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Xxxxxxxx PBE, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
September 1, 1997
Xx. Xxxx X. Xxxxxxxx
c/x Xxxxxxxx PBE, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
Re: Severance Agreement
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Dear Xx. Xxxxxxxx:
Xxxxxxxx PBE, Inc. (the "Corporation") considers it essential to the best
interests of its stockholders to xxxxxx the continuous employment of key
management personnel. In connection with this, the Corporation's Board of
Directors (the "Board") recognizes that the possibility of a change in control
of the Corporation exists and that such possibility, and the uncertainty and
questions that it may raise among management, could result in the departure or
distraction of management personnel to the detriment of the Corporation and its
stockholders. In order to reinforce and encourage the continued attention and
dedication of members of the Corporation's management, including yourself, to
their assigned duties without distraction arising from the possibility of a
change in control of the Corporation, and to induce you to remain in its
employ, the Corporation hereby agrees that after this letter agreement (this
"Agreement") has been fully executed, you shall receive the severance benefits
set forth in this Agreement in the event your employment with the Corporation
is terminated under the circumstances described below subsequent to a "Change
in Control" (as defined in Section 2).
1. Term of Agreement. This Agreement shall commence on September 1,
1997 and shall continue in effect through August 31, 1999; provided, however,
that if a Change in Control (as defined in Section 2) occurs during the term of
this Agreement, this Agreement shall continue in effect for a period of twelve
(12) months after the last day of the month in which such Change in Control
occurred.
2. Change in Control.
No benefits shall be payable hereunder unless there has been a Change
in Control. For purposes of this Agreement, a Change in Control shall be
deemed to occur if:
(i) any Person (as defined below) becomes the Beneficial Owner (as
defined below), directly or indirectly, of securities of the Corporation
representing a majority or more of the combined voting power of the
Corporation's then outstanding securities. For purposes of this
Agreement, (A) the term "Person" is used as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
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"Exchange Act"); provided, however, that unless this Agreement provides
to the contrary, the term shall not include the Corporation, any trustee
or other fiduciary holding securities under an employee benefit plan of
the Corporation, or any corporation owned, directly or indirectly, by the
stockholders of the Corporation in substantially the same proportions as
their ownership of stock of the Corporation, and (B) the term "Beneficial
Owner" shall have the meaning given to such term in Rule 13d-3 under the
Exchange Act;
(ii) during any period of two consecutive years following
the execution of this Agreement, individuals who at the beginning of such
period constitute the Board, and any new director (other than a director
designated by a person who has entered into an agreement with the
Corporation to effect a transaction described in Sections 2(i), (iii) or
(iv)) whose election by the Board or nomination for election by the
Corporation's stockholders was approved by a vote of at least a majority
of the directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election was
previously so approved (hereinafter referred to as "Continuing
Directors"), cease for any reason to constitute at least a majority
thereof;
(iii) the stockholders of the Corporation approve a merger or
consolidation of the Corporation with any other corporation (or other
entity), other than a merger or consolidation which would result in the
voting securities of the Corporation outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more than
a majority of the combined voting power of the voting securities of the
Corporation or such surviving entity outstanding immediately after such
merger or consolidation; or
(iv) the stockholders of the Corporation approve a plan of
complete liquidation of the Corporation or an agreement for the sale or
disposition by the Corporation to an unrelated third party or parties of
all or substantially all of the Corporation's assets.
3. Termination Following Change in Control.
(i) General. If any of the events described in Section 2 constituting a
Change in Control shall have occurred, you shall be entitled to the benefits
provided in Section 4(iii) upon the subsequent termination of your employment
during the term of this Agreement, unless such termination is (a) because of
your death, Disability (as defined in Section 3(ii)) or retirement, (b) by the
Corporation for Cause, or (c) by you other than for Good Reason. In the event
your employment with the Corporation is terminated for any reason and
subsequently a Change in Control occurs, you shall not be entitled to any
benefits hereunder.
(ii) Disability. If, as a result of your incapacity due to physical or
mental illness, you shall have been absent from the full-time performance of
your duties with the Corporation for six (6) consecutive months, and within
thirty (30) days after written notice of termination is given you shall not
have returned to the full-time performance of your duties, your employment may
be terminated for "Disability."
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(iii) Cause. Termination by the Corporation of your employment for
"Cause" shall mean termination (a) upon your willful and continued failure to
substantially perform your duties with the Corporation (other than any such
failure resulting from your incapacity due to physical or mental illness or any
such actual or anticipated failure after your issuance of a Notice of
Termination (as defined in Section 3(v)) for Good Reason (as defined in Section
3(iv)), after a written demand for substantial performance is delivered to you
by the Board, which demand identifies the manner in which the Board believes
that you have not substantially performed your duties, which you do not cure
within 30 days of the date you receive such written demand or (b) upon there
being substantial evidence that you are guilty of a crime classified as a
felony (or the equivalent thereof) under applicable law, or that you have been
convicted of such a crime. For purposes of this Section 3(iii), no act, or
failure to act, on your part shall be deemed "willful" unless done, or omitted
to be done, by you not in good faith. Notwithstanding the foregoing, you shall
not be deemed terminated for Cause unless and until there shall have been
delivered to you a copy of a resolution duly adopted by the affirmative vote of
not less than 66K% of the entire membership of the Board (excluding yourself,
if then a member of the Board) at a meeting of the Board (after reasonable
notice to you and an opportunity for you, together with your counsel, to be
heard before the Board), finding that in the Board's good faith opinion you
were guilty of conduct set forth above in this Section 3(iii) and specifying
the particulars thereof in reasonable detail.
(iv) Good Reason. You shall be entitled to terminate your employment
for Good Reason. For purposes of this Agreement, "Good Reason" shall mean,
without your express written consent, the occurrence after a Change in Control
of any of the following circumstances unless such circumstances are fully
corrected prior to the Date of Termination (as defined in Section 3(vi))
specified in the Notice of Termination (as defined in Section 3(v)) given in
respect thereof:
(a) a significant adverse alteration in the nature or status of your
responsibilities or the conditions of your employment from those in
effect immediately prior to such Change in Control;
(b) the Corporation's reduction of your annual base salary as in
effect on the date hereof or as the same may be increased from time to
time except for proportional across-the-board salary reductions similarly
affecting all management personnel of the Corporation and all management
personnel of any Person in control of the Corporation;
(c) the relocation of the Corporation's offices at which you are
principally employed immediately prior to the Change in Control to a
location more than 50 miles from such location or the Corporation's
requiring you to be based anywhere other than the Corporation's offices
at such location except for required travel on the Corporation's business
to an extent substantially consistent with your present business travel
obligations;
(d) the Corporation's failure to pay to you any portion of your
current compensation or to pay to you any portion of an installment of
deferred compensation
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under any deferred compensation program of the Corporation within thirty
(30) days of the date such compensation is due;
(e) the Corporation's failure to continue in effect any material
compensation or benefit plan in which you participate immediately prior
to the Change in Control, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect to
such plan, or the Corporation's failure to continue your participation
therein (or in such substitute or alternative plan) on a basis not
materially less favorable, both in terms of the amount of benefits
provided and the level of your participation relative to other
participants, as existed at the time of the Change in Control;
(f) the Corporation's failure to continue to provide you with
benefits substantially similar to those enjoyed by you under any of the
Corporation's life insurance, medical, health and accident, or disability
plans in which you were participating at the time of the Change in
Control, the taking of any action by the Corporation which would directly
or indirectly materially reduce any of such benefits, or the failure by
the Corporation to provide you with the number of paid vacation days to
which you are entitled on the basis of years of service with the
Corporation in accordance with the Corporation's normal vacation policy
in effect at the time of the Change in Control;
(g) the Corporation's failure to obtain a satisfactory agreement
from any successor to assume and agree to perform this Agreement, as
contemplated in Section 5;
(h) any purported termination of your employment that is not
effected pursuant to a Notice of Termination satisfying the requirements
of Section 3(v) hereof (and, if applicable, the requirements of Section
3(iii) hereof), which purported termination shall not be effective for
purposes of this Agreement; or
(i) the continuation or repetition, after written notice of
objection from you, of harassing or denigrating treatment of you
inconsistent with your position with the Corporation.
Your continued employment shall not constitute consent to, or a waiver of
rights with respect to, any circumstances constituting Good Reason hereunder.
(v) Notice of Termination. Any purported termination of your employment
by the Corporation or by you (other than termination due to death which shall
terminate your employment automatically) shall be communicated by written
Notice of Termination to the other party hereto in accordance with Section 6.
"Notice of Termination" shall mean a notice that shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of your employment under the provision so indicated.
(vi) Date of Termination, Etc. "Date of Termination" shall mean (a) if
your employment is terminated due to your death, the date of your death; (b) if
your employment is
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terminated for Disability thirty (30) days after Notice of Termination is given
(provided that you shall not have returned to the full-time performance of your
duties during such thirty (30)-day period), and (c) if your employment is
terminated pursuant to Section 3(iii) or Section 3(iv) or for any other reason
(other than death or Disability), the date specified in the Notice of
Termination (which, in the case of a termination for Cause shall not be less
than thirty (30) days from the date such Notice of Termination is given, and in
the case of a termination for Good Reason shall not be less than fifteen (15)
nor more than thirty (30) days from the date such Notice of Termination is
given).
Compensation Upon Termination or During Disability. Following a Change in
Control, you shall be entitled to the benefits described below during a period
of disability, or upon termination of your employment, as the case may be,
provided that such period or termination occurs during the term of this
Agreement. The benefits to which you are entitled are:
(i) During any period during which you fail to perform your full-time
duties with the Corporation as a result of incapacity due to physical or mental
illness, you shall continue to receive your base salary at the rate in effect
at the commencement of any such period, together with all compensation payable
to you under any disability plan or program or other similar plan maintained by
the Corporation during such period, until this Agreement is terminated pursuant
to Section 3(ii) hereof. Thereafter, or in the event your employment is
terminated by reason of your death, your benefits shall be determined under the
Corporation's retirement, insurance and other compensation programs then in
effect in accordance with the terms of such programs.
(ii) If your employment shall be terminated by the Corporation for Cause
or by you other than for Good Reason, the Corporation shall pay you your full
base salary, when due, through the Date of Termination at the rate in effect at
the time Notice of Termination is given, plus all other amounts to which you
are entitled under any compensation plan of the Corporation at the time such
payments are due and the Corporation shall have no further obligations to you
under this Agreement.
(iii) If your employment by the Corporation shall be terminated by you for
Good Reason or by the Corporation other than for Cause or Disability you shall
be entitled to the benefits provided below:
(a) the Corporation shall pay to you your full base salary, when
due, through the Date of Termination at the rate in effect at the time
Notice of Termination is given, at the time specified in Section 4(v),
plus all other amounts to which you are entitled under any compensation
plan of the Corporation at the time such payments are due;
(b) in lieu of any further salary payments to you for periods
subsequent to the Date of Termination, the Corporation shall pay as
severance pay to you, at the time specified in Section 4(v), a lump sum
severance payment (together with the payments provided in Sections
4(iii)(c) and (d) below, the "Severance Payments") equal to 100% of your
annual salary as in effect as of the Date of Termination or immediately
prior to the Change in Control, whichever is greater;
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(c) the Corporation shall pay to you all legal fees and expenses
reasonably incurred by you as a result of such termination (including all
such fees and expenses, if any, reasonably incurred in contesting or
disputing any such termination or in seeking to obtain or enforce any
right or benefit provided by this Agreement (as set forth in Section 10
of this Agreement) or in connection with any tax audit or proceeding to
the extent attributable to the application of section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"), to any payment or
benefit provided hereunder); and
(d) for a twelve (12) month period after such termination, the
Corporation shall arrange to provide you with group health insurance
benefits substantially similar to those that you were receiving
immediately prior to the Notice of Termination. Benefits otherwise
receivable by you pursuant to this Section 4(iii)(d) shall be reduced to
the extent comparable benefits are actually received by you during the
twelve (12) month period following your termination, and any such
benefits actually received by you shall be reported to the Corporation.
(iv) If by reason of Section 280G of the Code any payment or benefit
received or to be received by you in connection with a Change in Control or the
termination of your employment (whether payable pursuant to the terms of this
Agreement ("Contract Payments") or any other plan, arrangements or agreement
with the Corporation or an Affiliate (as defined below) (collectively with the
Contract Payments, "Total Payments") would not be deductible (in whole or part)
by the Corporation, an Affiliate or other person making such payment or
providing such benefit, then the Severance Payments shall be reduced (to zero
if necessary) and, if Severance Payments are reduced to zero, other Contract
Payments shall be reduced (to zero if necessary) and, if Contract Payments are
reduced to zero, other Total Payments shall be reduced (to zero if necessary)
until no portion of the Total Payments is not deductible by reason of Section
280G. For purposes of this limitation, (a) no portion of the Total Payments
the receipt or enjoyment of which you shall have effectively waived in writing
prior to the date of payment of the Severance Payments shall be taken into
account; (b) no portion of the Total Payments shall be taken into account which
in the opinion of the Corporation's counsel does not constitute a "parachute
payment" within the meaning of Code Section 280G(b)(2) (without regard to
subsection (A)(ii) thereof); (c) the Severance Payments (and, thereafter, other
Contract Payments and other Total Payments) shall be reduced only to the extent
necessary so that the Total Payments (other than those referred to in clauses
(a) and (b) of Section 4(iii)) in their entirety constitute reasonable
compensation for services actually rendered within the meaning of Code Section
280G(b)(4), in the opinion of the counsel referred to in clause (b), and (d)
the value of any noncash benefit or any deferred payment or benefit included in
the Total Payments shall be determined by the Corporation's independent
auditors in accordance with the principles of Code Sections 280G(d)(3) and (4).
For purposes of this Section 4(iv), the term "Affiliate" means the
Corporation's successors, any Person whose actions result in a Change in
Control or any corporation affiliated (or which, as a result of the completion
of the transactions causing a Change in Control shall become affiliated) with
the Corporation within the meaning of Code Section 1504.
(v) The payment provided for in Section 4(iii)(a) shall be made not later
than the fifteenth day following the Date of Termination. The payment provided
for in Section 4(iii)(b) shall be made not later than the thirtieth day
following the Date of Termination;
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provided, however, that if the amounts of such payments cannot be finally
determined on or before such day, the Corporation shall pay to you on such day
an estimate, as determined in good faith by the Corporation, of the minimum
amount of such payments and shall pay the remainder of such payments (together
with interest at the rate provided in Code Section 1274(b)(2)(B)) as soon as
the amount thereof can be determined but in no event later than the thirtieth
day after the Date of Termination. In the event that the amount of the
estimated payments exceeds the amount subsequently determined to have been due,
such excess shall constitute a loan by the Corporation to you, payable on the
fifth day after demand by the Corporation (together with interest at the rate
provided in Code Section 1274(b)(2)(B)).
(vi) You shall not be required to mitigate the amount of any payment
provided for in this Section 4 by seeking other employment or otherwise nor,
except as provided in Section 4(iii)(d), shall the amount of any payment or
benefit provided for in this Section 4 be reduced by any compensation earned by
you as the result of employment by another employer or self-employment or by
retirement benefits.
(vii) It is expressly agreed and understood between you and the
Corporation that any benefit payable under this Agreement shall constitute the
sole and exclusive benefit payable to you upon termination of your employment
and this Agreement shall expressly be deemed to supersede any other plan,
agreement or contract of employment in its entirety, whether oral or in writing
between you and the Corporation or between you and Xxxxxxxx Capital Corporation
(as predecessor to the Corporation) with respect to any benefit payable to you
upon the termination of your employment. Notwithstanding the foregoing, any
such other plan, agreement or contract of employment shall remain in full force
and effect in the event that this Agreement shall not apply to a given
termination of employment.
5. Successors; Binding Agreement. (i) The Corporation shall, upon your
written request, require that any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Corporation expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Corporation would be required to perform it if no such succession had taken
place. Failure of any such successor to assume and agree to perform this
Agreement within 30 days of such written request upon such successor to assume
and agree to perform this Agreement shall be a breach of this Agreement and
shall entitle you to terminate your employment and receive compensation from
the Corporation in the same amount and on the same terms to which you would be
entitled hereunder if you terminate your employment for Good Reason following a
Change in Control. For purposes of implementing the foregoing, the date which
is 30 days after the Corporation makes a written request upon a successor to
assume and agree to perform this Agreement shall be deemed the Date of
Termination. Where the context requires, "Corporation" shall mean the
Corporation as defined herein 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.
(ii) This Agreement shall inure to the benefit of and be enforceable by
you and your personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If you should die
while any amount would still be payable to you hereunder had you continued to
live, all such amounts, unless otherwise provided herein, shall be
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paid in accordance with the terms of this Agreement to your devisee, legatee or
other designee or, if there is no such designee, to your estate.
6. Notice. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by FedEx or United
States certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the last page of this
Agreement, provided that all notices to the Corporation shall be directed to
the attention of the Board with a copy to the Secretary of the Corporation, or
to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address shall
be effective only upon receipt.
7. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by you and such officer as may be specifically designated
by the Board. No waiver by either party hereto at any time of any breach by
the other party hereto of or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express
or implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be
governed by the laws of the State of California without regard to its conflicts
of law principles. All references to sections of the Exchange Act or the Code
shall be deemed also to refer to any successor provisions to such sections. Any
payments provided for hereunder shall be paid net of any applicable withholding
required under federal, state or local law. The obligations of the Corporation
under Section 4 shall survive the expiration of the term of this Agreement.
The section headings contained in this Agreement are for convenience only, and
shall not affect the interpretation of this Agreement.
8. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
9. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
10. Arbitration; Dispute Resolution.
(i) Arbitration Procedure. Any disagreement, dispute, controversy or
claim arising out of or relating to this Agreement or the interpretation of
this Agreement or any arrangements relating to this Agreement or contemplated
in this Agreement or the breach, termination or invalidity thereof shall be
settled by arbitration in accordance with the Commercial Arbitration Rules (the
"Arbitration Rules") of the American Arbitration Association (the "AAA")
(except as otherwise provided in this Agreement) in Los Angeles County,
California. The arbitration shall be conducted before the AAA or such other
arbitration service as you and the Corporation may, by mutual agreement,
select. The parties to the arbitration jointly shall directly appoint such
arbitrator within thirty (30) days of initiation of arbitration. If
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the parties shall fail to appoint such arbitrator as provided above, such
arbitrator shall be appointed by the AAA as provided in the Arbitration Rules.
The arbitrator shall apply and follow the substantive law of California without
reference to the conflicts of law provisions thereof. You and the Corporation
agree that the arbitral award may be enforced against the parties to the
arbitration proceeding or their assets wherever they may be found and that a
judgment upon the arbitral award may be entered in any court having
jurisdiction thereof. The Corporation shall pay all fees and expenses of the
Arbitrator regardless of the result and shall provide all witnesses and
evidence reasonably required by you to present your case. The Corporation
shall pay to you all reasonable arbitration expenses and legal fees incurred by
you as a result of a termination of your employment in seeking to obtain or
enforce any right or benefit provided by this Agreement (whether or not you are
successful in obtaining or enforcing such right or benefit). Such payments
shall be made within five (5) days after the your request for payment
accompanied with such evidence of fees and expenses incurred as the Corporation
reasonably may require. If any part of this paragraph is found to be void as a
matter of law or public policy, the remainder of the paragraph will continue to
be in full force and effect.
(ii) Compensation During Dispute. Your compensation during any
disagreement, dispute, controversy or claim arising out of or relating to this
Agreement or the interpretation of this Agreement shall be as follows:
(a) If a purported termination by you for Good Reason occurs or is
deemed to occur following a Change in Control and during the term of this
Agreement, and such termination is disputed in accordance with Section
10(i) of this Agreement, the Corporation shall continue to pay you the
full compensation in effect when the notice giving rise to the dispute
was given (including, but not limited to, salary) and continue you as a
participant in all compensation, benefit and insurance plans in which you
were participating when the notice giving rise to the dispute was given
until the dispute is finally resolved in accordance with Section 10(i).
Amounts paid under this Section 10(ii)(a) are in addition to all other
amounts due under this Agreement and shall not be offset against or
reduce any other amounts due under this Agreement. You agree to remain
in the employ of the Corporation during the resolution of the dispute and
to continue to provide services unless your employment is terminated
earlier by death, Disability or retirement, or by action of the
Corporation. If the dispute is resolved by a determination that you did
not have Good Reason, this Agreement, in accordance with its terms, shall
continue to apply to the terms of your employment by the Corporation and
any termination thereof.
(b) If there is a termination by the Corporation followed by a
dispute as to whether you are entitled to the payments and other benefits
provided under this Agreement, then, during the period of that dispute
the Corporation shall pay you fifty percent (50%) of the amount specified
in Sections 4(iii)(a) and 4(iii)(b) hereof, and the Corporation shall
provide you with the other benefits provided in Section 4(iii) of this
Agreement, if, but only if, you agree in writing that if the dispute is
resolved against you, you shall promptly refund to the Corporation all
payments you receive under Sections 4(iii)(a) and 4(iii)(b) of this
Agreement plus interest at the rate provided in Code Section 1274(d),
compounded quarterly. If the dispute is resolved in your favor, promptly
after resolution of the dispute the Corporation shall pay you the sum
that was withheld during
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the period of the dispute plus interest at the rate provided in Code
Section 1274(d), compounded quarterly.
Entire Agreement. This Agreement sets forth the entire agreement of the
parties hereto in respect of the subject matter contained herein and supersedes
all prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer,
employee or representative of any party hereto; and any prior agreement of the
parties hereto in respect of the subject matter contained herein, is hereby
terminated and canceled.
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Corporation the enclosed copy of this letter,
which shall then constitute our agreement on this subject.
Sincerely,
XXXXXXXX PBE, INC.
By /s/ Authorized Signatory
-----------------------------
Name:
Title:
Accepted and agreed to effective
as of the first date set forth above.
/s/ Xxxx X. Xxxxxxxx
-----------------------------------
XXXX X. XXXXXXXX
Address for Notice:
Xxxxxxxx PBE, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
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