Exhibit 10.4
AGREEMENT
This is an Agreement (the "Agreement") made by and between Western Reserve
Bancorp, Inc. ("Company") and Xxxxx X. Xxxx ("Executive").
RECITALS
WHEREAS, Company is a bank holding company whose principal subsidiary,
Western Reserve Bank, is engaged in the business of banking and businesses
incidental thereto.
WHEREAS, Executive possesses unique skills, knowledge and experience
relating to the business of the Company.
WHEREAS, Company desires to recognize the past and future services of
Executive, and, in that connection, Executive desires to be assured that, in the
event of a change in the control of Company, Executive will be provided with an
adequate severance payment for termination without cause or as compensation for
Executive's severance because of a material change in his duties and functions.
WHEREAS, Company desires to be assured of the objectivity of Executive in
evaluating a potential change of control and advising whether or not a potential
change of control is in the best interest of Company and its shareholders.
WHEREAS, Company desires to induce Executive to remain in the employ of
the Company following a change of control to provide for continuity of
management.
WHEREAS, Company desires to provide Executive with a severance benefit in
the event of Company's termination of Executive's employment without cause.
NOW, THEREFORE, in consideration of the premises and of their mutual
covenants expressed in this Agreement, the parties hereto make the following
agreement, intending to be legally bound thereby:
SECTION 1 - DEFINITIONS.
A. Board - "Board" shall mean the Board of Directors of the Company
B. Cause - "Cause" shall mean and be limited to Executive's (a) criminal
dishonesty, (b) refusal to perform his duties on an exclusive and
substantially full-time basis, (c) refusal to act in accordance with any
specific substantive instructions given by Company with respect to
Executive's performance of duties normally associated with his position
prior to the Change in Control, or (d) engaging in conduct which could be
materially damaging to Company without a reasonable good faith belief that
such conduct was in the best interest of Company.
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C. Change in Control - A "Change" in Control" shall result if, and shall be
deemed to have occurred on the date of, a transaction pursuant to which:
1. Any person or group (as such terms are used in connection with
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13(d)(3) and 13(d)(5) under
the Exchange Act), directly or indirectly, of securities of the
Company representing 35% or more of the combined voting power of the
Company's then outstanding securities;
2. A merger, consolidation, sale of assets, reorganization, or proxy
contest is consummated and, as a consequence of which, members of
the Board in office immediately prior to such transaction or event
constitute less than a majority of the Board thereafter;
3. During any period of 24 consecutive months, individuals who at the
beginning of such period constitute the Board (including for this
purpose any new director whose election or nomination for election
by the Company's stockholders was approved by a vote of at least
one-half of the directors then still in office who were directors at
the beginning of such period) cease for any reason to constitute at
least a majority of the Board; or
4. A merger, consolidation or reorganization is consummated with any
other corporation pursuant to which the shareholders of the Company
immediately prior to the merger, consolidation or reorganization do
not immediately thereafter directly or indirectly own more than
fifty percent (50%) of the combined voting power of the voting
securities entitled to vote in the election of directors of the
merged, consolidated or reorganized entity.
Notwithstanding the foregoing, no trust department or designated fiduciary
or other trustee of such trust department of the Company or a subsidiary
of the Company, or other similar fiduciary capacity of the Company with
direct voting control of the stock shall be treated as a person or group
within the meaning of Change in Control as defined herein. Further, no
profit-sharing, employee stock ownership, employee stock purchase and
savings, employee pension, or other employee benefit plan of the Company
or any of its subsidiaries, and no trustee of any such plan in its
capacity as such trustee, shall be treated as a person or group within the
meaning of Change in Control as defined herein
D. Code - "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
E. Company - "Company" shall include Western Reserve Bancorp, Inc. and any
members of its Affiliated Group (as that term is defined in Section 1504
of the Code) over which Executive has managerial control, including but
not limited to Western Reserve Bank, and shall include any predecessor
corporations of the Company and its Affiliated Group.
F. Compensation - "Compensation" shall mean the sum of employee base salary
plus any cash bonuses for the last whole calendar year preceding
Executive's termination of employment. Compensation shall not include any
amount, other than base salary and cash bonuses, included in Executive's
taxable compensation for federal income tax purposes and reported
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to Executive and Internal Revenue Service ("IRS") such as the reporting of
previously deferred compensation or gain realized upon exercise of any non
qualified stock options.
G. Exchange Act - "Exchange Act" means the Securities Exchange Act of 1934.
SECTION 2 - TERM OF AGREEMENT.
This Agreement shall terminate on the date which is the latest of: (i) Company's
payment of any amounts due under Sections 4, 5 and 7, (ii) the performance of
Executive's obligations under Section 10 hereof, and (iii) the earliest of:
1. The date this Agreement is mutually rescinded;
2. The date which is two (2) years after the date of a Change in
Control.
3. Before a Change in Control, on the date which the Company's
subsidiary (Western Reserve Bank), or any other member of its
Affiliated Group, and over which Executive has managerial control,
which is a depository institution which is insured by an agency of
any state or the United States Federal Government:
a. becomes insolvent; or
b. has appointed any conservator or receiver; or
c. is determined by an appropriate federal banking agency to be
in a troubled condition, as defined in the applicable law and
regulations; or
d. is assigned a composite rating of 4 or 5 by the appropriate
federal banking agency or is informed in writing by the
Federal Deposit Insurance Corporation that it is rated a 4 or
5 under the Uniform Financial Institution's Rating System of
the Federal Financial Institutions Examination Council; or
e. has initiated against it by the Federal Deposit Insurance
Corporation a proceeding to terminate or suspend deposit
insurance; or
f. reasonably determines in good faith and with due care that the
payments called for under this Agreement, or the obligations
and promises assumed and made under this Agreement have become
proscribed under applicable law or regulations. Provided,
however, if such law or regulations apply prospectively only,
or for some other reason do not apply to this Agreement, then
this Agreement shall not be deemed by Company to be
proscribed.
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SECTION 3 - REDUCTION IN COMPENSATION PROSCRIBED AFTER A CHANGE IN CONTROL.
From the date of a Change in Control to the date of termination of this
Agreement Executive shall receive as compensation, while still employed by
Company, a salary at a rate no less than the highest rate in effect during the
one-year period before the Change in Control, and shall, in addition, be
entitled to receive a bonus equal to at least the average of the last three
years bonuses paid before the Change in Control. In addition, during such
period, the Company shall pay and provide for Executive at no cost to Executive,
all of his then-current fringe benefits, including but not limited to health,
disability, dental, life insurance and club memberships, all of which shall be
at levels and amounts no less favorable than levels and amounts in effect as of
the Change in Control.
SECTION 4 - PAYMENT UPON TERMINATION OF EMPLOYMENT BEFORE A CHANGE IN CONTROL.
If during the term of this Agreement and before the date of a Change in Control,
Executive is discharged without Cause or Executive resigns because he has (i)
been demoted, (ii) had his base salary reduced, (iii) had his principal place of
employment transferred away from Xxxxxx County Ohio or a county contiguous
thereto, or (iv) had his job title, status or responsibility materially reduced,
then the Company shall pay in a single lump sum cash payment in an amount equal
to one year of Compensation. Executive shall have no obligation to seek other
employment or otherwise mitigate the effect of his discharge from employment.
The payments and benefits provided for herein are in lieu of compensation,
benefits or amounts the Executive might otherwise be entitled to under the
Company's severance policy or otherwise payable by the Company be reason of
termination of employment.
SECTION 5 - PAYMENTS DUE AFTER A CHANGE IN CONTROL.
A. If during the term of this Agreement and after the date of a Change in
Control, Executive is discharged without Cause or Executive resigns
because he/she has: (i) been demoted, (ii) had his compensation reduced,
(iii) had his principal place of employment transferred away from Xxxxxx
County Ohio or a county contiguous thereto, or (iv) had his job title,
status or responsibility materially reduced, then the Company shall make
the payments to Executive set forth in subsection D of this Section 5.
B. If Executive voluntarily terminates employment not earlier than six (6)
months and not later than twelve (12) months following a Change in
Control, then the Company shall make the payments to Executive set forth
in subsection D of this Section 5.
C. If Executive is discharged by Company other than for Cause and there is a
Change in Control within two (2) years following the discharge, then the
Company shall make the payments to Executive set forth in subsection D of
this Section 5, reduced for any payment made pursuant to Section 4 hereof.
D. In the event of the termination of Executive's employment as described in
A, B or C above, Executive shall be entitled to receive: (i) a cash
payment equal to two (2) years of Compensation, or (ii) upon Executive's
election, two (2) years of Compensation payable in equal monthly payments,
in cash, without interest. The lump sum cash payment or the first
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monthly cash payment, as the case may be, shall be paid at the end of the
first month commencing after the Executive's termination of employment in
the case of a benefit entitlement under Subsection A, or B above, and in
the event of the election by Executive to receive monthly payments, shall
continue each consecutive month thereafter until 24 payments have been
made. In the event of termination of employment as described in C above,
the lump sum or first monthly payment shall be paid immediately upon the
Change in Control. If Executive's employment is terminated as described in
Subsection A or Subsection B above, then in addition to the above cash
payment(s), Company shall continue at no cost to Executive for the term of
the Benefit Period as defined below, Executive's coverage in Company's
health, disability, dental, life insurance and club memberships at the
same levels that had been provided immediately prior to his termination of
employment. The Benefit Period shall commence on the date of termination
of the Executive's employment and shall end on the last day of the 24th
consecutive whole month thereafter.
In the event Executive dies before collecting all amounts and benefits due
under this Section, any payments owing shall be paid to the person or
persons as stated in the last designation of beneficiary concerning this
Agreement signed by Executive and filed with Company, and if not, then to
the personal representative of Executive.
The payments and benefits provided for herein are in lieu of compensation,
benefits or amounts the Executive might otherwise be entitled to under the
Company's severance policy or otherwise payable by the Company by reason
of termination of employment.
E. In the event the payments required under this Agreement, when added
together with any other amounts required to be included by Executive under
the provisions of the Code, result in an "Excess Parachute Payment," as
that term is defined in Section 280G of the Code, then the amount of the
payments provided for in this Agreement shall be increased in an amount
equal to 250% of any excise tax imposed under Section 4999 (or any
successor thereto) of the Code and otherwise payable by the Executive.
F. Any subsequent employment by Executive shall not reduce the obligation of
the Company to make the full payments and provide the full benefits
specified herein and Executive shall have no obligation to seek other
employment or otherwise mitigate the effect of his discharge from
employment.
SECTION 6 - QUALIFIED AND NON-QUALIFIED RETIREMENT PENSION PLANS.
Nothing in this Agreement shall reduce any pension benefits or benefits from
other qualified or non-qualified retirement plans maintained by Company to which
Executive is otherwise entitled without regard to this Agreement.
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SECTION 7 - PROVISION FOR OUTPLACEMENT SERVICES.
In the event of the termination of employment of Executive requiring the
payments specified in Section 4 or 5 of this Agreement, Executive shall be
entitled to six months of out-placement services following termination of
employment. Such services shall include employment counseling, resume services,
executive placement services and similar services generally provided to
executives by professional executive out placement service providers. All costs
of such out placement services shall be paid for by the Company.
SECTION 8 - ARBITRATION.
Subject to the Company's right to seek injunctive relief under Section 10 of
this Agreement, the parties hereto agree to arbitrate any issue,
misunderstanding, disagreement or dispute in connection with the terms in effect
in this Agreement in accordance with the Rules of the American Arbitration
Association, before one arbitrator mutually agreeable to the parties. If either
party determines that the parties have been unable to agree upon one arbitrator,
then such party may appoint one arbitrator and require the other party to
appoint a second arbitrator. Thereafter, the two appointed arbitrators shall
appoint a third neutral arbitrator. If the arbitrators selected by the parties
are unable or fail to agree upon the third arbitrator, the American Arbitration
Association shall select the third arbitrator. Failure by a party to either (i)
accept as mutually agreeable, or (ii) appoint an arbitrator, within 30 days of
receipt of notice of the appointment of an arbitrator by the other party, shall
be deemed acceptance of arbitration by such single arbitrator. The arbitration
shall occur in Medina, Ohio, or such other place as mutually agreed upon. The
prevailing party shall be entitled to recover any and all costs associated with
any arbitration proceeding (and any subsequent proceeding to enforce rights
thereunder) including the recovery of reasonable attorneys fees. Judgement on
the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
SECTION 9 - RIGHT TO OTHER BENEFITS.
Except as otherwise specified herein, nothing in this Agreement shall abridge,
eliminate, or cause Executive to lose Executive's right or entitlement to any
other Company benefit to which Executive may be entitled due to his status as an
employee under any plan or policy of Company on such terms and conditions as are
required of any employee under any plan or policy of Company. Further, nothing
in this Agreement shall create in Executive any greater rights or entitlements,
except as specified in this Agreement. The plans and policies referred to in
this Section 9 include, but are not limited to, life insurance plans, dental,
disability or health insurance benefits, severance policies, club memberships,
and accrued vacation pay.
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SECTION 10 - NONCOMPETITION AND NONSOLICITATION AGREEMENT AND BUSINESS
PROTECTION.
Notwithstanding anything to the contrary contained elsewhere in this Agreement:
A. Noncompetition Agreement and Nonsolicitation Agreement
1. In view of Executive's importance to the success of the Company,
Executive and Company agree that the Company would likely suffer
significant harm from Executive competing with Company during
Executive's term of employment with Company and for some period of
time thereafter. Accordingly, Executive agrees that Executive shall
not engage in competitive activities while employed by Company and
during the Restricted Period. Executive shall be deemed to engage in
competitive activities if he shall, without the prior written
consent of the Company, (i) in Xxxxxx County, and counties
contiguous thereto except Cuyahoga County (including the
municipalities therein), render services directly or indirectly, as
an employee, officer, director, consultant, advisor, partner or
otherwise, for any organization or enterprise which competes
directly or indirectly with the business of Company or any of its
affiliates in providing financial products or services (including,
without limitation, banking, insurance, or securities products or
services) to consumers and businesses, or (ii) directly or
indirectly acquires any financial or beneficial interest in (except
as provided in the next sentence) any organization which conducts or
is otherwise engaged in a business or enterprise in Xxxxxx County,
and counties contiguous thereto except Cuyahoga County (including
all municipalities therein) which competes directly or indirectly
with the business of Company or any of its affiliates in providing
financial products or services (including, without limitation,
banking, insurance or securities products or services) to consumers
and businesses. Notwithstanding the preceding sentence, Executive
shall not be prohibited from owning less than one percent (1%) of
any publicly traded corporation, whether or not such corporation is
in competition with Company. For purposes of this paragraph 10 the
term "Restricted Period" shall equal two (2) years, commencing as of
the date of Executive's termination of employment, provided that if
Executive's employment is terminated by Company without cause prior
to a Change in Control, the Restricted Period shall equal one (1)
year or such longer period during which Executive receives benefits
under this Agreement or the Company's severance policy as in effect
at the date of termination.
2. While employed by Company and for a period of two (2) years
following Executive's termination of employment with Company,
Executive agrees that Executive shall not, in any manner, directly
or indirectly, (i) solicit by mail, by telephone, by personal
meeting, or by any other means, either directly or indirectly, any
customer or prospective customer of Company to whom Executive
provided services, or for whom Executive transacted business, or
whose identity became known to Executive in connection with
Executive's services to Company (including employment with or
services to any predecessor or successor entities), to transact
business with a person or an entity other than the Company or its
affiliates or reduce or refrain from doing any business with the
Company or its affiliates or (ii) interfere with or damage (or
attempt to interfere with or damage) any relationship between
Company or its affiliates and any such customer or prospective
customer. The term "solicit" as used in this Agreement means any
communication of any kind whatsoever, inviting, encouraging or
requesting any person
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to take or refrain from taking any action with respect to the
business of Company and its subsidiaries.
3. While employed by Company and for a period of two (2) years
following Executive's termination of employment with Company,
Executive agrees that Executive shall not, in any manner, directly
or indirectly, solicit any person who is an employee of Company or
any of its affiliates to apply for or accept employment or a
business opportunity with any other person or entity.
4. The parties agree that nothing herein shall be construed to limit or
negate the common law of torts or trade secrets where it provides
broader protection than that provided herein.
B. Confidential Information
Executive has obtained and may obtain confidential information concerning the
businesses, operations, financial affairs, organizational and personnel matters,
policies, procedures and other non-public matters of Company and its affiliates,
and those of third-parties that is not generally disclosed to persons not
employed by Company or its subsidiaries. Such information (referred to herein as
the "Confidential Information") may have been or may be provided in written form
or orally. Executive shall not disclose to any other person the Confidential
Information at any time during his employment with Company or after the
termination of his employment, provided that Executive may disclose such
Confidential Information only to a person who is then a director, officer,
employee, partner, attorney or agent of Company who, in Executive's reasonable
good faith judgment, has a need to know the Confidential Information.
C. Remedies
1. Executive acknowledges that a violation on Executive's part of this
Section 10 would cause immeasurable and irreparable damage to
Company. Accordingly, Executive agrees that notwithstanding Section
8 hereof, Company shall be entitled to injunctive relief in any
court of competent jurisdiction for any actual or threatened
violation of any of the provisions of this Section 10, in addition
to any other remedies it may have.
2. In addition to Company's right to seek injunctive relief as set
forth in subparagraph 1 above of this Section 10.C, in the event
that Executive shall violate the terms and conditions of this
Section 10, Company may: (i) make a general claim for damages and
(ii) terminate any payments or benefits payable by Company, if
applicable, to Executive.
3. The Board shall be responsible for determining whether Executive
shall have violated this Section 10, and in the absence of
Executive's ability to show that the Board has acted in bad faith
and without fair dealing, such decision will be final and binding.
Upon the request of Executive, the Company shall provide an advance
opinion as to whether a proposed activity would violate the
provisions of this Agreement.
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SECTION 11 - NOTICE AND PAYMENTS.
All payments required or permitted to be made under the provisions of this
Agreement, and all notices and other communications required or permitted to be
given or delivered under this Agreement to Company or to Executive, which
notices or communications must be in writing, shall be deemed to have been given
if delivered by hand, or mailed by first-class mail, addressed as follows:
A. If to Company:
Western Reserve Bancorp, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, Xxxx 00000
Attn: Chairman, Compensation Committee
B. If to Executive:
Xx. Xxxxx X. Xxxx
000 Xxxxxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Company or Executive may, by notice given to the other from time to time and at
any time, designate a different address for making payments required to be made,
and for the giving of notices or other communications required or permitted to
be given, to the party designating such new address.
SECTION 12 - PAYROLL TAXES.
Any payment required or permitted to be made or given to Executive under this
Agreement shall be subject to the withholding and other requirements of
applicable laws, and to the deduction requirements of any benefit plan
maintained by Company in which Executive is a participant, and to all reporting,
filing and other requirements in respect of such payments, and Company shall use
it best efforts promptly to satisfy all such requirements.
SECTION 13 - GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Ohio.
SECTION 14 - DUPLICATE ORIGINALS.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be a duplicate original, but all of which, taken together, shall
constitute a single instrument.
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SECTION 15 - CAPTIONS.
The captions contained in this Agreement are included only for convenience of
reference and do not define, limit, explain or modify this Agreement or its
interpretations, construction or meaning and are in no way to be construed as a
part of this Agreement.
SECTION 16 - SEVERABILITY.
If any provision of this Agreement or the application of any provision to any
person or any circumstances shall be determined to be invalid or unenforceable,
such provision or portion thereof shall nevertheless be effective and
enforceable to the extent determined reasonable. Such determination shall not
affect any other provision of this Agreement or the application of said
provision to any other person or circumstance, all of which other provisions
shall remain in full force and effect, and it is the intention of Company and
Executive that if any provision of this Agreement is susceptible of two or more
constructions, one of which would render the provision enforceable and the other
or others of which would render the provisions unenforceable, then the
provisions shall have the meaning which renders it enforceable.
SECTION 17 - NUMBER AND GENDER.
When used in this Agreement, the number and gender of each pronoun shall be
construed to be such number and gender as the context, circumstances or its
antecedent may require.
SECTION 18 - SUCCESSOR AND ASSIGNS.
This Agreement shall inure to the benefit of and be binding upon the successors
and assigns (including successive, as well as immediate, successors and assigns)
of Company; provided, however, that Company may not assign this Agreement or any
of its rights or obligations hereunder to any party other than a corporation
which succeeds to substantially all of the business and assets of Company by
merger, consolidation, sale of assets or otherwise. This Agreement shall inure
to the benefit of and be binding upon the successor and assigns (including
successive, as well as immediate, successors and assigns) of Executive;
provided, however, that the right of Executive under this Agreement may be
assigned only to his personal representative or trustee or by will or pursuant
to applicable laws of descent and distribution.
{Signatures on following page}
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on and to be effective on June 18, 2001.
In the Presence of: XXXXX X. XXXX ("EXECUTIVE")
/s/ Xxx Xxxxxxx Xxxxxxxxxx /s/ Xxxxx X. Xxxx
/s/ Xxxxxxx X. Xxxx
In the Presence of:
WESTERN RESERVE BANCORP, INC.
/s/ Xxx Xxxxxxx Xxxxxxxxxx By: /s/ Xxxxxx X. XxXxxx
/s/ Xxxxxxx X. Xxxx Its: President
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AMENDMENT TO AGREEMENT
This Amendment to Agreement (the "Amendment") is entered into by and
between Western Reserve Bancorp, Inc. (the "Company") and Xxxxx X. Xxxx (the
"Executive") as of the 20th day of February, 2002.
RECITALS
WHEREAS, the Company is a bank holding company whose principal subsidiary,
Western Reserve Bank (the "Bank"), is engaged in the business of banking and
businesses incidental thereto, and the Executive is an employee of the Company
and the Bank.
WHEREAS, the Company and the Executive entered into an agreement dated as
of June 18, 2001 (the "Agreement") providing certain severance benefits for
Executive in the event of a "Change in the Control" of the Company.
WHEREAS, the Company and the Executive desire to amend one provision of
the Agreement and to otherwise leave the Agreement unmodified and in full force
and effect.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of their mutual
covenants expressed in this Agreement, the parties hereto make the following
agreement, intending to be legally bound hereby:
1. Modification of Section 5 C. Section 5 C. of the Agreement shall be
modified by deleting current Section 5 C. and replacing that Section in
its entirety with the following:
"C. If Executive is discharged by the Company other than for Cause and
there is a Change in Control within twelve (12) months following the
discharge, then the Company shall make the payments to Executive set forth
in subsection D of this Section 5, reduced for any payment made pursuant
to Section 4 hereof."
2. Otherwise Unmodified. Except as set forth herein, the Agreement shall
remain unmodified and in full force and effect.
IN WITNESS WHEREOF, the Corporation and the Executive have signed this
Amendment to Agreement as of the date and year first above written.
In the Presence of: XXXXX X. XXXX ("EXECUTIVE")
/s/ Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxx
/s/ Xxxxx X. Xxxxxxx
In the Presence of:
WESTERN RESERVE BANCORP, INC.
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. XxXxxx
/s/ Xxxxx X. Xxxxxxx Its: President
