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EXHIBIT 10.49
EXECUTION COPY
UICI
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October 13, 2000
PERSONAL AND CONFIDENTIAL
Xx. Xxxxxxx Xxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Dear Xxxx:
I understand that you have accepted employment with another company,
effective October 27th. Following up on our recent conversations, this letter
will set forth the terms and conditions of your transition from certain
executive positions with UICI, a Delaware corporation ("UICI") and affiliates,
and your engagement as a consultant to UICI, pursuant to which UICI will engage
your services to serve as a consultant to UICI from time to time as herein set
forth. For purposes of this agreement, you are sometimes herein referred to
herein as "Xxxxx."
You currently serve as Executive Vice President of UICI. You currently
hold options to purchase 10,000 shares of UICI Common Stock at an exercise price
of $23.38 per share, of which options to purchase 2,000 shares are currently
vested and exercisable and options to purchase 8,000 shares are unvested and
unexercisable ("Non-Vested Options"). In accordance with our recent
conversations, you and UICI have mutually agreed to terminate your current
relationship with UICI and its affiliates, and you have agreed, having gained
considerable knowledge and experience relating to the business of UICI and its
affiliates as a result of your prior affiliation with UICI as an officer, to
assist UICI and its affiliates as a consultant by providing certain advisory
services to UICI and its affiliates (collectively, UICI and its affiliates are
herein sometimes referred to as the "Company"). Accordingly, UICI and Xxxxx
hereby agree as follows:
1. SEPARATION; SEVERANCE PAYMENT. At the close of business on October
27, 2000 (the "Separation Date"), you agree to resign as an Executive Vice
President of UICI and each such other executive office, committee and/or
directorship of entities affiliated with UICI upon which you currently serve or
which you currently hold (each of such office, committee or directorship set
forth on Exhibit A hereto). For and in consideration of your past services to
the Company, the Company agrees to pay you a one-time severance payment in the
amount of $50,000 in cash, payable upon the Resignation Date. You shall
otherwise be entitled to your regular compensation accrued to the Separation
Date.
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2. OTHER ARRANGEMENTS.
(a) Reference is made to that certain promissory note, dated May 26,
1999, payable from Xxxxx to UICI in the aggregate principal amount of $203,750,
which note matures in accordance with its terms on the earlier of May 26, 2005
or upon the occurrence of certain events as therein provided (the "Note"). The
proceeds of the Note were used to finance the purchase of 10,000 shares of UICI
Common Stock. UICI agrees to amend the terms of such Note to provide that all
principal and interest outstanding on the Note shall hereafter become due and
payable upon the Modified Maturity Date (as such term is hereinafter defined).
For purposes hereof, the "Modified Maturity Date" shall mean the first to occur
of (a) a Change in Control of UICI (as defined in the Note); (b) termination of
the consulting arrangement hereby created by UICI for "cause" as provided in
Section 4.4(i) hereof; (c) December 31, 2002; or (d) the Put/Call Event. For
purposes hereof, the "Put/Call Event" shall have occurred upon the first date
upon which Xxxxx shall have exercised the Xxxxx Put or UICI shall have exercised
the UICI Call (in each case as such capitalized terms are hereinafter defined).
(b) On the Separation Date, all Unvested Options shall terminate and be
of no further force or effect, and all shares of Restricted Stock shall be
forfeited to the Company.
(c) At any time during the period beginning on November 1, 2002 and
ending on January 15, 2003, Xxxxx shall have the absolute right to put to UICI
(the "Xxxxx Put"), and UICI shall have the corresponding obligation to purchase
from Xxxxx, up to 10,000 shares of UICI common stock at a purchase price of
$20.00 per share in cash. The Xxxxx Put shall be exercised by Xxxxx upon written
or telephonic notice to UICI, which notice shall designate (i) the number of
shares to be sold subject to the Xxxxx Put and (ii) the closing date, which
shall be a date not less than 3 business days from the date of receipt by UICI
of such notice. The shares of UICI common stock to be sold to UICI hereunder
shall, upon payment of the purchase price therefor, be free and clear of all
claims, liens and encumbrances whatsoever.
(d) At any time during the period beginning on the Separation Date and
ending on January 15, 2003, UICI shall have the absolute right to purchase from
Xxxxx (the "UICI Call"), and Xxxxx shall have the corresponding obligation to
sell to UICI, 10,000 shares of UICI common stock (or such lesser number of
shares as Xxxxx shall then own) at a purchase price of $20.00 per share in cash.
The UICI Call shall be exercised by UICI upon written or telephonic notice to
Xxxxx, which notice shall designate (i) the number of shares to be purchased
subject to the UICI Call and (ii) the closing date, which shall be a date not
less than 3 business days from the date of receipt by Xxxxx of such notice. The
shares of UICI common stock to be sold to UICI hereunder shall, upon payment of
the purchase price therefor, be free and clear of all claims, liens and
encumbrances whatsoever.
(e) Xxxxx acknowledges and agrees that, as modified hereby, the Note
remains in full force and effect, enforceable in accordance with its terms. To
secure payment of the Note, Xxxxx hereby grants to UICI a first and perfected
security interest in the 10,000 shares of UICI common stock purchased with the
proceeds of the Note, and a certificate representing such shares in the name of
Xxxxx has been deposited with UICI, together with a stock power executed by
Xxxxx in blank.
3. RELEASES.
3.1. Release of UICI Affiliates. In consideration of the payments and
promises contained in this Agreement, and in full compromise and settlement of
any of Xxxxx'x potential claims and causes of action relating to or arising out
of termination of his employment
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relationship with UICI, and any and all other claims or causes of action that
Xxxxx has or may have against the UICI Affiliates (as defined below) up to the
date of execution of this Agreement, Xxxxx hereby:
(a) Knowingly and voluntarily agrees to irrevocably and
unconditionally waive and release UICI, and any other entity controlled
by, controlling or under common control with UICI, their predecessors
and successors and directors, officers, employees, representatives,
attorneys, including all persons acting by, through, under or in
concert with any of them (collectively, the "UICI Affiliates"), from
any and all charges, complaints, claims, liabilities, obligations,
promises, sums of money, agreements, controversies, damages, actions,
lawsuits, rights, demands, sanctions, costs (including attorneys'
fees), losses, debts and expenses of any nature whatsoever, existing
on, or at any time prior to, the Separation Date in law, in equity or
otherwise, which Xxxxx, his successors, heirs or assigns had or have
upon or by reason of any fact, matter, cause, or thing whatsoever, AND
SPECIFICALLY INCLUDING ANY MATTER THAT MAY BE BASED ON THE SOLE OR
CONTRIBUTORY NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR GROSS) OF ANY UICI
AFFILIATE. This release includes, but is not limited to, a release of
all claims or causes of action arising out of or relating to
termination of the employer-employee relationship of Xxxxx and the
Company, and any other claim, including, without limitation, alleged
contract and tort claims or claims or causes of action arising under
any federal, state, or local law, including, but not limited to, the
Age Discrimination in Employment Act, 29 U.S.C. Section 621, et seq.,
the Fair Labor Standards Act, 29 U.S.C. Section 201, et seq., the
Employee Retirement Income Security Act, 29 U.S.C. Section 1001, et
seq., and any claim under the statutes of the State of Texas, or other
jurisdictions, and the facts, circumstances, allegations, and
controversies relating or giving rise thereto that have accrued to the
date of execution of this Agreement; and
(b) Agrees that he will not commence, maintain, initiate, or
prosecute, or cause, encourage, assist, volunteer, advise or cooperate
with any other person to commence, maintain, initiate or prosecute, any
action, lawsuit, proceeding, investigation, or claim before any court,
legislative body or committee, or administrative agency (whether state,
federal or otherwise) against the UICI Affiliates relating to any
claims, liabilities, obligations, promises, sums of money, agreements,
controversies, damages, actions, lawsuits, rights, demands, sanctions,
costs (including attorneys' fees), losses, debts and expenses described
in the foregoing subparagraph (a);
provided, however, that, notwithstanding anything to the contrary in the
foregoing, nothing hereunder shall be deemed to affect, impair or diminish in
any respect (i) any rights to which Xxxxx may be entitled in his capacity as a
director or officer of any UICI Affiliate to indemnification, advancement of
expenses and/or reimbursement under Delaware law (or the corporate law of any
other jurisdiction that may govern a UICI Affiliate), any UICI Affiliate's
Certificate of Incorporation or bylaws (including without limitation Xxxxx'x
rights to indemnification for costs and expenses associated with the litigation
captioned Xxxxxxx X. Silver v. UICI et al and any other litigation to which
Xxxxx is made a party in his capacity as an officer of UICI), (ii) any rights
Xxxxx may have under that certain Indemnification Agreement, dated as of
September 1, 1999, between UICI and Xxxxx, (iii) any vested rights as of the
Separation Date or entitlement Xxxxx may have under the UICI Employee Stock
Ownership Plan, (iv) any other vested rights as of the Separation Date Xxxxx may
have under any employee plan or program in which Xxxxx has participated in his
capacity as an employee of UICI or any of its affiliates, and (v) the rights of
Xxxxx under this Agreement.
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3.2. Release of Xxxxx. In consideration of the mutual promises
contained in this Agreement, and in full settlement of any of any of the UICI
Affiliates' potential claims and causes of action relating to or arising out of
Xxxxx'x employee relationship with UICI and/or termination of such relationship
and all claims and causes of action that any of the UICI Affiliates has or may
have against Xxxxx up to the date of execution of this Agreement, the UICI
Affiliates hereby:
(a) Knowingly and voluntarily agree to irrevocably and
unconditionally waive and release Xxxxx, and his heirs, executors,
administrators and assigns (collectively the "Xxxxx Releasees"), from
any and all charges, complaints, claims, liabilities, obligations,
promises sums of money, agreements, controversies, damages, actions,
lawsuits, rights, demands, sanctions, costs (including attorneys' fees)
losses, debts (other than the Note) and expenses of any nature
whatsoever, existing on, or at any time prior to the Resignation Date
arising in law, in equity or otherwise, which any of the UICI
Affiliates, their successors or assigns had or have upon or by reason
of any fact, matter, cause, or thing whatsoever, AND SPECIFICALLY
INCLUDING ANY MATTER THAT MAY BE BASED ON THE SOLE OR CONTRIBUTORY
NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR GROSS) OF XXXXX. This release
includes, but is not limited to, a release of all claims or causes of
action arising out of termination of the employment relationship, or
any other contractual relationship with UICI or any of the other UICI
Affiliates, including, without limitation, alleged contract and tort
claims or claims arising under any federal, state or local law and any
claim under the statutes of the State of Texas, or other jurisdictions,
and the facts, circumstances, allegations, and controversies relating
or giving rise thereto that have accrued to the date of execution of
this Agreement ; and
(b) Agrees they will not commence, maintain, initiate or
prosecute, or cause, encourage, assist, volunteer, advise or cooperate
with any other person to commence, maintain, initiate or prosecute, any
action, lawsuit, proceeding, investigation, or claim before any court,
legislative body or committee, or administrative agency (whether state,
federal or otherwise) against the Xxxxx Releasees relating to any such
claims, liabilities, obligations, promises, sums of money, agreements,
controversies, damages, actions, lawsuits, rights, demands, sanctions,
costs (including attorneys' fees), losses, debts and expenses described
in the foregoing subparagraph (a).
3.3. No Admission. Nothing contained in this Section 3 shall in any way
be construed as an admission by the UICI Affiliates or Xxxxx of any acts of
wrongdoing, retaliation, defamation, harassment, negligence, breach of contract,
discrimination or violation of any statute, law, or legal right. Each such party
hereto specifically denies and disclaims that they have any liability to any
other party hereto for any of such acts occurring prior to the execution of this
Agreement.
4. CONSULTING ARRANGEMENT. UICI hereby engages Xxxxx on an independent
contractor basis as a consultant to UICI, and Xxxxx hereby accepts such
engagement and agrees to perform his duties and responsibilities hereunder in
accordance with the terms and conditions hereinafter set forth.
4.1 Consulting Term. The term of engagement shall commence upon the
Separation Date, and shall continue for a term ending on January 15, 2003,
unless earlier terminated pursuant to Section 4.4 of this Agreement (the
"Consulting Term").
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4.2 Duties and Responsibilities; Compensation.
(a) Xxxxx'x position shall be as a consultant to UICI, in which
capacity he agrees to consult with and assist senior management of UICI in
providing (a) litigation and investigatory support services with respect to any
and all pending and future securities laws litigation and/or litigation or
investigations concerning United Credit National Bank, United CreditServ, Inc.
or any affiliates thereof, and (b) assistance with respect to any other matters
as requested from time to time by Xxxx Xxxx, Xxxxx Xxxx and/or Xxxx Xxxxx. As
part of his duties hereunder, Xxxxx agrees to fully cooperate with the Company
in any and all internal or external investigations, subpoenas, requests for
information, discovery requests, etc., and to make himself available upon the
request of the Company to appear in any and all administrative or judicial
proceedings with respect to activities or claims accruing prior to the
Separation Date. Xxxxx shall report to the assigning individual on a regular,
periodic basis and keep such individual reasonably informed as to the status and
progress of each assignment.
(b) For his services hereunder, UICI agrees to pay to Xxxxx the amount
of $120,000 (or such lesser amount, as provided in Section 4.5), payable in 24
equal monthly installments in the amount of $5,000, payable on the first day of
each month, commencing November 1, 2000, with the final installment payment
payable on October 1, 2002. In addition, the Company will promptly reimburse
Xxxxx for all reasonable out-of-pocket expenses incurred by Xxxxx in connection
with his duties hereunder, and Xxxxx agrees to submit to the Company written
evidence of all expenses incurred on a monthly basis. Monthly payments of
consulting fees and expenses hereunder shall be made by mail to the address set
forth below. Notwithstanding anything in the foregoing to the contrary, it is
agreed and understood that Xxxxx shall not be required to devote to his
consulting duties hereunder more than 40 hours in any three-month period during
the Consulting Term. If Xxxxx does spend more than 40 hours in any three-month
period or more than 160 hours in any twelve-month period, then Company shall pay
Xxxxx at the hourly rate of $40 for each hour in excess of 40 hours or 160
hours, as the case may be.
4.3 Taxes. Xxxxx is an independent contractor hereunder and shall be
responsible for payment of all federal and state taxes due on amounts paid
hereunder and the Company shall not withhold any amounts for federal, state or
local income taxes or taxes or assessments that might be payable or be required
to be withheld if Xxxxx were an employee of Company. Xxxxx shall indemnify
Company for and hold the Company harmless from and against any costs, damages or
liabilities relating to any such taxes or assessments.
4.4. Termination of Consulting Arrangement. The consulting arrangement
created hereby may be terminated prior to the end of the Consulting Term as
follows:
(i) by the Company at any time for "cause;"
(ii) by the Company at any time without cause, upon not less than
30 days' prior written notice to Xxxxx; or
(iii) upon the death of Xxxxx.
For purposes of this Agreement, termination for "cause" shall mean termination
for reason of the failure of Xxxxx to materially observe the provisions of
Section 4.2, 5 or 8 of this Agreement or termination for reason of theft, proven
dishonesty, gross misconduct, embezzlement, fraud, conviction of a felony
involving fraud, theft, bodily harm or damage to property (whether connected
with the consulting relationship or not), or use of the facilities or premises
of the Company or a subsidiary for the conduct of unlawful or unauthorized
activities or transactions.
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4.5 Effect of Termination of Consulting Arrangement.
(a) In the event the consulting arrangement provided herein is
terminated by the Company prior to the end of the Consulting Term as provided in
Section 4.4(i), then in such event (i) Xxxxx shall be entitled only to such
portion of the compensation set forth in Section 4.2(b) of this Agreement for
the portion of the Consulting Term that he continued as a consultant hereunder,
and (ii) the Xxxxx Put shall be terminated and void.
(b) In the event the consulting arrangement provided herein is
terminated by the Company as provided in Section 4.4(ii) or as provided in
Section 4.4(iii), then in such event (i) Xxxxx shall be entitled to the balance
of the compensation set forth in Section 4.2(a) of this Agreement, payable in
monthly installments as provided in Section 4.2(b) hereof, and (ii) in the Xxxxx
Put and the UICI Call shall remain fully operative and in full force and effect.
5. CONFIDENTIALITY.
5.1 Confidential Information. Xxxxx acknowledges that, by reason of his
employment by UICI and of his engagement as a consultant to the Company under
this Agreement, he will or may have access to confidential and proprietary
information of the Company, including, without limitation, client and customer
lists, developments, information pertaining to services and products,
improvements of new or existing services and products, know-how, specifications,
profit and other financial figures, and other information treated as proprietary
or confidential by the Company which is not otherwise readily available from
public or published sources. Xxxxx agrees that he will maintain in confidence
all such confidential or proprietary information and that he will not, for any
reason, during his engagement by the Company or thereafter, directly or
indirectly, use for his benefit, or for any person, firm, corporation,
partnership, joint venture or other entity whatsoever, or disclose to any
person, firm, corporation, partnership, joint venture or other entity
whatsoever, any confidential or proprietary information relating to the business
or affairs of the Company without the prior written authorization of the
Company. Notwithstanding the foregoing, nothing hereunder shall prohibit Xxxxx
from disclosing (i) information that has become generally available to the
public other than as a result of disclosure by Xxxxx or (ii) information
required to be disclosed by applicable law or legal process, provided that UICI
shall have been afforded reasonable notice in advance of such disclosure and had
the opportunity to contest the scope of any legal request to require such
disclosure.
5.2 Return of Materials. Upon termination of Xxxxx'x engagement as a
consultant hereunder, for whatever reason, Xxxxx agrees promptly to surrender to
the Company all notes, memoranda, customer lists, records, reports, computer
programs and all other documents and material, and all copies thereof, whether
prepared by Xxxxx or others, which contain or relate to confidential or
proprietary information of the Company of which the Xxxxx has obtained
possession during the course of performing Xxxxx'x obligations hereunder.
6. REPRESENTATIONS AND WARRANTIES.
6.1 Representation of Xxxxx. Xxxxx hereby represents and warrants to
the Company that he is not a party or otherwise subject to any employment or
other agreement or subject to any duty or duties to another person or entity of
which the subject matter hereof could be in violation.
6.2 Representation of UICI. UICI hereby represents and warrants to
Xxxxx that (a) neither it nor any UICI Affiliate is a party or otherwise subject
to any
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agreement or subject to any duty or duties to another person or entity of which
the subject matter hereof could be in violation, (b) this Agreement has been
duly authorized, executed and delivered by UICI and (c) UICI has due authority
to execute this Agreement on behalf of each other UICI Affiliate.
7. DISCLOSURE. Xxxxx acknowledges that the principal terms of the
arrangement contemplated by this Agreement must be disclosed under the rules and
regulations of the Securities and Exchange Commission promulgated under the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as
amended.
8. NONDISPARAGEMENT. Xxxxx agrees that he will not make any statements,
either oral, written, telephonic, electronic or by in other method or in any
other format, that in any way disparage, damage or undermine the character or
reputation of any of the UICI Affiliates or any member of management thereof.
Any party who suffers disparagement in violation of this provision will be
entitled to recover attorneys' fees and expenses.
9. INDEMNIFICATION.
9.1 Indemnification by Xxxxx. Xxxxx hereby agrees to indemnify and hold
the Company harmless from and against any claim, cost, expense, damage,
liability, loss or deficiency suffered or incurred by the Company (including,
without limitation, reasonable attorneys' fees and other reasonable costs and
expenses incident to any suit, action, proceeding or claim) arising out of or
resulting from, and will pay the Company on written demand the full amount of
any sum which the Company may pay or may become obligated to pay in respect of,
(i) any material inaccuracy in any representation or the breach of any warranty
made by Xxxxx pursuant to this Agreement or (ii) any failure by Xxxxx duly to
perform or observe any term, provision, covenant, agreement or condition in this
Agreement to be performed or observed by Xxxxx.
9.2 Indemnification by the Company. The Company hereby agrees to
indemnify and hold Xxxxx harmless from and against any claim, cost, expense,
damage, liability, loss or deficiency suffered or incurred by Xxxxx (including,
without limitation, reasonable attorneys' fees and other reasonable costs and
expenses incident to any suit, action, proceeding or claim) arising out of or
resulting from, and will pay Xxxxx on written demand the full amount of any sum
which Xxxxx may pay or may become obligated to pay in respect of, (i) any
material inaccuracy in any representation or the breach of any warranty made by
the Company pursuant to this Agreement, (ii) any failure by the Company or any
UICI Affiliate duly to perform or observe in any material respect any term,
provision, covenant, agreement or condition in this Agreement to be performed or
observed by the Company or any UICI Affiliate or (iii) any other such claim,
cost, expense, damage, liability, loss or deficiency arising out of Xxxxx'x
services to be provided to the Company as a consultant hereunder (except, and
only to the extent, that such other claim, cost, expense, damage, liability,
loss or deficiency arises primarily from Xxxxx'x gross negligence, IT BEING
EXPRESSLY UNDERSTOOD THAT THE INDEMNITY SET FORTH IN THIS CLAUSE (iii) INCLUDES
MATTERS BASED ON XXXXX'X ORDINARY NEGLIGENCE).
10. GENERAL PROVISIONS.
10.1 Survival. Notwithstanding the termination of the consulting
arrangement hereby created upon or prior to expiration of the Consulting Term
for any reason, the covenants contained in Sections 3, 4.5 and 8 hereof shall
survive and remain in full force and effect.
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10.2 Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of Xxxxx, the Company, the UICI Affiliates and their
respective heirs, executors, administrators, successors and assigns; provided,
however, that Xxxxx may not assign either his rights or obligations hereunder.
10.3 Entire Agreement; Amendments. This Agreement contains the entire
agreement and understanding between the Company and Xxxxx relating to the
termination of Xxxxx'x employment and the engagement of Xxxxx by the Company as
a consultant and supersedes all prior agreements between the Company and Xxxxx
relating to the subject matter hereof. This Agreement may not be amended,
modified or supplemented in any respect except by a subsequent written agreement
executed by the party affected thereby.
10.4 Notices. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be by hand-delivery, certified
or registered mail; return receipt requested, telex, telecopier, or air courier
to the parties set forth below. Such notices shall be deemed given: at the time
delivered by hand, if personally delivered; at the time received if sent
certified or registered mail; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the third business day after timely delivery to
the courier, if sent by air courier.
If to the Company:
UICI
0000 XxXxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn.: Xx. Xxxxxxx X. Xxxx
Telephone: (000)-000-0000
Telecopy: (000) 000-0000
If to Xxxxx:
0000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Phone: (000) 000-0000
10.5 Execution in Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original agreement, but all of which together shall constitute one and the same
instrument.
10.6 Titles and Headings. Titles and headings to sections herein are
for purposes of reference only, and shall in no way limit, define, or otherwise
affect the provisions herein.
10.7 Governing Law; Submission to Jurisdiction. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Texas. Each of Xxxxx, the Company and each UICI Affiliate hereby submits to
the exclusive jurisdiction of the United States District Court for the Northern
District of Texas and of any Texas state court sitting in Dallas, Texas for the
purposes of all legal proceedings arising out of or relating to the Agreement or
the transactions contemplated hereby. Each of Xxxxx, the Company and each UICI
Affiliate irrevocably waives, to the fullest extent permitted by law, any
objection which any of such parties
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may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
10.8 Severability. If any provision of this Agreement or application
thereof to anyone or under any circumstances is adjudicated to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provision or application of this Agreement which can be given effect without the
invalid or unenforceable provision or application.
Please acknowledge your agreement to the foregoing by signing and
returning to the undersigned the enclosed copy of this letter.
UICI
By:
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Name: Xxxxx X. Xxxx
Its: Executive Vice President
and General Counsel
Agreed and acknowledged this __ day of October, 2000.
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Xxxxxxx X. Xxxxx
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