Sample Business Contracts

Employment Agreement [Amendment No. 1] - IndyMac Mortgage Holdings Inc. and Michael W. Perry

Employment Forms

  • Employment Agreement. Employers can customize an employment agreement that states the salary, benefits, working hours and other important provisions for their new or existing employee.
  • Consulting Agreement. Answer simple questions to build a contract with a consultant. Specify the services rendered, when payment is due, as well as IP rights.
  • Commission Agreement. Employers who compensate their sales employees based on commissions can prepare an agreement to reduce misunderstandings by specifying the base salary and how commissions are calculated.
  • Executive Employment Agreement. Companies may offer their business executives a contract that is different from the one provided to their regular employees. Executive employment agreements may be more complex because the compensation structure may include a combination of salary and commissions, provide for bonuses based on sales, stock or other financial targets, and include non-compete, confidentiality and severance provisions.
  • Sales Representative Contract. Independent sales representatives offer companies the potential to increase the sale of products or services without the burden of increasing headcount. Both parties should understand how commissions are calculated, when commissions will be paid, as well as how the representative will treat confidential information from the company and whether the representative may also sell a competing line of products or services.
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        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


<PAGE>   3
        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

                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

                                (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

                                (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


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                                        terminated, unless Officer shall have
                                        received the prior written consent of

                        (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

        IN WITNESS WHEREOF, the parties have executed this First Amendment as of
the date first written above.




                                    MICHAEL W. PERRY