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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of
January 1, 1996, by and between PACIFIC UNITED GROUP, INC., a Delaware
corporation (hereinafter referred to as "EMPLOYER") and XXXXXXX X. XXXXXX
(hereinafter referred to as "FREMED"), on the following terms and conditions:
1. TERM OF AGREEMENT; DUTIES.
(a) Term. EMPLOYER hereby agrees to employ FREMED as
Chief Financial Officer of EMPLOYER, Chief Financial Officer of Pacific Unified
Mortgage, Inc., a Delaware corporation ("PUM"), Chief Financial Officer of
Consolidated Reconveyance Corporation, a California corporation
("Consolidated"), Chief Financial Officer of Lenders Posting and Publishing
Corporation, a California corporation ("Lenders") and Treasurer of Pacific
Thrift and Loan Company, Inc., a California corporation ("Pacific Thrift"), all
of which are operating subsidiaries of the EMPLOYER, for a one-year term,
commencing on the date hereof, and FREMED hereby agrees to accept such
employment for such term, subject to earlier termination under the
circumstances provided herein. The term of this Agreement shall be extended
automatically to cover successive terms of one year commencing on each
anniversary date of the date hereof after the initial one-year term, unless, at
least six months prior to the end of the initial term or any renewal term
hereof, FREMED gives written notice to the Board of Directors of EMPLOYER (the
"Board"), or EMPLOYER gives written notice to FREMED, of an intent to terminate
this Agreement at the end of such term.
(b) Duties. FREMED, subject to the direction and control
of the Board, shall devote all of FREMED'S productive time, attention and
energies to discharging, and shall perform, such executive duties and
managerial responsibilities as may from time to time be specified by EMPLOYER,
and will use FREMED'S best efforts to promote the interests of EMPLOYER and its
subsidiaries and affiliates. The performance of such duties and
responsibilities shall be FREMED'S exclusive employment for compensation;
provided, however, that nothing herein contained shall be deemed to limit
FREMED'S right to engage in other activities that do not interfere with
FREMED'S duties hereunder, with the consent of the Board.
2. COMPENSATION.
(a) In consideration for the services to be rendered by
FREMED hereunder during the term of FREMED'S employment, including all services
to be rendered as an officer and executive of EMPLOYER, its subsidiaries and
affiliates, EMPLOYER agrees to compensate FREMED as follows:
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(i) During the term of this Agreement, EMPLOYER
shall pay FREMED a salary at an annual base rate of one hundred twenty five
thousand dollars ($125,000) per year, which shall be adjusted annually to
reflect any increase from the previous year in the Consumer Price Index for the
Los Angeles, California area (the "Base Salary"). The applicable Base Salary
shall be payable not less frequently than monthly in accordance with the
regular salary procedure from time to time adopted by EMPLOYER. There shall be
deducted from all compensation paid to FREMED such sums, including but not
limited to Social Security, income tax withholding, employment insurance, and
any and all other such deductions, as EMPLOYER is by law obligated to withhold.
(ii) FREMED shall be reimbursed for FREMED'S
reasonable and actual out-of-pocket expenses incurred by FREMED in performance
of FREMED'S duties and responsibilities hereunder, provided that FREMED shall
first furnish to EMPLOYER proper vouchers and/or receipts.
(iii) FREMED shall be entitled to participate in, and
shall be included in, such insurance, pension, profit sharing, stock option,
stock purchase, employee cash bonus pools, and other employee benefit plans of
EMPLOYER as are in effect from time to time during the term of this Agreement
and provided to other senior executive employees of EMPLOYER, including, but
not limited to, EMPLOYER'S Supplemental Executive Retirement Plan (all of which
are collectively referred to herein as the "Benefit Plans").
(iv) FREMED shall also be entitled to all
perquisites provided in accordance with EMPLOYER'S policy for senior management
executives from time to time in effect (all of which are collectively referred
to herein as the "Perquisites"). Notwithstanding the foregoing, in no event
shall each or any of the Perquisites provided pursuant to the terms of this
Section 2 (a) (iv) be lesser in value than such perquisites as were provided to
FREMED by Pacific Thrift and/or Presidential Mortgage Company, a California
Partnership ("Presidential") and in effect immediately prior to the transfer of
assets by Presidential to EMPLOYER. Perquisites provided pursuant to this
Section 2 (a) (iv) shall include, without limitation, use of an automobile or
automobile allowances, expense allowances, vacation days, sick days and
holidays, and medical, dental and life insurance benefits.
3. DISABILITY. If, on account of any physical or mental
disability, FREMED shall fail or be unable to perform under this Agreement for
any period of one hundred twenty (120) consecutive days or for an aggregate
period of one hundred twenty (120) or more days during any consecutive
twelve-month period, EMPLOYER may, at its option, at any time thereafter, upon
written notice to FREMED, terminate the employment relationship provided for in
this Agreement. In such event, FREMED'S requirement to
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render services hereunder and EMPLOYER'S requirement to compensate FREMED
hereunder shall terminate and come to an end upon the date provided in such
notice. In that event, FREMED shall be entitled to receive, as disability
compensation: (i) FREMED'S Base Salary for one year following termination of
this Agreement payable not less frequently than monthly, and (ii) use of an
automobile or automobile allowance, full automobile insurance coverage, and
health insurance coverage under any health insurance policies maintained by
EMPLOYER for its other senior executives, all of which shall be provided
pursuant to the terms of Section 2 (a) (iv) herein and shall continue to be
provided without interruption for the greater of one year following the
effective date of termination pursuant to this Section 3 or the remainder of
the term of this Agreement. EMPLOYER may, at its option, apply for disability
income insurance and, if so, any obligation on the part of EMPLOYER to pay
FREMED any payments on account of any physical or mental disability of FREMED
as specified above, shall be reduced by the amount of any payments to FREMED
under any such disability income policy. Any payments to FREMED under any
state disability insurance shall not reduce the amount payable to FREMED under
this Agreement.
4. DEATH. In the event of FREMED'S death during the term hereof,
this Agreement shall terminate immediately. In such event, FREMED's personal
representative shall be entitled to receive, as a death benefit, in addition to
any other payments which FREMED's personal representative may be entitled to
receive under any Benefit Plans, FREMED'S Base Salary for one year following
FREMED'S death, payable not less frequently than monthly.
EMPLOYER may maintain life insurance on the life of FREMED in favor of
the EMPLOYER. FREMED shall have no interest whatsoever in any such policy or
policies, except as otherwise provided in any split dollar life insurance
agreements, but FREMED shall, at the request of EMPLOYER, submit to such
medical examinations, supply such information, consent to such blood tests and
execute such documents as may be required by the insurance company or companies
to whom EMPLOYER has applied for such insurance.
5. TERMINATION FOR CAUSE. EMPLOYER may discharge FREMED at any
time for cause. "Cause" for discharge shall mean (i) theft or embezzlement by
FREMED from EMPLOYER or its affiliates, (ii) fraud or other acts of dishonesty
by FREMED in the conduct of EMPLOYER'S business or the fulfillment of FREMED'S
assigned responsibilities hereunder, (iii) FREMED'S conviction of, or plea of
nolo contendere to, any felony or any crime involving moral turpitude, (iv)
FREMED'S willfully and knowingly taking any action which is materially
injurious to EMPLOYER'S business or reputation. Within 10 business days
following receipt of written notice of termination for Cause, FREMED shall have
the right to demand and, if demanded, to receive within 30
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days, an opportunity to respond and defend himself before the Board and to have
the Board by resolution confirm by a three-fourths affirmative vote that
EMPLOYER has grounds to terminate FREMED for Cause. If the Board does not
determine that Cause exists, FREMED shall have the option to treat his
employment as not having terminated or as having been terminated by EMPLOYER
without cause as defined in Section 6 herein. Without limiting the foregoing,
nothing in this Section 5 shall be construed to require that FREMED demand a
hearing before the Board as a condition to pursuing any claim or action with
respect to the matters contained in this Agreement. The occurrence of any event
constituting cause for discharge shall permit, but not require, EMPLOYER to
terminate FREMED for Cause; provided, however, that EMPLOYER'S decision not to
terminate the FREMED upon the occurrence of an event constituting cause for
discharge shall not operate as a waiver of its rights provided in this Section
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If EMPLOYER terminates FREMED for Cause, EMPLOYER shall be obligated
to provide to FREMED only the Base Salary provided for in Section 2 (a) (i)
herein through the date of termination of FREMED at the rate in effect on the
date of such termination.
6. TERMINATION WITHOUT CAUSE. Should EMPLOYER terminate this
Agreement for reasons other than those specified in Sections 3, 4, 5, or 7
herein, FREMED shall be entitled to use of an automobile or automobile
allowance, full automobile insurance coverage, and health insurance coverage
under any health insurance policies maintained by EMPLOYER for its other senior
executives, all of which shall be provided pursuant to the terms of Section 2
(a) (iv) herein and shall continue to be provided without interruption for six
months following the effective date of termination pursuant to this Section 6.
Upon termination pursuant to this Section 6, EMPLOYER shall additionally pay to
FREMED a lump sum payment, to be paid on the effective date of termination
pursuant to this Section 6, which shall consist of: (i) one-half of the full
annual Base Salary, and (ii) the cash value of all vacation, holiday and sick
days which have accrued up to the date of termination and which would have
accrued for six months following termination pursuant to this Section 6. (The
sum of all amounts and benefits to be provided by EMPLOYER to FREMED pursuant
to this Section 6 is collectively referred to herein as the "Termination
Payment".)
7. CORPORATE CHANGES.
(a) Definition. FREMED may terminate his employment
hereunder upon thirty (30) days written notice at any time within one year
following the occurrence of a Corporate Change. For purposes of this Section
7, a "Corporate Change" shall be deemed to have occurred upon the occurrence of
any one (or more) of the following events: (i) a transaction in which EMPLOYER
ceases to be an independent publicly owned corporation that is required to file
quarterly and annual reports under the
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Securities Exchange Act of 1934, (ii) a sale or other disposition of all or
substantially all of the assets, or a majority of the outstanding capital
stock, of EMPLOYER (including but not limited to the assets or stock of
EMPLOYER'S subsidiaries that results in all or substantially all of the assets
or stock of EMPLOYER on a consolidated basis being sold), (iii) as a result of,
or in connection with, any cash tender offer, exchange offer, merger or other
business combination, sale of assets, or contested election for the Board, or
combination of the foregoing, persons who were directors of EMPLOYER just prior
to such event(s) shall cease to constitute a majority of the Board, (iv) any
person, including a group as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended, becomes the beneficial owner of shares of
EMPLOYER with respect to which twenty percent (20%) or more of the total number
of votes for the election of the Board may be cast, (v) EMPLOYER'S stockholders
cause a change in the majority of the members of the Board within a twelve (12)
month period; provided, however, that the election of one or more new directors
shall not be deemed to be a change in the membership of the Board if the
nomination of the newly elected directors was approved by the vote of
three-fourths of the directors then still in office who were directors at the
beginning of such twelve (12) month period, or (vi) a tender offer or exchange
offer is made for shares of the EMPLOYER'S common stock (other than one made by
the EMPLOYER) and shares of common stock are acquired thereunder.
(b) Payments. Upon termination of employment pursuant to
this Section 7, FREMED shall be entitled to use of an automobile or automobile
allowance, full automobile insurance coverage, and health insurance coverage
under any health insurance policies maintained by EMPLOYER for its other senior
executive officers, all of which shall be provided pursuant to the terms of
Section 2 (a) (iv) herein and shall continue to be provided without
interruption for six months following the effective date of termination
pursuant to this Section 7. Upon termination pursuant to this Section 7,
EMPLOYER shall additionally pay to FREMED a lump sum payment, to be paid within
five (5) days after the date of FREMED'S notice pursuant to Section 7 (a)
herein, which shall consist of: (i) one-half of the full annual Base Salary,
and (ii) the cash value of all vacation, holiday and sick days which have
accrued up to the date of termination and which would have accrued for six
months following termination pursuant to this Section 7. (The sum of all
amounts and benefits to be provided by EMPLOYER to FREMED pursuant to this
Section 7 (b) is collectively referred to herein as the "Corporate Changes
Termination Payment"). Notwithstanding the foregoing, if FREMED gives notice
of termination pursuant to this Section 7 prior to the closing of a transaction
referred to in Section 7(a)(i) or (ii) hereof, the Corporate Changes
Termination Payment must be made a condition to and must be paid on the date of
the closing of such a transaction.
(c) Tax Limitations on Corporate Changes Payments. If
the aggregate of all payments, including but not
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limited to, the Corporate Changes Termination Payment that is to be paid to
FREMED contingent on those Corporate Changes specified in Section 7 (a) herein
(the "Aggregate Amount"), would constitute a "parachute payment" (as defined in
Section 280 G of the Internal Revenue Code of 1986, as amended or supplemented
(the "Code"), the Corporate Changes Termination Payment otherwise payable to
the FREMED pursuant to Section 7 (b) herein shall be equal to the higher of:
(i) the amount (referred to herein as the "Reduced Amount") that would result
in no portion of the Aggregate Amount being subject to the excise tax imposed
by Section 4999 of the Code, or (ii) the full Aggregate Amount if the net after
tax payments to FREMED would exceed the Reduced Amount. The determination of
the Corporate Changes Termination Payment, the Reduced Amount and the net after
tax amount payable to FREMED on the full Aggregate Amount shall be made by the
FREMED and the EMPLOYER in good faith, and in the event they disagree, such
determination shall be made by means of arbitration to be conducted at the
EMPLOYER'S expense. Any such arbitration shall be conducted in Los Angeles,
California, by one arbitrator, who shall be a member of a nationally recognized
accounting firm that is not then engaged by the EMPLOYER or any of its major
stockholders, and who shall be jointly designated by the parties. If the
parties cannot agree on the selection of an arbitrator, EMPLOYER'S then current
independent auditors shall select such arbitrator. The findings of the
arbitrator shall be conclusive and binding on the parties. For purposes of
this Section 7(c), the net after tax amount payable to FREMED shall mean the
present value, as determined in accordance with Section 280G(d)(4) of the Code,
of any payment or distribution in the nature of compensation to or for FREMED'S
benefit, whether paid or payable pursuant to this Agreement or otherwise, net
of all taxes imposed on the FREMED with respect thereto under Sections 1 and
4999 of the Code, determined by applying the highest marginal rate under
Section 1 of the Code.
8. RIGHTS TO PROPRIETARY INFORMATION.
(a) For purposes of this Agreement, the term "Proprietary
Information" means and includes: 1. all written, oral and visual information
about EMPLOYER's customers, clients, employees, consultants and brokers that is
not readily known or available to the public, or that FREMED learns of or
acquires through his employment by EMPLOYER; and 2. financial information,
marketing techniques and materials, marketing and development plans, broker
lists, customer lists, other information concerning brokers and customers,
pricing information and policies, price lists, employee files, corporate and
business contacts and relationships, corporate and business opportunities,
telephone logs and messages, video or audio tapes and/or disks, photographs,
film and slides, including all negatives and positive and prints, computer
disks and files, rolodex cards, addresses and telephone numbers, contracts,
releases, other writings of any kind, and any and all other materials of a
proprietary nature to which FREMED is exposed or has access as a
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consequence of his employment by EMPLOYER. All of the Proprietary Information
is, and at all times shall be and remain, private and confidential and is the
sole and exclusive property of, and owned and controlled by EMPLOYER,
regardless of whether such Proprietary Information is in tangible or intangible
form. The parties understand that information that is generally known to the
public, or which FREMED acquired other than as a consequence of his employment
by EMPLOYER, such as in the course of similar employment or work elsewhere
shall not be deemed part of the Proprietary Information.
(b) All Proprietary Information shall be the sole
property of EMPLOYER, its successors and assigns, and EMPLOYER, its successors
and assigns shall be the sole owner of all patents, trademarks, service marks
and copyrights, and other rights (collectively referred to herein as "Rights")
pertaining to Proprietary Information. FREMED hereby assigns to EMPLOYER any
rights FREMED may have or acquire in Proprietary Information or Rights
pertaining to the Proprietary Information. FREMED further agrees as to all
Proprietary Information to assist EMPLOYER or any person designated by it in
every necessary or appropriate manner (but at EMPLOYER's expense) to obtain and
from time to time enforce Rights relating to said Proprietary Information
throughout the universe. FREMED will execute all documents for use in applying
for, obtaining and enforcing such Rights on such Proprietary Information as
EMPLOYER may desire, together with any assumptions thereof to EMPLOYER or
persons designated by it. FREMED's obligation to assist EMPLOYER or any person
designated by it in obtaining and enforcing Rights relating to Proprietary
Information shall continue beyond the cessation of his employment. It is
provided, however, that EMPLOYER shall compensate FREMED at a reasonable rate
after the cessation of employment for time actually spent by FREMED upon
EMPLOYER's request for such assistance. In the event that EMPLOYER is unable,
after reasonable effort, to secure FREMED's signature on any document or
documents needed to apply for or enforce any Right relating to Proprietary
Information, whether because of his physical or mental incapacity or for any
other reason whatsoever, FREMED hereby irrevocably designates and appoints
EMPLOYER and its duly authorized officers and agents as his agents and
attorneys-in-fact to act for and in his behalf and stead in the execution and
filing of any such application and in furthering the application for an
enforcement of Rights with the same legal force and effect as if such acts were
performed by FREMED.
(c) At all times, both during his employment and after
the cessation of employment, whether the cessation is voluntary or involuntary,
for any reason or no reason, or by disability, FREMED will keep in strictest
confidence and trust all Proprietary Information, and FREMED will not disclose,
use, or induce or assist in the use or disclosure of any Proprietary
Information or Rights pertaining to Proprietary Information, or anything
related thereto, without the prior, express written
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consent of EMPLOYER, except as may be necessary in the ordinary course of
performing his duties as an employee of EMPLOYER. FREMED recognizes that
EMPLOYER has received and in the future will receive from third parties their
confidential, trade secret, or Proprietary Information subject to a duty on
EMPLOYER's part to maintain the confidentiality of such information and to use
it only in connection with the performance of his duties as an employee of
EMPLOYER. FREMED agrees that FREMED owes EMPLOYER and such third parties,
during his employment and thereafter, a duty to hold all such confidential,
trade secret, or Proprietary Information in the strictest confidence, and
FREMED will not disclose, use, or induce or assist in the use or disclosure of
any such confidential, trade secret, or Proprietary Information without the
prior, express written consent of EMPLOYER, except as may be necessary in the
ordinary course of performing his duties as an employee of EMPLOYER consistent
with EMPLOYER's agreement with such third party.
(d) FREMED agrees that all material or other original
works of authorship written, created, or developed by FREMED in connection with
his employment hereunder (whether alone or in conjunction with any other
person), and all rights of any and every kind whatsoever in and to the results
and proceeds of FREMED's services rendered hereunder, whether or not such
rights are now known, recognized or contemplated, and the complete,
unconditional and unencumbered ownership in and to such materials, results and
proceeds for all purposes whatsoever shall be "works for hire," as that term is
defined in the United States Copyright Act (17 U.S.C. Section 101), and shall
be the sole and absolute property of EMPLOYER, its successors and assigns, and
FREMED agrees that he/she does not have and will not claim to have, either
under this Agreement or otherwise, any right, title or interest of any kind or
nature whatsoever in or to said property.
(e) FREMED will promptly disclose to EMPLOYER, and
EMPLOYER hereby agrees to receive such disclosures in confidence, all
discoveries, developments, designs, improvements, inventions, software
programs, processes, techniques, know-how, negative know-how and data, whether
or not patentable or registrable under patent, copyright or similar statutes or
reduced to practice, made or conceived or reduced to practice or learned by
FREMED, either alone or jointly with others during the period of his
employment, for the purpose of permitting EMPLOYER to determine whether they
constitute Proprietary Information, or copyrightable or patentable material.
9. NON-COMPETITION/NON-SOLICITATION.
(a) During the period of his employment, FREMED will not
directly or indirectly engage in any activity which competes with EMPLOYER, or
which EMPLOYER shall determine in good faith to be in competition with EMPLOYER
or any subsidiary or affiliate of EMPLOYER. In addition, during his employment
and
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after the cessation of employment, FREMED will not, alone or in concert with
others, or on his own behalf, or on behalf of any other person, in any way use
or disclose Proprietary Information in order to solicit, entice, or in any way
divert any broker to do business with any competitor of EMPLOYER or any
subsidiary or affiliate of EMPLOYER. During his employment, FREMED agrees not
to plan or otherwise take any preliminary steps, either alone or in concert
with others, or on his own behalf, or on behalf of any other person, to set up
or engage in any business enterprise that would be in competition with EMPLOYER
or any subsidiary or affiliate of EMPLOYER.
(b) During his employment and for a period of two (2)
years after the cessation of employment, FREMED will not, either directly or
indirectly, either alone or in concert with others or on his own behalf or on
behalf of any other person, solicit, divert, entice, recruit, or employ any
employee of or consultant to EMPLOYER, or any subsidiary or affiliate of
EMPLOYER, to leave employment with or otherwise terminate employment with
EMPLOYER or any subsidiary or affiliate of EMPLOYER or work for any competitor
of EMPLOYER or any subsidiary or affiliate of EMPLOYER.
(c) FREMED recognizes that the immediate and continuous
performance of his obligations in this paragraph 9 is extremely important and
valuable to EMPLOYER because of the extensive and costly training given to its
employees and the knowledge gained by such employees of the Proprietary
Information used by EMPLOYER in its operations. In the event of his breach of
those obligations, FREMED therefore agrees that EMPLOYER shall be entitled to
estimated or liquidated damages, as defined herein. For each former employee
of EMPLOYER whom FREMED solicits, diverts, recruits, or employs in violation of
this paragraph 9, and for each broker or mortgage loan customer of EMPLOYER
whom such former employee handled for EMPLOYER and whom the former employee
contacts or otherwise services or works with for his benefit or for the benefit
of anyone in privity with FREMED, including any competitor of EMPLOYER or any
subsidiary or affiliate of EMPLOYER with whom FREMED accepts employment in
breach of this paragraph 9, FREMED shall pay EMPLOYER liquidated damages. The
liquidated damages for each such broker or customer shall be (i) the amount of
profit earned by EMPLOYER from mortgage loan referrals from each broker, or the
amount of profit earned on loans to each mortgage loan customer, during the
twelve (12) months immediately preceding termination of such former employer
with EMPLOYER, and (ii) the amount of cost to EMPLOYER to recruit and train a
replacement for each such former employee plus the first six (6) month's salary
paid to the replacement(s) for the former employee. If the former employee was
not in a position of have contacts with brokers or to otherwise generate
business from mortgage loan customers, the liquidated damages shall be the
amount of the cost to EMPLOYER to recruit and train a replacement(s) for the
former employee. FREMED further agrees that the cost to recruit and train
replacement(s) for each former
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employee as described in this paragraph 9 will be part of EMPLOYER's damages
and that the profit formula for former employees who had broker or mortgage
loan business contact, and the first six (6) months salary paid to the
replacement(s) for former employees, are conservative estimates of the value,
or a portion of the value, of the former employee to EMPLOYER.
10. SUCCESSORS; BINDING AGREEMENT.
(a) EMPLOYER will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of EMPLOYER to expressly assume
and agree to perform this Agreement in the same manner and to the same extent
that EMPLOYER would be required to perform it if no such succession had taken
place. Any failure of EMPLOYER to obtain such assumption and agreement prior
to the effectiveness of any such succession shall be a material breach of this
Agreement and shall entitle FREMED to compensation from EMPLOYER in the same
amount and on the same terms as he would be entitled to hereunder if EMPLOYER
were to terminate employment pursuant to Section 7 hereof, except that for
purposes of implementing the foregoing, the day before any such succession
becomes effective shall be deemed the date that payment is due. As used in
this Agreement, "EMPLOYER" shall mean EMPLOYER as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees
to perform this Agreement by operation of law, or otherwise.
(b) This Agreement shall inure to the benefit of, and be
enforceable by, FREMED'S personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
FREMED should die while any amount would still be payable to him hereunder if
he had continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to his devisees,
legatee or other designees, or if there is no such designee, to his estate.
11. NOTICES. All notices, requests, demands and other
communications provided for by this Agreement shall be in writing and shall be
deemed to have been given at the time delivered, if personally delivered, or
twenty-four hours after deposit thereof for mailing at any general or branch
United States Post Office enclosed in a registered or certified postpaid
envelope and addressed as follows:
If to EMPLOYER:
Pacific United Group, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, President and Chief
Executive Officer
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with copies to:
Jeffer, Mangels, Xxxxxx & Marmaro
0000 Xxxxxx xx xxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxxx Xx Xxxx Xxxxxx, Esq.
and
Pacific United Group, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000
Attention: Board of Directors
If to FREMED:
Xxxxxxx X. Xxxxxx
00000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
The parties hereto may designate a different place at which notice shall be
given, provided, however, that any such notice of change of address shall be
effective only upon receipt.
12. ENTIRE UNDERSTANDING. This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior written or oral agreements. This Agreement may not be
modified, amended, or terminated except by another instrument in writing
executed by the parties hereto.
13. GOVERNING LAW. This Agreement and all rights, obligations and
liabilities arising hereunder shall be construed and enforced in accordance
with the laws of the State of California.
14. ATTORNEY'S FEES.
(a) In the event it becomes necessary to commence any
proceeding or action to enforce the provisions of this Agreement, the court
before whom such action shall be tried may award to the prevailing party all
costs and expenses thereof, including but not limited to reasonable attorneys
fees, the usual, customary and lawfully recoverable Court costs, and all other
expenses in connection therewith. FREMED shall be deemed to be the prevailing
party if he is awarded any amounts in any such proceeding or action.
(b) EMPLOYER shall also pay and be responsible for all
attorneys and related fees, expenses or costs incurred by FREMED, if EMPLOYER,
or any stockholder of EMPLOYER contests the validity or enforceability of this
Agreement or any part hereof.
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The parties hereto have executed this Agreement on the day and year
first above written.
"FREMED"
________________________________
XXXXXXX X. XXXXXX
"EMPLOYER"
PACIFIC UNITED GROUP, INC.
By: _____________________________
Title:___________________________
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