Exhibit 10.5
EXECUTIVE EMPLOYMENT AGREEMENT
DATED AS OF JULY 31, 1998
BY AND BETWEEN
PACIFIC GUARANTEE MORTGAGE CORPORATION
AND
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission.
The omitted text has been marked with a bracketed asterisk ("[*]") and has
been filed separately with the Securities and Exchange Commission.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is dated as of July
31, 1998 by and between PACIFIC GUARANTEE MORTGAGE CORPORATION, a California
corporation ("PGM"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ('"Osenton").
WHEREAS, prior to the date of this Agreement, Osenton was a shareholder
of PGM;
WHEREAS, on even date herewith, PGM entered into that certain Purchase
and Sale Agreement dated July 23, 1998 (the "Purchase Agreement") between
Osenton and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), as sellers, and Prism Mortgage
Company, an Illinois corporation ("Prism"), as purchaser thereunder pursuant
to which Prism has purchased all of the shares of PGM;
WHEREAS, upon consummation of the transactions contemplated by the
Purchase Agreement, Prism will be the majority shareholder of PGM;
WHEREAS, PGM desires to retain the services of Osenton as an employee of
PGM and, to that end, desires to enter into this contract of employment with
Osenton, upon the terms and conditions herein set forth; and
WHEREAS, Osenton desires to be employed by PGM upon such terms and
conditions, and acknowledges that such terms and conditions, including but
not limited to the covenants contained in Section 7 hereof, constitute
material inducements for Prism to enter into and effect the transactions
contemplated in the Purchase Agreement and for PGM to employ Osenton pursuant
to this Agreement.
NOW, THEREFORE, in consideration of the above recitals, the promises and
covenants herein contained, Ten and No/100 Dollars ($10.00), and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS.
(a) "AFFILIATE". The term "Affiliate", as the term is used herein,
shall mean any person or entity: (i) which owns a voting interest in PGM;
(ii) in which PGM owns a voting interest; or (iii) in which a voting
interest is owned directly or indirectly by Prism.
(b) "BUSINESS". The term "Business", as the term is used herein,
shall mean PGM's residential mortgage lending and brokerage operations, as
well as all secondary market transactions conducted by PGM.
(c) "MARKET". The term "Market", as the term is used herein, shall
mean all areas in which PGM or its Affiliates, including Prism, while this
Agreement is in effect, conduct any of their residential mortgage
operations, and where they maintain branches or Net Branches.
(d) "NET BRANCHES" shall mean PGM branch operations operating under a
"PGM Branch Operators Agreement" as in effect on the date of this
Agreement, which branches are licensed and authorized to conduct the
Business and in which the responsibility and compensation to the Branch
Manager are as set forth in the PGM Branch Operators Agreement as in effect
as of the date of this Agreement.
(e) "NORTHERN CALIFORNIA" shall be defined as those counties in
California north of and including Salinas and Monterey counties.
(f) "PGM MANAGED BRANCH" shall mean offices other than Net Branches
operated directly by PGM.
(g) "PGM'S MORTGAGE BANKING NET INCOME" shall include all service
release premiums, incentive income, gain on sale income, interest income,
income generated as a result of bulk sales, assignment of trade or
co-issuer transactions and all similar income generated from the sale of
loans in the secondary market and shall be computed on a product by product
basis by calculating the total gross revenues generated by each product for
PGM and Purchaser and its Affiliates. Such gross revenue shall be
allocated as PGM Mortgage Banking Net Income based on (i) [*] ratio of the
[*] the Purchaser or its Affiliates relative to the [*] Purchaser and its
Affiliates (including the PGM loans), (ii) multiplied by [*] from which
total is sub-
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tracted all mortgage banking expenses incurred in connection
with such revenues allocated to PGM based on the ratio of [*] PGM and
funded by PGM or Purchaser relative to [*] Purchaser and its Affiliates
(including PGM Loans), adjusted by subtracting (i) all hedging costs
allocated to PGM based on the [*] Purchaser and PGM to the [*] Purchaser
and its Affiliates (including PGM) taking into account [*] compared to [*]
(ii) any costs and expenses associated with any repurchase obligations of
PGM, and (iii) any special fees paid to or reduced premiums received from
purchasers of loan product of PGM or Purchaser due to [*] such loans by PGM
[*], and adjusted further by adding or subtracting any [*] reflected on the
rate sheet of PGM distributed to its loan officers vis-a-vis the rate
sheets of Purchaser and its Affiliates distributed to their loan officers.
If PGM retains underwriting and closing operations [*].
By way of example, assume PGM [*] of $500 Million [*] of $200 Million [*]
of $300 Million, that the mortgage banking operations [*] $250 Million [*]
$300 Million [*] and $500 Million [*] Assume further Purchaser and its
Affiliates [*] of $10 Million [*] $5 Million in [*] and $15 Million [*] $1
Million in hedging costs [*] $10 Million in mortgage banking operating expenses
[*] 3,000 loans [*].
If PGM does not retain underwriting and closing:
PGM Mortgage Banking Net Income would equal [*]
[*] ($500 Million/$750 Million x $10 Million)
($200 Million/$500 Million x $5 Million)
[*] ($300 Million/$800 Million x $15 Million)]
[*] [3,000/10,000 x $10 Million] - [$1 Billion/$2.05 Billion x $1 Million)]
[*] [$6,666,666.66 + 2,000,000 + $5,625,000] - [$3,000,000 - $487,804]
[*] $10,803,862
If PGM retains underwriting and closing:
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[*] [($500 Million/$750 Million x $10 Million) +
($200 Million/$500 Million x $5 Million)
[*] ($300 Million/$800 Million x $15 Million)]
[*] [3,000/10,000 x ($10 Million - 3,000/10,000 x $2 Million))]
[*] [$1 Billion/$2.05 Billion x $1 Million]
[*] [$6,666,666.66 + 2,000,000 + $5,625,000]
[*] [3/10 x ($10 Million - $600,000] - [$487,804]
[*] $14,291,666 - ($2,820,000) - ($487,804)
[*] $10,983,862*
*[*] underwriting and closing [*] would then be [*]
(h) "PGM NET INCOME" shall equal PGM's pretax Mortgage Banking Net
Income plus all other pre-tax income generated by the PGM Operations
calculated in accordance with GAAP, including, without limitation, revenues
from loan origination including underwriting and other fee income, minus
all operational, administrative and out-of-pocket expenses including,
without limitation, all underwriting and closing costs in California,
directly associated with the operation of PGM included in the expenses and
subtracted from revenues in computing PGM Net Income and all indirect or
other expenses of Purchaser and its Affiliates to the extent they are
associated with services provided to PGM and apply to PGM Operations
(including, without limitation, accounting, financial, legal and other
services relating to the provision of technology, human resources,
accounting, insurance and national marketing and otherwise provided by
national senior management) allocated to or on behalf of PGM based on the
ratio of [*] compared to [*]. In no event shall [*] the purchase
contemplated hereby (other than [*]) be deemed to constitute direct or
indirect charges to PGM for the purpose of this definition.
(i) "PURCHASER NET INCOME" shall mean all pre-tax net income of
Purchaser and its Affiliates including all PGM Net Income.
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(j) "PGM OPERATIONS" shall mean all operations of PGM existing as of
the Closing plus (i) all other operations of PGM located in Northern
California which may be opened after the Closing (including new branches
and/or acquisitions), (ii) any new operations (i.e., not acquisitions) in
California which are opened by PGM after the Closing, (iii) any existing
Net Branches which are operated by PGM throughout the United States, (iv)
any conversions to PGM Managed Branches of new or existing Net Branches
that at the time of such conversion have been opened for two (2) years or
more, (v) the joint venture to be established with Keystroke and (vi) any
other operations of a PGM Joint Venture created for assisting in loan
origination and processing for which PGM is a processing agent and which is
expressly approved as a PGM Operation by Purchaser in writing, in its
reasonable discretion.
(k) "PGM POST TAX NET INCOME" shall mean PGM Net Income minus all
payments of taxes on all distributions to pay taxes of Sellers and other
shareholders of PGM Purchasers.
2. EMPLOYMENT TERM.
(a) INITIAL TERM. The Term of this Agreement ("Term") shall commence
on the date hereof, and shall end on the last day of May, 2003, unless
otherwise terminated as set forth herein.
(b) RENEWAL TERM(s). To the extent Osenton remains employed by PGM
or Prism, is not in default hereunder and desires to continue fulfilling
the responsibilities set forth in Section 3 hereof, this Agreement may be
renewed, upon the terms and conditions set forth herein, for consecutive
one (1) year periods ("Renewal Term(s)") upon the mutual agreement of the
parties hereto at least ninety (90) days prior to the expiration of the
Term or the then current Renewal Term. Compensation for such Renewal Terms
shall be negotiated within such ninety (90) day period prior to the
expiration of such Term or Renewal Term of this Agreement.
3. MANAGEMENT RESPONSIBILITIES AND OTHER DUTIES. Osenton shall serve as
President and, together with the other officers of PGM, and subject to the
Board's control and direction, shall be responsible for the management of the
day-to-day operations of the Business. Osenton shall devote substantially all
of Osenton's time during business hours (reasonable sick leave and vacations
excepted), and shall use his best efforts, to fulfill faithfully, responsibly
and to the best of his
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ability, his duties to PGM. Other than those decisions requiring board or
shareholder consent or approval under PGM's articles of incorporation,
by-laws or applicable state law, or customarily made by the board of
directors or the shareholders, and subject to the Board's control and
direction, Osenton shall have managerial duties substantially similar to the
managerial duties which were rendered by Osenton to PGM during the twelve
(12) month period immediately preceding the date of this Agreement, and shall
include, but not be limited to: the day-to-day operation, development and
growth of PGM's business, origination of mortgage loans, management of the
Business, maximization of PGM's profits, and other such duties and
responsibilities as shall be reasonably set forth by the Board, from time to
time.
4. MANAGEMENT DISCRETION. Without limiting the foregoing, and subject to
the oversight of the Board's control and direction, the senior officers of PGM
shall have the authority to retain all current PGM employees in their present
positions, subject to their annual review, PROVIDED THAT nothing herein shall be
deemed to cause such employees to be deemed third-party beneficiaries of this
Agreement.
5. COMPENSATION.
(a) SALARY. During each calendar year of this Agreement, in addition
to any amounts due Osenton pursuant to section 5(b) hereof, to the extent
Osenton remains employed by PGM, Osenton shall receive a gross annual
salary, prior to required withholdings, equal to One Hundred Eighty
Thousand and No/100 ($180,000.00), payable on the fifteenth (15th) day and
the last day of each month.
(b) BONUS. During each year of the Term of this Agreement, and
subject to the provisions of Section 10 hereof, Osenton shall receive bonus
compensation of $70,000 if the Net Income of PGM exceeds $1,000,000 for
such calendar year ("Bonus"), which shall be paid to Osenton within 120
days of year end.
(c) BENEFITS. Osenton shall be entitled, while employed by PGM, to
such employee benefits (e.g., health insurance) which are in effect from
time to time, and offered by PGM to its management in accordance with the
policies promulgated by the Board.
(d) EXPENSE REIMBURSEMENT. Osenton shall be entitled to receive,
upon the submission of receipts and vouchers therefor, reimburse-
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ment for all reasonable business expenses, which may be incurred by
Osenton, directly related to the performance of his duties under this
Agreement. This provision shall be subject to, and shall at all times
conform with, the then current policies of PGM and Prism regarding expense
reimbursement, provided that Osenton shall be entitled to reimbursement
for all bridge tolls incurred in his crossing the Richmond/San ▇▇▇▇▇▇
Bridge.
(e) VACATION; HOLIDAYS; SICK DAYS. Osenton shall be entitled to
vacations consistent with past practices, not to exceed six (6) weeks per
year and to paid holidays, and sick leave in accordance with the policies
for management level employees promulgated by the Board, then in effect.
(f) ONGOING OBLIGATION. If PGM terminates this Agreement without
"Cause" as defined in Section 6(a), PGM shall continue to pay Osenton the
compensation and benefits set forth in Sections 5(a), (b) and (c) hereof
for the balance of the period remaining in the then current Term or Renewal
Term of this Agreement had the Agreement not been terminated.
6. TERMINATION; SET-OFF.
(a) TERMINATION BY PGM. This Agreement may be terminated by the
Board of PGM, at any time, for "Cause" and for no other reason. For the
purposes of this Agreement, PGM will have "Cause" to terminate Osenton, if
Osenton has engaged in any of the following (for the purposes of this
Section, the term PGM shall include PGM and the Affiliates): fraud;
embezzlement; theft; improper disclosure of material confidential or
proprietary information of Prism or PGM; materially aiding a competitor of
Prism or PGM; conviction of a felony resulting in Osenton's conviction, or
conviction of Osenton of any criminal charge resulting in Prism or PGM
being in material violation of any mortgage brokerage or banking laws or
regulations or conviction of any other felony involving moral turpitude
resulting in harm or embarrassment to Prism or PGM; gross negligence or
incompetency in the performance of any employment duties; repeated and
continuing refusal or inability to perform any reasonable employment
duties; or repeated failure or material breach in performing or complying
with any of Osenton's obligations under this Agreement. This Agreement is
intended as a written statement of the economic relationship of the
parties, and not a guaranty of continued employment after the Term or if
Osenton is terminated for Cause.
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(b) TERMINATION BY OSENTON. After the first twelve (12) months of
the Term of this Agreement, Osenton shall, subject to the terms of this
Section 6(b), have the right, upon ninety (90) days' prior written notice,
to terminate his employment under the terms of this Agreement; provided,
however, that his right to receive compensation hereunder shall cease upon
the effective date of such termination and that all of the other covenants
and restrictions contained in the Purchase Agreement, including without
limitation those set forth in Section 6 thereof, and all covenants set
forth in Section 7 hereof shall remain in full force and effect.
7. COVENANTS OF OSENTON. The following covenants are made by and between
Osenton and PGM in consideration of the transaction contemplated by the Purchase
Agreement, and it is expressly acknowledged and agreed by Osenton that such
covenants are material inducements for PGM to enter into this Agreement, and for
Prism to consummate the transaction contemplated by the Purchase Agreement. The
following covenants are also made in consideration of the Term of this
Agreement, and all subsequent Renewal Terms, as provided in Section 2 hereof,
and the compensation to be paid Osenton as provided in Section 5 hereof. In
addition, Osenton acknowledges that PGM and its Affiliates, including, without
limitation, Prism, expend considerable time, money and resources in recruiting,
training and developing the skills and abilities of their employees; developing
business relationships with referral sources and customers so as to improve the
good will of PGM; establishing branches of PGM, including, but not limited to,
entering into a long term lease for office space; establishing and maintaining
close business relationships between PGM's employees and PGM's customers; and
obtaining, compiling and developing confidential customer lists, various
internal computer reports and other proprietary business information not readily
available to the public or through other sources. Osenton acknowledges and
agrees that PGM is entitled to protect its investment in the foregoing and to
keep the results of its efforts for its exclusive use. Accordingly, Osenton
agrees to the covenants and conditions set forth in Sections 7(a) through 7(d)
hereof, and acknowledges and agrees that they are necessary to preserve and
protect the legitimate business interests of PGM, and shall be binding upon
Osenton during and after Osenton's employment with PGM in accordance with their
terms:
(a) CONFIDENTIALITY. During the course of Osenton's employment,
Osenton will have access to certain trade secrets and other proprietary and
confidential business information regarding PGM, the Business and the
business of PGM's Affiliates. Osenton acknowledges, covenants and agrees
that such information is, and shall remain, the property of PGM and/or its
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Affiliates. Except on behalf of PGM as Osenton's legal duties may require,
Osenton shall keep confidential and shall not divulge to any other person
or entity, and shall not use for Osenton's own benefit, or the benefit of
others, during Osenton's employment or after Osenton's employment is
terminated by either party hereto for any reason, any information relating
to PGM or the Business, or otherwise pertaining to Osenton's employment, or
of the business secrets or other confidential information regarding PGM and
its Affiliates which have not otherwise become public knowledge; provided,
however, that nothing in this Agreement shall preclude Osenton from
disclosing necessary or appropriate information (i) to parties retained to
perform services for PGM or its Affiliates; (ii) under any other
circumstances to the extent such disclosure is appropriate or necessary to
further the best interests of PGM or its Affiliates; or (iii) as may be
required by law. For the purposes of this Agreement, confidential business
information shall have its ordinary and customary meaning and shall
include, without limitation: all business and marketing plans, customer and
prospect lists concerning referral sources, lists of employees of PGM and
its Affiliates, lists of the existence and locations of branches of the
Business, computer programs, internal business reports, agreements,
manuals, loan documents (including form documents such as PGM's loan
pricing disclosure agreements and the like), training materials, marketing
materials (including, without limitation, newsletters and correspondence),
financial information, information concerning financial arrangements with
outside lending institutions, terms of vendor agreements, internal pricing,
and fee and cost information, which are confidential and/or treated as
confidential business information by PGM.
(b) RECORDS. All documents, records, programs, computer media, files
and lists (including all originals and all copies) containing trade secrets
or confidential business information, and all papers, books, documents,
forms, handbooks, reports, computer disks and tapes, training manuals,
lending manuals and records of every kind and description relating to the
business and affairs of PGM and its Affiliates, whether or not prepared by
Osenton, and all tangible items obtained by Osenton during the course of
employment, and related to the Business, and the business of PGM's
Affiliates, including, without limitation, phones, keys, computers, credit
cards, lists, manuals, office equipment, furniture, and the like, shall be
the sole and exclusive property of PGM, and Osenton shall surrender them to
PGM upon termination of this Agreement, or at any time upon the request of
PGM.
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(c) ENFORCEMENT. Osenton recognizes that the provisions of this
Section 7 are vitally important to the continuing welfare of PGM and its
Affiliates and that money damages constitute an inadequate remedy for any
violation thereof. Accordingly, in the event of any such violation by
Osenton, PGM and the Affiliates, in addition to any other remedies they may
have, shall have the right to institute and maintain a proceeding to compel
specific performance thereof or to issue an injunction restraining any
action by Osenton in violation of this Section 7, without the necessity of
posting a bond.
(d) SURVIVAL OF COVENANTS. The provisions of this Section 7 shall
survive termination of Osenton's employment for any reason.
8. EXCLUSIVITY. Osenton hereby represents, covenants and warrants that
as of the date of this Agreement, Osenton is bound by no other Agreement or
non-competition agreement, or other similar agreement with a party other than
PGM, Prism and the Affiliates, except for the Agreement. Furthermore, while
this Agreement is in effect, Osenton shall not enter into, or otherwise become
bound by, any other agreement or non-competition agreement, or other similar
agreement other than with PGM, Prism and its Affiliates.
9. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed within the continental United States by first class
certified mail, return receipt requested, postage prepaid, addressed as follows:
(a) If to PGM, to: Pacific Guarantee Mortgage Corporation
Prism Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Osenton, to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Such addresses may be changed by written notice sent to the other party at the
last recorded address of that party.
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10. TAX WITHHOLDING. PGM shall provide for the withholding of any taxes
required to be withheld by federal, state and local law with respect to any
payment in cash and/or other property made by or on behalf of PGM to or for the
benefit of Osenton under this Agreement or otherwise.
11. NO ASSIGNMENT. Except as otherwise expressly provided herein, this
Agreement is not assignable by either party hereto and no payment to be made
hereunder shall be subject to alienation, sale, transfer, assignment, pledge,
encumbrance or other charge provided that an assignment of this Agreement by PGM
to an Affiliate or by operation of or in connection with the merger, sale of
stock of substantially all the business or assets of PGM or Prism shall not be
deemed an assignment covered by such prohibition. Except as expressly set forth
herein, this Agreement is not intended to confer upon any other person or entity
any rights or remedies hereunder and shall be binding upon and inure to the
benefit solely of each party hereto.
12. EXECUTION IN COUNTERPARTS. This Agreement may be executed by the
parties hereto in two or more counterparts, each of which shall be deemed to be
an original, but all such counterparts shall constitute one and the same
instrument, and all signatures need not appear on any one counterpart.
13. SEVERABILITY. If any provision of this Agreement shall be adjudged by
any court of competent jurisdiction to be invalid or unenforceable for any
reason, such judgment shall not affect, impair or invalidate the remainder of
this Agreement. Furthermore, if the scope of any restriction or requirement
contained in this Agreement is too broad to permit enforcement of such
restriction or requirement to its full extent, then such restriction or
requirement shall be enforced to the maximum extent permitted by law, and
Osenton consents and agrees that any court of competent jurisdiction may so
modify such scope in any proceeding brought to enforce such restriction or
requirement.
14. PRIOR UNDERSTANDING. This Agreement embodies the entire understanding
of the parties hereto, and supersedes all other oral or written agreements or
understandings between them regarding the employment relationship provided that
nothing in the Purchase Agreement shall be deemed to be effected or impaired by
this provision. No change, alteration or modification hereof may be made except
in a writing, signed by each of the parties hereto. The headings in this
Agreement are for convenience and reference only and shall not be construed as
part of this Agreement or to limit or otherwise affect the meaning hereof.
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15. ARBITRATION.
(a) NEGOTIATION. NEITHER PARTY SHALL INSTITUTE ANY PROCEEDING IN ANY
COURT OR ADMINISTRATIVE AGENCY OR ANY ARBITRATION TO RESOLVE A DISPUTE
BETWEEN THE PARTIES BEFORE THAT PARTY HAS SOUGHT TO RESOLVE THE DISPUTE
THROUGH DIRECT NEGOTIATION WITH THE OTHER PARTY. IF THE DISPUTE IS NOT
RESOLVED WITHIN THREE WEEKS AFTER A DEMAND FOR DIRECT NEGOTIATION, THE
PARTIES SHALL THEN ATTEMPT TO RESOLVE THE DISPUTE THROUGH ARBITRATION AS
PROVIDED IN THIS SECTION.
(b) SCOPE OF ARBITRATION. EXCEPT FOR CONTROVERSIES, DISPUTES OR
CLAIMS RELATED TO OR BASED ON OSENTON'S COVENANTS IN SECTION 7, FOR WHICH
PGM MAY SEEK INJUNCTIVE OR SUCH OTHER RELIEF AS SUCH PARTY MAY DEEM
APPROPRIATE, ALL CONTROVERSIES, DISPUTES OR CLAIMS BETWEEN PGM AND OSENTON
ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION
THE VALIDITY OF THIS AGREEMENT, WILL BE SUBMITTED FOR BINDING ARBITRATION
TO THE SAN FRANCISCO, CALIFORNIA OFFICE OF THE JAMS/ENDISPUTE ON DEMAND OF
OSENTON OR PGM. SUCH ARBITRATION PROCEEDING WILL BE CONDUCTED IN SAN
FRANCISCO, CALIFORNIA AND, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT,
WILL BE HEARD BY ONE ARBITRATOR IN ACCORDANCE WITH THE THEN CURRENT RULES
OF THE JAMS/ENDISPUTE. ALL MATTERS RELATING TO ARBITRATION WILL BE
GOVERNED BY THE FEDERAL ARBITRATION ACT (9 U.S.C. Sections 1 ET SEQ) AND
NOT BY ANY STATE ARBITRATION LAW.
THE DECISION AND AWARD OF THE ARBITRATOR SHALL BE BINDING AND
CONCLUSIVE UPON BOTH OSENTON AND PGM, AND ENFORCEABLE IN ANY COURT OF
COMPETENT JURISDICTION. THE ARBITRATOR WILL HAVE THE RIGHT TO AWARD OR
INCLUDE IN THE AWARD ANY LAWFULLY APPROPRIATE RELIEF AND TO ASSESS COSTS OR
EXPENSES TO ONE OR BOTH PARTIES.
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OSENTON AND PGM AGREE TO BE BOUND BY THE PROVISIONS OF ANY LIMITATION
ON THE PERIOD OF TIME IN WHICH CLAIMS MUST BE BROUGHT UNDER APPLICABLE LAW
OR THIS AGREEMENT, WHICHEVER EXPIRES EARLIER. OSENTON AND PGM FURTHER
AGREE THAT, IN CONNECTION WITH ANY SUCH ARBITRATION PROCEEDING, EACH MUST
SUBMIT OR FILE ANY CLAIM WHICH WOULD CONSTITUTE A COMPULSORY COUNTERCLAIM
(AS DEFINED BY RULE 13 OF THE FEDERAL RULES OF CIVIL PROCEDURE) WITHIN THE
SAME PROCEEDING AS THE CLAIM TO WHICH IT RELATES, ANY SUCH CLAIM WHICH IS
NOT SUBMITTED OR FILED AS DESCRIBED ABOVE WILL BE FOREVER BARRED.
EACH PARTY AGREES THAT ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL,
NOT A CLASS-WIDE, BASIS, AND THAT AN ARBITRATION PROCEEDING BETWEEN OSENTON
AND PGM MAY NOT BE CONSOLIDATED WITH ANY OTHER ARBITRATION PROCEEDING
BETWEEN OSENTON OR PGM, AS APPLICABLE, AND ANY OTHER PERSON, CORPORATION,
LIMITED LIABILITY COMPANY OR PARTNERSHIP, OR, EXCEPT UPON THE EXPRESS
WRITTEN CONSENT OF THE PARTIES HERETO, WITH ANY ARBITRATION PROCEEDING
COMMENCED BY PGM OR OSENTON UNDER ANY OTHER AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION,
OSENTON AND PGM SHALL EACH HAVE THE RIGHT IN A PROPER CASE TO OBTAIN
TEMPORARY RESTRAINING ORDERS AND TEMPORARY OR PRELIMINARY INJUNCTIVE RELIEF
FROM A COURT OF COMPETENT JURISDICTION; PROVIDED, HOWEVER, THAT OSENTON OR
PGM MUST CONTEMPORANEOUSLY SUBMIT THE DISPUTE FOR ARBITRATION ON THE MERITS
AS PROVIDED HEREIN.
THE PROVISIONS OF THIS SECTION WILL CONTINUE IN FULL FORCE AND EFFECT
SUBSEQUENT TO AND NOTWITHSTANDING THE EXPIRATION OR TERMINATION OF THIS
AGREEMENT.
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(c) GOVERNING LAW. ALL MATTERS RELATING TO ARBITRATION WILL BE
GOVERNED BY THE FEDERAL ARBITRATION ACT (9 U.S.C. Sections 1 ET SEQ).
EXCEPT TO THE EXTENT GOVERNED BY OTHER FEDERAL LAW, THIS AGREEMENT AND ALL
CLAIMS ARISING FROM THE EMPLOYMENT RELATIONSHIP BETWEEN PGM AND OSENTON
WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA AND THE UNITED
STATES OF AMERICA WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES.
(d) WAIVER OF JURY TRIAL. PURCHASER AND SELLERS IRREVOCABLY WAIVE
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER AT LAW OR
IN EQUITY, BROUGHT BY EITHER OF THEM AGAINST THE OTHER.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
PACIFIC GUARANTEE MORTGAGE
CORPORATION, a California corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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