EXHIBIT 10.8
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (this "Pledge Agreement") is effective as of
the 1st day of December, 2002 by and between PainCare Holdings, Inc., a Florida
corporation (the "Pledgor") and Xxxxxx Xxxxxxx, M.D. (the "Pledgee").
W I T N E S S E T H:
WHEREAS, that certain AGREEMENT AND PLAN OF MERGER (the "Merger Agreement")
was entered into on December 1, 2002 by and among PainCare Holdings, Inc., Pain
& Rehabilitation Network, Inc. a Florida Corporation ("PRNI") and Xxxxxx
Xxxxxxx, M.D.;
WHEREAS, pursuant to the terms and conditions of the Merger Agreement, a
subsidiary of Pledgor will be merged into PRNI and the Pledgee will receive in
exchange for her capital stock in PRNI common shares in Pledgor, cash and the
right to earn additional payments of Pledgor's common stock and cash (the
"Installment Payments"); and
WHEREAS, the Pledgee is desirous of securing the payment of the Installment
Payments and Pledgor is agreeable all on the following terms and conditions
hereinafter set forth; and
WHEREAS, it is a condition precedent to the Closing of the Merger Agreement
that Pledgor shall have executed and delivered this Pledge Agreement to the
Pledgee.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged and confessed, Pledgor covenants, represents and
agrees with Pledgee as follows:
1. Pledge. Upon the terms hereof, Pledgor hereby pledges and assigns to
Pledgee, and grants to Pledgee, a security interest in and to all of the
following property, and all rights, titles and interests of Pledgor therein (all
of the following being sometimes referred to herein collectively as the "Pledged
Interests"): (a) all the duly authorized, issued and outstanding restricted
common stock of PRNI (the "Pledged Shares"); (b) all cash, securities,
dividends, and other property at any time and from time to time receivable or
otherwise distributed in respect of or in exchange for any or all of the Pledged
Shares and any other property substituted or exchanged therefore; and (c) all
proceeds and/or other sums arising from or by virtue of, and all dividends and
distributions (cash or otherwise) payable and/or distributable with respect to,
all or any of, the Pledged Shares.
2. Secured Obligation. The security interest herein granted (the "Security
Interest") shall secure the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of the
Installment Payments. Upon full payment of the Installment Payments, the
Security Interest shall automatically be released by Pledgee. In the event there
is a dispute as to whether or not full payment, the parties will, in good faith,
attempt to resolve any such disputes and if such disputes can not be resolved
within 30 days of the requested release, such disputes shall be finally settled
by binding arbitration heard by three (3) arbitrators in Orange County, Florida,
pursuant to the rules then pertaining of the American Arbitration Association
3. Representations and Warranties; Related Covenants. Subject to the
validity of the representations, warranties and covenants of the Pledgee in the
Merger Agreement, Pledgor represents, warrants, covenants and agrees to and with
the Pledgee that: (a) Pledgor is the legal and beneficial owner of the Pledged
Shares; (b) the Pledged Shares are, and the Pledged Shares hereafter created or
acquired shall be at the time of creation or acquisition of such additional
shares, duly authorized and issued, fully paid and non-assessable, and all
documentary, stamp or other taxes or fees owing in connection with the issuance,
transfer and/or pledge thereof have been paid; (c) no dispute, right of setoff,
counterclaim or defense exists with respect to all or any part of the Pledged
Interests except as may otherwise be provided in the Merger Agreement; (d) the
Pledged Interests are free and clear of all liens, mortgages, pledges, charges,
security interests or other encumbrances, options, warrants, puts, calls and
other rights of third persons, and restrictions, other than (i) this Security
Interest and (ii) restrictions on transferability imposed by applicable state
and federal securities laws; (e) Pledgor has full right and authority to pledge
the Pledged Interests for the purposes and upon the terms set out herein, and
the execution, delivery and performance of this Pledge Agreement are not in
contravention of any indenture, agreement or undertaking to which Pledgor is a
party or by which Pledgor is bound; and (f) legends representing Pledgee's
Security Interest has been placed upon the original certificates representing
the Pledged Shares. Notwithstanding anything herein to the contrary, any
reference to Pledged Interests with respect to any provision contained herein
shall exclude for these purposes all matters including, without limitation, all
disputes, rights of setoff, counterclaims, defenses, liens, mortgages, pledges,
charges, security interests or other encumbrances, options, warrants, puts,
calls and other rights of third persons which are existing as of the Closing
Date (as defined in the Merger Agreement) or which arise from, through or out of
unauthorized actions or omissions of the Pledgee.
4. Covenants. (a) Further Acts, Assurances. Pledgor covenants and agrees to
from time to time promptly execute and deliver to Pledgee all such other
assignments, supplemental writings and financing statements as the Pledgee
reasonably requests in order to perfect the Security Interest. Pledgor further
agrees that if Pledgor shall at any time acquire any additional shares or other
equity interests in PRNI, and whether such acquisition shall be by purchase,
exchange, reclassification, dividend or otherwise, such additional equity
interests shall forthwith (and without the necessity for any request or demand
by Pledgee) constitute Pledged Interests and shall be subject to the Security
Interest herein created, for the purposes and upon the terms and conditions set
forth in this Pledge Agreement.
(b) No Transfer or Hypothecation. Pledgor will not, without the prior
written consent of Pledgee, transfer, assign, dispose of its right, title or
interest in the Pledged Interests, or any part thereof, or create directly or
indirectly any other security interest or otherwise encumber any of the Pledged
Interests, or permit any of the Pledged Interests to ever
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be or become subject to any warrant, put, option or other rights of third
persons or any attachment, execution, sequestration or other legal or equitable
process, or any security interest or encumbrance of any kind, except a security
interest which exists as of the Closing Date (as defined in the Merger
Agreement), as provided in the Merger Agreement or which may arise from, through
or out of unauthorized actions or omissions of the Pledgee. Pledgor will warrant
and defend the security interests created hereby against the claims of all third
parties other than those claims arising prior to the Closing Date (as defined in
the Merger Agreement) or those claims arising out of or through the unauthorized
actions or omissions of the Pledgee.
(c) Inspection. Pledgor shall allow Pledgee upon reasonable written request
within reasonable time parameters to inspect all records of Pledgor relating to
the Pledged Interests, and to make and take away copies of such records during
normal business hours.
(d) Changes. Pledgor shall promptly notify Pledgee of any material change
in any fact or circumstance warranted or represented by Pledgor in this Pledge
Agreement or in any other writing furnished by Pledgor to Pledgee in connection
with the Pledged Interests.
(e) Claims. Pledgor shall promptly notify Pledgee of any claim, action or
proceeding affecting title to the Pledged Interests, or any part thereof, or the
Security Interest, and at the request of Pledgee, appear in and defend, at
Pledgor's expense, any such action or proceeding which Pledgor is required to
defend as provided herein.
(f) Costs. Pledgor shall promptly pay to Pledgee the amount of all
reasonable costs and expenses of Pledgee, including, but not limited to,
attorneys' fees, incurred by Pledgee in connection with the enforcement of the
rights of Pledgee hereunder.
5. Conversions; etc. Should the Pledged Shares, or any part thereof, ever
be in any manner converted into another property of the same or another type or
any money or other proceeds ever be paid or delivered to Pledgor as a result of
Pledgor's rights in the Pledged Shares, then in any such event (except as
otherwise provided herein), all such property, money and other proceeds shall be
and/or become part of the Pledged Interests, such additional property shall
forthwith (and without the necessity for any request or demand by Pledgee)
constitute Pledged Interests and shall be subject to the Security Interest
herein created, for the purposes and upon the terms and conditions set forth in
this Pledge Agreement. Without limiting the generality of the foregoing, Pledgor
hereby agrees (i) that the shares of capital stock of the surviving corporation
in any merger or consolidation involving any of the Pledged Interests shall be
deemed to constitute the same property as the Pledged Interests, and (ii) to
cause any payments to be received by Pledgor upon the redemption, conversion or
transfer of any of the Pledged Shares to be delivered directly and immediately
to Pledgee for application by Pledgee to the Installment Payments. With respect
to any such property of a kind requiring an additional security agreement,
financing statement or other writing to perfect a security interest therein in
favor of Pledgee, Pledgor will forthwith execute and deliver to Pledgee such
documentation as Pledgee shall reasonably request to create and perfect the
liens and security interests intended to be created herein.
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6. Intentionally Omitted.
7. Preservation of Pledged Shares. It is understood and agreed that Pledgor
shall be responsible generally for the preservation of all rights in the Pledged
Interests and the rights of the Pledgee in respect thereof other than those
claims arising prior to the Closing Date (as defined in the Merger Agreement) or
those claims arising out of or through the unauthorized actions or omissions of
the Pledgee.
8. Rights of Parties Before and After the Occurrence of an Event of
Default.
(a) Rights Prior to an Event of Default. Unless and until an Event of
Default shall occur,
(i) Pledgor shall be entitled to receive all cash dividends and
distributions paid or to be paid to Pledgor in respect of or attributable
to the Pledged Shares and any and all other Distributions (hereinafter
defined), except as provided in the following sentence. As used herein
"Distributions" shall mean the retirement, redemption, purchase or other
acquisition for value of the Pledged Shares, the declaration or payment of
any dividend or other distribution on or with respect to the Pledged
Shares, and any other payment made with respect to the Pledged Shares. All
such Distributions of stock and, after the occurrence of an Event of
Default, any and all other distributions, shall if received by any entity
other than Pledgee, and shall forthwith be delivered to Pledgee
(accompanied by proper instruments of assignment and/or stock and/or bond
powers executed by Pledgor in accordance with Pledgee's instructions) to be
held subject to the terms of this Pledge Agreement. Any cash proceeds of
the Pledged Interests which come into the possession of Pledgee may, at
Pledgee's option, be applied in whole or in part to the Installment
Payments (to the extent then due), be released in whole or in part to or on
the written instructions of Pledgor, or be retained in whole or in part by
Pledgee as additional security for the payment and performance of the
Obligations. Pledgee shall never be obligated to make any investment of
such proceeds and shall never have any liability to Pledgor for any loss
which may result therefrom. All interest and other amounts earned from any
investment of such proceeds may be dealt with by Pledgee in the same manner
as other cash proceeds.
(ii) Pledgor shall have the right to vote and give consents with
respect to all of the Pledged Shares and to consent to, ratify, or waive
notice of any and all meetings; provided that such right shall in no case
be exercised for any purpose contrary to, or in violation of, any of the
terms or the provisions of this Pledge Agreement or the Installment
Payments.
(b) Rights After the Occurrence of an Event of Default. Upon the occurrence
and during the continuance of an Event of Default, Pledgee, without the
consent of Pledgor, may:
(i) At any time vote or consent with respect to any action regarding
the Pledged Shares is necessary or required and authorize any Pledged
Shares to be voted and give, ratify and/or waive notice of any and all
meetings, and take such other action
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as shall seem desirable to Pledgee, in its discretion, to protect or further the
interests of Pledgee in respect of any of the Pledged Shares as though it were
the outright owner thereof;
(ii) In respect of any Pledged Shares, join in and become a party to
any plan of recapitalization, reorganization or readjustment (whether
voluntary or involuntary) as shall seem desirable to Pledgee, in his sole
and absolute discretion, in respect of any such Pledged Shares, and deposit
any such Pledged Interests under any such plan; make any exchange,
substitution, cancellation or surrender of such Pledged Shares required by
any such plan and take such action with respect to any such Pledged Shares
as may be required by any such plan or for the accomplishment thereof; and
no such disposition, exchange, substitution, cancellation or surrender
shall be deemed to constitute a release of Pledged Shares from the Security
Interest of this Pledge Agreement;
(iii) Receive all Distributions, dividends and other payments of
whatever kind made upon or with respect to any Pledged Interests; and
(iv) Pledgor and Pledgee agree that the Pledgee shall have no
further obligation to the non-compete provision contained in the Pledgee's
employment agreement with the Surviving Corporation (as that term is
defined in the Merger Agreement).
(c) Right of Sale After the Occurrence of an Event of Default. Upon the
occurrence and during the continuance of an Event of Default, Pledgee may sell,
without recourse to judicial proceedings, by way of one or more contracts, with
the right to bid for and buy, the Pledged Interests or any part thereof, upon
thirty (30) days' notice (which notice is agreed to be reasonable notice for the
purposes hereof) to Pledgor of the time and place of sale, for cash, upon credit
or for future delivery, at Pledgee's option and in Pledgee's complete
discretion:
(i) At public sale, including a sale at any broker's board or
exchange; or
(ii) At private sale in any manner which will not require the
Pledged Interests, or any part thereof, to be registered in accordance with
The Securities Act of 1933, as amended, or the rules and regulations
promulgated thereunder, or any other law or regulation, at the best price
reasonably obtainable by Pledgee at any such private sale or other
disposition in the manner mentioned above. Pledgee is also hereby
authorized, but not obligated, to take such actions, give such notices,
obtain such consents, and do such other things as Pledgee may deem required
or appropriate in the event of sale or disposition of any of the Pledged
Interests. Pledgor understands that Pledgee may in its discretion approach
a restricted number of potential purchasers and that a sale under such
circumstances may yield a lower price for the Pledged Interests, or any
portion thereof, than would otherwise be obtainable if the same were
registered and sold in the open market. Pledgor agrees (A) that in the
event Pledgee shall so sell
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the Pledged Interests, or any portion thereof, at such private sale or sales,
Pledgee shall have the right to rely upon the advice and opinion of any member
firm of a national securities exchange (or independent appraiser) as to the best
price reasonably obtainable upon such a private sale thereof (any expense borne
by Pledgee in obtaining such advice to be paid by Pledgor as an expense related
to the exercise by Pledgee of its rights hereunder), and (B) that such reliance
shall be conclusive evidence that Pledgee handled such matter in a commercially
reasonable manner. Pledgee shall be under no obligation to take any steps to
permit the Pledged Interests to be sold at a public sale or to delay a sale to
permit the Companies to register the Pledged Interests for public sale under The
Securities Act of 1933 or applicable state securities law.
In case of any sale by the Pledgee of the Pledged Interests on credit or
for future delivery, the Pledged Interests sold may be retained by Pledgee until
the selling price is paid by the purchaser, but Pledgee shall incur no liability
in case of failure of the purchaser to take up and pay for the Pledged Interests
so sold. In case of any such failure, such Pledged Interests so sold may be
again similarly sold.
(d) Other Rights After an Event of Default. Upon the occurrence and during
the continuance of an Event of Default, Pledgee, at his election may exercise
any and all rights available to a secured party under the Uniform Commercial
Code as enacted in the State of Florida or other applicable jurisdiction, as
amended, in addition to any and all other rights afforded hereunder, under the
Installment Payments, under the Merger Agreement, at law, in equity or
otherwise.
(e) Application of Proceeds. Any and all proceeds ever received by Pledgee
from any disposition of the Pledged Interests, or any part thereof or the
exercise of any other right pursuant hereto shall be applied as payment for
costs and expenses incurred in connection with such Event of Default and then as
payments against the Installment Payments.
9. Events of Default. An "Event of Default" shall occur if (i) any of the
representations or warranties made by the Pledgor herein, or in the Merger
Agreement (including all Exhibits and Schedules annexed thereto) shall have been
incorrect when made in any material respect; (ii) the Pledgor shall breach, fail
to perform, or observe in any material respect any covenant, term, provision,
condition, agreement or obligation of the Pledgor under this Pledge Agreement or
the Merger Agreement, between the parties of even date herewith and such default
is not cured within thirty (30) days of the Pledgor's receipt of a notice from
the Pledgee with respect to such default, or (iii) upon Pledgor's termination of
existence, insolvency, business failure, appointment of a receiver of any of the
property of, assignment for the benefit of creditors by or the commencement of
any proceedings under any bankruptcy or insolvency laws by or against Pledgor
(each of (i), (ii) and (iii) being referred to herein as an "Event of Default").
10. Notices. Whenever this Pledge Agreement requires or permits any
consent, approval, notice, request or demand from any one party to another, the
consent, approval,
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notice, request or demand shall be deemed given if given in accordance with
Section 10.3 of the Merger Agreement.
11. Right to File as Financing Statement. Pledgee shall have the right at
any time to execute and file this Pledge Agreement as a financing statement, but
the failure of Pledgee to do so shall not impair the validity or enforceability
of this Pledge Agreement or the Security Interest.
12. Rights. (a) Each right, power and remedy of Pledgee provided for in
this Pledge Agreement or now or hereafter existing at law or in equity or by
statute or otherwise shall be cumulative and concurrent and shall be in addition
to every other right, power or remedy provided for in this Pledge Agreement or
now or hereafter existing at law or in equity or by statute or otherwise, and
the exercise or beginning of the exercise by Pledgee of any one or more of such
rights, power or remedies shall not preclude the simultaneous or later exercise
by Pledgee of any or all such other rights, powers or remedies. No failure or
delay on the part of Pledgee to exercise any such right, power or remedy and no
notice or demand which may be given to or made upon Pledgor by Pledgee with
respect to any such remedies shall operate as a waiver thereof, or limit or
impair Pledgee's right to take any action or to exercise any power or remedy
hereunder, or under any of the Merger Agreement, without notice or demand, or
prejudice its rights as against Pledgor in any respect.
(b) Pledgor hereby waives any requirement that Pledgee or any other holder
of the Installment Payments exhaust any right or remedy or take any action in
connection with the Installment Payments or of the Merger Agreement before
exercising any right or remedy under this Pledge Agreement. The obligations of
Pledgor hereunder shall not be affected or impaired by reason of the happening
from time to time of any of the following, although without notice to or the
consent of Pledgor:
(i) the renewal or extension of the maturity of or the acceptance of
partial payments with respect to any and all amounts due and owing under
the Installment Payments or the Merger Agreement, or any part thereof;
(ii) the alteration in any manner of the terms of the Installment
Payments or the Merger Agreement or any part thereof either as to the
maturities thereof, rates of interest, methods of payment, parties thereto
or otherwise (except for any notices to or consents of Pledgor expressly
required pursuant to the Merger Agreement);
(iii) the waiver by Pledgee of the Installment Payments of the
performance or observance by Pledgor of any of its agreements, covenants,
terms or conditions contained in the Installment Payments or the Merger
Agreement;
(iv) the voluntary or involuntary liquidation, dissolution, sale of
all or substantially all of the assets, marshalling of assets and
liabilities, receivership, conservatorship, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
winding up, or other similar proceedings affecting Pledgor;
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(v) the release by operation of law or otherwise of Pledgor from the
performance or observance of any of the agreements, covenants, terms or
conditions contained in the Merger Agreement (except to the extent, if any,
that the obligations of Pledgor hereunder are specifically affected
pursuant to or in connection with any such release); or
(vi) the release of any security for the Installment Payments, whether
under this Pledge Agreement or the Merger Agreement (except to the extent,
if any, that the obligations of Pledgor hereunder are specifically affected
pursuant to or in connection with any such release).
13. Amendments. This Pledge Agreement may be amended only by an instrument
in writing executed jointly by Pledgor and Pledgee and supplemented only by
documents delivered or to be delivered in accordance with the express terms
hereof.
14. Multiple Counterparts. This Pledge Agreement may be executed in a
number of identical counterparts, each of which shall be deemed an original for
all purposes and all of which shall constitute, collectively, one agreement;
but, in making proof of this agreement, it shall not be necessary to produce or
account for more than one such counterpart.
15. Parties Bound; Assignment. This Pledge Agreement shall be binding on
Pledgor and Pledgor's successors and assigns and shall inure to the benefit of
Pledgee and Pledgee's successors and assigns.
16. Invalid Provisions. If any provision of this Pledge Agreement is held
to be illegal, invalid or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable, this Pledge
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision there shall be added automatically as a part of this Pledge Agreement
a provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
17. No Control by Pledgee. Notwithstanding anything herein to the contrary,
this Pledge Agreement and the Merger Agreement, and the transactions
contemplated hereby and thereby, do not and will not constitute, create or have
the effect of constituting or creating, directly or indirectly, the actual or
practical ownership of Pledgor or PRNI by Pledgee, or control, affirmative or
negative, direct or indirect, by Pledgee over the management or any other aspect
of the day-to-day operation of the Pledgor or PRNI, which ownership and control
remains exclusively and at all times with Pledgor, except as otherwise provided
herein with respect to rights after an Event of Default.
18. Paragraph Headings. The paragraph headings used in this Pledge
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
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19. Consent to Jurisdiction. Pledgor and Pledgee hereby irrevocably submit
to the exclusive jurisdiction of any Florida State court sitting in Orange
County, Florida, over any action or proceeding arising out of or relating to
this Pledge Agreement or the Installment Payments, and Pledgor and Pledgee
hereby irrevocably agree that all claims in respect of such action or proceeding
shall be heard and determined in any Florida State court sitting in Orange
County, Florida. Pledgor also irrevocably consents to the service of any and all
process in any such action or proceeding by the mailing of copies of such
process to Pledgor at the address shown on the signature page hereof. Pledgor
agrees that a final judgment on any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
20. Conflicts With Merger Agreement. In the event of any conflict or
inconsistency between the terms of this Pledge Agreement and the terms of the
Merger Agreement, the terms of this Pledge Agreement will control.
21. Agreement to Supplement. Pledgor acknowledges and agrees that this
Pledge Agreement may be amended and supplemented from time to time to (a)
specifically include a description of all Pledged Interests are to become
subject hereto subsequent to the date hereof pursuant to this Pledge Agreement.
Pledgee shall have a valid first priority security interest in all additional
Pledged Interests that come into existence after the date hereof. Pledgor hereby
agrees to execute, deliver and cause the filing of all stock powers, financing
statements and other documents and to take such further action as deemed
necessary in Pledgee's reasonable discretion with respect to each such
additional Pledged Shares to ensure the rights of Pledgee hereunder with respect
thereto.
22. Substitution of Pledged Interests. Notwithstanding anything herein to
the contrary, with the consent of the Pledgee, which consent may not be
unreasonably withheld, Pledgor may substitute all or any portion of the Pledged
Interests with new collateral. Upon such substitution, the Pledgee shall take
all reasonable measures to release the subject Pledged Interests.
23. Noncircumvention. Pledgor agrees not to take any action or fail to take
any action which would have the effect of circumventing or otherwise materially
interfering with the purpose of this Pledge Agreement as set forth herein.
24. COMPLETE AGREEMENT. THIS PLEDGE AGREEMENT, THE MERGER AGREEMENT WITH
ITS EXHIBITS AND SCHEDULES COLLECTIVELY REPRESENT THE FINAL AGREEMENT BY AND
AMONG THE PLEDGEE AND THE PLEDGOR AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF PLEDGOR AND PLEDGEE.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PLEDGOR AND THE PLEDGEE.
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26. FLORIDA LAW. THIS PLEDGE
AGREEMENT, THE DEBENTURE AND THE AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF FLORIDA.
27. Pledgee Fees. Pledgor shall be responsible to Pledgee for the payment
of all reasonable fees and costs associated with the rendering of services
pursuant to this Pledge Agreement.
EXECUTED effective as of the date first above written.
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ADDRESS: PLEDGOR:
Facsimile: PainCare Holdings, Inc., a Florida corporation
By: /s/ Xxxxx Xxxxxxxx
Name:
Title: CEO
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ADDRESS: PLEDGEE:
Facsimile: Xxxxxx Xxxxxxx, M.D.
/s/ Xxxxxx Xxxxxxx, M.D.
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