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Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") made and executed effective
this 26th day of April, 2000, by and between XXXXXXXX BANK N.A., a banking
association organized under the laws of the United States, with offices at 0000
XX 00xx Xxxxxx, Xxxxx, XX 00000, and its holding company XXXXXXXX BANCORP INC.
(collectively the "Bank"), and XXXXX X. XXXXXX residing at 00000 XX 00xx Xxxxx,
Xxxxx, XX 00000 (the "Executive").
W I T N E S S E T H:
In consideration of the mutual covenants and agreements herein contained
the parties hereto agree as follows:
1. EMPLOYMENT.
(a) DUTIES. The Bank hereby employs the Executive and the Executive
hereby accepts such employment from the commencement date, as defined in Section
2 below, until the termination of this Agreement as provided in Section 5. The
Executive shall be employed as Executive Vice President and Chief Operating
Officer and shall perform such services consistent with such position for the
Bank as he shall be assigned from time to time by the Chief Executive Officer or
the Board of Directors. During the term of this Agreement, Executive faithfully
and industriously shall devote at all times his best and dedicated efforts,
cooperation and assistance in the performance of his services.
(b) SERVICE ON BOARD OF DIRECTORS. Executive agrees to serve, if
requested, on the Board of Directors, or any committees, of the Bank during the
term of this Agreement.
2. TERM.
The term of this Agreement, and Executive's employment under the terms of
this Agreement, shall continue, unless otherwise terminated by either party in
accordance with the provisions contained in Section 5 of this Agreement, until
the third anniversary of the date this Agreement; PROVIDED, HOWEVER, commencing
on the second anniversary of the date of this Agreement, and on each anniversary
thereafter, the term of this Agreement shall be automatically extended for an
additional one-year period unless at least sixty (60) days prior to any such
anniversary date either party gives notice to the other that it elects not to
extend the term of this Agreement by an additional year. Notwithstanding, the
minimum term of this agreement if not otherwise extended by the terms of this
provision, shall be for a period of three years.
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3. COMPENSATION; BENEFITS.
The Bank shall compensate the Executive as follows:
(a) BASE SALARY. The Bank shall pay Executive a minimum starting salary
(the "Base Salary") of Two Hundred Ten Thousand and 00/100 cents ($210,000.00)
upon commencement of his employment with Bank. Such Base Salary shall be paid in
equal installments at such intervals as the Bank regularly pays salaries and
wages. The Base Salary shall be reviewed at least annually and shall be subject
to merit increases in the discretion of the Board of the Bank.
(b) INCENTIVE COMPENSATION. During the term of this Agreement,
Executive shall be eligible to receive bonuses ("Incentive Compensation"), as
the Board of Directors of the Bank may reasonably determine in its sole
discretion and in accordance with the Bank's prior policy and commitment of
providing its key officers with yearly bonuses commensurate with the Bank's
performance.
(c) PAYMENT FOR INCENTIVE BENEFITS FOREGONE. In consideration of
certain benefits foregone by Executive from his former employment, Executive
shall be paid the sum of One Hundred Thousand ($100,000.00), payable on the
commencement date or as soon thereafter as the Bank regularly pays salaries and
wages (the "Incentive Benefits Foregone"). The Incentive Benefits Foregone shall
be deemed earned by Executive upon the execution of this Agreement by the
parties.
(d) STOCK OPTIONS. Upon execution of this Agreement, Executive shall be
granted and issued 20,000 stock option grants in the Bank in accordance with the
terms and conditions of the Bank's Stock Option Plan. Additionally, and as a
further incentive to Executive to accept this Employment Agreement, Bank has
offered Executive an additionally 20,000 stock option grants in the Bank to be
issued in May 2000, subject to approval by the Bank's Compensation Committee
(which does not meet until April 2000). Executive shall be issued an option
agreement upon terms and conditions that are consistent with this Agreement.
(e) BENEFITS.
(i) The Executive will be entitled to participate in any
medical, dental, disability and life insurance plan or other benefit plan as may
be maintained from time to time by the Bank for its senior management, in
accordance with the terms of such plans.
(ii) The Bank will provide Executive with an annual vacation
in accordance with the Bank's policy, as the same may be changed from time to
time.
(iii) The Bank will reimburse Executive for reasonable
expenses actually and necessarily incurred by Executive in the discharge of his
duties, subject to any restrictions of policies imposed or adopted by the Bank
with respect to business expenses.
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4. CERTAIN RESTRICTIONS ON EXECUTIVE.
(a) ACKNOWLEDGMENT OF BANK'S INTEREST.
Executive acknowledges (i) that the Bank's records, customer and depositor
lists, business prospects and other information are confidential trade secrets
and constitute valuable and unique assets of the Bank's business, and (ii) that
during the course of his employment with the Bank, the Executive may have access
to the Bank's Confidential Information.
(b) CONFIDENTIALITY. The Executive covenants and agrees that he will
not at any time while he is employed by the Bank in any capacity (whether
pursuant to this Agreement or otherwise), or at any time subsequent to his
employment by the Bank, (i) intentionally disclose any Confidential Information,
Directly or Indirectly, to any person, firm, corporation, partnership,
association or other entity, or (ii) otherwise directly or indirectly use any
Confidential Information, except disclosures made to other employees or to
officers, directors for or agents of the Bank, which are made for valid business
purposes, in connection with the performance by the Executive of his duties and
responsibilities hereunder. The Executive covenants and agrees that upon
termination of Executive's employment with the Bank, the Executive shall
promptly return and surrender to the Bank, any and all customer lists and other
Confidential Information of the Bank while he may have in his possession. As
used in this Agreement, the term "Confidential Information" shall mean
information which is not generally known to the public at large concerning the
business, affairs of properties of the Bank and their respective subsidiaries,
associates and affiliates, including, but not limited to, the names of the
Bank's customers and depositors, methods of doing business, financial
information and reports, regulatory reports, strategies or any other information
of the Bank and their respective subsidiaries and affiliates relating to their
manner of operation, their plans or other data of any kind, nature or
description.
(c) NON-SOLICITATION COVENANT. During the term of this Agreement,
Executive shall not (A) engage in, acquire an interest in any or become
affiliated in Miami-Dade County as an agent, employee, partner, director,
officer, stockholder, or proprietor with or of any bank, or savings and loan
association, except for the ownership of shares, not in excess of 5% of all
outstanding shares, in companies the shares of which are publicly traded; (B)
solicit (except in connection with the business of the Bank) or divert any
person who is, or has been during the preceding two (2) years, a customer or
depositor of the Bank; (C) influence or attempt to influence any employee of the
Bank to terminate his employment with the Bank; nor (D) influence or attempt to
influence, any supplier, agent or independent contractor that has a business
relationship with the Bank, or any customer of the Bank, to cease or adversely
alter its business relations with the Bank.
(d) INJUNCTION. It is recognized and hereby acknowledged by the parties
hereto that a breach or violation by the Executive of any or all of the
covenants and agreements contained in this Section 4 may cause irreparable harm
and damage to the Bank in a monetary amount which may be virtually impossible to
ascertain. As a result,
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the Executive recognizes and hereby acknowledges and agrees that the Bank Shall
be entitled to an injunction from any court of competent jurisdiction enjoining
and restraining any breach or violation of any or all of the covenants and
agreements contained in this Section 4 by the Executive either directly or
indirectly, and that such right to injunction shall be cumulative and in
addition to whatever other rights or remedies the Bank may possess hereunder, at
law or in equity. Nothing in this Section 4 shall be construed to prevent the
Bank from seeking and recovering from the Executive damages sustained by it as a
result of any breach or violation by the Executive of any of the covenants or
agreements contained in this Section 4.
(e) REASONABLENESS OF RESTRICTIONS. In the event that any provision of
Paragraph 4 (c) above relating to the time period and/or the areas of
restriction is found by a court of competent jurisdiction to exceed the maximum
time period or area which such court finds reasonable and enforceable, the time
period and/or areas of restriction which the court finds reasonable and
enforceable shall become and thereafter be the maximum time period and/or area
applicable to the provisions of Paragraph 4 (c).
(f) DEFINITION OF BANK. Solely for purposes of this Section 4, the term
"Bank" shall include also any existing or future subsidiaries of the Bank, as
the case may be, that are operating in the time period described herein and any
other entities that directly or indirectly, through one or more intermediaries,
control, are controlled by or are under common control with the Bank during the
periods described herein.
5. TERMINATION.
(a) TERMINATION BY BANK FOR "CAUSE". Executive's employment pursuant to
this Employment Agreement can be terminated at any time by the Bank (i) if after
written notice to Executive specifying the nature of any material act or
omission which constitutes willful misfeasance or malfeasance by Executive in
connection with the performance of his employment duties, Executive fails to
cure the breach within fifteen (15) days of such notice; or (ii) if Executive
commits a felony or any material act of fraud, dishonesty, gross negligence or
any material act that is detrimental or harmful to the reputation, character or
standing of the Bank. Termination of Executive's employment under the provisions
of Paragraph 5(a) shall be deemed a termination for "Cause".
(b) TERMINATION BY EXECUTIVE FOR "GOOD REASON." The Bank shall be
deemed in breach of this Agreement upon the occurrence of any of the following:
(i) the breach by the Bank of any of the material provisions of this Agreement;
(ii) the assignment to Executive of any duties materially inconsistent with the
Executive's position as contemplated by Paragraph 1(a) of this Agreement; (iii)
any act by Bank which requires Executive to be permanently based at any office
or location outside of Miami-Dade County, except for travel reasonably required
in the performance of the Executive's responsibilities; or (iv) any purported
termination by the Bank of Executive's employment other than for Cause pursuant
to the provisions of paragraph 5(a) or by reason of the Executive's death or
disability pursuant to the provisions of
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Paragraph 5(c), or as a result of a Change in Control as provided in Paragraph
5(d). In the event that a breach by the Bank of this Agreement is not cured
within fifteen (15) days following a written notice specifying the nature of
such breach, Executive shall be entitled to terminate Executive's employment
under this Agreement and shall be entitled to be paid the Severance Payment
defined in Section 5(e). Termination by Executive of his employment under the
provisions of this Paragraph 5(b) shall be deemed a termination for "Good
Reason".
(c) DEATH OR DISABILITY. The death or extended disability of Executive
will terminate this Employment Agreement. Extended disability shall mean the
inability of Executive to perform his obligations hereunder for a period of 180
days in any 12-month period. The Bank shall have sole discretion based upon
competent medical evidence to determine whether Executive is disabled.
(d) CHANGE IN CONTROL OF THE BANK.
(i) In the event of a Change in Control of the Bank (as
defined in Paragraph 5(d)(iv) below) and in the event that within ninety (90)
days following the consummation of the Change in Control (A) Executive
voluntarily terminates his employment with the Bank (or its successors) or (B)
the Bank (or its successors) notifies Executive that it elects to terminate
Executive's employment with the Bank (or its successors) for any or no reason,
then Executive shall promptly be paid a lump sum payment (the "Change of Control
Payment") equal to:
(1) Two times his then Base Salary; plus
(2) An amount equal to two times the Incentive
Compensation earned by Executive in respect of the fiscal year immediately
preceding the Change in Control, or in the event Incentive Compensation has not
been paid yet for such year as of the date of the Change in Control, then an
amount equal to two times Executive's Incentive Compensation for the penultimate
year prior to the Change in Control or equal to two times the Incentive Benefits
Foregone, whichever is greater if no Incentive Compensation has been paid prior
to the Change in Control, PROVIDED, HOWEVER, that the total amount of the Change
of Control Payment shall not exceed an amount equal to three times the average
of the Executive's annualized compensation paid by the Bank and its affiliates
which was includible in the Executive's gross income during the most recent five
taxable years (or such lesser number of years equal to the number of years
Executive was employed by the Bank) ending before the date of the Change of
Control (i.e. amounts includible in compensation, including base salary and cash
annual incentive prior to any deferred arrangements, and defined as the
individual's "base amount" under Section 280G of the Internal Revenue Code of
1986, as amended).
Upon such termination, however, Executive shall not be paid any Severance
Payment (as defined below) which would otherwise be payable to Executive under
this Agreement -- the Change in Control Payment replacing any such Severance
Payment.
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(ii) In the event neither Executive nor the Bank (or its successors)
elects to terminate Executive's employment as provided in (i) above within
ninety (90) days following a Change in Control, the Bank (or its successor)
shall either (A) promptly pay the Change of Control Payment to Executive or (B)
offer Executive a new two (2) year employment agreement containing terms no less
favorable than the terms of this Agreement existing on the date of the Change in
Control.
(iii) In the event of a Change in Control and in the event Executive
shall elect to terminate his employment as provided in section (i) above for any
or no reason, such termination shall not be deemed a breach of this Agreement.
(iv) For purposes of this Agreement the term "Change in Control"
shall mean:
(A) A reorganization, merger, consolidation or other
form of corporate transaction or series of transactions, in each case, with
respect to which persons who were the shareholders of the Bank immediately prior
to such reorganization, merger or consolidation or other transaction do not,
immediately thereafter, directly or indirectly, own more than 50% of the
combined voting power entitled to vote generally in the election of director of
the reorganized, merged or consolidated entity's then outstanding voting
securities;
(B) A liquidation or dissolution of the Bank;
(C) The sale of all or substantially all of the
assets of the Bank (unless such reorganization, merger, consolidation or other
corporate transaction, liquidation, dissolution or sale is subsequently
abandoned); or
(D) The acquisition by any person, entity or "group",
within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act, (excluding any employee benefit plan of the Bank or its subsidiaries which
acquires beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Securities Exchange Act)) of more than fifty percent (50%) of either
the then outstanding shares of common stock or the combined voting power of the
Bank's then outstanding voting securities entitled to vote generally in the
election of directors.
(v) In the Event of a Change of Control and provided that Executive
does not terminate his employment within 90 days following consummation of such
Change of Control, of all of Executive's outstanding stock options in the Bank
shall be accelerated and immediately vest upon the anniversary of the third
month following the consummation of such Change.
(e) SEVERANCE PAYMENT. In the event that Executive is terminated at any
time and for any reason other than for Cause, Death or Disability as defined in
Sections 5(a) and (c), or as provided in Section 5(d)(i), or in the event
that Executive terminates his
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employment for Good Reason under Section 5(b) other than as provided in Section
5(d)(i), Executive shall be paid a lump sum payment (the "Severance Payment")
equal to:
(A) Two times his then Base Salary; plus
(B) An amount equal to two times the Incentive
Compensation earned by Executive in respect of the fiscal year immediately
preceding the year of termination, or in the event Incentive Compensation has
not been paid yet for such year as of the date of termination, then an amount
equal to two times Executive's Incentive Compensation for the penultimate year
prior to the year of termination or equal to two times the Incentive Benefits
Foregone, whichever is greater if no Incentive Compensation has been paid prior
to the date of termination.
(C) The Severance Payment shall be paid on the
earlier of the termination of Executive's employment by the Bank (or its
successor) or thereafter at the earliest interval as the Bank regularly pays
salaries and wages.
(f) DAMAGES. Nothing contained herein shall be construed o prevent the
Bank or the Executive from seeking and recovering form the other damages
sustained by either or both of them as a result of its or his breach of any term
or provision of this Agreement.
6. EXCISE TAX.
(a) LIMITATION OR ADDITIONAL PAYMENT. In the event that any portion of
the payments and benefits provided to Executive under this Agreement (without
regard to any amount payable under this Section 6) and any other payments and
benefits under any other agreement with or plan of the Bank (in the aggregate,
"Total Payments") would be subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code (the "Excise Tax"), then Executive shall be entitled
to receive an additional payment (a "Gross-Up Payment") in an amount such that
after payment by Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any income
taxes (and any interest and penalties imposed with respect thereto) and Excise
Tax imposed upon the Gross-Up Payment, Executive retain an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments.
(b) DETERMINATION BY ACCOUNTING FIRM. Subject to the provisions of
Section 6(c) below, all determinations required to be made under this Section 6,
including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, shall be made by the Bank's independent auditors or such other
certified public accounting firm reasonably acceptable to Executive as may be
designated by the Bank's (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Bank and Executive. All fees and expenses of
the Accounting Firm shall be paid solely by the Bank. Any Gross-Up Payment, as
determined pursuant to this Section 6, shall be paid by the Bank to Executive no
later than the due date for the payment of any Excise Tax. Any
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determination by the Accounting Firm shall be binding upon the Bank and
Executive. As a result of the uncertainty in the application of Section 4999 of
the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not have been made
by the Bank should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that the Bank exhausts
its remedies pursuant to Section 6(c) and Executive is thereafter required to
make a payment of any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by The Bank to Executive or for Executive's benefit.
(c) THE BANK RIGHT TO CONTEST EXCISE TAX. Executive agrees to notify
the Bank in writing of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Bank of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later than ten (10)
business days after Executive is informed in writing of such claim and shall
apprise the Bank of the nature of such claim and the date on which such claim is
requested to be paid. Executive shall not pay such claim prior to the expiration
of the 30-day period following the date on which Executive is given such notice
to the Bank (or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Bank notifies Executive in writing
prior to the expiration of such period that it desires to contest such claim,
Executive agrees to:
(i) give the Bank any information reasonably requested by the
Bank relating to such claim,
(ii) take such action in connection with contesting such
claim as the Bank shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Bank;
(iii) cooperate with the Bank in good faith in order to
effectively contest such claim, and
(iv) permit the bank to participate in any proceedings
relating to such claim; provided, however, that The Bank agrees to bear and pay
directly all costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify and hold Executive
harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 6(c), the Bank shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forego any and all administrative appeals, proceedings, hearing and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct Executive to pay the tax claimed and xxx for a refund
or contest the claim in any permissible manner, and Executive agrees to
prosecute such contest to a determination
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before any administrative tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as the Bank shall determine; provided, however,
that if the Bank directs Executive to pay such claim and xxx for a refund, the
bank shall advance the amount of such payment to Executive, on an interest-free
basis and shall indemnify and hold Executive harmless, on an after-tax basis,
from any Excise Tax or income tax (including interest or penalties with respect
thereto) imposed with respect to such advance or with respect to any imputed
income with respect to such advance; and further provided that any extension of
the statute of limitations relating to payment of taxes for Executive taxable
year with respect to which such contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, the Bank control of the contest
shall be limited to issues with respect to which a Gross-Up Payment would be
payable hereunder and Executive shall be entitled to settle or contest, as the
case may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
(d) REPAYMENT TO THE BANK. If, after the receipt by Executive of an
amount advanced by the Bank pursuant to Section 6(c), Executive becomes entitled
to receive any refund with respect to such claim, Executive agrees to promptly
pay to the Bank the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by
Executive of an amount advanced by the Bank pursuant to Section 6(c), a
determination is made that Executive is not entitled to any refund with respect
to such claim and the Bank does not notify Executive in writing of its intent to
contest such denial of refund prior to the expiration of thirty (30) days after
such determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
7. CUMULATIVE RIGHTS. The rights of the Bank and duties and obligations of
the Executive hereunder are in addition to, and not in substitution for, any
rights available to the Bank against the Executive at law or in equity, or under
any other written agreements, contracts or other documents which the Executive
may hereafter agree to, all of which are cumulative and may be exercised by the
Bank in whole or in part form time to time.
8. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Florida.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, understandings
and arrangements, both oral and written, between the parties hereto with respect
to the subject matter hereof. This Agreement may not be modified in any way
unless in writing signed by both the Bank and the Executive.
10. NOTICES. Any notices given pursuant to this Agreement shall be in
writing and shall be given by hand or deposited in the United States mail, by
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registered or certified mail, return receipts requested, postage prepaid,
addressed as follows:
If to the Bank: XXXXXXXX BANK N.A.
0000 XX 00xx Xxxxxx
Xxxxx, XX 00000
Attn: Chief Executive Officer
If to the Executive: XXXXX XXXXXX
00000 XX 00xx Xxxxx
Xxxxx, XX 00000
or to such other address as either party hereto may from time to time give
notice of to the other in accordance with this Section.
11. BENEFIT AND BINDING EFFECT. This Agreement may not be assigned by the
Bank except in connection with a reorganization or a Change in Control of the
Bank and shall be binding upon the Bank by Executive and shall be binding upon
Executive and his legal representatives, successors and heirs.
12. SEVERABILITY. The invalidity of any one or more of the words, phrases,
sentences, clauses or sections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part hereof,
all of which are inserted conditionally on their being valid in law, and in the
event that any one or more of the words, phrases, sentences, clauses or sections
contained in this Agreement shall be declared invalid, this Agreement shall be
construed as if such invalid words, phrases, sentences, clauses, or sections had
not been inserted.
13. WAIVERS. The waiver by either party hereto of a breach of any provision
of this Agreement shall not operate nor be construed as a waiver of any
subsequent breach.
14. INTERPRETATION. The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning of
interpretation of this Agreement. Whenever used in this Agreement, words in the
singular include the plural, words in the plural include the singular, and
pronouns of any gender include the other gender, all as may be appropriate.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
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XXXXXXXX BANCORP INC. XXXXXXXX BANK, N.A.
By: /s/ Xxxx Xxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------- ----------------------------
Name: Xxxx Xxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President Title: Chairman
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxx Xxxxxx Bernace
--------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxx Xxxxxx Bernace
Title: President Title: President
------------------------------- EXECUTIVE
Witness:
/s/ Xxxxx Xxxxxx
-------------------------------
XXXXX XXXXXX
-------------------------------
Witness:
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