Exhibit 10.23
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Change of Control Agreement
This Change of Control Agreement (the "Agreement") is made and
entered into as of April 7, 2004 by and among Medford Co-operative Bank, a
state-chartered stock cooperative bank organized and operating under the
laws of the Commonwealth of Massachusetts having an office at 00 Xxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank"), Mystic Financial, Inc.,
a publicly-held business corporation organized and existing under the laws
of the State of Delaware and having an office at 00 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Company") and Xxxx X. Xxxxxxxxx (the "Officer").
Introductory Statement
The Board of Directors of the Bank has concluded that it is in the
best interests of the Bank, the Company and their shareholders to establish
a working environment for the Officer which minimizes the personal
distractions that might result from possible business combinations in which
the Company or the Bank might be involved in order to induce the Officer to
become an employee of, and continue his employment with, the Bank. To this
end, the Bank has decided to provide the Officer with assurance that his
salary will be continued for a minimum period of one (1) year following
termination of employment (the "Assurance Period") if his employment
terminates under specified circumstances related to a business combination.
The Board of Directors of the Bank has decided to formalize this assurance
by entering into this Change of Control Agreement with the Officer. The
Board of Directors of the Company has authorized the Company to guarantee
the Bank's obligations under this Agreement.
The terms and conditions which the Bank, the Company and the Officer
have agreed to are as follows.
Agreement
Section 1. Effective Date; Term; Change of Control and Pending
Change of Control Defined.
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(a) This Agreement shall take effect on the day and year first
written above (the "Effective Date") and shall be in effect during the
period (the "Term") beginning on the Effective Date and ending on December
17, 2004 (the "Initial Expiration Date") or, if later, the first
anniversary of the latest Change of Control or Pending Change of Control,
as defined below, that occurs after the Effective Date and before the
Initial Expiration Date. The Initial Expiration Date may be extended by the
Bank by notice given to the Officer in advance of the Initial Expiration
Date.
(b) For all purposes of this Agreement, a "Change of Control" shall
be deemed to have occurred upon the happening of any of the following
events:
(i) the consummation of a reorganization, merger or
consolidation of the Company with one or more other persons, other
than a transaction following which:
(A) at least 51% of the equity ownership interests of
the entity resulting from such transaction are beneficially
owned (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934, as amended ("Exchange Act"))
in substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) at least 51% of the outstanding equity ownership
interests in the Company; and
(B) at least 51% of the securities entitled to vote
generally in the election of directors of the entity resulting
from such transaction are beneficially owned (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) in
substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) at least 51% of the securities entitled to vote
generally in the election of directors of the Company;
(ii) the acquisition of all or substantially all of the assets
of the Company or beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 25% or more of the
outstanding securities of the Company entitled to vote generally in
the election of directors by any person or by any persons acting in
concert;
(iii) a complete liquidation or dissolution of the Company;
(iv) the occurrence of any event if, immediately following
such event, at least 50% of the members of the Board of Directors of
the Company do not belong to any of the following groups:
(A) individuals who were members of the Board of
Directors of the Company on the date of this Agreement; or
(B) individuals who first became members of the Board
of Directors of the Company after the date of this Agreement
either:
(1) upon election to serve as a member of the
Board of Directors of the Company by affirmative vote of
three-quarters of the members of such board, or of a
nominating committee thereof, in office at the time of
such first election; or
(2) upon election by the shareholders of the
Board of Directors of the Company to serve as a member of
such board, but only if nominated for election by
affirmative vote of three-quarters of the members of the
Board of Directors of the Company, or of a nominating
committee thereof, in office at the time of such first
nomination;
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provided, however, that such individual's election or
nomination did not result from an actual or threatened election
contest or other actual or threatened solicitation of proxies
or consents other than by or on behalf of the Board of
Directors of the Company;
(v) any event which would be described in section 1(b)(i),
(ii), (iii) or (iv) if the term "Bank" were substituted for the term
"Company" therein.
In no event, however, shall a Change of Control be deemed to have occurred
as a result of any acquisition of securities or assets of the Company, the
Bank, or a subsidiary of either of them, by the Company, the Bank, or any
subsidiary of either of them, or by any employee benefit plan maintained by
any of them. For purposes of this section 1(b), the term "person" shall
have the meaning assigned to it under sections 13(d)(3) or 14(d)(2) of the
Exchange Act.
(c) For purposes of this Agreement, a "Pending Change of Control"
shall mean: (i) the signing of a definitive agreement for a transaction
which, if consummated, would result in a Change of Control; (ii) the
commencement of a tender offer which, if successful, would result in a
Change of Control; or (iii) the circulation of a proxy statement seeking
proxies in opposition to management in an election contest which, if
successful, would result in a Change of Control; provided, however, that
the Change of Control contemplated does, in fact, occur.
Section 2. Discharge Prior to a Pending Change of Control.
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The Bank may discharge the Officer at any time prior to the
occurrence of a Pending Change of Control for any reason or for no reason.
In such event:
(a) the Bank shall pay to the Officer (or, in the event of his
death, his estate) his earned but unpaid compensation (including, without
limitation, salary and all other items which constitute wages under
applicable law) as of the date of his termination of employment. This
payment shall be made at the time and in the manner prescribed by law
applicable to the payment of wages but in no event later than 30 days after
the date of the Officer's termination of employment; and the Bank shall
provide the benefits, if any, due to the Officer (or, in the event of his
death, his estate, surviving dependents or his designated beneficiaries)
under the employee benefit plans and programs and compensation plans and
programs maintained for the benefit of the officers and employees of the
Bank. The time and manner of payment or other delivery of these benefits
and the recipients of such benefits shall be determined according to the
terms and conditions of the applicable plans and programs.
(b) the Bank shall provide the benefits, if any, due to the Officer
(or, in the event of his death, his estate, surviving dependents or his
designated beneficiaries) under the employee benefit plans and programs and
compensation plans and programs maintained for the benefit of the officers
and employees of the Bank. The time and manner of payment or other
delivery of these benefits and the recipients of such benefits shall be
determined according to the terms and conditions of the applicable plans
and programs.
The payments and benefits described in sections 2(a) and (b) shall be
referred to in this Agreement as the "Standard Termination Entitlements."
Section 3. Termination of Employment Due to Death.
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The Officer's employment with the Bank shall terminate, automatically
and without any further action on the part of any party to this Agreement,
on the date of the Officer's
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death. In such event, the Bank shall pay and deliver to his estate and
surviving dependents and beneficiaries, as applicable, the Standard
Termination Entitlements.
Section 4. Termination Due to Disability.
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The Bank may terminate the Officer's employment during the Term and
after the occurrence of a Change of Control or a Pending Change of Control
upon a determination, by a majority vote of the members of the Board of
Directors of the Bank, acting in reliance on the written advice of a
medical professional acceptable to it, that the Officer is suffering from a
physical or mental impairment which, at the date of the determination, has
prevented the Officer from performing his assigned duties on a
substantially full-time basis for a period of at least ninety (90) days
during the period of one (1) year ending with the date of the determination
or is likely to result in death or prevent the Officer from performing his
assigned duties on a substantially full-time basis for a period of at least
ninety (90) days during the period of one (1) year beginning with the date
of the determination. In such event the Bank shall pay and deliver to the
Officer (or in the event of his death before payment, to his estate and
surviving dependents and beneficiaries, as applicable) the Standard
Termination Entitlements.
A termination of employment due to disability under this section 4
shall be effected by a notice of termination given to the Officer by the
Bank and shall take effect on the later of the effective date of
termination specified in such notice or the date on which the notice of
termination is deemed given to the Officer.
Section 5. Discharge with Cause after Change of Control or Pending
Change of Control.
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(a) The Bank may terminate the Officer's employment with "Cause"
during the Term and after the occurrence of a Change of Control or Pending
Change of Control, but a termination shall be deemed to have occurred with
"Cause" only if such termination is due to personal dishonesty, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any banking law,
rule or regulation, conviction of a felony or final cease and desist order
issued in response to conduct of the Officer determined to be substantially
deleterious to the Bank or Company, or any material breach of this
Agreement, in each case as measured against standards generally prevailing
at the relevant time in the savings and community banking industry. For
purposes of section 5(a), no act or failure to act, on the part of the
Officer, shall be considered "willful" unless it is done, or omitted to be
done, by the Officer in bad faith or without reasonable belief that the
Officer's action or omission was in the best interests of the Bank and its
affiliates. Any act, or failure to act, based upon authority given pursuant
to a resolution duly adopted by the Board or based upon the written advice
of counsel for the Bank shall be conclusively presumed to be done, or
omitted to be done, by the Officer in good faith and in the best interests
of the Bank. The cessation of employment of the Officer shall not be deemed
to be for Cause within the meaning of this section 5(a) unless and until
there shall have been delivered to the Officer a copy of a resolution duly
adopted by the affirmative vote of three-fourths of the non-employee
members of the Board at a meeting of the Board called and held for such
purpose (after reasonable notice is provided to the Officer and the Officer
is given an opportunity, together with counsel, to be heard before the
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Board), finding that, in the good faith opinion of the Board, the Officer
is guilty of the conduct described in this section 5(a), and specifying the
particulars thereof in detail.
(b) If the Officer is discharged with Cause during the Term and
after a Change of Control or Pending Change of Control, the Bank shall pay
and provide to him (or, in the event of his death, to his estate, his
surviving beneficiaries and his dependents) the Standard Termination
Entitlements only.
Section 6. Discharge without Cause.
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The Bank may discharge the Officer without Cause at any time after
the occurrence of a Change of Control or Pending Change of Control, and in
such event:
(a) The Bank shall pay and deliver to the Officer (or in the
event of his death before payment, to his estate and surviving
dependents and beneficiaries, as applicable) the Standard Termination
Entitlements.
(b) In addition to the Standard Termination Entitlements:
(i) During the Assurance Period, the Bank shall provide
for the Officer continued group life, health (including
hospitalization, medical and major medical), dental, accident
and long-term disability insurance benefits on substantially
the same terms and conditions in effect immediately prior to
the Officer's resignation. The coverage provided under this
section 6(b)(i) will cease upon the earlier of (i) the date the
Officer first becomes eligible for such benefit coverage under
similar plans or programs maintained by a subsequent employer
and (ii) the date the Assurance Period terminates; and
(ii) The Bank shall make a lump sum payment to the
Officer (or, in the event of his death before payment, to his
estate), in an amount equal to the estimated present value of
the salary that Officer would have earned if he had continued
working for the Bank during the Assurance Period at the highest
annual rate of salary achieved during that portion of the
employment period which is prior to the Officer's termination
of employment with the Bank, where such present value is to be
determined using a discount rate equal to the applicable short-
term federal rate prescribed under section 1274(d) of the
Internal Revenue Code of 1986 ("Code"), compounded using the
compounding period corresponding to the Bank's regular payroll
periods for its officers. Such lump sum shall be paid in lieu
of all other payments of salary provided for under this
Agreement in respect of the period following any such
termination.
The payments and benefits described in section 6(b) are referred to in this
Agreement as the "Additional Change of Control Entitlements".
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Section 7. Resignation.
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(a) The Officer may resign from his employment with the Bank at any
time. A resignation under this section 7 shall be effected by notice of
resignation given by the Officer to the Bank and shall take effect on the
later of the effective date of termination specified in such notice or the
date on which the notice of termination is deemed given to the Officer. The
Officer's resignation of any of the positions within the Bank or the
Company to which he has been assigned shall be deemed a resignation from
all such positions.
(b) The Officer's resignation shall be deemed to be for "Good
Reason" if the effective date of resignation occurs during the Term, but on
or after the effective date of a Change of Control. In all other cases, a
resignation by the Officer shall be deemed to be without Good Reason. In
the event of resignation, the Officer shall state in his notice of
resignation whether he considers his resignation to be a resignation with
Good Reason. The Officer's determination of the existence of Good Reason
shall be conclusive in the absence of fraud, bad faith or manifest error.
(c) In the event of the Officer's resignation for any reason, the
Bank shall pay and deliver the Standard Termination Entitlements. In the
event of the Officer's resignation with Good Reason, the Bank shall also
pay and deliver the Additional Termination Entitlements.
Section 8. Terms and Conditions of the Additional Termination
Entitlements.
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The Bank and the Officer hereby stipulate that the damages which may
be incurred by the Officer following any termination of employment are not
capable of accurate measurement as of the date first above written and that
the Additional Termination Entitlements constitute reasonable damages under
the circumstances and shall be payable without any requirement of proof of
actual damage and without regard to the Officer's efforts, if any, to
mitigate damages. The Bank and the Officer further agree that the Bank may
condition the payment and delivery of the Additional Termination
Entitlements on the receipt of: (a) the Officer's resignation from any and
all positions which he holds as an officer, director or committee member
with respect to the Bank or the Company or any subsidiary or affiliate of
either of them; and (b) a release of the Bank and its officers, directors,
shareholders, subsidiaries and affiliates, in form and substance
satisfactory to the Bank, of any liability to the Officer, whether for
compensation or damages, in connection with his employment with the Bank
and the termination of such employment except for the Standard Termination
Entitlements and the Additional Termination Entitlements.
Section 9. No Effect on Employee Benefit Plans or Programs.
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The termination of the Officer's employment during the Term of this
Agreement or thereafter, whether by the Bank or the Officer, shall have no
effect on the rights and obligations of the parties hereto under the Bank's
qualified or non-qualified retirement, pension, savings, thrift, profit-
sharing or stock bonus plans, group life, health (including
hospitalization, medical and major medical), dental, accident and long term
disability insurance plans or such other employee benefit plans or
programs, or compensation plans or programs, as may be
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maintained by, or cover employees of, the Bank from time to time; provided,
however, that nothing in this Agreement shall be deemed to duplicate any
compensation or benefits provided under any agreement, plan or program
covering the Officer to which the Bank or Company is a party and any
duplicative amount payable under any such agreement, plan or program shall
be applied as an offset to reduce the amounts otherwise payable hereunder.
Section 10. Successors and Assigns.
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This Agreement will inure to the benefit of and be binding upon the
Officer, his legal representatives and testate or intestate distributees,
and the Company and the Bank and their respective successors and assigns,
including any successor by merger or consolidation or a statutory receiver
or any other person or firm or corporation to which all or substantially
all of the assets and business of the Company or the Bank may be sold or
otherwise transferred.
Section 11. Notices.
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Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent,
instruction, objection or waiver, shall be in writing and shall be deemed
to have been given at such time as it is delivered personally, or five days
after mailing if mailed, postage prepaid, by registered or certified mail,
return receipt requested, addressed to such party at the address listed
below or at such other address as one such party may by written notice
specify to the other party:
If to the Officer:
Xxxx X. Xxxxxxxxx
00 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
If to the Company or the Bank:
Mystic Financial, Inc.
00 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chairman, Compensation Committee
of the Board of Directors
Section 12. Indemnification for Attorneys' Fees.
-----------------------------------
The Bank shall indemnify, hold harmless and defend the Officer
against reasonable costs, including legal fees, incurred by him in
connection with or arising out of any action, suit or proceeding in which
he may be involved, as a result of his efforts, in good faith, to defend or
enforce the terms of this Agreement; provided, however, that the Officer
shall have substantially prevailed on the merits pursuant to a judgment,
decree or order of a court of competent jurisdiction or of an arbitrator in
an arbitration proceeding. The determination whether the Officer shall have
substantially prevailed on the merits and is therefore entitled to such
indemnification, shall be made by the court or arbitrator, as applicable.
In the event of a
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settlement pursuant to a settlement agreement, any indemnification payment
under this section 12 shall be made only after a determination by the
members of the Board (other than the Officer and any other member of the
Board to which the Officer is related by blood or marriage) that the
Officer has acted in good faith and that such indemnification payment is in
the best interests of the Bank.
Section 13. Severability.
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A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
Section 14. Waiver.
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Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be
made in writing, designated as a waiver, and signed by the party against
whom its enforcement is sought. Any waiver or relinquishment of any right
or power hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
Section 15. Counterparts.
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This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, and all of which shall constitute one
and the same Agreement.
Section 16. Governing Law.
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This Agreement shall be governed by and construed and enforced in
accordance with the federal laws of the United States and, to the extent
that federal law is inapplicable, in accordance with the laws of the
Commonwealth of Massachusetts applicable to contracts entered into and to
be performed entirely within the Commonwealth of Massachusetts.
Section 17. Headings and Construction.
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The headings of sections in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any section.
Any reference to a section number shall refer to a section of this
Agreement, unless otherwise stated.
Section 18. Entire Agreement; Modifications.
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This instrument contains the entire agreement of the parties relating
to the subject matter hereof, and supersedes in its entirety any and all
prior agreements, understandings or representations relating to the subject
matter hereof. No modifications of this Agreement shall be valid unless
made in writing and signed by the parties hereto.
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Section 19. Required Regulatory Provisions.
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The following provisions are included for the purposes of complying
with various laws, rules and regulations applicable to the Bank:
(a) Notwithstanding anything herein contained to the
contrary, any payments to the Officer by the Bank, whether pursuant
to this Agreement or otherwise, are subject to and conditioned upon
their compliance with section 18(k) of the Federal Deposit Insurance
Act ("FDI Act"), 12 U.S.C. [SECTION]1828(k), and any regulations
promulgated
thereunder.
(b) Notwithstanding anything herein contained to the
contrary, if the Officer is suspended from office and/or temporarily
prohibited from participating in the conduct of the affairs of the
Bank pursuant to a notice serviced under section 8(e)(3) or 8(g)(1)
of the FDI Act, 12 U.S.C. [SECTION]1818(e)(3) or 1818(g)(1), the
Bank's obligations under this Agreement shall be suspended as of the
date of service of such notice, unless stayed by appropriate
proceedings. If the charges in such notice are dismissed, the Bank,
in its discretions, may:
(i) pay to the Officer all or part of the compensation
withheld while the Bank's obligations hereunder were suspended,
and
(ii) reinstate, in whole or in part, any of the
obligations which were suspended.
(c) Notwithstanding anything herein contained to the
contrary, if the Officer is removed and/or permanently prohibited
from participating in the conduct of the Bank's affairs by an order
issued under section 8(e)(4) or 8(g)(1) of the FDI Act, 12 U.S.C.
[SECTION]1818(e)(4) or (g)(1), all prospective obligations of the
Bank under this Agreement shall terminate as of the effective date of
the order, but vested rights and obligations of the Bank and the
Officer shall not be affected.
(d) Notwithstanding anything herein contained to the
contrary, if the Bank is in default (within the meaning of section
3(x)(1) of the FDI Act, 12 U.S.C. [SECTION]1813(x)(1)), all
prospective obligations of the Bank under this Agreement shall
terminate as of the date of default, but vested rights and
obligations of the Bank and the Officer shall not be affected.
(e) Notwithstanding anything herein contained to the
contrary, all prospective obligations of the Bank hereunder shall be
terminated, except to the extent that a continuation of this
Agreement is necessary for the continued operation of the Bank:
(i) By the Commissioner of the Massachusetts Division
of Banks or his designee or the FDIC, at the time the FDIC
enters into an agreement to provide assistance to or on behalf
of the Bank under the authority contained in section 13(c) of
the FDI Act, 12 U.S.C. [SECTION]1823(c); or
(ii) By the Commissioner or his designee at the time
such Commissioner or his designee approves a supervisory merger
to resolve problems related to the operation of the Bank or
when the Bank is determined by the Commissioner to be in an
unsafe or unsound condition. The vested rights and obligations
of the parties shall not be affected.
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If and to the extent that any of the foregoing provisions shall cease to be
required or by applicable law, rule or regulation, the same shall become
inoperative as though eliminated by formal amendment of this Agreement.
Section 20. Guaranty.
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The Company hereby irrevocably and unconditionally guarantees to the
Officer the payment of all amounts, and the performance of all other
obligations, due from the Bank in accordance with the terms of this
Agreement as and when due without any requirement of presentment, demand of
payment, protest or notice of dishonor or nonpayment.
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In Witness Whereof, the Bank and the Company have caused this
Agreement to be executed and the Officer has hereunto set his hand, all as
of the day and year first above written.
/s/ Xxxx X. Xxxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxxx
Medford Co-operative Bank
Attest:
By /s/ Xxxxxxx X. Xxxxx By /s/ Xxxxx X. Xxxxxx
-------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxx
Title: SVP/CFO Title: President and CEO
[Seal]
Mystic Financial, Inc.
Attest:
By /s/ Xxxxxxx X. Xxxxx By /s/ Xxxxx X. Xxxxxx
-------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxx X. Xxxxxx
Title: SVP/CFO Title: President and CEO
[Seal]
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