Metropolitan Mortgage & Securities Co., Inc.
AGREEMENT
Agreement dated June 24, 1997, between Metropolitan Mortgage &
Securities Co., Inc., hereinafter referred to as Company, and Xxx X. XxXxxxxx,
hereinafter referred to as Employee. Company and Employee mutually agree on
the terms and conditions set forth below.
1. Term of agreement. Subject to the provisions for employment at will
stated in paragraph 8 below, as stated in Company policies, and as
agreed to in his employment confirmation letter signed on September 10,
1993, incorporated herein, this agreement will begin on June 1, 1997,
and will end on May 31, 2002.
2. Deferred Compensation. If Employee is employed continuously until the
end of the agreement period, he shall be entitled to receive
$250,000.00, without interest, provided that Company remains solvent.
Within 30 days of the end of the agreement period, Employee will receive
full payment of the deferred compensation. Other payment arrangements
may be made if agreed to between Company and Employee in writing at
least 90 days prior to the end of the term of the agreement. Both
parties recognize that the payment(s) are, according to IRS rulings,
subject to Federal Insurance Contribution Act (FICA) and Federal Income
Tax (IRS) withholding and, therefore, Company will withhold applicable
FICA and IRS contributions when making payment(s) to Employee and will
also contribute the appropriate amount itself for its share of FICA
payments.
3. Employee to devote full-time to Company. Employee will devote his
entire working time, attention, and energies to the business of Company,
and, during employment, will not engage in any other business activity,
regardless of whether such activity is pursued for profit, gain, or
other pecuniary advantage. However, Employee is not prohibited from
making personal investments in any other business, as long as those
investments do not require participation in the operation of the
businesses.
4. Restriction on post-employment competition. For two years following the
end of his employment, Employee will not,
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within the United States of America, own, manage, operate, control or be
employed by or assist any business similar to that conducted by Company
and its business groups. Employee also agrees not to solicit Company's
employees or its customers for employment or sales purposes. Company
may, without waiving the protections of this provision, grant Employee
the right to engage in business otherwise barred by this provision. Any
such permission must be in writing and approved by an authorized
representative of Company in order to be effective. If Employee
violates the terms of this restriction, Employer shall be relieved from
the duty to make payments under paragraph two of this agreement, and if
Employee has already received payment, Company shall be entitled to
receive a full refund of payment, including associated attorney and
court fees to recover payment. Employee acknowledges that a violation
of the restrictions of this paragraph will cause economic damage to
Company, including damages that are difficult to ascertain with
certainty. Employee therefore agrees that, in the event he violates the
restrictions of this provision, Company shall be entitled to seek
injunctive relief to prevent further violations and will also be
entitled the recover $10,000.00 as liquidated damages for each violation
of this provision of the agreement.
5. Confidentiality. Employee acknowledges that, during the course of his
employment, he will become aware of confidential business information,
including trade secrets, that are not generally known to the public and
which have commercial value from their limited publication. Employee
will not, at any time, during or after his employment with Company,
reveal any such confidential information or trade secrets to any person,
or use such confidential information, except as required in the course
of his duties with Company or at Company's request and direction.
6. Property rights. All materials, products, processes, and ideas
developed, established, used, or marketed during the course of the
employment contract will be the property of Company and its business
groups.
7. Death benefit. In the event Employee dies during the term of the
agreement, Company will pay to Employee's estate or beneficiary a pro-
rated amount of the deferred compensation rounded to the nearest month
of Employee's death. In the event Employee dies following the term of
agreement, but before the completion of payment(s), Company will
continue payment(s) to Employee's estate or beneficiary.
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8. Termination of Agreement. The agreement between Company and Employee
will become null and void, if Employee violates the terms and conditions
of this agreement. The agreement between Company and Employee will also
become null and void, if Employee is discharged for cause which
includes, but is not limited to, gross misconduct or gross mismanagement
of the business of Company, insubordination, repeated failure to meet
the expectations of her supervisor, violation of existing Company
policies or hereafter as amended and adopted, and willful falsification
of any information that Employee gives to any officer or director of
Company. Employee's intentional violation of any federal, state, or
local law or regulation, determination by a court of competent
jurisdiction that Employee is prohibited for any reason from performing
Employee's duties under this agreement, and any fraud, theft, or
dishonesty by Employee adversely affecting Company, or its business
groups, or its respective directors, officers or shareholders, shall
also constitute cause for termination.
If Employee's employment is terminated by the employee (resignation or
abandonment of job), or if he is terminated by Company for cause,
Company shall be relieved from the duty to make payment under paragraph
two of this agreement.
In the event Company terminates Employee at its own convenience,
Employee will receive a pro-rated amount of the deferred compensation.
The specific amount will be rounded to the nearest month.
9. This contract may not be assigned. Any waiver of a portion of this
contract by either party shall not constitute a waiver of any other
portion of the contract, nor shall a failure to seek redress for a
breach of the contract constitute a waiver of the right to enforce any
other portion of the contract.
10. Law and Venue. This contract is to be construed in accordance with the
laws of the State of Washington. Any legal action to enforce this
contract or for breach of this contract, shall be filed in the Superior
Court of Spokane County, Washington. Both parties hereby consent to
jurisdiction and venue in that court.
11. Severability. If any provision of this contract shall be found to be
unenforceable, all other provisions shall remain in effect as if the
unenforceable provision had never been included in the contract at all.
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12. Entire agreement. This agreement supersedes and replaces all prior
discussions, understandings, and oral agreements between the parties and
contains the entire understanding and agreement between them on the
matters set forth herein. Moreover, this agreement cannot be modified
by the parties except by an instrument that is signed by the party or
parties against whom such modification is sought to be enforced.
IN WITNESS WHEREOF, the parties have caused this agreement to be signed and
validly executed to be effective as of the date set forth above.
Metropolitan Mortgage & Securities Co., Inc.
/s/ C. XXXX XXXXXXXX
____________________________________
C. Xxxx Xxxxxxxx, President and CEO
/s/ XXX X. XxXXXXXX
______________________________________
Xxx X. XxXxxxxx
