Exhibit 10.138
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of July
30, 1999, between and among XXXXXXXX ACQUISITIONS CORP., a Florida corporation
(the "Company"), DISPLAY TECHNOLOGIES, INC., a Nevada corporation ("DTEK"), and
XXXXX X. XXXXXXX ("Employee").
RECITALS:
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The Employee presently serves as the President (chief executive officer) of
the Company, a wholly-owned subsidiary of DTEK;
The Company desires that the Employee continue to serve in an employment
capacity as the President of the Company, and the Employee desires to continue
to serve in such employment capacity, pursuant to a new employment agreement;
NOW, THEREFORE, the Company and the Employee, in consideration of the
mutual covenants herein contained and intending to be legally bound hereby,
agree as follows:
1. DEFINITIONS. In addition to other terms defined herein, for purposes of
this Agreement, the following terms shall have the meanings specified in this
Section unless the context clearly requires otherwise:
1.01 "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
1.02 "Base Salary" shall mean the total annual cash salary, excluding
bonuses and incentive compensation, earned by the Employee in all capacities
with the Company.
1.03 "Cause" shall mean: (a) the repeated failure of the Employee to
observe or perform any of the material terms or provisions of this Agreement,
which failure continues after written notice to the Employee and remains uncured
for a period of 10 days following such written notice, except that there shall
be no cure period with respect to any violation of Section 7 or Section 8
hereof; (b) misappropriation of funds, or willful dishonesty towards, fraud
upon, or willful misconduct of a material nature to the injury of, the Company
or its Affiliates; (c) commission of
a felony or other crime involving moral turpitude; or (d) habitual insobriety or
abuse of controlled substances.
1.04 "Notice of Termination" means a written notice which (a) indicates the
specific termination provision in this Agreement relied upon, (b) briefly
summarizes the facts and circumstances deemed to provide a basis for termination
of the Employee's employment under the provision so indicated and (c) specifies
the Termination Date. The Termination Date so specified shall be (i) a date not
less than 60 days from the delivery of such Notice of Termination to the
Employee (in the case of termination by the Company other than for Cause), (ii)
a date not more than 30 days after the delivery of such Notice of Termination to
the Company (in the case of termination by the Employee) or (iii) the date of
receipt of such Notice of Termination by the Employee (in the case of
termination by the Company for Cause).
1.05 "Person" shall mean any individual, firm, corporation, partnership or
other entity.
1.06 "Termination Date" shall mean the date required to be specified in the
Notice of Termination, or the last day of the Employment Term (as hereinafter
defined) if the employment of the Employee by the Company does not continue
thereafter.
1.07 "Termination of Employment" shall mean the termination of the
Employee's actual employment relationship with the Company whether pursuant to
Section 10 hereof or upon expiration of the Employment Term.
2. EMPLOYMENT TERM.
2.01 Employment Term. The employment term under this Agreement shall
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commence as of the date hereof (the "Effective Date"), and shall continue until
July 30, 2000. Thereafter, such employment term shall be renewed for successive
one-year terms unless and until either the Company or the Employee elects not to
renew by delivery of written notice to the other not later than 90 days prior to
the expiration of the initial one-year term or any annual renewal term (the
"Employment Term"). Notwithstanding any provisions to the contrary contained
herein, nothing in this Agreement shall be deemed to create any obligation on
the part of either party to renew this Agreement at any time.
2.02 Termination. The Employment Term may be terminated only in accordance
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with Section 10 hereof.
3. DUTIES AND RESPONSIBILITIES; ELECTIONS.
3.01 Duties and Responsibilities. Unless modified by mutual written
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consent, the Employee shall perform such services and discharge such duties and
responsibilities of a senior executive nature as may be prescribed from time to
time by the Board of Directors of the Company ("Board") or such other persons as
may be designated by the Board; provided, however, that the
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services performed by, and the duties and responsibilities of, the Employee
shall be consistent with those usually associated with the position of President
as chief executive officer. The Employee shall serve in the capacities, titles
and positions with respect to the Company, and perform all duties and accept all
responsibilities incidental to any such capacities, titles and positions, as the
Board may reasonably direct in conformity with the foregoing sentence.
3.02 Elections. During the Employment Term, DTEK and the Company shall use
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their best efforts to cause the Employee to be nominated and elected and to
continue to serve as President of the Company and to be elected to the Board of
Directors of the Company and DTEK.
4. EXTENT OF SERVICE. The Employee shall devote his best efforts to the
business of the Company and shall devote his full time, attention and energy to
the performance of his services and the discharge of his duties and
responsibilities hereunder. During the existence of the employment relationship
hereunder, the Employee shall not work, on either a part-time, full-time or
independent contracting basis, for any other business or enterprise without the
Company's prior written consent.
5. COMPENSATION.
5.01 Annual Salary. For all the services to be performed by the Employee
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hereunder, the Company shall pay the Employee a Base Salary at the annual rate
of $165,000, less withholding required by law. Such Base Salary shall be
payable in installments at such times as the Company customarily pays its other
senior executives (but in any event not less frequently than monthly).
5.02 Incentive Compensation. In addition to his annual Base Salary, the
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Employee shall be designated a "Participant" under, and shall participate in,
DTEK's Senior Management Incentive Plan, commencing with the fiscal year ending
June 30, 2001. For the 12-month period ending June 30, 2000, the Employee shall
be entitled to incentive compensation in an amount equal to 6% of the Company's
annual net income in excess of $625,000 for such 12-month period, as determined
in accordance with generally accepted accounting principles consistently
applied; provided, however, that such incentive compensation for such 12-month
period shall not exceed 50% of Employee's Base Salary. In the event the
Employee is employed hereunder for any partial fiscal year, any incentive
compensation payable under this Section 5.02 shall be prorated accordingly.
6. BUSINESS EXPENSES; OTHER BENEFITS.
6.01 Company Auto. At Employee's option, the Company will supply Employee
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with a leased Lincoln Town Car or equivalent vehicle, or a $500 per month auto
expense allowance.
6.02 Business Expenses. The Company will reimburse the Employee for
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Company auto operating expenses and for all other ordinary, necessary and
reasonable out-of-pocket business expenses incurred by Employee in connection
with his performance of services hereunder in accordance with the Company's
expense approval procedures in effect from time to time.
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6.03 Other Benefits. The Company will provide the Employee with such
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individual and dependant group medical insurance coverage, if any, and other
employment benefits as are or may in the future be provided by DTEK to its
officer employees in accordance with DTEK's policies.
7. CONFIDENTIAL INFORMATION. The Employee acknowledges that, by reason of his
employment by and service to the Company, he will have access to confidential
information of the Company and its Affiliates, including, without limitation,
information and knowledge pertaining to products, developments, improvements,
methods of operation, sales and profit figures, customer and client lists and
relationships between the Company and its Affiliates and their agents,
customers, clients, suppliers and others who have business dealings with them
(collectively, "Confidential Information"). The Employee acknowledges that such
Confidential Information is a valuable and unique asset of the Company and its
Affiliates and, in consideration of the benefits specified in this Agreement,
covenants that, both during and after the termination of the employment
relationship between the parties hereto, he will not use any Confidential
Information or disclose any Confidential Information to any Person (except as
his duties as an employee of the Company or any Affiliate may require) without
the prior written authorization of the Board. The obligation of confidentiality
imposed by this Section shall not apply to information which becomes generally
known in the industry through no act of the Employee in breach of this Agreement
or to information which the Employee is legally compelled to disclose pursuant
to subpoena, civil investigative demand or similar process (in such event, the
Employee promptly shall provide the Company with written notice thereof in order
to allow the Company to seek a protective order or other appropriate remedy).
8. NON-COMPETITION. The Employee acknowledges that he will acquire
specialized knowledge and experience in the business of the Company and its
Affiliates and that if his knowledge, experience, reputation or contacts are
used by or on behalf of the Employee to compete with the Company or its
Affiliates or to solicit employees or agents away from the Company or its
Affiliates, serious harm to the Company and its Affiliates may result. In
consideration of the benefits specified in this Agreement, the Employee agrees
that during the Employee's employment by the Company and for a period of one (1)
year thereafter, subject to the performance by the Company of its obligations
under Section 10 hereof upon a Termination of Employment (whether prior to, or
as the result of, expiration of the Employment Term), the Employee shall not,
unless acting pursuant hereto or with the prior written consent of the Board,
directly or indirectly, render any services of a business, commercial, or
professional nature to any Person, whether for compensation or otherwise, within
the United States or elsewhere in competition with the Company or its Affiliates
or which is in conflict with the Company's or its Affiliates' interests, or
solicit for employment or in any other fashion hire any of the employees or
agents of the Company or its Affiliates or, with respect to the two (2) year
period referred to above, any person who was an employee or agent of the Company
or its Affiliates at any time within six months prior to the termination of
employment hereunder; provided, however, that this provision shall terminate in
the event the employment of the Employee is terminated by the Company in
violation of Section 10 hereof. For the purpose of this Section 8, the phrases
"in competition with" and "in conflict with" shall not be deemed to apply to any
Person whose activities do not involve similar lines of business now or
hereafter undertaken by the Company or any Affiliate. In the event that the
provisions of this
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Section should ever be adjudicated to exceed the time, geographic, service or
product limitations permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the maximum time,
geographic, service or product limitations permitted by applicable law.
9. EQUITABLE RELIEF. Notwithstanding the provisions of Section 14 hereof: the
Employee acknowledges that the restrictions contained in Sections 7 and 8 hereof
are, in view of the nature of the business of the Company and its Affiliates,
reasonable and necessary to protect the legitimate interests of the Company, and
that any violation of any provisions of those Sections will result in
irreparable injury to the Company; the Employee also acknowledges that the
Company shall be entitled to temporary and permanent injunctive relief, without
the necessity of proving actual damages, and to an equitable accounting of all
earnings, profits and other benefits arising from any such violation, which
rights shall be cumulative and in addition to any other rights or remedies to
which the Company may be entitled; in the event of any such violation, the
Company shall be entitled to commence an action for temporary and permanent
injunctive relief and other equitable relief in any court of competent
jurisdiction and Employee further irrevocably submits to the jurisdiction of any
Florida court or Federal court sitting in the Middle District of Florida over
any suit, action or proceeding arising out of or relating to this Section 9.
The Employee hereby waives, to the fullest extent permitted by law, any
objection that he may now or hereafter have to such jurisdiction or to the
venue of any such suit, action or proceeding brought in such a court and any
claim that such suit, action or proceeding has been brought in any inconvenient
forum; and effective service of process may be made upon the Employee by mail
under the notice provisions contained in Section 13 hereof.
10. TERMINATION.
10.01 Termination Without Cause. The Company shall have the right to
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terminate the employment of the Employee prior to expiration of the Employment
Term only as follows:
(a) As the result of partial or total disability as provided in
Section 10.02 hereof;
(b) Upon death of the Employee as provided in Section 10.03 hereof;
(c) For Cause as provided in Section 10.04 hereof;
(d) Upon breach by the Employee of his obligations under Section 7 or
Section 8 hereof; or
(e) For any other, or for no, reason, provided that on or as soon as
practicable following the Termination Date, the Company pays to the Employee as
severance, less withholding
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required by law, in a single lump sum or, at the Company's option, in equal
installments corresponding to what would have been the Employee's regular pay
dates and amounts, an amount equal to the greater of (i) 66-2/3% of the
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Employee's Base Salary or (ii) the Base Salary that would have otherwise have
been payable to the Employee for the remainder of the Employment Term. Any
severance payment pursuant to this subpart (e) shall be in addition to, and not
in lieu of, any unpaid salary, incentive compensation, stock options and other
benefits earned or accrued prior to the Termination Date.
The Employee acknowledges and agrees that the Company shall have no obligation
to pay any severance or other compensation to the Employee upon termination by
the Company for Cause or in the event the Employee elects to terminate such
employment other than as the result of the failure of the Company to perform its
obligations under this Section 10.
10.02 Partial or Total Disability. In the event that the Employee is
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unable to perform his duties and responsibilities hereunder to the full extent
required hereunder by reason of illness, injury or incapacity for six
consecutive months (herein defined as a "Disability") (during which time, if
during the Employment Term, he shall be entitled to receive payments of the
difference between the Employee's Base Salary and incentive compensation during
such time, or portion thereof, and the payments to which the Employee is
entitled pursuant to any applicable disability insurance policy (less
withholding required by law), each such payment calculated and payable at the
times corresponding to what would have been the Employee's regular pay dates
during such time), the Employment Term may be terminated by the Company and the
Company shall have no further liability or obligation hereunder to the Employee
except for unpaid salary, incentive compensation and benefits accrued through
the date of termination. The Employee agrees, in the event of any dispute under
this Section 10.02, to submit to a physical examination by a licensed physician
selected by the Company, the cost of such examination to be paid by the Company.
10.03 Death. In the event that the Employee dies, the Employment Term
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shall terminate and thereafter the Company shall have no liability or obligation
to the Employee, his executors, administrators, heirs, assigns or any other
person claiming under or through him except for unpaid salary, incentive
compensation and benefits accrued to the date of his death. Such payments shall
be made to the Employee's surviving spouse, or if none, to the Employee's
surviving children, and the surviving issue of deceased children, in equal
shares per stirpes, or if none, to the Employee's estate.
10.04 Cause. Nothing in this Employment Agreement shall be construed to
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prevent the termination of the Employment Term by the Company at any time for
Cause. The termination of the Employee's employment hereunder for Cause shall
not be effective until delivery to the Employee of a written decision of the
Board (after notice in writing to the Employee (as provided in Section 1.03) of
the basis for such termination and an opportunity for the Employee, together
with his counsel, to be heard before the Board), finding that in the good faith
opinion of the Board the Employee committed conduct constituting Cause and
specifying the particulars thereof in conformity with the requirements for a
Notice of Termination.
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10.05 Effect of Termination. In the event of a Termination of Employment,
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upon the satisfaction and performance by the Company of its obligations under
Section 10 hereof, the Company and its Affiliates and their respective
shareholders, directors, officers, and employees, shall be deemed fully released
by the Employee, and that if Employee agrees that such satisfaction and
performance by the Company of its obligations under this Section 10 shall
constitute a full release and discharge from any and all claims, rights,
demands, actions, obligations, and causes of action of any and all kind, nature,
and character, known or unknown, which the Employee may now have or may have had
against the Company or any predecessor to the termination of employment,
including, but not limited to, any claims to any federal or state agencies, or
lawsuits in federal or state courts against the Company alleging discrimination
(including, but not limited to, claims arising under the Civil Rights Act of
1866, as amended, the Civil Rights Act of 1964, as amended, the Florida Fair
Employment and Housing Act, as amended, the Age Discrimination in Employment Act
of 1967, the Americans with Disabilities Act of 1990, and the Civil Rights Act
of 1991), workers' compensation claims, any claim related to employment
contracts, express or implied, or any other claims related to Employee's
employment or association with the Company or the circumstances surrounding
Employee's employment or association with the Company, or the termination
thereof.
10.06 Return of Company Property. Promptly following any Termination of
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Employment, the Employee shall turn over and surrender to the Company all
property of the Company then in his possession, including without limitation
Company automobiles, automobile keys and office keys, credit cards, debit cards,
telephone calling cards, and all business and financial records, statements,
memoranda, notebooks, correspondence and other documentation, and the Employee
shall not retain in his actual or constructive possession copies or
reproductions of any of said items of property or information without the prior
written approval of the Company, the Employee hereby acknowledging that all of
said items are and shall remain the sole and exclusive property of the Company
and that following any Termination of Employment the Employee shall not have any
ownership interest in or right to use, either for his personal benefit or the
benefit of others, any of such items of property or information.
11. SURVIVAL. Notwithstanding the termination of the employment relationship
between the parties hereto, the obligations of the Employee under Sections 7, 8,
9, 10.05 and 10.06 hereof shall survive and remain in full force and effect and
the Company shall be entitled to equitable relief against the Employee pursuant
to the provisions of Section 9 hereof. In addition to and not in limitation of
the provisions of the preceding sentence, notwithstanding any such termination
of the employment relationship between the parties hereto, obligations of the
Company under this Agreement that are intended pursuant to the terms hereof to
survive any such termination shall survive and remain in full force and effect
and such obligations shall be enforceable by the Employee in accordance with the
provisions of this Agreement.
12. NOTICE. Any notice or other communication required or permitted hereunder
shall be in writing and shall be delivered personally, telegraphed, telexed,
sent by facsimile transmission (provided acknowledgment of receipt thereof is
delivered to the sender) or sent by certified,
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registered or express mail, postage prepaid. Any such notice shall be deemed
given when so delivered personally, telegraphed, telexed or sent by facsimile
transmission or, if mailed, three days after the date of deposit in the United
States mails as follows:
If to Employee, to:
Xxxxx X. Xxxxxxx
Xxxxxxxx Sign Group, Inc.
00000-X Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
If to the Company, to:
Xxxxxxxx Acquisitions Corp.
0000 Xxxxxxxxx xxxxx
Xxxxxxx, XX 00000
Attention: J. Xxxxxxx Xxxxxxxx
Chairman
with a copy to:
Xxxxxxxx X. Xxxxxx, General Counsel
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
If to DTEK to:
Display Technologies, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: J. Xxxxxxx Xxxxxxxx
President and Chief Executive Officer
with a copy to:
Xxxxxxxx X. Xxxxxx, General Counsel
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
or to such other names or addresses as the Company, DTEK or the Employee, as the
case may be, shall designate by notice to the other parties hereto in the manner
specified in this section.
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13. REVIEW. The Employee represents and acknowledges that (a) he has been
advised by the Company to consult his own legal counsel with respect to this
Agreement and (b) he has had full opportunity, prior to execution of this
Agreement, to review thoroughly this Agreement with his counsel.
14. GOVERNING LAW; VENUE; ARBITRATION. This Agreement shall be construed in
accordance with, and governed in all respects by, the internal laws of the State
of Florida, without giving effect to principles of conflicts of laws. Any
dispute, controversy or claim arising out of, relating to or in connection with
this Agreement including, without limitation, disputes relating to the breach of
this Agreement, shall be finally settled by arbitration conducted in accordance
with this Section 14. The arbitration shall be conducted in accordance with the
rules of the American Arbitration Association (the "AAA") in effect at the time
of the arbitration, except as they may be modified herein or by mutual agreement
of the parties. The arbitration shall be conducted at a mutually agreed
location. If the parties are unable to agree on the location of the arbitration
within ten (10) days after the date of delivery of the Request of arbitration,
the arbitration shall be conducted in Orlando, Florida. Each party hereby
irrevocably submits to the jurisdiction of the arbitrator in Orlando, Florida,
and waives any defense in an arbitration based on any claim that such party is
not subject personally to the jurisdiction of such arbitrator, that such
arbitration is brought in an inconvenient forum or that such venue is improper.
The arbitration shall be conducted by three arbitrators, at least two of whom
are attorneys with at least seven years of experience in the fields of
securities law and business transactions. The party initiating the arbitration
(the "Claimant") shall appoint its arbitrator in its request for arbitration
(the "Request"). The other party (the "Respondent") shall appoint its
arbitrator within twenty (20) days of receipt of the Request and shall notify
the Claimant of such appointment in writing. If the Respondent fails to appoint
an arbitrator within such twenty day period, the arbitrator named in the Request
shall decide the controversy or claim as a sole arbitrator. Otherwise, the two
arbitrators appointed by the parties shall appoint a third arbitrator within ten
(10) days after the Respondent has notified Claimant of the appointment of the
Respondent's arbitrator. If the two arbitrators appointed by the parties fail
or are unable to appoint a third arbitrator, the appointment of the third
arbitrator shall be made by the AAA. The third arbitrator shall act as chair of
the panel. The arbitration award shall be in writing and shall be final and
binding on the parties. The award may include an award of costs, including
reasonable attorneys' fees and disbursements; except upon a finding of actual
fraud, intentional or knowing misrepresentation, willful and knowing omissions
of material fact or willful misconduct, no award shall include punitive damages.
Judgment upon the award may be entered by any court having jurisdiction thereof
or having jurisdiction over the parties or their assets.
15. CONTENTS OF AGREEMENT; AMENDMENT AND ASSIGNMENT. This Agreement sets forth
the entire understanding between the parties hereto with respect to the subject
matter hereof and supersedes any and all other employment agreements or
arrangements between the parties hereto, including without limitation any prior
or existing employment or consulting agreements between the Company and the
Employee, and the Employee hereby releases and forever discharges the Company,
DTEK and all of their respective Affiliates, shareholders, directors, officers,
employees and agents from any and all claims for additional fixed or incentive
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compensation or other benefits, or other claims or causes of action of any
nature whatsoever arising out of or in connection with or under any and all such
other agreements, express or implied it being the mutual intent of the Company,
DTEK and the Employee that any and all such agreements are superseded in their
entirety by this Agreement. This Agreement cannot be changed, modified or
terminated except upon written amendment duly executed by the parties hereto.
All of the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective heirs,
representatives, successors and assigns of the parties hereto, except that the
duties and responsibilities of the Employee hereunder are of a personal nature
and shall not be assignable in whole or in part by the Employee. The Employee
acknowledges that, from time to time, the Company may establish, maintain and
distribute employee manuals or handbooks or personnel policy manuals, and
officers or other representatives of the Company may make written or oral
statements relating to personnel policies and procedures. Such manuals,
handbooks and statements are intended only for general guidance. No policies,
procedures or statements of any nature by or on behalf of the Company (whether
written or oral, and whether or not contained in any employee manual or handbook
or personnel policy manual), and no acts or practices of any nature, shall be
construed to modify this Agreement.
16. SEVERABILITY. If any provision of this Agreement or application thereof to
anyone or under any circumstances is adjudicated to be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability shall not affect any
other provisions or applications of this Agreement which can be given effect
without the invalid or unenforceable provision or application and shall not
invalidate or render unenforceable such provision in any other jurisdiction.
17. ENFORCEMENT; NO MITIGATION; NON-EXCLUSIVITY.
17.01 Any party to this Agreement that is required to incur any expenses
associated with the enforcement of such party's rights under this Agreement,
whether by arbitration, litigation, other legal action or otherwise, shall be
entitled, upon successfully enforcing any such rights, to recover from the party
against whom such rights were successfully enforced all such costs and expenses
(including all reasonable attorneys' fees and expenses). For purposes of this
Section 17.01, "successfully enforcing" shall mean the attainment of a final and
binding determination pursuant to any arbitration, litigation, or other legal
action awarding damages, equitable relief or other relief for the enforcement of
the rights of any party hereunder.
17.02 This Agreement negates and supersedes in their entirety any and all
other employment agreements between Employee and the Company; notwithstanding
the foregoing, nothing in this Agreement shall prevent or limit the Employee's
continuing or future participation in or rights under any benefit, bonus,
incentive or other plan or program provided by the Company or any present or
future Subsidiary or Affiliate and for which the Employee may qualify.
18. REMEDIES CUMULATIVE; NO WAIVER. Subject to the provisions of Section 14
hereof: no remedy conferred by this Agreement is intended to be exclusive of any
other remedy, and each and every such remedy shall be cumulative and shall be in
addition to any other remedy given
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hereunder or now or hereafter existing at law or in equity; and no delay or
omission in exercising any right, remedy or power hereunder or existing at law
or in equity shall be construed as a waiver thereof, and any such right, remedy
or power may be exercised from time to time and as often as may be deemed
expedient or necessary.
19. HEADINGS. All section headings contained in this Agreement are for
convenience of reference only, do not form a part of this Agreement and shall
not affect in any way the meaning or interpretation of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed or caused to be executed
this Agreement as of the date first above written.
XXXXXXXX ACQUISITIONS CORP.
By:________________________________________
J. Xxxxxxx Xxxxxxxx, President
DISPLAY TECHNOLOGIES, INC.
By:________________________________________
J. Xxxxxxx Xxxxxxxx, President
___________________________________________
XXXXX X. XXXXXXX
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