Metropolitan Mortgage & Securities Co., Inc.
AGREEMENT
Agreement dated August 8, 1997, between Metropolitan Mortgage &
Securities Co., Inc., hereinafter referred to as Company, and Xxxxxxx X. Xxxx,
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, and as stated in Company policies,
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 May
31, 2002, he shall be entitled to receive $354,406.31, without interest,
provided that Company remains solvent. Within 30 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. 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,
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control or be employed by, or assist, any business that 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.
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 to 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.
8. Termination of Agreement. The duties imposed upon Company under
paragraph two and seven of this agreement shall be
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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 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
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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/ XXXXXXX XXXX
______________________________________
Xxxxxxx Xxxx
