly:
"(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,"
7. Section 5(e)(i)(2) of the Agreement is hereby amended to add the
following language at the end thereof:
"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"
8. Section 5(e)(ii) of the Agreement is hereby restated in it's entirety to
read as follows:
"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."
9. Section 5(e)(iii) of the Agreement is hereby amended to add the phrase
"in an interpretation of this Agreement," immediately following the
phrase "unenforceable by a Court" in the second grammatical paragraph
thereof.
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10. Section 5(g) of the Agreement is hereby amended to add the phrase
"(including any resignation)" immediately following the phrase "Any
reported termination by Employer of by Officer" contained therein.
11. Section 10 of the Agreement is hereby amended by adding the following
language as a new subsection (vi) thereof:
"(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."
IN WITNESS WHEREOF, the parties have executed this Rider to Agreement as of the
date first written above.
IndyMac F.S.B
By:
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Printed Name and Title
Date:
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OFFICER
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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 as amended by the foregoing Rider. 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:
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Printed Name and Title
Date:
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