Metropolitan Mortgage & Securities Co., Inc.
LONG TERM INCENTIVE PAY AGREEMENT
Long Term Incentive Pay Agreement, hereinafter referred to as
Agreement, dated February 4, 1999 between Metropolitan Mortgage &
Securities Co., Inc., hereinafter referred to as Company and
Xxxxxxx X. Xxxxxx, 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 Confirmation
Form, incorporated herein, this agreement will begin on
February 16, 1999, and will end on February 15, 2004.
2. Deferred Compensation. If Employee is employed continuously
until February 15, 2004, he shall be entitled to receive
$431,315.24, 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 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 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, gross misconduct
or gross mismanagement of the business of Company,
insubordination, repeated failure to meet reasonable
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 reasonable expectations of his supervisor, or violation
of Company policies, employee shall not be terminated unless
he has received a 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. Successors, Waiver and Assignment. This agreement shall be
binding upon Company's successors and assigns. 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: 2/4/1999
C. Xxxx Xxxxxxxx, President and CEO
/S/ Xxxxxxx X. Xxxxxx
By: ___________________________________ Date: 2/4/1999
Xxxxxxx X. Xxxxxx
