Employment Agreement [Amendment No. 1] - IndyMac Mortgage Holdings Inc. and Michael W. Perry
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This is the First Amendment to the Employment Agreement ("Agreement")
executed as of February 4, 2000 by and between IndyMac Mortgage Holdings, Inc.
and IndyMac, Inc. (each of which is individually and collectively referred to as
the "Employer") and Michael W. Perry ("Officer"). This First Amendment is
executed as of December 1, 2000.
WHEREAS, Employer and Officer desire to amend the Agreement in the
following respects. Therefore, in consideration of mutual promises and covenants
contained herein, the parties agree as follows.
1. Amend and restate Section 5(c) "Cause" to read in its entirety
as follows:
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 and which, for any breach that is
remediable, is not remedied within a reasonable period of time after
receipt of written notice from Employer specifying such breach, or (ii)
Officer's breach of the terms of any Promissory Note executed by Officer
for any loan to Officer made by Employer pursuant to the Employer's Loan
Plan, including a failure to meet a margin call, or (iii) Officer's
conviction by a court of competent jurisdiction of a felony involving
acts of fraud, embezzlement, dishonesty or moral turpitude, or (iv)
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
participating in a material portion of the affairs of Employer or any of
its affiliates, provided that the order resulted from act(s) of Officer
which were committed in bad faith and without reasonable belief that
such act(s) were in the best interests of Employer. If Officer shall be
convicted of a felony or shall be removed from office and/or temporarily
prohibited from participating in the conduct 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(f) 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
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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(f) hereof are suspended, Officer
shall continue to be entitled to receive Additional Benefits under
Section 4(d) until the conviction of the felony 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. Upon termination for
Cause, Officer is not entitled to any severance and no unvested stock
options or restricted stock will vest because of the termination.
Anything herein to the contrary notwithstanding, termination for Cause
shall not include termination by reason of Officer's job performance or
a job performance rating given to Officer for his job performance or the
financial performance of Employer or any affiliated company.
2. Add the following new subsection (h) to Section 5 "Termination":
h. CONDITION TO PAYMENT UNDER SECTION 5(d) AND 5(g). In
order to receive and retain the single payment equal to $5,000,000 set
forth in Section 5(d) or Section 5(g), Officer agrees that for a period
of one year after either a termination of employment other than for
Cause, or a Non-Renewal of Agreement, 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 ended or which will compete with any proposed business
activity of Employer or its subsidiaries or affiliates, in the planning
state on such date.
If the foregoing agreement is determined invalid or unenforceable
by a Court, then Officer agrees that he shall return the payment equal
to $5,000,000 received pursuant to Sections 5(d) or 5(g).
3. Amend and restate Section 8(g) "Confidentiality" to read in its
entirety as follows:
g. CONFIDENTIALITY. Officer agrees that he will not divulge
or otherwise disclose, directly or indirectly, any trade secret or other
confidential information concerning the business or policies of Employer
or any of its
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subsidiaries 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
subsidiaries, 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 as determined in Officer's
business judgment, (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.
4. Amend and restate Section 8(k) to read in its entirety as
follows:
k. 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
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terminated, unless Officer shall have
received the prior written consent of
Employer.
(ii) CONSIDERATION. The consideration for the
foregoing no solicitation provisions, 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).
(iii) 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 seek 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 covenants, then
Employer and Officer understand and agree that
the foregoing covenants are of no effect.
5. 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."
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6. All other provisions of the Agreement remain in full force and
effect. To the extent that there is any inconsistency between this First
Amendment and the Agreement, the provisions of this First Amendment shall
prevail.
IN WITNESS WHEREOF, the parties have executed this First Amendment as of
the date first written above.
EMPLOYER
By
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OFFICER
By
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MICHAEL W. PERRY
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