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As Of Filer Filing For·On·As Docs:Size Issuer Agent 5/01/06 Indymac Bancorp Inc 8-K:1,7,9 4/25/06 3:137K Bowne - Houston/FA |
Document/Exhibit Description Pages Size 1: 8-K Indymac Bancorp, Inc. HTML 21K 2: EX-4.1 Instrument Defining the Rights of Security Holders HTML 108K 3: EX-99.1 Miscellaneous Exhibit HTML 14K
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(a) | Subject to the following provisions of this subsection 2.5, the full Exercise Price for shares of Stock purchased upon the exercise of any Option shall be paid at the time of such exercise (except that, in the case of an exercise arrangement approved by the Committee and described in subsection 2.5(c), payment may be made as soon as practicable after the exercise). To the extent that an Option Award is exercisable, it may be exercised in whole or in part by filing a written notice with the Stock Award Administrator of the Company at its corporate headquarters prior to the date the Option expires. Such notice shall specify the number of shares of Stock which the Participant elects to purchase, and, subject to subsection 2.5(c), shall be accompanied by payment of the Exercise Price for such shares of Stock indicated by the Participant’s election. |
(b) | The Exercise Price shall be payable (i) in cash, (ii) by tendering, by either actual delivery of shares or by attestation, shares of Stock acceptable to the Committee and valued at Fair Market Value as of the day of exercise, (iii) by instructing the Company to withhold from the shares of Stock acquired upon exercise of the Option that number of shares of Stock equal to the minimum amount (and not any greater amount) required to satisfy the Exercise Price, or (iv) in any combination thereof. |
(c) | Unless otherwise provided in the applicable Award Memorandum or otherwise specified by the Committee prior to exercise, a Participant may elect to pay the Exercise Price upon the exercise of an Option by irrevocably authorizing a third party to sell shares of Stock |
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(or a sufficient portion of the shares) acquired upon exercise of the Option and remit to the Company a sufficient portion of the sale proceeds to pay the entire Exercise Price and any tax withholding resulting from such exercise. | ||
(d) | The Committee may provide in an Award Memorandum for any other method of payment of the Exercise Price upon the exercise of an Option. |
(a) | except as provided in subsections (b) and (c) below, if the termination occurs for reasons other than death, Disability, Retirement, or Cause, the three-month anniversary of the Participant’s Date of Termination; |
(b) | if the termination occurs by reason of the Participant’s death, or if the Participant’s death occurs within three months after the Date of Termination in accordance with subsection (a) above, the one-year anniversary of the Participant’s Date of Termination; |
(c) | if the termination occurs by reason of the Participant’s Disability, or if the holder incurs a Disability within three months after the Date of Termination in accordance with subsection (a) above, the one-year anniversary of the Participant’s Date of Termination; |
(d) | if the termination occurs by reason of the Participant’s Retirement, the one-year anniversary of the Participant’s Date of Termination; or |
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(a) | Any such Award shall be subject to such conditions, restrictions and contingencies as the Committee shall determine. |
(b) | Any portion of any such Award that is not vested as of a Participant’s Date of Termination shall be forfeited without consideration, except that if a Participant’s Date of Termination occurs by reason of the Participant’s death, Disability or Retirement, then any time-based vesting restrictions on any such Award shall lapse as of the Date of Termination and any performance-based criteria relating to Awards shall be deemed to be satisfied at the greater of “target” or actual performance; provided, however, that as a condition of such acceleration of vesting or deemed satisfaction of performance-based criteria upon the Participant’s Retirement, the Participant shall execute a restrictive covenant agreement (including, but not limited to, a non-solicitation of customers and employees covenant) satisfactory to the Company with a term equal to the longest vesting term being accelerated. |
(c) | Awards of Restricted Stock or Restricted Stock Units may not be sold, transferred, assigned, pledged, hypothecated or otherwise disposed of in any way (whether by operation of law or otherwise) during the Restricted Period other than by will or by the applicable laws of descent and distribution. |
(d) | Unless otherwise provided in the applicable Award Memorandum or otherwise provided by the Committee, the following terms shall apply to Awards of Restricted Stock or Restricted Stock Units granted under this Section 3: | |
(i) Vesting. The Covered Shares shall be transferred to the Participant free of all restrictions upon the date they become fully vested. A Participant who ceases to be an Employee shall forfeit the portion of his or her Restricted Stock or Restricted Stock Unit Award that is not vested as of his or her Date of Termination, after giving effect to any applicable acceleration of vesting. |
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(ii) Dividends and Dividend Equivalents. Dividends, if any, accrued on Restricted Stock during the Restricted Period shall be credited to the Participant and held by the Company on behalf of the Participant. The Participant’s interest in the dividends shall vest on the same date that his or her interest in the Covered Shares vest. In the event that any portion of the Covered Shares are forfeited, the accrued and unpaid dividends relating to the Covered Shares also shall be forfeited. A Restricted Stock Unit Award may provide the Participant with the right to receive dividend equivalent payments with respect to the Covered Shares, which payments shall be credited to the Participant and held by the Company on behalf of the Participant, and may be settled in cash or Stock, as determined by the Committee. Any such settlements, and any such crediting of dividend equivalents or reinvestment in shares of Stock, may be subject to such conditions, restrictions and contingencies as the Committee shall establish, including the reinvestment of such credited amounts in Stock equivalents. Subject to subsection 5.2(g), dividend equivalents paid in Stock with respect to an Award of Restricted Stock Units before the Covered Shares are earned or vested shall be deemed delivered under the Plan for purposes of applying the share limits in subsection 5.2. | ||
(iii) Voting. The Participant shall not be prevented from voting the Covered Shares subject to a Restricted Stock Award merely because those shares are subject to the restrictions imposed by this Plan; provided, however, that the Participant shall not be entitled to vote Covered Shares with respect to record dates for any Covered Shares occurring on or after the date, if any, on which the Participant has forfeited those shares. | ||
(iv) Ownership of Shares. The Covered Shares issued pursuant to any Restricted Stock Award shall be held by the Company’s stock transfer agent for the benefit of the Participant until the end of the applicable Restricted Period. The Participant shall be identified as the beneficial owner of the Covered Shares at the time the shares are issued. | ||
(e) | The Committee may designate whether any Award being granted to any Participant under this
Section 3 is intended to be performance-based compensation. Any such Awards designated as intended to be performance-based compensation shall be conditioned on the achievement of one or more Performance Measures, to the extent required by Code Section 162(m) and the regulations thereunder. For Awards under this Section 3 intended to be performance-based compensation, the grant of the Awards and the establishment of the Performance Measures shall be made during the period required under Code Section 162(m). |
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(f) | If the right to become vested in a Restricted Stock Award or Restricted Stock Unit Award granted under this Section 3 is conditioned on the completion of a specified period of service with the Company or the Subsidiaries, without achievement of Performance Measures or other performance objectives being required as a condition of either grant or vesting, and without it being granted in lieu of other compensation, then the required period of service for full vesting shall be not less than one year (subject to acceleration of vesting (i) pursuant to this Plan, or (ii) to the extent permitted by the Committee, or pursuant to the terms of an applicable Employment Agreement, in the event of the Participant’s death, Disability, Retirement, Change in Control or involuntary termination). |
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(a) | The shares of Stock with respect to which Awards may be made under the Plan shall be shares currently authorized but unissued or currently held or, to the extent permitted by applicable law, subsequently acquired by the Company as treasury shares, including shares purchased in the open market or in private transactions. | |
(b) | Subject to the following provisions of this subsection 5.2, the maximum number of shares of Stock that may be delivered to Participants and their beneficiaries under the Plan shall be 11,200,000 shares of Stock; provided, however, that each share of Stock issued under the Plan pursuant to a Full Value Award shall reduce the number of available shares of Stock by 3.5 shares. | |
(c) | To the extent any shares of Stock covered by an Award are not delivered to a Participant or beneficiary because the Award is forfeited, such shares shall not be deemed to have been delivered for purposes of determining the maximum number of shares of Stock available for delivery under the Plan. | |
(d) | To the extent provided by the Committee in its sole discretion, any Award may be settled in cash rather than Stock. To the extent any shares of Stock covered by an Award are not delivered to a Participant or beneficiary because the Award is settled in cash, such shares shall be deemed to have been delivered for purposes of determining the maximum number of shares of Stock available for delivery under the Plan (and such shares shall not be added back to the available share pool under the Plan). | |
(e) | If outstanding shares of Stock (including shares issued on the date of grant of a Restricted Stock Award) are tendered to the Company (by either actual delivery or by attestation), or are withheld from the Award, to satisfy the exercise price or tax liability resulting from an Award, such tendered or withheld shares shall be deemed to have been delivered to the Participant for purposes of determining the maximum number of shares of Stock available for delivery under the Plan (and such shares shall not be added back to the available share pool under the Plan). | |
(f) | Subject to subsection 5.2(g), the following additional maximums are imposed under the Plan. | |
(i) The maximum number of shares that may be covered by Awards granted to any one individual pursuant to Section 2 (relating to Options) shall be 1,500,000 shares during any one calendar year period. | ||
(ii) No more than 500,000 shares of Stock may be subject to Awards of Restricted Stock or Restricted Stock Units granted under the Plan to any one individual during any one calendar-year period. If, after shares have been earned, the delivery is deferred, any additional shares attributable to dividends during the deferral period shall be disregarded for purposes of applying the annual share limit imposed by this subsection 5.2(f)(ii) and the overall share limit imposed by subsection 5.2(b). | ||
(g) | If (i) the outstanding securities of the class then subject to this Plan (the “outstanding shares”) (A) are increased, decreased, exchanged or converted as a result of a stock split (including a split in the form of a stock dividend), reverse stock split, recapitalization, |
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spin off or similar event, or (B) are exchanged for or converted into cash, property or a different number or kind of securities (or if cash, property or securities are distributed in respect of the outstanding shares), as a result of a reorganization, merger, consolidation, exchange, spin off, recapitalization, restructuring or reclassification, or (ii) substantially all of the property and assets of the Company are sold as an entirety, or (iii) the Company is liquidated and dissolved, then the Committee (or, in the case of Awards made to Non-Employee Directors, the Board) shall, in such manner and to such extent (if any) as is equitable and appropriate, make proportionate adjustments in (x) the number and type of shares or other securities or cash or other property that may be acquired pursuant to Options and other Awards previously granted under this Plan (and, where applicable, the exercise price thereof so as to maintain the same aggregate exercise price), (y) the maximum number and type of shares or other securities, cash, or property that may be issued or delivered pursuant to Options and other Awards thereafter granted under this Plan, and (z) such other terms as necessarily are affected by such event. In the case of an extraordinary distribution, merger, reorganization, consolidation, combination, sale of assets, exchange or spin off, the Committee (or the Board, in the case of Awards made to Non-Employee Directors) may make provisions for a substitution or exchange of any or all outstanding Options or other Awards or rights (or for the securities, cash or property deliverable upon exercise of such outstanding Options or other Awards or rights), based upon the distribution or consideration payable to holders of the shares of Stock upon or in respect of such event. |
(a) | Notwithstanding any other provision of the Plan, the Company shall have no liability to deliver any shares of Stock under the Plan or make any other distribution of benefits under the Plan unless such delivery or distribution would comply with all applicable laws (including, without limitation, the requirements of the Securities Act of 1933), and the applicable requirements of any securities exchange or similar entity. |
(b) | To the extent that the Plan provides for issuance of stock certificates to reflect the issuance of shares of Stock, the issuance may be effected on a non-certificated basis, to the extent not prohibited by applicable law or the applicable rules of any stock exchange. |
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(a) | Notwithstanding anything in the Plan or in any Award Memorandum to the contrary, to the extent that any amount or benefit that would constitute “deferred compensation” for purposes of Section 409A of the Code would otherwise be payable or distributable under the Plan or any Award Memorandum by reason of the occurrence of a Change in Control or the Participant’s Disability or separation from service, such amount or benefit will not be payable or distributable to the Participant by reason of such circumstance unless (i) the circumstances giving rise to such Change in Control, Disability or separation from service meet the description or definition of “change in control event,” “disability” or “separation from service,” as the case may be, in Section 409A of the Code and applicable proposed or final regulations, or (ii) the payment or distribution of such amount or benefit would be exempt from the application of Section 409A of the Code by reason of the short-term deferral exemption or otherwise. This provision does not prohibit the vesting of any Award or the vesting of any right to eventual payment or distribution of any amount or benefit under the Plan or any Award Memorandum. |
(b) | Notwithstanding anything in the Plan or in any Award Memorandum to the contrary, to the extent necessary to avoid the application of Section 409A of the Code, (i) the Committee may not amend an outstanding Option to extend the time to exercise such Award beyond the later of the 15th day of the third month following the date at which, or December 31 of the calendar year in which, the Award would otherwise have expired if the Award had not been extended, based on the terms of the Award at the original Grant Date (the “Safe Harbor Extension Period”), and (ii) any purported extension of the exercise period of an outstanding Award beyond the Safe Harbor Extension Period shall be deemed to be an amendment to the last day of the Safe Harbor Extension Period and no later. |
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(a) | Neither a Participant nor any other person shall, by reason of participation in the Plan, acquire any right in or title to any assets, funds or property of the Company or any Subsidiary whatsoever, including, without limitation, any specific funds, assets, or other property which the Company or any Subsidiary, in its sole discretion, may set aside in anticipation of a liability under the Plan. A Participant shall have only a contractual right to the Stock or amounts, if any, payable under the Plan, unsecured by any assets of the Company or any Subsidiary, and nothing contained in the Plan shall constitute a guarantee that the assets of the Company or any Subsidiary shall be sufficient to pay any benefits to any person. |
(b) | The Plan does not constitute a contract of employment, and selection as a Participant will not give any participating employee the right to be retained in the employ of the Company or any Subsidiary, nor any right or claim to any benefit under the Plan, unless such right or claim has specifically accrued under the terms of the Plan. Except as otherwise provided in the Plan, no Award under the Plan shall confer upon the holder thereof any rights as a stockholder of the Company prior to the date on which the individual fulfills all conditions for receipt of such rights. |
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(A) | An acquisition of any common stock or other “Voting Securities” (as hereinafter defined) of the Company by any “Person” (as the term person is used for purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), immediately after which such Person has “Beneficial Ownership” (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty five percent (25%) or more of the then outstanding shares of the Company’s common stock or the combined voting power of the Company’s then outstanding Voting Securities; provided, however, in determining whether a Change in Control has occurred, Voting Securities which are acquired in a “Non-Control Acquisition” (as hereinafter defined) shall not constitute an acquisition which would cause a Change in Control. For purposes of this Plan, (1) “Voting Securities” shall mean the Company’s outstanding voting securities entitled to vote generally in the election of directors and (2) a “Non-Control Acquisition” shall mean an acquisition by (a) the Company or any of its Subsidiaries, (b) an employee benefit plan (or a trust forming a part thereof) maintained by (x) the Company, or (y) any corporation or other Person of which a majority of its voting power or its voting equity securities or equity interest is owned, directly or indirectly, by the Company (for purposes of the definition in this subsection 6.1, a “Subsidiary”), or (c) any Person in connection with a “Non-Control Transaction” (as hereinafter defined). |
(B) | The individuals who, as of the Effective Date, were members of the Board (the “Incumbent Board”), cease for any reason to constitute at least a majority of the members of the Board; provided, however, that if the election, or nomination for election by the Company’s common stockholders, of any new director was approved by a vote of at least two-thirds of the Incumbent Board, such new director shall, for purposes of this Plan be considered as a member of the Incumbent Board; provided further, however, that no individual shall be considered a member of the Incumbent Board if such individual initially assumed office as a result of either an actual or threatened “Election Contest” (as described in Rule 14a-11 promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board (a “Proxy Contest”) including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest; or | |
(C) | The consummation of: |
(1) | A merger, consolidation, or reorganization involving the Company or the sale or other disposition of all or substantially all of the assets of the Company to any |
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Person or Persons other than a transfer to a Subsidiary, or the sale or other disposition of all or substantially all of the stock or assets of IndyMac Bank, F.S.B. to any Person or Persons other than a transfer to a Subsidiary (in each case, a “Business Transaction”), unless such Business Transaction is a “Non-Control Transaction.” A “Non Control Transaction” shall mean a Business Transaction where: |
(a) | the stockholders of the Company, immediately before such Business Transaction, own directly or indirectly immediately following such Business Transaction more than sixty percent (60% ) of the combined voting power of the outstanding Voting Securities of the corporation resulting from such merger, consolidation or reorganization or purchasing such assets or stock (the “Surviving Corporation”) in substantially the same proportion as their ownership of the Voting Securities immediately before such Business Transaction; | ||
(b) | the individuals who were members of the Incumbent Board immediately prior to the execution of the agreement providing for such Business Transaction constitute at least a majority of the members of the board of directors of the Surviving Corporation, or in the event that, immediately following the consummation of such Business Transaction, a corporation beneficially owns, directly or indirectly, a majority of the Voting Securities of the Surviving Corporation, the board of directors of such corporation; and | ||
(c) | no Person other than (i) the Company, (ii) any Subsidiary, (iii) any employee benefit plan (or any trust forming a part thereof) maintained by the Company, the Surviving Corporation or any Subsidiary, or (iv) any Person who, immediately prior to such Business Transaction had Beneficial Ownership of twenty-five percent (25%) or more of the then outstanding Voting Securities or common stock of the Company, has Beneficial Ownership of twenty-five percent (25%) or more of the combined voting power of the Surviving Corporation’s then outstanding Voting Securities or its common stock; or |
(D) | The Company’s stockholders approve a complete liquidation or dissolution of the Company. |
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(a) | Subject to the provisions of the Plan, the Committee will have the authority and discretion to select from among the Eligible Individuals those persons who shall receive Awards, to determine the time or times of receipt, to determine the types of Awards and the amount or number of shares covered by the Awards, to establish the terms, conditions, performance criteria, restrictions, and other provisions of such Awards, and (subject to the restrictions imposed by subsection 2.9, relating to Option repricing, and by Section 8, relating to amendments and termination) to modify, accelerate the vesting of, cancel or suspend Awards. |
(b) | To the extent that the Committee determines that the restrictions imposed by the Plan preclude the achievement of the material purposes of the Awards in jurisdictions outside the United States, the Committee will have the authority and discretion to modify those restrictions as the Committee determines to be necessary or appropriate to conform to applicable requirements or practices of jurisdictions outside of the United States. |
(c) | The Committee will have the authority and discretion to interpret the Plan, to establish, amend and rescind any rules and regulations relating to the Plan, to determine the terms and provisions specified in any Award Memorandum made pursuant to the Plan, and to |
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make all other determinations that may be necessary or advisable for the administration of the Plan. |
(d) | Any interpretation of the Plan by the Committee and any decision made by it under the Plan are final and binding on all persons. |
(e) | In controlling and managing the operation and administration of the Plan, the Committee shall take action in a manner that conforms to the certificate of incorporation and by-laws of the Company, and applicable state corporate law. |
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In addition to the other definitions contained herein, the following definitions shall apply: | ||
(a) | Award. The term “Award” means any award or benefit granted under the Plan, including, the grant of Options, Restricted Stock Awards, Restricted Stock Unit Awards, Cash Incentive Awards, dividends granted with respect to Restricted Stock Awards or dividend equivalents granted with respect to Restricted Stock Unit Awards. | |
(b) | Board. The term “Board” means the Board of Directors of the Company. | |
(c) | Cause. The term “Cause” means, as determined by the Company: | |
(i) Participant’s intentional and material failure to perform his or her duties with the Company (other than any such failure resulting from incapacity due to physical or mental illness), after a written demand for performance is delivered to the Participant by the Company which specifically identifies the manner in which the Company believes that the Participant has intentionally and materially failed to perform the Participant’s duties; or | ||
(ii) Participant’s engaging in any illegal conduct, gross misconduct, or gross negligence which is, or is likely to be, injurious to the Company, its financial condition, or its reputation; or | ||
(iii) Participant’s engaging in any act or omission to act which involves (a) fraud, theft, misappropriation, embezzlement, or dishonesty, (b) willful violation of any law, rule or regulation of a governmental authority, other than traffic violations, (c) regular alcohol or drug abuse, or (d) material violation of the Company’s written policies, including its Code of Business Conduct and Ethics; or | ||
(iv) Entry of an order by any state or federal regulatory agency either removing the Participant from his or her position with the Company or its affiliates or prohibiting the Participant from participating in the conduct of the affairs of the Company or any of its affiliates; or | ||
(v) Participant’s breach of the restrictive covenants set forth in his or her Employment Agreement with the Company, if any, or material breach of any other provisions of his or her Employment Agreement with the Company, if any. | ||
(d) | Code. The term “Code” means the Internal Revenue Code of 1986, as amended. A reference to any provision of the Code shall include reference to any successor provision of the Code. | |
(e) | Covered Shares. The term “Covered Shares” means the shares of Stock that are the subject of an Award granted under the Plan. |
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(f) | Date of Termination. The term “Date of Termination” means the first day occurring on or after the Grant Date on which the Employee is not employed by the Company or any Subsidiary, regardless of the reason for the termination of employment; provided that a termination of employment shall not be deemed to occur by reason of a transfer of the Employee between the Company and a Subsidiary or between two Subsidiaries; and further provided that the Employee’s employment shall not be considered terminated while the Employee is on a military or sick leave from the Company or a Subsidiary. If an Employee is employed by an entity that is a Subsidiary and such entity ceases to be a Subsidiary, such event shall be deemed to be the Employee’s Date of Termination. | |
(g) | Disability. The term “Disability” shall mean a “permanent and total disability” within the meaning of Section 22(e)(3) of the Code. | |
(h) | Eligible Individual. For purposes of the Plan, the term “Eligible Individual” means any employee, officer, or director of the Company or a Subsidiary, and any consultant or other person providing services to the Company or a Subsidiary; provided, however, that an ISO may only be granted to an employee of the Company or a Subsidiary. An Award may be granted to an employee, in connection with hiring, retention or otherwise, prior to the date the employee first performs services for the Company or the Subsidiaries, provided that such Awards shall not become vested prior to the date the employee first performs such services. | |
(i) | Employee. An “ Employee” is any employee of the Company or a Subsidiary who is granted an Award under the Plan. | |
(j) | Employment Agreement. A Participant’s “Employment Agreement” means, as of any date, the agreement (if any) between the Participant and the Company or a Subsidiary that governs the terms of such Participant’s employment on that date, and may include a change in control agreement governing the effect of a change in control with respect to such Participant and, with respect to the Participant’s termination of employment, may also include a severance agreement governing the terms of such Participant’s termination from employment; provided that any such agreement must have been approved by the Committee. | |
(k) | Fair Market Value. For purposes of determining the “Fair Market Value” of a share of Stock as of any date, the following rules shall apply: | |
(i) (A) If shares of Stock are listed or admitted to trade on a national securities exchange, the average of the high and low reported sales prices of the shares of Stock on the Composite Tape on such date, as published in the Western Edition of The Wall Street Journal, on the principal national securities exchange on which the shares of Stock are so listed or admitted to trade. (B) If the Stock is not listed or admitted to trade on a national securities exchange, the average of the high and low reported prices for the Stock on such date, as furnished by the National Association of Securities Dealers, Inc. (“NASD”) through the NASDAQ National Market Reporting System (or a similar organization, if the NASD is no longer reporting such information). (C) If the Stock is not listed or admitted to trade on a national securities exchange and are not reported on the National |
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Market Reporting System, the arithmetic mean between the bid and asked prices for the Shares on such date, as furnished by the NASD or a similar organization. (D) If the Stock is not listed or admitted to trade on a national securities exchange nor reported on the National Market Reporting System and if bid and asked prices for the stock are not furnished by the NASD or a similar organization, the value as established by the Board at such time for purposes of this Plan. | ||
(ii) If the day is not a business day, and as a result, subsection (i) next above is inapplicable, the Fair Market Value of the Stock shall be determined as of the next earlier business day. | ||
(l) | Full Value Award. The term “Full Value Award” means an Award other than in the form of an Option, and which is settled by the issuance of shares of Stock. | |
(m) | Good Reason. The term “Good Reason” shall have the meaning assigned such term in the Employment Agreement, if any, between a Participant and the Company or an affiliate, provided, however that if there is no such Employment Agreement in which such term is defined, and unless otherwise defined in the applicable Award, “Good Reason” shall mean, with respect to any Employee, any of the following acts by the Company or an affiliate, without the consent of the Participant (in each case, other than an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company or the affiliate promptly after receipt of notice thereof given by the Participant): (i) the assignment to the Participant of duties materially inconsistent with, or a material diminution in, the Participant’s position, authority, duties or responsibilities as in effect immediately prior to a Change in Control, (ii) a reduction by the Company or an affiliate in the Participant’s base salary, (iii) the Company or an affiliate requiring the Participant, without his or her consent, to be based at any office or location more than 35 miles from the location at which the Participant was stationed immediately prior to a Change in Control, (iv) the continuing material breach by the Company or an affiliate of any Employment Agreement between the Participant and the Company or an affiliate after the expiration of any applicable period for cure, or (v) the expiration an Employment Agreement between the Employee and the Company or any affiliate in effect prior to a Change in Control without renewal by the Company or its successor on or following a Change in Control on terms that are substantially comparable to the terms of such Employment Agreement. | |
(n) | Grant Date. The term “Grant Date” with respect to an Award means the date on which the Award is granted under this Plan. | |
(o) | Non-Employee Director. Each member of the Board or the Board of Directors of IndyMac Bank, F.S.B who is not an employee of the Company or any Subsidiary shall be a “Non-Employee Director.” | |
(p) | Performance-Based Compensation. The term “performance-based compensation” shall have the meaning ascribed to it in Section 162(m) of the Code and the regulations thereunder. |
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(q) | Performance Measures. The term “Performance Measures” shall mean one or more of the following business criteria, either alone or in combination, as selected by the Committee, which may be expressed in terms of Company-wide objectives or in terms of objectives that relate to the performance of an affiliated company or a division, region, department or function within the Company or an affiliated company: |
• | Revenue | ||
• | Sales, including cross-sales | ||
• | Profit (net profit, gross profit, operating profit, economic profit, profit margins, mortgage banking revenue margin, thrift net interest margin or other corporate profit measures) | ||
• | Earnings (EBIT; EBITDA; earnings per share; operating earnings per diluted share, either before or after amortization of intangible assets; or other corporate earnings measures) | ||
• | Net income (before or after taxes, operating income or other income measures) | ||
• | Cash (cash flow, cash generation or other cash measures) | ||
• | Assets (net worth, asset quality, ratio of non-performing assets to total assets, or other asset measures) | ||
• | Stock price or performance | ||
• | Total stockholder return (stock price appreciation plus reinvested dividends divided by beginning share price) | ||
• | Return measures (including, but not limited to, return on assets or average assets, capital, average or common equity, or sales, and cash flow return on assets or average assets, capital, average or common equity, or sales) | ||
• | Market share and market size of various consumer financial products | ||
• | Loan origination volumes | ||
• | Deposits | ||
• | Interest rate risk (including, but not limited to duration gap, value at risk and other interest rate risk measures) | ||
• | Credit risk (including, but not limited to, other credit risk measures) | ||
• | Expenses (net operating expense, either before or after amortization of intangible assets; expense management; expense ratio; expense efficiency ratios, ratio of expenses outsourced as a percent of total expenses, cost per loan, cost per deposit or other expense measures) | ||
• | Ratio of headcount outsourced as a percent of total headcount | ||
• | Revenues per headcount or the inverse ratio | ||
• | Secondary market investor performance and/or ratings | ||
• | Fair value of assets and/or liabilities and growth and/or decline in either or both | ||
• | Hedge effectiveness | ||
• | Mergers, acquisitions and start-up business activities (e.g. successful acquisition deal completion) | ||
• | Internal rate of return or increase in net present value | ||
• | Regulatory compliance | ||
• | Customer satisfaction ratings |
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• | Employee turnover and employee count (as a whole or by a specific subset of employees) | ||
• | Employee morale and culture survey results | ||
• | Customer count, revenues, retention and penetration | ||
• | Portfolio balance and count | ||
• | Cost of funds | ||
• | Rating agency credit ratings | ||
• | Third party servicer evaluations (including, but not limited to, evaluations conducted by the GSE’s and servicer ratings published by the rating agencies) |
(r) | Restricted Period. The term “Restricted Period” means the period during which the shares of Stock subject to an Award of Restricted Stock or a Restricted Stock Unit Award remain unvested, as set forth in the Plan or the applicable Award Memorandum. |
(s) | Retirement. An Employee’s “Retirement” shall mean retirement or resignation from the Company (a)(i) if the Participant is less than 55 years of age, with at least 75 points or (ii) if the Participant is 55 years of age or older, with at least 65 points and (b) the Participant has at least five (5) consecutive years of employment with the Company. An Employee shall receive one (1) point for every consecutive year of employment with the Company and one (1) point for every year of age. For example, an Employee who is 52 years of age and has worked for the Company for 15 consecutive years has 67 points. |
(t) | Subsidiary. The term “Subsidiary” means any company during any period in which it is a “subsidiary corporation” (as that term is defined in Code Section 424(f)) with respect to the Company. |
(u) | Stock. The term “Stock” means shares of common stock of the Company. |
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This ‘8-K’ Filing | Date | Other Filings | ||
---|---|---|---|---|
Filed on: | 5/1/06 | |||
For Period End: | 4/25/06 | 10-Q, 8-K, DEF 14A | ||
List all Filings |