Metropolitan Mortgage & Securities Co., Inc.
LONG TERM INCENTIVE PAY AGREEMENT
Long Term Incentive Pay Agreement, hereinafter referred to as Agreement, dated
March 9, 1998, between Metropolitan Mortgage & Securities Co., Inc.,
hereinafter referred to as Company and Xxxxxxx X. Xxxxxxxx, hereinafter
referred to as Employee. Company and Employee mutually agree on the terms and
conditions set forth below in consideration for employee's continued
employment with Company and the promises set forth herein.
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 as part of the Employee Handbook Receipt and Acknowledgment,
incorporated herein, this agreement will begin on March 9, 1998, and
will end on March 8, 2003.
2. Deferred Compensation. If Employee is employed continuously until March
8, 2003, he shall be entitled to receive $715,929.00, without interest,
provided that Company remains solvent. Within 5 days of the end of the
term of this 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, except by the expressed permission of
Company. 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 said businesses.
4. Restriction on post-employment competition. For one year following the
end of his employment, Employee will not, within the United States of
America, own, manage, operate, control or be employed by, or assist, any
business that directly competes with 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
any payments made, including associated attorney and court fees incurred
by Company to recover said payments
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/Total and Permanent Disability 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. In the event Employee becomes fully and permanently
disabled from carrying out his job duties during the term of the
agreement, Company will pay to Employee a pro-rated amount of the
deferred compensation rounded to the nearest month of Employee's total
and permanent disability.
8. Termination of Agreement. The duties imposed upon Company under
paragraph two and seven of this agreement shall be discharged if
employee terminates his employment (by resignation, abandonment or
otherwise) or if employee is terminated for Cause. Cause shall include,
but not be limited to, gross misconduct or gross mismanagement of the
business of Company, insubordination, repeated failure to meet the
expectations of his supervisor, violation of existing Company policies
or hereafter as amended and adopted, 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, a determination by a court of competent jurisdiction that
Employee is prohibited for any reason from performing Employee's duties
under this agreement, and/or any fraud, theft, or dishonesty by
Employee adversely affecting Company, or its business groups, or its
respective directors, officers or shareholders. In the case of
termination for cause due to insubordination, failure to meet
expectations of supervisors, or violation of Company policies, employee
shall not be terminated unless he has received written warning and a
reasonable opportunity (not to exceed thirty days) to correct the
identified problem.
In the event Company terminates Employee at its own discretion and
without Cause, Employee will receive a pro-rated amount of the deferred
compensation up to and including the date Employee's employment is
terminated.
9. Waiver and Assignment. 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. Employee shall have no rights or power to assign this
agreement, or any of Employee's rights and duties hereunder and any
attempted assignment of the same by Employee shall be null and void.
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.
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, XX.
By: ____________________________________ Date: 3/9/98
C. Xxxx Xxxxxxxx, Xx., President and CEO
/S/ XXXXXXX X. XXXXXXXX
By: __________________________________ Date: 3/2/98
Xxxxxxx X. Xxxxxxxx
