Exhibit 10.4
PRISM EQUITY VALUE PLAN-I
This agreement establishing the Prism Equity Value Plan-I (the
"Agreement" or "Plan") is dated as of March 1999, but is effective as of
August 31, 1998 (the "Effective Date"), by PRISM MORTGAGE COMPANY, an
Illinois corporation ("Prism" or "Company"), and those Key Personnel of
PACIFIC GUARANTEE MORTGAGE CORP., a California corporation ("PGM"), who
become Participants and signatories in accordance with the terms hereof,
and is intended to supersede any previous understandings or agreements of
the parties with respect to the subject matter contained herein.
SECTION I: RECITALS
A. Prism has acquired all of the issued and outstanding shares of
capital stock of PGM from Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx, pursuant
to that certain Agreement for the Purchase and Sale of the Capital Stock of
Pacific Guarantee Mortgage Corporation, dated July 23, 1998 (the "PGM
Purchase Agreement").
B. Pursuant to the PGM Purchase Agreement, Prism agreed to establish
this Plan to provide certain payments to Key Personnel at the time of an
IPO (as defined below) or Sale of Prism (as defined below), and certain
payments relating to PGM Net Income (as defined below).
C. Accordingly, in consideration of the covenants and mutual
agreements set forth below and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Prism hereby
agrees to establish this Plan and the Key Personnel hereby agree to the
terms and conditions contained herein.
SECTION II: DEFINITIONS
A. ADMINISTRATOR means the person or persons designated by the Board
to administer this Plan in accordance with the provisions of Section VII.
B. BENEFICIARY means the person or persons to whom a Participant's
benefits hereunder are payable to upon his or her death in accordance with
Section VI.
C. BOARD means the Board of Directors of Prism.
D. CLOSING means that corresponding definition as set forth in the
PGM Purchase Agreement, the definition of which is hereby specifically
incorporated by reference.
E. CODE means the Internal Revenue Code of 1986, as amended.
F. COMMON STOCK means shares of common stock of the Company.
G. COMPANY means Prism or any successor thereto.
H. ERISA means the Employee Retirement Income Security Act of 1974,
as amended.
I. IPO means an initial public offering of capital stock of Prism.
J. KEY PERSONNEL means those management employees, staff and
independent contractors affiliated with PGM initially designated by PGM
management who become a signatory to this Agreement plus those employees
and independent contractors affiliated with PGM or if PGM and Prism shall
merge, Prism (or the surviving entity of the merger), who are eligible to
become Participants in the Plan, as determined by the Board.
K. PARTICIPANTS mean those Key Personnel who are signatories to this
Agreement and who remain employed or affiliated with PGM.
L. PGM NET INCOME means that corresponding definition as set forth
in the PGM Purchase Agreement, the definition of which is hereby
specifically incorporated by reference.
M. PRISM NET INCOME means the definition corresponding to Purchaser
Net Income as set forth in the Purchase Agreement, the definition of which
is hereby specifically incorporated by reference.
N. SALE OF PRISM means the occurrence of (a) the sale of all or
substantially all of the assets of Prism or a successor of Prism or (b) the
sale of eighty percent (80%) or more of the outstanding shares of Prism,
whether such sale in (a) or (b) is effected directly or indirectly through
a merger, consolidation or reorganization.
O. SECURITIES ACT means the Securities Act of 1933, as amended.
SECTION III: PLAN PURPOSE AND FUNDING
A. PURPOSE: This Plan has been established to provide equity-
related compensation to the Participants in the event of an IPO or a Sale
of Prism, and certain payments relating to PGM Net Income.
B. FUNDING: All amounts payable or credited to Participants or
their Beneficiaries hereunder shall be paid in cash from the general assets
of the Company or by issuing shares of Common Stock of the Company, as
determined by the Administrator in accordance with the terms of the Plan.
The Company shall be under no obligation to establish a trust, a special or
separate fund, or to segregate any of its assets to assure payment of
amounts under this Plan. It is the intent of the Company and the
Participants that this Plan shall not be deemed or construed to defer the
receipt of compensation past termination of employment and, accordingly,
shall not be deemed to be an "employee benefit plan," as defined in section
3(3) of ERISA.
C. UNSECURED CREDITOR: Nothing contained in this Plan, and no
action taken pursuant to its provisions, shall create or be construed to
create a trust of any kind, nor a fiduciary relationship between the
Company and the Participants. To the extent that the a Participant
acquires a right to receive any amount from the Company under the Plan,
such rights shall be no greater than the right of a general unsecured
creditor of the Company. Each Participant acknowledges that, in the event
the Company becomes financially distressed (whether due to bankruptcy,
insolvency or otherwise), the Company's ability to pay benefits to the
Participant under this Plan could be adversely impacted. In agreeing to
become a Participant hereunder, each Participant represents and warrants
that he or she is sufficiently familiar with the financial condition of the
Company.
SECTION IV: CALCULATION OF BENEFIT
A. IPO GRANTS. At the time of an IPO or a Sale of Prism, the
Participants shall be entitled to receive, in the aggregate, a grant of
shares of Common Stock, in an amount to be determined by the following
formula:
First, the [ * ]; and
Second, the amount determined above shall be multiplied by 5%.
Thereafter, the number of shares of Common Stock allocated and distributed
to each Participant shall be determined under paragraph D below.
Notwithstanding any provision contained herein to the contrary, if counsel
to Prism determines that the grant of shares of Common Stock hereunder
requires registration, or compliance with an exemption from registration,
under the Securities Act or the securities laws of any state, then no
shares of Common Stock shall be distributed to Participants hereunder until
such time that an effective registration statement is filed or all of the
conditions for an exemption are met, as determined by Prism in its sole
discretion. Each participant agrees to cooperate with Prism and comply
with any terms and conditions imposed by Prism in connection with Prism
filing a registration statement or meeting the terms and conditions of an
exemption from registration. Prism will use its best efforts to ensure
that shares of Common Stock can be distributed to Participants in
compliance with the Securities Act as soon as practicable following an IPO.
B. SALE OF PRISM GRANTS. If there is a Sale of Prism prior to the
time of an IPO, the Participants shall be entitled to receive, in the
aggregate, a grant of shares of Common Stock, in an amount to be determined
by the following formula:
First, the [ * ]; and
Second, the amount determined above shall be multiplied by 5%.
Thereafter, the number of shares of Common Stock allocated and distributed
to each Participant shall be determined under paragraph D below.
Notwithstanding the foregoing, in lieu of issuing shares of Common Stock to
the Participants under this paragraph B, Prism may, in its sole discretion,
distribute cash to the Participants in an amount equal to the Fair Market
Value of Common Stock that would have been distributed. Notwithstanding
any provision contained herein to the contrary, if counsel to Prism
determines that issuing shares of Common Stock to Participants under this
paragraph B requires registration, or compliance with an exemption from
registration, under the Securities Act of 1933 or the securities laws of
any state, then no payment shall be made to Participants hereunder until
such time that an effective registration statement is filed or all of the
conditions for an exemption are met, as determined by Prism in its sole
discretion. Each participant agrees to cooperate with Prism and comply
with any terms and conditions imposed by Prism in connection with Prism
filing a registration statement or meeting the terms and conditions of an
exemption from registration. Prism will use its best efforts to ensure
that shares of Common Stock can be distributed to Participants in
compliance with the Securities Act as soon as practicable following a Sale
of Prism.
C. ALLOCATION OF IPO OR SALE OF PRISM GRANTS. In allocating the
total number of shares of Common Stock issued, or cash payment made, to a
Participant, as the case may be, in connection with an IPO or Sale of
Prism, the Administrator shall utilize the following process:
First, 20% of the shares of Common Stock or cash shall be designated
as EVP Pool 1 and shall be allocated among those Participants listed
in Exhibit A as EVP Pool 1 Participants, who were employed by or
affiliated with PGM prior to January 1, 1995. Allocation among EVP
Pool 1 Participants shall be on the basis of the percentage arrived at
by dividing the total number of full months an EVP Pool 1 Participant
was employed at PGM prior to January 1, 1995 by the total number of
full months all EVP Pool 1 Participants were employed at PGM prior to
January 1, 1995 multiplied by the percentage of shares of Common Stock
allocated to EVP Pool 1.
Second, 20% of the shares of Common Stock or cash shall be designated
as EVP Pool 2 and shall be allocated among Participants, who were
employed at PGM subsequent to December 31, 1994. Allocation among EVP
Pool 2 Participants shall be determined as of the IPO or Sale of Prism
date and shall be on the basis of the percentage arrived at by
dividing the total number of full months an EVP Pool 2 Participant has
been employed at Prism or PGM subsequent to December 31, 1994 by the
total number of full months all EVP Pool 2 Participants have been
employed at Prism or PGM subsequent to December 31, 1994.
If any EVP Pool 1 or EVP Pool 2 Participant is no longer employed by
PGM or Prism, that Participants nonvested or forfeited share of Common
Stock or cash in EVP Pool 1 and/or EVP Pool 2 shall be reallocated to
EVP Pool 3, described below.
Third, the remaining 60% of the shares of Common Stock or cash, and
any nonvested or forfeited benefits corresponding to EVP Pool 1 and
EVP Pool 2 Participants who have terminated employment, shall be
designated as EVP Pool 3 and shall be allocated among all remaining
Participants based on the following point system. For each full year
of service completed by a Participant after the Effective Date and
prior to the IPO or Sale of Prism date, the Administrator shall
determine, in its sole discretion, how many points, if any, to assign
to a Participant out of a total of 100 points per year. This shall be
done for each of the first five full years, measured from the
Effective Date or, if less, the number of full and partial years from
the Effective Date preceding an IPO or Sale of Prism. Points
allocated for a partial year shall be weighted, in relation to those
allocated for a full year, in the ratio of the number of months in the
partial year to a full 12 month year. Thereafter, the number of
shares of Common Stock or cash assigned to a Participant from EVP
Pool 3 shall be determined by, first, multiplying the aggregate number
of shares of Common Stock or cash allocated to EVP Pool 3, by the
total number of points assigned to a Participant, as of the IPO or
Sale of Prism Date, and, then, dividing such amount by the total
number of points assigned to all Participants.
SECTION V: VESTING OF GRANTS
A. VESTING OF IPO AND SALE OF PRISM GRANTS: Notwithstanding any
provision contained herein to the contrary, a Participant's allocations and
payment of grants relating to an IPO (under Section IV-A) or the Sale of
Prism Grants (under Section IV-B) shall vest at a rate of 20% per year
following the Effective Date and each Participant shall be fully vested if
he or she terminates employment due to death or total and permanent
disability (as determined by the Administrator in its sole discretion);
provided, however, that EVP Pool 1 allocations shall be immediately vested
as of the Effective Date. Nonvested benefits shall be forfeited, and will
be reallocated to EVP Pool 3 to be allocated to other Participants
according to the method described in Section IV-D above.
B. NONCOMPETE AND CONFIDENTIALITY: Notwithstanding anything
contained in this Plan to the contrary, a Participant will forfeit all
rights to unpaid benefits under this Plan if the Participant, without the
prior approval of an independent majority of the Board, violates the
provisions of any confidentiality or noncompete agreement with, or policy
of, the Company. Forfeitures under this paragraph B shall be reallocated
to other Participants based on the method described in the last sentence of
paragraph A above.
SECTION VI: PAYMENT OF DEATH BENEFITS
A. BENEFITS UPON DEATH OF PARTICIPANT BEFORE RECEIVING ALL BENEFITS:
If upon the Participant's death he remains entitled to receive any unpaid
benefit hereunder, his designated beneficiary shall receive any remaining
benefits to which the Participant remains entitled at such time as the
Participant would otherwise have received payment.
B. DESIGNATION OF BENEFICIARY: The Participant, from time to time,
may designate in writing any legal or natural person or persons (who may be
designated contingently or successively) to whom his benefits are to be
paid if he dies before receiving all of his unpaid benefits hereunder. A
beneficiary designation will be effective only when signed by the
Participant and filed with the Administrator while the Participant is
alive, and will cancel all beneficiary designations signed earlier. If the
Participant fails to designate a beneficiary as provided in this Section
VI, or if all designated beneficiaries predecease the Participant or die
prior to complete distribution of the Participant's benefits, then the
Participant's designated beneficiary shall be deemed to be the person or
persons surviving him in the first of the following classes in which there
is a survivor, share and share alike:
i. the Participant's surviving spouse;
ii. the Participant's children, except that if any of the
children predecease the Participant but leave issues surviving, then
such issue shall take, by right of representation, the share their
parent would have taken if living; or
iii. the Participant's personal representative (executor or
administrator).
Any payment to a deemed beneficiary shall completely discharge the
Company's obligations under this Plan.
SECTION VII: PLAN ADMINISTRATION PROVISIONS
A. APPOINTMENT AND AUTHORITY : The Board shall appoint one or more
persons to administer the Plan (singularly or collectively referred to as
the Administrator). The Administrator, is expressly granted the following
powers:
(1) To determine all questions arising under the Plan, including
the power to determine the rights or eligibility of employees and
their beneficiaries and their respective benefits, and to remedy
ambiguities, inconsistencies or omissions in the text of the Plan;
(2) To direct all payments of benefits under the Plan;
(3) To request, receive and have custody of all records and
documents pertaining to administration of the Plan;
(4) To be agent for the service of legal process on behalf of
the Plan;
(5) To delegate in writing one (1) or more individuals, agents
or counsel on behalf of the Administrator or to carry out
administrative functions;
(6) To interpret the terms of the Plan and make final binding
determinations regarding the Participant's rights under the Plan,
subject to the Participant's right to arbitrate a decision on the
grounds that it is clearly erroneous; or
(7) To perform any other acts necessary or appropriate to the
administration of the Plan and the discharge of its duties.
B. RIGHT TO AMEND OR TERMINATE: The Board may at any time and from
time to time to modify, suspend, amend or terminate the Plan in whole or in
part; provided, however, that no such action shall be effective with
respect to any Participant without the Participant's written consent.
C. INDEMNIFICATION OF THE ADMINISTRATOR: The Administrator shall be
indemnified by the Company against any and all liabilities, settlements,
judgments, losses, costs, and expenses (including reasonable legal fees and
expenses) of whatever kind and nature which may be imposed on, incurred by
or asserted against the Administrator by reason of the performance or
nonperformance of a Administrator function if such action did not
constitute gross negligence or willful misconduct. The foregoing right of
indemnification shall be in addition to other rights the Administrator by
law or by reason of insurance coverage of any kind. The Company may, at its
own expense, settle any claim asserted or proceeding brought against the
Administrator when such settlement appears to be in the best interests of
the Company.
D. CLAIMS PROCEDURE: A Participant or any designated beneficiary who
disputes the Administrator's determination of the benefits due to him or
her under the Plan may file a claim with the Administrator. A claim must be
in writing, in a form which gives the Administrator reasonable notice of
the claim, sets forth the basis of the claim, and authorizes the
Administrator to take all steps reasonably necessary to determine the
validity of the claim and to facilitate the payment of any benefits to
which the claimant is entitled. The Administrator will, if reasonably
possible, decide whether to grant or deny a claim within ninety (90) days
after it is filed. If a longer period is needed, the Administrator will, no
later than the last day of the ninety (90) day period, notify the claimant
of the extension of time and the reasons why it is needed. A decision must
then be rendered within ninety (90) days after the claimant was notified of
the extension. If the Administrator does not act within the time specified
by this paragraph C, the claim is automatically denied, and the claimant
may appeal in accordance with this paragraph C. If the Administrator
determines that a claim should be denied, it will give the claimant written
notice of denial. This notice must be written in a manner calculated to be
understood by the claimant, state specific reasons for denying the claim,
citing the provisions of the Plan on which the denial is based, explain the
procedure for reviewing the Administrator's decision, and if the claim is
denied because the Administrator lacks adequate information to reach a
decision, state what information is needed to make a decision possible and
why it is needed. If a claim is denied, the claimant may appeal to the
Board. The claimant's appeal must be submitted in writing to the Board no
later than sixty (60) days after the earlier of the date on which he
receives notice of denial or the expiration of the period within which the
Board is required to render a decision. The claimant or his representative
may submit any documents or written arguments that he desires in support of
his claim, and the Board may, but is not required to, hold a hearing on the
claim. The Board will, if reasonably possible, decide the claimant's appeal
within sixty (60) days after it is filed. If a longer period is needed, the
Board will, no later than the last day of the sixty (60) day period, notify
the claimant of the extension of time and the reasons why it is needed. A
decision must then be rendered within sixty (60) days after the claimant
was notified of the extension. If the Board does not act within the time
specified by this paragraph C, the appeal is automatically denied. If the
Board determines that an appeal should be denied, it must give the claimant
written notice of the denial in the same manner as required on initial
denial of the claim by the Board.
SECTION VIII: MISCELLANEOUS PLAN PROVISIONS
A. NOT A CONTRACT OF EMPLOYMENT: The terms and conditions of this
Plan shall not be deemed to constitute a contract of employment between the
Company and the Participant, and the Participant (or his beneficiary) shall
have no rights against the Company except as may otherwise be specifically
provided herein. Moreover, nothing in this Plan shall be deemed to give
the Participant a right to be retained in the service of the Company or to
interfere with the right of the Company to discipline or discharge him or
her at any time.
B. NONALIENATION OF BENEFITS: To the extent permitted by law, no
amount payable under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, garnishment, pledge
or encumbrance. Any attempt to anticipate, alienate, sell, transfer,
assign, attach, pledge or encumber the same shall be void, and no amount
payable under the Plan shall be in any manner liable to or subject to the
debts, contracts, liabilities, engagements or torts of any Participant or
designated beneficiary.
C. PAYMENTS TO INCOMPETENTS: If the Participant or designated
beneficiary entitled to receive any benefit hereunder is deemed by the
Administrator, or is adjudged, to be legally incapable of giving valid
receipt and discharge for such benefit, such benefit shall be paid to such
person(s) as the Administrator may designate or to a duly appointed
guardian. Any such payment shall be in complete discharge of the liability
of the Plan, the Administrator and the Company to the Participant or the
designated beneficiary.
D. MISSING PERSONS: If the Administrator cannot ascertain the
whereabouts of any designated beneficiary to whom a payment is due under
the Plan, and if, after five (5) years from the date such payment is due, a
notice of such payment due is mailed to the last known address of such
designated beneficiary as shown on the records of the Administrator, and
within three (3) months after such mailing such designated beneficiary has
not made written claim therefor, the Administrator, if it so elects, may
direct that such payment and all remaining payments otherwise due to such
designated beneficiary be permanently cancelled. Any such cancellation
shall be in complete discharge of the liability of the Plan, the
Administrator and the Company to the Participant and his designated
beneficiaries.
E. GENDER AND NUMBER: Wherever used herein, the masculine gender
shall include the feminine gender and the singular shall include the
plural, unless the context indicates otherwise.
F. WITHHOLDING: The Company may withhold from any benefits payable
under the Plan all federal, state, local or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
G. GOVERNING LAW: Except as provided in subparagraph (K)(1) below,
the provisions of the Plan shall be governed by and construed in accordance
with the laws of the State of Illinois.
H. SEVERABILITY: If any provision of this Plan or application
thereof to any designated beneficiary is held invalid or unenforceable, the
remainder of the Plan will not be affected thereby and to that extent the
provisions of this Plan are intended to be and are deemed to be severable.
I. HEADINGS. All headings in this Plan are for reference only and
are not to be utilized to construe its terms.
J. ARBITRATION:
(1) NEGOTIATION. EXCEPT FOR CONTROVERSIES, DISPUTES OR CLAIMS
RELATED TO PARTICIPANTS' OR ANY AFFILIATED PARTY'S COVENANT NOT TO COMPETE,
FOR WHICH PRISM OR PGM MAY SEEK INJUNCTIVE OR SUCH OTHER RELIEF AS IT MAY
DEEM APPROPRIATE, 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 AND PURSUANT TO THE PLAN'S CLAIMS
PROCEDURE. IF THE DISPUTE IS NOT RESOLVED WITHIN THE TIME PERIODS SET
FORTH IN SECTION VII-C, THE PARTIES SHALL THEN ATTEMPT TO RESOLVE THE
DISPUTE THROUGH ARBITRATION AS PROVIDED IN THIS SECTION.
(2) SCOPE OF ARBITRATION. EXCEPT FOR CONTROVERSIES, DISPUTES OR
CLAIMS RELATED TO PARTICIPANTS' OR ANY AFFILIATED PARTY'S COVENANT NOT TO
COMPETE, FOR WHICH PRISM MAY SEEK INJUNCTIVE OR SUCH OTHER RELIEF AS SUCH
PARTY MAY DEEM APPROPRIATE, ALL CONTROVERSIES, DISPUTES OR CLAIMS BETWEEN
PRISM AND PARTICIPANTS (AND ANY BENEFICIARY) ARISING OUT OF OR RELATED TO
(a) THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN PRISM AND
PARTICIPANTS THAT DO NOT HAVE THEIR OWN SPECIFIC ARBITRATION
PROVISIONS ("OTHER COVERED AGREEMENTS"); OR
(b) THE VALIDITY OF THIS AGREEMENT OR ANY OTHER COVERED
AGREEMENT BETWEEN PRISM AND PARTICIPANTS OR ANY PROVISION OF ANY SUCH
AGREEMENT
WILL BE SUBMITTED FOR BINDING ARBITRATION TO THE CHICAGO, ILLINOIS OFFICE
OF JAMS/ENDISPUTE ON DEMAND OF PRISM OR PARTICIPANTS. SUCH ARBITRATION
PROCEEDING WILL BE CONDUCTED IN CHICAGO, ILLINOIS 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 PRISM AND PARTICIPANTS, 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.
PRISM AND PARTICIPANTS 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. PRISM AND
PARTICIPANTS 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) (EXCEPT ONE THAT COULD BE FILED UNDER ANOTHER AGREEMENT
HAVING ITS OWN ARBITRATION AGREEMENT) 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 PRISM
AND A PARTICIPANT (OR BENEFICIARY) MAY NOT BE CONSOLIDATED WITH ANY OTHER
ARBITRATION PROCEEDING BETWEEN PRISM OR ANOTHER PARTICIPANT (OR
BENEFICIARY), AS APPLICABLE, AND ANY OTHER PERSON, CORPORATION, LIMITED
LIABILITY COMPANY OR PARTNERSHIP EXCEPT BY THE AGREEMENT OF THE PARTIES,
PROVIDED THAT PRISM OR PARTICIPANT (OR BENEFICIARY) MAY CONSOLIDATE ANY
ARBITRATION PROCEEDING COMMENCED UNDER THIS SECTION 12 WITH ANY ARBITRATION
PROCEEDING COMMENCED BY PRISM OR PARTICIPANT (OR BENEFICIARY) UNDER ANY
OTHER COVERED AGREEMENT EXECUTED IN CONNECTION HEREWITH.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION,
PRISM AND PARTICIPANTS 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 PRISM OR
PARTICIPANTS 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.
(3) CONSENT TO JURISDICTION. EACH PARTY AGREES THAT THE OTHER PARTY
MAY INSTITUTE ANY ACTION AGAINST IT (WHICH IS NOT REQUIRED TO BE ARBITRATED
HEREUNDER OR UNDER ANOTHER ARBITRATION AGREEMENT IN ANY OTHER AGREEMENT) IN
ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION LOCATED IN THE CITY OF
CHICAGO, STATE OF ILLINOIS, AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF
SUCH COURTS AND WAIVES ANY OBJECTION IT MAY HAVE TO EITHER THE JURISDICTION
OF OR VENUE IN SUCH COURTS.
(4) WAIVER OF JURY TRIAL. PRISM AND PARTICIPANTS 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.
PRISM MORTGAGE CORP.
By:/s/ Xxxxx Xxxxxx
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Title:/s/ Vice President
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