Director Emeritus and Consulting Agreement - IndyMac Bancorp. and Thomas J. Kearns
DIRECTOR EMERITUS PLAN AGREEMENT
AND CONSULTING AGREEMENT
This Director Emeritus and Consulting Agreement ("Agreement") is made as of the
22nd day of January, 2002 by and between INDYMAC, BANCORP., a Delaware
corporation, for itself and on behalf of its affiliates (hereafter "IndyMac"),
and Thomas J. Kearns ("Consultant").
RECITALS
Consultant has been a Director for IndyMac for eleven years and is retiring from
the Board, effective January 21, 2002. IndyMac desires to allow Consultant to
participate in its Director Emeritus program and retain the services of
Consultant on a consulting basis, and Consultant desires to render such services
on the terms and conditions set forth below.
1. DIRECTOR EMERITUS PROGRAM
1.1 PAYMENT FOR DIRECTOR EMERITUS PARTICIPANT. Consultant is hereby deemed
to be a Director Emeritus, eligible to participate in the Director
Emeritus Plan. Based upon Consultant's 11 years of service, Consultant
shall be eligible for an annual payment of 70% of the directors' fees
earned by Consultant during the 12 month period preceding Consultant's
retirement. Therefore, Consultant shall be paid $42,000 on an annual
basis, on or before February 28 of each year, until Consultant's death,
pursuant to the terms of the Director Emeritus Plan document.
Consultant's participation in the Director Emeritus Plan shall be
subject to the provisions of the Director's Retirement Plan, Master
Plan Document, dated July 1, 1995.
1.2 COMPETITORS. Consultant agrees that, for such time as he is serving as
Director Emeritus, he will not compete in any manner with the IndyMac
and will refrain from becoming affiliated with or from supplying any
information or materials to any competitor of IndyMac. If Consultant
violates this provision or Section 5 hereof, IndyMac's obligation to
make the payments set forth in Section 1.1 shall immediately terminate.
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2. CONSULTING SERVICES
2.1 DESCRIPTION OF SERVICES - SCOPE OF WORK. Consultant has performed or
shall perform those services set forth in Exhibit A hereto
("Services"). In the performance of Services hereunder, Consultant
shall report progress to the Board of Directors.
2.2 QUALITY OF SERVICES. Consultant warrants and represents that all
Services shall be (i) performed in a professional and business-like
manner; (ii) performed in compliance with all applicable federal, state
and local laws, regulations and requirements; and (iii) performed in
accordance with IndyMac's requirements as set forth in Exhibit A
hereto, including, but not limited to, IndyMac's business process and
technical requirements.
2.3 NONEXCLUSIVE. Consultant is not required to devote his/hers services to
IndyMac exclusively, and Consultant is not precluded from engaging in
any other business activity during the term of this Agreement, provided
that such activity does not compete directly with IndyMac.
2.4 WORK LOCATION. Consultant is not required to perform Services on
IndyMac's premises. However, IndyMac may provide Consultant with
limited work space and equipment to assist Consultant in the
performance of the Services.
2.5 FEE FOR SERVICES. As compensation for the Services to be rendered
hereunder, IndyMac shall pay Consultant that amount set forth in
Exhibit B hereto.
2.6 REIMBURSEMENT FOR EXPENSES. IndyMac shall not be responsible for or
reimburse Consultant for any expenses incurred by Consultant in the
performance of the Services unless otherwise agreed to in writing by
IndyMac.
2.7 PAYMENT. Consultant shall be paid annually, on or before December 31st.
IndyMac shall be entitled to deduct from any amounts owed by IndyMac to
Consultant any and all amounts owed by Consultant to IndyMac.
3. RELATIONSHIP OF PARTIES
3.1 INDEPENDENT CONSULTANT STATUS. Consultant is an independent Consultant
and not an employee, agent or partner of IndyMac. Nothing contained
herein shall be deemed to create any relationship between the parties
other than that of principal and independent Consultant. Consultant
shall dictate the manner in which the Services are performed, provided
that such Services are completed in a satisfactory and timely manner.
Further, Consultant shall have no right, power or authority to create
any contract or obligation, express or implied, on behalf of, in the
name of or binding on IndyMac.
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3.2 TAXES AND INSURANCE. Consultant is responsible for the payment of all
payroll taxes, whether federal, state or local, including, but not
limited to, income taxes, Social Security taxes, unemployment
compensation taxes, and any other fees, charges, licenses or other
payments required by law. Consultant shall be responsible for
maintaining, at his/her sole cost, any insurance coverage, including
workers' compensation and unemployment insurance, which may be
applicable to Consultant in the performance of Services. Consultant
shall not claim benefits from IndyMac under applicable unemployment or
workers' compensation laws upon termination of this Agreement or for
any injury sustained by Consultant while performing services for
IndyMac.
4. CONFIDENTIALITY AND OWNERSHIP OF INVENTIONS
4.1 COVENANT OF NONDISCLOSURE. In connection with the performance of
Services, Consultant may have learned or may learn trade secrets and
other proprietary information relating to the business of IndyMac
("Confidential Information"). Such Confidential Information includes,
but is not limited to, secret processes, plans, devices, products,
computer programs and other tangible and intangible property relating
to the business of IndyMac; all information contained in documents
designated as "Confidential" by IndyMac; IndyMac's customer lists,
supplier lists, marketing strategies and other trade secrets; all other
documents and information related to IndyMac's financial,
organizational and commercial operation; and any written report or
document produced by Consultant relating to the business of IndyMac.
Consultant shall hold and maintain Confidential Information in the
strictest confidence and in trust for the sole and exclusive benefit of
IndyMac. Consultant shall not use Confidential Information for his/her
own benefit, publish or otherwise disclose Confidential Information to
others, or permit use of Confidential Information by others for their
benefit or to the detriment of IndyMac. Either upon demand of IndyMac
or upon the termination of this Agreement, Consultant shall immediately
return to IndyMac all Confidential Information in his/her possession,
as well as any and all records, notes, and other written, printed, or
tangible materials pertaining thereto.
4.2 OWNERSHIP OF INVENTIONS. All ideas, inventions, improvements and
materials created or conceived by Consultant, solely or jointly with
others, during or after performing consulting services for IndyMac and
that are made through the use of any Confidential Information or any
equipment, facilities, supplies, or other resources of IndyMac
("Inventions"), are and shall be the sole and exclusive property of
IndyMac. Consultant hereby assigns to IndyMac all right, title and
interest he/she may have in and to such Inventions and any patents,
copyrights, trademarks or other proprietary rights based thereon.
Consultant irrevocably designates and appoints IndyMac, and each of its
duly authorized officers and agents, as his/her agent and
attorney-in-fact to execute and to file any document
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and to do all other lawfully permitted acts to further the prosecution,
issuance and enforcement of patents, copyrights, trademarks and other
proprietary rights with the same force and effect as if executed and
delivered by Consultant. In connection with the foregoing, Consultant
shall execute the Confidential Information and Ownership of Inventions
Agreement attached as Exhibit C hereto.
4.3 COMPUTER SYSTEMS ACCESS. If Consultant has been or is required to
access IndyMac's computer systems in order to perform Services
hereunder, Consultant agrees that he/she has and will (i) use only the
log-in identification assigned by IndyMac, (ii) correctly and
completely log-off the system immediately upon completion of each
session of Service, (iii) not allow any other person to use the
assigned log-in identification or improperly access IndyMac's systems,
(iv) keep the assigned log-in identification and all other information
enabling such access strictly confidential, (v) not access any IndyMac
systems or data other than that which is specifically authorized, and
(vi) not intentionally spread viruses or other malicious computer code
to IndyMac's computer systems.
4.4 INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. Consultant warrants and
represents that he/she has not and shall not infringe upon or violate
the intellectual property or other proprietary rights of any third
party in its performance of services hereunder.
4.5 RELIEF IN CASE OF BREACH. Consultant understands and acknowledges that
any use, disclosure or misappropriation of Confidential Information or
Inventions in violation of this Agreement will cause IndyMac
irreparable harm, the amount of which may be difficult to ascertain.
Consultant agrees that IndyMac shall have the right to an order
restraining any actual or threatened use, disclosure or
misappropriation of Confidential Information and/or Inventions and to
apply for such other relief as IndyMac shall deem appropriate. Such
right of IndyMac is to be in addition to all of the remedies otherwise
available to it at law or in equity.
5. INDEMNITY. Consultant hereby agrees to indemnify and defend IndyMac
against any and all losses, damages, claims, or expenses incurred or
suffered, either directly or indirectly, by IndyMac or its directors,
employees or agents, including reasonable attorneys' fees and costs,
arising out of or relating to (i) any act or omission on the part of
Consultant; (ii) Consultant's breach of any provision of this
Agreement, (iii) Consultant's use, disclosure or misappropriation of
any Confidential Information or Invention, or (iv) a determination by
any court, tribunal or agency that an employment relationship has or
will be established by the performance of this Agreement.
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6. TERM AND TERMINATION
6.1 TERM. This Agreement shall commence on January 22, 2002, and shall
continue in full force and effect until January 21, 2004, unless
terminated earlier in accordance with its terms or extended by written
agreement between the parties.
6.2 TERMINATION FOR BREACH. This Agreement may terminate upon breach by
either party if the breaching party fails to cure such breach within
ten (10) days of written notice to do so. If such breach is incapable
of being cured, this Agreement may terminate immediately upon receipt
by the breaching party of written notice of termination.
6.3 SURVIVABILITY. The termination or expiration of this Agreement shall
not affect Consultant's obligations under Article 4 above.
7. GENERAL
7.1 ENTIRE AGREEMENT. This Agreement is the final and exclusive statement
of all agreements and understandings between the parties with respect
to the subject matter described herein. There are no other agreements,
representations, warranties or conditions other than those contained
herein.
7.2 AMENDMENTS. No change, modification or alteration of this Agreement
shall be effective unless in writing and signed by both parties.
7.3 ASSIGNMENT. Neither party may assign its rights and/or obligations
hereunder without the prior written consent of the other party.
7.4 WAIVER. No waiver of any provision of this Agreement or of the rights
and obligations of the parties shall be effective unless in writing and
signed by the party waiving compliance. Any such waiver shall be
effective only in the specific instance and for the specific purpose
stated in such writing.
7.5 SEVERABILITY. If any term, clause or provision of this Agreement shall
be deemed invalid or unenforceable for any reason, the remainder of
this Agreement shall remain valid and enforceable in accordance with
its terms.
7.6 CONSTRUCTION. This Agreement is the product of the efforts of both
parties and shall not be interpreted in favor of or against either
IndyMac or Consultant merely because of its effort in preparing it.
7.7 AGREEMENT TO ARBITRATE CLAIMS. Upon written request by either party,
that is submitted according to the applicable rules for arbitration,
any claim, demand or cause of action, which arises out of or is related
to this Agreement, (collectively
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"Claims"), shall be resolved by binding arbitration in the County of
Los Angeles, California, in accordance with (i) the Federal Arbitration
Act; (ii) the Code of Procedure ("Code") of the National Arbitration
Forum ("NAF") and (iii) this Agreement, which shall control any
inconsistency between it and the Code. Notwithstanding the foregoing,
claims for injunctive or other relief for intellectual property
violations, unfair competition and/or the use or unauthorized
disclosure of trade secrets, Inventions or other Confidential
Information shall be excluded from this agreement to arbitrate
("Excluded Claims"). The NAF shall provide each party with a list of
arbitrators and each party shall have the right to strike one name. The
number of arbitrators on the list will be the number of parties plus
one. The decision of an arbitrator on any Claims submitted to
arbitration shall follow applicable substantive law and be in writing
setting forth the findings of fact and law and the reasons supporting
the decision. Such decision shall be final and binding upon the
parties, subject to the right of appeal described below. Judgment upon
any arbitration award may be entered in any court having jurisdiction.
The arbitrator has exclusive authority to resolve any dispute relating
to the applicability or enforceability of this Agreement, including the
provisions of this section. Either party shall have the right to appeal
to the appropriate court any errors of law in the decision rendered by
the arbitrator. After a demand for arbitration is made, each party may
conduct a limited number of depositions (including the production of
documents) by mutual agreement or as permitted by the arbitrator.
Excluded Claims shall be governed and interpreted in accordance with
the laws of the State of California and shall be adjudicated in the
appropriate state or Federal court in Los Angeles County.
7.8 ATTORNEYS' FEES. If any claim, legal action or any arbitration or other
proceeding is brought for the enforcement of this Agreement or because
of a dispute, breach, default or misrepresentation in connection with
any of the provisions of this Agreement, the successful or prevailing
party shall be entitled to recover reasonable attorneys' fees and other
costs incurred in that claim, action or proceeding, in addition to any
other relief to which such party may be entitled.
7.9 NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given on
the date of service, or on the third day after mailing by United States
mail, registered or certified, postage pre-paid and properly addressed,
as follows:
CONSULTANT: INDYMAC:
Thomas J. Kearns IndyMac, Inc.
4 Jocum Avenue General Counsel
Larchmont, New York 10538 155 N. Lake Avenue
Pasadena, CA 91101
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7.10 HEADINGS, RECITALS, AND EXHIBITS. The headings of the articles and
sections of this Agreement are included for convenience only, and shall
not affect the construction or interpretation of its provisions. The
Recitals and Exhibits attached hereto are incorporated herein by
reference.
7.11 ADVICE OF COUNSEL. Each party has been given an opportunity to consult
with independent counsel of its choice prior to executing this
Agreement. Each party is advised and encouraged not to execute this
Agreement without first consulting with counsel.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
written above.
CONSULTANT INDYMAC BANCORP, INC.
By: _____________________________ By: _______________________________
Thomas J. Kearns Michael W. Perry, Vice Chairman
& CEO
Date: ___________________________ Date: _____________________________
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EXHIBIT A
DESCRIPTION OF SERVICES - SCOPE OF WORK
Consultant Name: Thomas J. Kearns
Reports Progress To: The Board of Directors
IndyMac Department: Office of the President
Estimated Project Time: From: January 22, 2002 To: January 21, 2004
Description of Project: Provide written analysis to Chief Executive Officer once
a year (on or before January 21) regarding IndyMac Bancorp's strategy.
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EXHIBIT B
FEE FOR SERVICES
Consultant shall be compensated $20,000 per year, payable on or before January
21, 2003 and January 21, 2004, to complete the Services described in Exhibit A.
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EXHIBIT C
CONFIDENTIAL INFORMATION AND OWNERSHIP OF INVENTIONS AGREEMENT
CAUTION: THIS AGREEMENT CREATES IMPORTANT OBLIGATIONS OF TRUST AND
AFFECTS YOUR RIGHTS TO INVENTIONS WHICH YOU MAY CREATE WHILE PERFORMING
CONSULTING SERVICES FOR INDYMAC.
I, Thomas J. Kearns, acknowledge that IndyMac Bancorp, Inc. and its
affiliates (together collectively referred to as "IndyMac") operate in a
competitive environment and that IndyMac enhances its opportunities to succeed
by establishing certain policies, including those included in this Confidential
Information and Ownership of Inventions Agreement ("Agreement"). I will be
performing consulting services for IndyMac either as a consultant or as an
employee of an entity retained as a consultant (herein referred to as "my
employer"). This Agreement is designed to make clear that while performing
consulting services for IndyMac and thereafter, (i) I will maintain the
confidentiality of the IndyMac's Confidential Information, as defined in Section
1(b) below; (ii) I will use IndyMac's Confidential Information for the exclusive
benefit of IndyMac; (iii) Inventions, as defined in Section 2(a) below, that I
create will be owned by IndyMac; (iv) my prior and continuing activities
separate from IndyMac will not conflict with IndyMac's development of its
Confidential Information; and (v) when my work for IndyMac as a consultant
terminates, I will not use my prior position with IndyMac to the detriment of
IndyMac. For the payment of good and valuable consideration, I agree to the
following:
1. DUTY NOT TO USE OR DISCLOSE CONFIDENTIAL INFORMATION.
(a) I acknowledge that IndyMac possesses and will
continue to develop and acquire valuable Confidential Information,
including information which I may develop or discover while performing
consulting services for IndyMac. The value of that Confidential
Information depends on its remaining confidential. IndyMac depends on
me to maintain that confidentiality, and I accept that position of
trust. I understand that the provisions of this Agreement are a
material condition to my being allowed to perform consulting services
for IndyMac.
(b) As used in this Agreement, "Confidential Information"
means any trade secrets or any other material or information
proprietary to IndyMac or designated as confidential by IndyMac,
whether or not owned or developed by IndyMac (including information of
or about its officers, directors, employees, customers, suppliers,
joint venturers, licensors, licensees, distributors and other persons
and entities with whom IndyMac does business or to whom IndyMac
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owes a duty of confidentiality), which I develop, or which I may obtain
knowledge of or access to, through or as a result of my relationship
with IndyMac (including information which I conceive, originate,
discover or develop, in whole or in part). "Confidential Information"
shall include, without limitation, the following types of information
and other information of a similar nature (whether or not reduced to
writing or still in development): trade secrets, formulae, patterns,
compilations, devices, methods, techniques, processes, designs,
concepts, drawings, ideas, Inventions, specifications, discoveries,
models, data, programs, software, source codes, object codes,
documentation, diagrams, flow charts, research, development plans,
reports, interpretations, forecasts, proposals, procedures, know-how,
new product or new technology information, sales and marketing
information and strategies, communications and systems information,
employment records and policies, business acquisition plans and
financial information, including the financial information of any
IndyMac officer, director, employee, agent, customer or vendor.
(c) I will not disclose, use or reproduce at any time,
either during or after my performing consulting services for IndyMac,
any Confidential Information except for the exclusive benefit of
IndyMac as required by my duties for IndyMac, or as IndyMac expressly
may consent to in writing. I will cooperate with IndyMac and use my
best efforts to prevent the unauthorized disclosure, use or
reproduction of all Confidential Information.
(d) Upon the completion or termination of my consulting
services for IndyMac for any reason, I will immediately deliver to
IndyMac all tangible, written, graphical machine readable and other
materials (including all copies) in my possession or under my control
containing, relating to or disclosing any Confidential Information.
2. OWNERSHIP OF INVENTIONS
(a) As used in this Agreement, "Inventions" includes,
but is not limited to, all Inventions, ideas and copyrightable material
created or conceived by me in whole or in part, during or after my
performing consulting services for IndyMac and which are made through
the use of any Confidential Information or of any of IndyMac's
equipment, facilities, supplies, time or other resources.
(b) I agree to communicate to IndyMac as promptly and
fully as practicable all Inventions conceived or reduced to practice by
me (alone or jointly with others) at any time during and after my
performing consulting services for IndyMac. I hereby assign to IndyMac
all my right, title and interest in such Inventions, and all my right,
title and interest in any patents, copyrights, trademarks (whether or
not registered) or other proprietary rights based thereon, and that any
and all such rights shall belong exclusively to IndyMac. I further
agree that any copyrightable material that I am asked to prepare or
work on for
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IndyMac shall be considered a "work made for hire" under the Copyright
Law of the United States and shall belong exclusively to IndyMac. I
will assist IndyMac (without charge but at no expense to me) at any
time and in every proper way to obtain for its and/or their own
benefit, patents, copyrights, trademarks and other proprietary rights
for all such Inventions anywhere in the world and to enforce its and/or
their rights in legal proceedings involving third parties, and to which
I am not a party.
(c) Notwithstanding the foregoing, I also assign to
IndyMac all rights which I may have or acquire in any Invention, full
title to which is required to be in the United States by a contract
between IndyMac and the United States or any of its agencies.
(d) I hereby irrevocably designate and appoint IndyMac
and each of its duly authorized officers and agents as my agent and
attorney-in-fact to act for and in my behalf to execute and to file any
document and to do all other lawfully permitted acts to further the
prosecution, issuance and enforcement of patents, copyrights,
trademarks and other proprietary rights with the same force and effect
as if executed and delivered by me.
3. CONFLICTS WITH OTHER ACTIVITIES.
(a) I agree that during my performing consulting services
for IndyMac, and for one (1) year following the completion or
termination of my consulting services for IndyMac, regardless of the
manner of or reason for such termination, I will not, without IndyMac's
express written consent, contact or solicit employees of IndyMac for
the purpose of hiring them.
(b) My performing consulting services for IndyMac and my
compliance with this Agreement do not and will not breach any agreement
to keep in confidence information acquired by me prior to or outside of
my performing consulting services for IndyMac. I have not brought and
will not bring with me to IndyMac for use in performing consulting
services for IndyMac any materials, documents or information of any
current or former employer or any third party that are not generally
available to the public unless I have obtained express written
authorization from the owner for their possession and use by or for
IndyMac. I have not entered into, and will not enter into, any
agreement, either oral or written, in conflict with this Agreement.
4. MISCELLANEOUS
(a) My obligations under this Agreement may not be
modified or terminated, in whole or in part, except in a writing signed
by an executive officer of IndyMac. Any waiver by IndyMac of a breach
of any provision of this Agreement will not operate or be construed as
a waiver of any subsequent breach.
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(b) Each provision of this Agreement will be treated as a
separate and independent clause, and the unenforceability of any
provision will in no way impair the enforceability of any other
provision. If any provision is held to be unenforceable, such provision
will be construed by the appropriate judicial body by limiting or
reducing it to the minimum extent necessary to make it legally
enforceable.
(c) My obligations under this Agreement will survive the
completion or termination of my consulting services for IndyMac,
regardless of the manner of such termination. This Agreement will inure
to the benefit of and be binding upon the successors and assigns of
IndyMac.
(d) Any breach of this Agreement likely will cause
irreparable harm to IndyMac for which money damages could not
reasonably or adequately compensate IndyMac. Accordingly, I agree that
IndyMac will be entitled to injunctive relief to enforce this
Agreement, in addition to damages and other available remedies.
(e) This Agreement will be governed by and interpreted in
accordance with the laws of the State of California governing a
contract made and wholly performed within California.
(f) In the event litigation is brought to enforce this
Agreement, the prevailing or successful party shall be entitled to
recover from the losing party its reasonable attorneys' fees and costs
of litigation in addition to any other judgment or award it may
receive.
(g) This Agreement contains the complete agreement
between IndyMac and me concerning the subject matter hereof and
supersedes all other agreements and understandings. This Agreement may
be executed in counterparts.
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This Agreement will be deemed effective as of the start of my
performing consulting services for IndyMac.
_____________________________
Consultant's Signature
Thomas J. Kearns
_____________________________
Date
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