Exhibit 10.5
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 XXXXXXX X. XXXXXXX ('"Xxxxxxx").
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 Xxxxx X. Xxxxxxx ("Xxxxxxx"), 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) [*] the Purchaser or its Affiliates
[*] Purchaser and its Affiliates (including the PGM loans), (ii)
multiplied by [*] from which total is subtracted all mortgage banking
expenses incurred in connection with such revenues [*] 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 [*] Purchaser and PGM [*] Purchaser and its
Affiliates (including PGM) [*], (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.
[*].
By way of example, assume [*].
[*]
PGM Mortgage Banking Net Income would equal [*].
[*].**
**[*].
(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 [*]. 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.
(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 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,
reimbursement 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 Xxxxxx 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.
(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 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.
(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
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
(b) If to Osenton, to: Xxxxxxx X. Xxxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Such addresses may be changed by written notice sent to the other party at
the last recorded address of that party.
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.
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.
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.
(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.
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/ Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxxx
------------------------- ----------------------------
Title: Vice President Xxxxxxx X. Xxxxxxx
--------------------
