Metropolitan Mortgage & Securities Co., Inc.
AGREEMENT
Agreement dated June 10, 1997, between Metropolitan Mortgage &
Securities Co., Inc., hereinafter referred to as Company, and Xxxxx X.
Xxxxxxxxx, 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, 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 the
end of the agreement period, he shall be entitled to receive
$400,000.00, 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, within the United States of
America, own, manage, operate, control or be employed by or assist any
business similar to
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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.
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
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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.
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.
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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/ XXXXX X. XXXXXXXXX
______________________________________
Xxxxx X. Xxxxxxxxx