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EXHIBIT 10.3
STOCKHOLDERS AGREEMENT
DATED AS OF NOVEMBER 17, 1999
among
XXXXXX X. XXXXX,
XXXXXXX X. XXXXXXXXX,
XXXXXX XXXX
and
FINANCIAL PERFORMANCE
CORPORATION
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STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (the "AGREEMENT") is entered into as of
November 17, 1999 by and among Xxxxxx X. Xxxxx ("XXXXX"), Xxxxxxx X. Xxxxxxxxx
("XXXXXXXXX"), Xxxxxx Xxxx ("XXXX") and Financial Performance Corporation, a New
York corporation (the "COMPANY"). Each of the parties to this Agreement (other
than the Company) and any other individual, corporation, partnership, trust,
unincorporated organization or other entity (a "PERSON") who shall become a
party to or agree to be bound by the terms of this Agreement after the date
hereof is sometimes hereinafter referred to as a "STOCKHOLDER".
RECITALS
Concurrently with the execution of this Agreement, Xxxxxxxxx and Xxxxx
will consummate the transactions contemplated by that certain Stock Purchase and
Sale Agreement dated as of November 17, 1999 among the Company, Xxxxxxxxx and
Xxxxx (the "XXXXXXXXX PURCHASE AGREEMENT").
Concurrently with the execution of this Agreement, Xxxx and Xxxxx are
consummating the transactions contemplated by that certain Stock Purchase and
Sale Agreement dated as of November 16, 1999 among the Company, Xxxx and Xxxxx
(the "XXXX PURCHASE AGREEMENT" and, together with the Xxxxxxxxx Purchase
Agreement, the "PURCHASE AGREEMENTS").
Following the consummation of the transactions contemplated by the
Purchase Agreements, Xxxxxxxxx will own 500,000 shares of Common Stock, par
value $.01 per share, of the Company (the "COMMON STOCK"), Xxxx will own 500,000
shares of Common Stock, and Xxxxx will own 4,555,422 shares of Common Stock.
The Stockholders desire, for their mutual benefit and protection, to
enter into this Agreement to set forth their respective rights and obligations
with respect to shares of Common Stock beneficially owned by each of the
Stockholders (whether acquired on the date hereof or hereafter, including all
shares of Common Stock issuable upon the exercise of the Stock Options, warrants
to purchase Common Stock or otherwise.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Xxxxxxxxx Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1. Corporate Issues
1.1 Election of Directors.
Simultaneous with the execution and delivery of this Agreement, the
Board of Directors of the Company (the "BOARD OF DIRECTORS") is taking such
action as is necessary to (a) set the number of members of the Board of
Directors at five; (b) appoint Xxxx to the Board of Directors of the Company
until the next annual meeting of stockholders or until his successor is duly
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elected and qualified; and (c) appoint Xxxxxxxxx to the Board of Directors of
the Company until the next annual meeting of stockholders or until his successor
is duly elected and qualified.
The Stockholders agree that so long as Xxxxxxxxx holds more than
500,000 shares of Common Stock, Xxxxxxxxx shall have the right to designate
himself or another individual as a nominee for election as a director of the
Company (the "XXXXXXXXX DIRECTOR"). The Stockholders agree that so long as Xxxx
holds more than 500,000 shares of Common Stock, Xxxx shall have the right to
designate himself or another individual as a nominee for election as a director
of the Company (the "XXXX DIRECTOR"). Xxxxx hereby agrees to vote all shares of
Common Stock beneficially owned by him for the Xxxxxxxxx Director and the Xxxx
Director.
1.2 Fundamental Corporate Actions.
So long as Xxxxxxxxx shall beneficially own at least 500,000 shares of
Common Stock, Xxxxx agrees not to vote his shares in favor of any of the actions
referred to in clauses (i) through (v) of this Section 1.2 without the
affirmative written consent of Xxxxxxxxx.
So long as Xxxx shall beneficially own at least 500,000 shares of
Common Stock, Xxxxx agrees not to vote his shares in favor of any of the actions
referred to in clauses (i) through (v) of this Section 1.2 without the
affirmative written consent of Xxxx.
(i) the making, alteration, amendment or repeal of the
Certificate of Incorporation or any part thereof, or the making, alteration,
amendment or repeal of the By-laws or any part thereof, of the Company or any of
its subsidiaries;
(ii) the sale of all or substantially all of the assets of the
Company or any of its subsidiaries in any one transaction or series of related
transactions;
(iii) the merger, consolidation or other business combination
of the Company or any of its subsidiaries with or into any other person or
entity or a statutory share exchange between the Company or any of its
subsidiaries and any other person or entity;
(iv) the liquidation, dissolution or winding up of the Company
or any of its subsidiaries; or
(v) except as otherwise contemplated in this Section 1.2, the
entering into of any contract, agreement or commitment to do, the authorization,
approval, ratification or confirmation of, or the delegation of the power to act
on behalf of the Company or the Board of Directors in respect of, any of the
foregoing.
ARTICLE 2. Restrictions on Transfer
2.1 General Restrictions on Transfer.
Xxxxx hereby agrees that he will not, directly or indirectly, Transfer
any shares of capital stock of the Company (or any interest therein), any stock
certificates representing the same or any voting trust certificate issued with
respect to said capital stock, or any option, right or
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warrant to acquire shares of Common Stock, now or hereafter at any time owned by
him (collectively, the "Remaining Shares"), to any Person (a "Transferee"),
except pursuant to the Stock Option Agreements or as permitted under the
Stockholders Agreement; provided, however, that Xxxxx may Transfer any of the
Remaining Shares to (x) any immediate member of his family, (y) a trust
established for the benefit of any immediate member of his family or (z) any
entity established solely for the purpose of holding title to such shares and
performing Trump's obligations under this Agreement, in each case as long as any
Transferee in clause (x), (y) or (z) assumes and agrees in writing to be bound
by all of the terms of this Agreement; provided, further, that Xxxxx may
Transfer any of the Remaining Shares by pledge or hypothecation if the
Transferee assumes and agrees in writing to be bound by all of the terms of this
Agreement. Notwithstanding the provisos to the prior sentence or anything to the
contrary contained herein, Xxxxx may not Transfer any of the Option Shares which
are subject to a Stock Option Agreement until such Stock Option Agreement has
terminated or expired. For purposes of this Agreement, "Transfer" shall mean
with respect to any capital stock, (i) any sale, assignment or transfer of such
capital stock or any right or interest therein, (ii) any pledge or hypothecation
of such capital stock or any interest therein, (iii) any grant, sale or other
transfer of securities convertible into or exchangeable or exercisable for or
other options, warrants or rights to acquire such capital stock or any interest
therein and (iv) any other direct or indirect transfer of such capital stock or
any interest therein, including by operation of law (it being understood that
any transferee by operation of law shall be required to comply with the
provision of Section 2.1).
Notwithstanding anything to the contrary contained in this Agreement,
there shall be no restrictions hereunder on Trump's right to Transfer, and the
Remaining Shares shall not be deemed to include, (i) 51,000 shares of Common
Stock previously acquired by Xxxxx in open market purchases or (ii) any shares
of Common Stock or any option, right or warrant to acquire shares of Common
Stock, which shall hereafter be acquired by Xxxxx.
2.2 Right of First Offer.
(a) Prior to any Transfer of the Remaining Shares, Xxxxx must first
give written notice of his intent to make such Transfer (a "TRANSFER NOTICE") to
Xxxx and Xxxxxxxxx setting forth the number of shares of Common Stock (the
"FIRST OFFER SHARES") that Xxxxx desires to transfer and the cash price that
Xxxxx proposes to be paid for such First Offer Shares and the other terms and
conditions of such proposed Transfer.
(b) Xxxxx shall afford Xxxxxxxxx and Xxxx (each individually a "FIRST
OFFER STOCKHOLDER", and collectively the "FIRST OFFER STOCKHOLDERS") the right,
but not the obligation, to purchase all or part of the First Offer Shares on a
pro rata basis (the "FIRST OFFER OPTION") on the same terms and conditions as
set forth in the Transfer Notice. Notwithstanding anything to the contrary
contained herein, the First Offer Stockholders will not elect to purchase a
portion of the First Offer Shares in an amount less than 10,000 shares if the
number of First Offer Shares is at least 10,000 shares in respect of a
particular Transfer Notice and (ii) if the number of First Offer Shares is at
least 10,000 in respect of a particular Transfer Notice and the First Offer
Stockholders shall elect to purchase part of the First Offer Shares, then each
First Offer Stockholder shall purchase such First Offer Shares in multiples of
1,000 shares.
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The number of shares of Common Stock that each First Offer Stockholder
will be entitled to purchase pursuant to such First Offer Option will be
determined by multiplying (i) the number of shares Xxxxx plans to sell as stated
in the Transfer Notice by (ii) a fraction, the numerator of which shall equal
the number of shares beneficially owned by such First Offer Stockholder as of
the close of business on the day immediately prior to the date the Transfer
Notice is delivered (the "TRANSFER NOTICE DATE") and the denominator of which
shall equal the aggregate number of shares of Common Stock that are beneficially
owned by the First Offer Stockholders as of the close of business on the day
immediately prior to the Transfer Notice Date.
Each First Offer Stockholder shall exercise the First Offer Option by
delivering to Xxxxx irrevocable written notice via facsimile transmission if
reasonably practicable of the First Offer Stockholder's commitment to purchase
all or part of his pro rata share of the First Offer Shares within two business
days after receipt of the Transfer Notice (the "FIRST OFFER OPTION PERIOD").
Failure by either First Offer Stockholder to give such notice within such
two-business-day period shall be deemed an election by such First Offer
Stockholder not to purchase any of the First Offer Shares.
(c) If neither First Offer Stockholder elects to purchase any First
Offer Shares, Xxxxx may Transfer the First Offer Shares in accordance with
Section 2.2(e) below. If one First Offer Stockholder fails to purchase any or
all of his pro rata share of the First Offer Shares and the other First Offer
Stockholder elects to purchase all of his pro rata share of the First Offer
Shares, Xxxxx shall give notice of such failure to such other First Offer
Stockholder. Such notice shall state the number of First Offer Shares remaining
that may be acquired by such First Offer Stockholder, which notice shall be made
by telephone and confirmed in writing within two days. Such First Offer
Stockholder shall have two business days from the date such notice was confirmed
in writing (which confirmation may be by facsimile transmission) to purchase the
remaining First Offer Shares.
(d) Delivery of written notice by a First Offer Stockholder accepting
the First Offer Option pursuant to clauses (b) and (c) above shall constitute a
contract between such First Offer Stockholder, on the one hand, and Xxxxx, on
the other hand, for the purchase and sale of the number of First Offer Shares
specified by such First Offer Stockholder on the terms and conditions set forth
in the Transfer Notice. The purchase of any shares pursuant to the exercise of
the First Offer Option shall be completed not later than 8 business days
following delivery of the Transfer Notice with respect to the First Offer
Shares, subject to receipt of any required material third-party or governmental
approvals, compliance with applicable laws and the absence of any injunction or
similar legal order preventing such transaction.
(e) In the event that the First Offer Stockholders do not elect to
acquire all of the First Option Shares, Xxxxx shall have the right for a period
of 45 days after the termination of the First Offer Option Period to Transfer
the First Offer Shares not so acquired at a price and on terms and conditions no
less favorable to Xxxxx than those set forth in the Transfer Notice or in any
written counter-proposal delivered by a First Offer Stockholder to Xxxxx in
respect of a particular Transfer Notice.
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(f) Subject to the other provisions of this Agreement, this Section 2.2
shall not apply to any Transfer of the Remaining Shares pursuant to the terms of
a merger or statutory share exchange between the Company and a third party or a
liquidation of the Company.
2.3 Payment and Delivery of Shares. At any closing hereunder, (a) the
First Offer Stockholder shall pay the aggregate purchase price for the First
Offer Shares to be purchased, which shall be payable by bank check or by wire
transfer to an account designated by Xxxxx and (b) Xxxxx shall deliver to the
First Offer Stockholder (i) a certificate or certificates representing the First
Offer Shares so purchased registered in the name of the First Offer Stockholder
or his designee or (ii) a certificate or certificates representing the First
Offer Shares so purchased duly endorsed in blank for transfer or accompanied by
appropriate stock powers duly executed in blank. If any of the First Offer
Shares shall be held by Xxxxx in a brokerage account, Xxxxx may deliver to the
brokerage firm in which such First Offer Shares are held written notice to
transfer record and beneficial ownership of the First Offer Shares purchased by
the First Offer Stockholder to the brokerage account of the First Offer
Stockholder. The First Offer Stockholder shall designate his brokerage account
together with the written notice accepting the First Offer Option. The First
Offer Stockholder shall reasonably cooperate with Xxxxx and shall take
reasonable actions requested by Xxxxx to effectuate such transfer of ownership.
However, it shall be solely Trump's obligation to effectuate such transfer of
ownership.
ARTICLE 3. Representations and Warranties
3.1 Representations and Warranties of the Stockholders.
Each of the Stockholders represents and warrants to each other and to
the Company as follows:
3.1.1 Binding Obligation. This Agreement constitutes his
binding obligation, enforceable against him in accordance with its terms, except
insofar as enforceability may be limited by bankruptcy, insolvency, moratorium
or other laws which may affect creditors' rights and remedies generally and by
principles of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law); and
3.1.2 No Conflict. The execution, delivery and performance of
this Agreement by him and the consummation by him of the transactions
contemplated hereby will not, with or without the giving of notice or the lapse
of time, or both, (i) violate any provision of law, statute, rule or regulation
to which he is subject, (ii) violate any order, judgment or decree applicable to
him, or (iii) conflict with, or result in a breach or default under, any term or
condition of its certificate of incorporation, bylaws or equivalent governing
document or any material agreement or other material instrument to which he is a
party or by which he or his property is bound.
3.2 Representations and Warranties of the Company. The Company hereby
represents and warrants to each of the Stockholders as follows:
(a) This Agreement has been duly and validly authorized, executed and
delivered by the Company. This Agreement constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, subject, as to
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enforceability, to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(b) The execution and delivery by the Company of this Agreement, the
consummation of the transactions contemplated hereby, and the compliance by the
Company with any of the provisions hereof does and will not (i) conflict with,
violate, result in the breach or termination of, or constitute a default or give
rise to any right of termination or acceleration or right to increase the
obligations or otherwise modify the terms thereof under any contract, permit or
order to which the Company is a party or by which the Company or its properties
or assets are bound; (ii) constitute a violation of any law applicable to the
Company; or (iii) result in the creation of any lien upon the properties or
assets of the Company. No consent, waiver, approval, order, permit or
authorization of, or declaration or filing with, or notification to, any person
or governmental body is required on the part of the Company in connection with
the execution and delivery of this Agreement, or the compliance by the Company,
with any of the provisions hereof, except as set forth in Schedule 4.1 to the
Purchase Agreement.
3.3 Disclaimer. None of the parties to this Agreement makes any
representations or warranties to any of the other parties other than those
expressly set forth herein.
ARTICLE 4. General
4.1 Recapitalization, Exchanges, etc. Affecting the Common Stock. The
provisions of this Agreement shall apply to the full extent set forth herein
with respect to (a) shares of Common Stock and any option, right or warrant to
acquire shares of Common Stock, and (b) any and all shares of capital stock of
the Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in exchange for, or in substitution for the shares of Common Stock, by
combination, recapitalization, reclassification, merger, consolidation or
otherwise. In the event of any change in the capitalization of the Company, as a
result of any stock split, stock dividend or stock combination, the provisions
of this Agreement shall be appropriately adjusted.
4.2 Injunctive Relief. It is hereby agreed and acknowledged that it
will be impossible to measure in money the damages that would be suffered if the
parties fail to comply with any of the obligations herein imposed on them and
that, in the event of any such failure, an aggrieved party will be irreparably
damaged and will not have an adequate remedy of law. Any such party shall,
therefore, be entitled to injunctive relief, including specific performance, to
enforce such obligations, without the posting of any bond and if any action
should be brought in equity to enforce any of the provisions of this Agreement,
none of the parties hereto shall raise the defense that there is an adequate
remedy at law.
4.3 Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given when delivered personally, upon
delivery to a nationally recognized overnight courier service or when mailed by
certified mail, return receipt requested, to a Stockholder or the Company at the
address set forth in the Purchase Agreements (or to such other address as a
party may have specified by notice given to the other parties pursuant to this
provision). All notices are effective upon receipt or upon refusal if properly
delivered.
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4.4 Legend. In addition to any other legend which may be required by
applicable law, each share certificate representing shares of Common Stock
beneficially owned by Xxxxx, which are subject to this Agreement shall have
endorsed, to the extent appropriate, upon its face the following words:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCKHOLDERS
AGREEMENT, DATED AS OF NOVEMBER 17, 1999 (THE "STOCKHOLDERS
AGREEMENT"), A COPY OF WHICH MAY BE OBTAINED FROM THE
SECRETARY OF FINANCIAL PERFORMANCE CORPORATION AT ITS
PRINCIPAL EXECUTIVE OFFICES. SUCH SECURITIES MAY NOT BE
TRANSFERRED IN ANY WAY EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF THE STOCKHOLDERS AGREEMENT. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO OTHER
RIGHTS AND OBLIGATIONS AS SET FORTH IN THE STOCKHOLDERS
AGREEMENT.
This legend shall be removed when the shares of Common Stock
represented by such certificate shall no longer be subject to the terms and
conditions of this Agreement.
4.5 Entire Agreement; Amendments and Waivers. This Agreement, together
with the other Transaction Documents, represents the entire understanding and
agreement among the parties hereto with respect to the subject matter hereof and
can be amended, supplemented or changed, and any provision hereof can be waived,
only by written instrument making specific reference to this Agreement signed by
the parties hereto. No action taken pursuant to this Agreement, including
without limitation, any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by the party taking such action of compliance with
any representation, warranty, covenant or agreement contained herein. The waiver
by any party hereto of a breach of any provision of this Agreement shall not
operate or be construed as a further or continuing waiver of such breach or as a
waiver of any other or subsequent breach. No failure on the part of any party to
exercise, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of such
right, power or remedy by such party preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. All remedies
hereunder are cumulative and are not exclusive of any other remedies provided by
law.
4.6 Additional Documents. The Stockholders agree to execute any and all
further reasonable documents and writings within their respective powers and to
perform such other reasonable actions which may be or become necessary or
expedient to effectuate and carry out this Agreement.
4.7 Binding Effect, Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective permitted
successors and assigns. Nothing in this Agreement shall create or be deemed to
create any third party beneficiary rights or any other rights of any kind in any
person or entity not a party to this Agreement except as provided below.
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No assignment of this Agreement or of any rights or obligations hereunder may be
made by Xxxxx (by operation of law or otherwise) without the prior written
consent of Xxxxxxxxx and Xxxx, except as provided herein, and any attempted
assignment without such required consent shall be void. Xxxxxxxxx and Xxxx may
assign this Agreement and any or all rights and obligations hereunder, in whole
or in part, to any of their respective Affiliates, (any such Affiliate, a
"Successor"). Notwithstanding the foregoing, Xxxxxxxxx and Xxxx may assign their
respective rights under Section 2.2 of this Agreement in whole but not in part
to any of their respective Affiliates. Xxxxxxxxx or Xxxx will require any such
Successor to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that Xxxxxxxxx or Xxxx, as the case may be, would
be required to perform it if no such purchase, or succession had taken place.
Upon any such permitted purchase or succession the references in this Agreement
to the Purchaser shall also apply to any Successor unless the context otherwise
requires.
4.8 Severability. If any term, provision, covenant or condition of this
Agreement or part thereof, or the application thereof to any Person, place or
circumstance shall be held to be invalid, unenforceable or void by a court of
competent jurisdiction, the remainder of this Agreement and such term,
provision, covenant or condition shall remain in full force and effect, and any
such invalid, unenforceable or void term, provision, covenant or condition shall
be deemed, without further action on the part of the parties hereto, modified,
amended and limited, and the court shall have the power to modify, amend, and
limit such term, provision, covenant or condition, to the extent necessary to
render the same and the remainder of this Agreement valid, enforceable and
lawful.
4.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without giving effect
to the principles of conflict of laws thereunder.
4.10 Attorneys' Fees. Should any litigation or arbitration be commenced
(including any proceedings in a bankruptcy court) between the parties hereto or
their representatives concerning any provision of this Agreement or the rights
and duties of any person or entity hereunder, the party or parties prevailing in
such proceeding shall be entitled, in addition to such other relief as may be
granted, to the reasonable attorneys' fees and court costs incurred by reason of
such litigation or arbitration.
4.11 Headings. The headings in this Agreement are inserted only as a
matter of convenience, and in no way define, limit, or extend or interpret the
scope of this Agreement or of any particular Section.
4.12 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.13 Submission to Jurisdiction; Waiver of Jury Trial; and Consent to
Service of Process.
(a) The parties hereto hereby irrevocably submit to the
exclusive jurisdiction of any federal or state court located within the State of
New York over any dispute arising out of
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or relating to this Agreement or any of the transactions contemplated hereby or
by the other Transaction Documents and each party hereby irrevocably agrees that
all claims in respect of such dispute or any suit, action or proceeding related
thereto may be heard and determined in such courts. The parties hereby
irrevocably waive, to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to the laying of venue of any
such dispute brought in such court or any defense of inconvenient forum for the
maintenance of such dispute. Each of the parties hereto agrees that a judgment
in any such dispute may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(b) THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT AND ANY OF THE OTHER TRANSACTION DOCUMENTS, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES' ACCEPTANCE
OF THIS AGREEMENT.
4.14 Binding Effect. This Agreement and all of its provisions, rights
and obligations shall be binding upon and shall inure to the benefit of the
parties hereto and their respective permitted successors, heirs and legal
representatives and to permitted Transferees of shares owned by the
Stockholders. Any Transfer of shares, in addition to any other requirements
herein, shall be subject to receipt by the Stockholders and the Company of an
executed agreement by such Transferee agreeing to become bound by the terms of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first set forth above.
FINANCIAL PERFORMANCE CORPORATION
By:__________________________
Name:
Title:
__________________________
XXXXXX X. XXXXX
__________________________
XXXXXXX X. XXXXXXXXX
__________________________
XXXXXX XXXX
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