EMPLOYMENT AGREEMENT
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AGREEMENT made as of October 16, 1995, between DESIGNS, INC., a
Delaware corporation with an office at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx
Xxxx, Xxxxxxxxxxxxx, 00000 (the "Company"), and XXXX X. XXXXXX,
residing at 00 Xxxx Xxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 (the
"Executive").
W I T N E S S E T H:
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WHEREAS, the Company desires that Executive be employed to serve
in a senior executive capacity with the Company, and Executive desires
to be so employed by the Company, upon the terms and conditions herein
set forth.
NOW, THEREFORE, in consideration of the premises and of the
mutual promises, representations and covenants herein contained, the
parties hereto agree as follows:
1. EMPLOYMENT
The Company hereby employs Executive and Executive hereby
accepts such employment, subject to the terms and condition herein set
forth. Executive shall hold the office of Senior Vice President
Merchandising reporting to the Chief Executive Officer of the Company
(the "Chief Executive Officer").
2. TERM
The initial term of employment under this Agreement shall
begin on the date hereof (the "Employment Date") and shall continue
for a period of three (3) years from that date, subject to prior
termination in accordance with the terms hereof. Thereafter, this
Agreement shall automatically be renewed for successive one year terms
unless either party shall give the other ninety (90) days prior
written notice of its intent not to renew this Agreement.
3. COMPENSATION
As compensation for the employment services to be rendered by
Executive hereunder, including all services as an officer of the
Company and any of its subsidiaries and affiliates, the Company agrees
to pay, or cause to be paid, to Executive, and Executive agrees to
accept, payable in equal installments in accordance with Company
practice, an initial annual salary of $300,000, plus an additional
health insurance cost not to exceed $8,800 for the first two years of
employment. Executive's annual salary hereunder for the remaining
years of employment shall be determined by the Compensation Committee
of the Board of Directors in its sole discretion; provided, however,
that Executive's salary shall be increased each year effective as of
the first day of the Company's fiscal year and commencing with the
beginning of fiscal 1997, by at least the percentage increase, if any,
in the cost of living shown on the Consumer Price Index for all items
in the Boston, Massachusetts Area (published by the Bureau of Labor
Statistics of the United States Department of Labor) between January
1995 and the last calendar month immediately preceding the first day
of the following calendar year. In addition, Executive shall be
entitled to bonuses from time to time in such amounts as may be
determined by the Compensation Committee of the Board of Directors in
its sole discretion.
4. EXPENSES
The Company shall pay or reimburse Executive, upon
presentment of suitable vouchers, for all reasonable business and
travel expenses which may be incurred or paid by Executive in
connection with his employment hereunder. Executive shall comply with
such restrictions and shall keep such records as the Company may deem
necessary to meet the requirements of the Internal Revenue Code of
1986, as amended from time to time, and regulations promulgated
thereunder.
5. OTHER BENEFITS
(a) Executive shall be entitled to such vacations and to
participate in and receive any other benefits customarily provided by
the Company to its senior management personnel (including any bonus,
profit sharing, pension, 401(k), short and long-term disability
insurance, hospital, major medical insurance and group life insurance
plans in accordance with the terms of such plans) and including stock
option and/or stock purchase plans, all as determined from time to
time by the Compensation Committee of the Board of Directors of the
Company.
(b) The Company shall, during the term of Executive's
employment hereunder, provide Executive with a full size automobile
for his use in performing his employment duties and obligations
hereunder, including maintenance of and fuel for such automobile.
6. DUTIES
(a) Executive shall perform such duties and functions as
the Chief Executive Officer and the Board of Directors of the Company
shall from time to time determine and Executive shall comply in the
performance of his duties with the policies of, and be subject to the
direction of, the Chief Executive Officer and/or the Board of
Directors. Executive shall serve as an officer of the Company without
further compensation.
At the request of the Chief Executive Officer and/or the Board of
Directors, Executive shall serve, without further compensation, as an
executive officer of any subsidiary or affiliate of the Company and, in
the performance of such duties, Executive shall comply with the policies
of the Board of Directors of each such subsidiary or affiliate.
(b) During the term of this Agreement, Executive shall
devote substantially all of his time and attention, vacation time and
absences for sickness excepted, to the business of the Company, as
necessary to fulfill his duties. Executive shall perform the duties
assigned to him with fidelity and to the best of his ability.
Notwithstanding anything herein to the contrary, Executive may engage
in other activities so long as such activities do not unreasonably
interfere with Executive's performance of his duties hereunder and do
not violate Section 9 hereof.
(c) Nothing in this Section 6 or elsewhere in this
Agreement shall be construed to prevent Executive from investing or
trading in nonconflicting investments as he sees fit for his own
account, including real estate, stocks, bonds, securities, commodities
or other forms of investments.
(d) The principal location at which the Executive shall
perform his duties hereunder shall be at the Company's offices in
Chestnut Hill, Massachusetts or at such other location as may be
designated from time to time by the Board of Directors of the Company;
provided that if the principal location of Executive's duties is
transferred from Chestnut Hill, Massachusetts, the new principal
location of Executive's duties shall not be transferred beyond a 15-
mile radius of Chestnut Hill, Massachusetts without Executive's
consent. Notwithstanding, the foregoing, Executive shall perform such
services at such other locations as may be required for the proper
performance of his duties hereunder, and Executive recognizes that
such duties may involve travel.
7. TERMINATION OF EMPLOYMENT; EFFECT OF TERMINATION
(a) Executive's employment hereunder may be terminated at
any time upon written notice from the Company to Executive:
(i) upon the determination by the Chief Executive
Officer and the Board of Directors that
Executive's performance of his duties has not been
fully satisfactory for any reason which would not
constitute justifiable cause (as hereinafter
defined) upon thirty (30) days' prior written
notice to Executive; or
(ii) upon the determination by the Chief Executive
Officer and the Board of Directors that there is
justifiable cause (as hereinafter defined) for
such termination upon ten (10) days' prior written
notice to Executive.
(b) Executive's employment shall terminate upon:
(i) the death of Executive; or
(ii) the "disability" of Executive (as hereinafter
defined pursuant to subsection (c) herein)
pursuant to subsection (f) hereof.
(c) For the purposes of this Agreement, the term
"disability" shall mean the inability of Executive, due to illness,
accident or any other physical or mental incapacity, substantially to
perform his duties for a period of three (3) consecutive months or for
a total of six (6) months (whether or not consecutive) in any twelve
(12) month period during the term of this Agreement, as reasonably
determined by the Chief Executive Officer and the Board of Directors
of the Company after examination of Executive by an independent
physician reasonably acceptable to Executive.
(d) For the purposes hereof, the term "justifiable cause"
shall mean and be limited to: any repeated willful failure or refusal
to perform any of the duties pursuant to this Agreement where such
conduct shall not have ceased within 30 days following written warning
from the Company; Executive's conviction (which, through lapse of time
or otherwise, is not subject to appeal) of any crime or offense
involving money or other property of the Company or its subsidiaries
or affiliates or which constitutes a felony in the jurisdiction
involved; Executive's performance of any act or his failure to act,
for which if Executive were prosecuted and convicted, a crime or
offense involving money or property of the Company or its subsidiaries
or affiliates, or which would constitute a felony in the jurisdiction
involved, would have occurred; any unauthorized disclosure by
Executive to any person, firm or corporation other than the Company,
its subsidiaries or affiliates and their respective directors,
officers and employees (or other persons fulfilling similar
functions), of any confidential information or trade secret of the
Company or any of its subsidiaries or affiliates; any attempt by
Executive to secure any personal profit in connection with the
business of the Company or any of its subsidiaries and affiliates; or
the engaging by Executive in any business other than the business of
the Company and its subsidiaries and affiliates which unreasonably
interferes with the performance of his duties hereunder. Upon
termination of Executive's employment for justifiable cause, this
Agreement shall terminate immediately and Executive shall not be
entitled to any amounts or benefits hereunder other than such portion
of Executive's annual salary and reimbursement of expenses pursuant to
Section 4 hereof as has been accrued through the date of his
termination of employment.
(e) If Executive shall die during the term of his
employment hereunder, this Agreement shall terminate immediately. In
such event, the estate of Executive shall thereupon be entitled to
receive such portion of Executive's annual salary and reimbursement of
expenses pursuant to Section 4 as has been accrued through the date of
his death. If Executive's death shall occur while he is on Company
business, the estate of Executive shall be entitled to receive, in
addition to the other amounts set forth in this subsection (e), an
amount equal to one-half his then annual salary.
(f) Upon Executive's "disability", the Company shall have
the right to terminate Executive's employment. Notwithstanding any
inability to perform his duties, Executive shall be entitled to
receive his compensation (including bonus, if any) and reimbursement
of expenses pursuant to Section 4 as provided herein until he begins
to receive long-term disability insurance benefits under the policy
provided by the Company pursuant to Section 5 hereof. Any termination
pursuant to this subsection (f) shall be effective on the later of (i)
the date 30 days after which Executive shall have received written
notice of the Company's election to terminate or (ii) the date he
begins to receive long-term disability insurance benefits under the
policy provided by the Company pursuant to Section 5 hereof.
(g) Notwithstanding any provision to the contrary contained
herein, in the event that Executive's employment is terminated by the
Company at any time for any reason other than justifiable cause,
disability or death, or in the event the Company shall fail to renew
this Agreement at any time within two years following the effective
date of a Change in Control of the Company, the Company shall upon
such termination, immediately pay (i) Executive, in a lump sum, an
amount equal to the greater of (1) one-twelfth of the Executive's then
annual salary multiplied by the number of months in the remaining term
of this Agreement or (2) a sum equal to his then annual salary
multiplied by one year (such period being hereinafter referred to as
the "Severance Period"), which amount shall be in lieu of any and all
other payments due and owing to the Executive under the terms of this
Agreement (other than any payments constituting reimbursement of
expenses pursuant to Section 4 hereof), and (ii) continue to allow
Executive to participate, at the Company's expense, in the Company's
health insurance and disability insurance programs, to the extent
permitted under such programs, during the Severance Period
(collectively, the "Severance Payments"). For purposes of this
Agreement, a "Change in Control of the Company" shall be deemed to
occur if (i) there shall be consummated (x) any consolidation or
merger of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of the Company's
Common Stock would be converted into cash, securities or other
property, other than a merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger have the
same proportionate ownership of common stock of the surviving
corporation immediately after the merger, or (y) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the
Company, or (ii) the stockholders of the Company shall approve any
plan or proposal for liquidation or dissolution of the Company, or
(iii) any person (as such term is used in Sections 13(d) and 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) shall become the beneficial owner (within the meaning of Rule
13d-3 under the Exchange Act) of 40% or more of the Company's
outstanding Common Stock other than pursuant to a plan or arrangement
entered into by such person and the Company, or (iv) during any period
of two consecutive years, individuals who at the beginning of such
period constitute the entire Board of Directors of the Company shall
cease for any reason to constitute a majority thereof unless the
election, or the nomination for election by the Company's
stockholders, of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were directors at
the beginning of the period.
(h) Notwithstanding any provision to the contrary contained
herein, in the event the Company elects not to renew this Agreement
(other than within two years following a change in Control of the
Company, which is covered in Section 7(g) above) the Company will pay
Executive a severance payment equal to the greater of (i) two months'
salary plus 1/6 of Executive's bonus, if any, relating to the most
recently completed fiscal year, for each year Executive has been
employed by the Company or (ii) one year's annual salary.
(i) Executive may terminate his employment at any time upon
30 days' prior written notice to the Company. Upon Executive's
termination of his employment hereunder or his election not to renew
this Agreement, this Agreement (other than Sections 4, 7, 9, 10, 11
and 12, which shall survive, if at all, in accordance with their
terms) shall terminate, provided however, that Section 9 shall not
survive such termination unless the Company pays to Executive during
the Severance Period the Severance Payments. In such event, Executive
shall be entitled to receive such portion of Executive's annual salary
and bonus, if any, as has been accrued to date. Executive shall be
entitled to reimbursement of expenses pursuant to Section 4 hereof and
to participate in the Company's benefit plans to the extent
participation by former employees is required by law or permitted by
such plans, with the expense of such participation to be as specified
in such plans for former employees.
(j) If, in connection with a change of ownership or control
of the Company or a change in ownership of a substantial portion of
the assets of the Company (all within the meaning of Section
28OG(b)(2) of the Internal Revenue Code of 1986, as amended (the
"Code")), an excise tax is payable by Executive under Section 4999 of
the Code, then the Company will pay to the Executive additional
compensation which will be sufficient to enable Executive to pay such
excise tax as well as the income tax and excise tax on such additional
compensation, such that, after the payment of income and excise taxes,
Executive is in the same economic position in which he would have been
if the provisions of Section 4999 of the Code had not been applicable.
The additional compensation required by this Section 7(j) will be paid
to Executive promptly after the date or dates on which the amount of
such additional compensation is determinable, in whole or in part.
(k) Upon the resignation of this Executive Officer in any
capacity that resignation will be deemed to be a resignation from all
offices and positions that that person holds with respect to the
Company and any of its subsidiaries and affiliates.
8. REPRESENTATION AND AGREEMENTS OF EXECUTIVE
(a) Executive represents and warrants that he is free to
enter into this Agreement and to perform the duties required
hereunder, and that there are no employment contracts or
understandings, restrictive covenants or other restrictions, whether
written or oral, preventing the performance of his duties hereunder.
(b) Executive agrees to submit to a medical examination and
to cooperate and supply such other information and documents as may be
required by any insurance company in connection with the Company's
obtaining life insurance on the life of Executive, and any other type
of insurance or fringe benefit as the Company shall determine from
time to time to obtain.
9. NON-COMPETITION
(a) Executive agrees that during his employment by the
Company and during the one year period following the termination of
Executive's employment hereunder, (the "Non-Competitive Period"),
Executive shall not, directly or indirectly, as owner, partner, joint
venturer, stockholder, employee, broker, agent, principal, trustee,
corporate officer, director, licensor, or in any capacity whatsoever
engage in, become financially interested in, be employed by, render
any consultation or business advice with respect to, or have any
connection with, any business which is competitive with, products or
services of the Company or any of its subsidiaries and affiliates, in
any geographic area in the United States of America where, at the time
of the termination of his employment hereunder, the business of the
Company or any of its subsidiaries and affiliates was being conducted
or was proposed to be conducted in any manner whatsoever; provided,
however, that Executive may own any securities of any corporation
which is engaged in such business and is publicly owned and traded but
in an amount not to exceed at any one time one percent (1%) of any
class of stock or securities of such corporation. In addition,
Executive shall not notify directly or indirectly, during the Non-
Competitive Period, request or cause any suppliers or customers with
whom the Company or any of its subsidiaries and affiliates has a
business relationship to cancel or terminate any such business
relationship with the Company or any of its subsidiaries and
affiliates of solicit, interfere with or entice from the Company any
employee (or former employee) of the Company.
(b) If any portion of the restrictions set forth in this
Section 9 should, for any reason whatsoever, be declared invalid by a
court of competent jurisdiction, the validity or enforceability of the
remainder of such restrictions shall not thereby be adversely
affected.
(c) Executive acknowledges that the Company conducts
business throughout the United States, that its sales and marketing
prospects are for continued expansion throughout the United States and
that, therefore, the territorial and time limitations set forth in
this Section 9 are reasonable and properly required for the adequate
protection of the business of the Company and its subsidiaries and
affiliates. In the event any such territorial or time limitation is
deemed to be unreasonable by a court of competent jurisdiction,
Executive agrees to the reduction of the territorial or time
limitation to the area or period which such court shall deem
reasonable.
(d) The existence of any claim or cause of action by
Executive against the Company or any subsidiary or affiliate shall not
constitute a defense to the enforcement by the Company or any
subsidiary or affiliate of the foregoing restrictive covenants, but
such claim or cause of action shall be litigated separately.
(e) In the event Executive's employment with the Company
terminates for any reason other than (i) the Company's failure to
renew this Agreement or (ii) termination by the Company within two
years following a Change in Control of the Company, the Company and
Executive agree that in consideration of the severance payment made to
Executive, Executive shall be available during the Non-Competitive
Period to advise and consult with the Board of Directors, the
President and other officers of the Company and its subsidiaries and
affiliates with respect to the affairs of the Company and its
subsidiaries and affiliates on a part-time basis, in response to
requests for such advisory and consulting services by the Board of
Directors, or other officers of the Company or its subsidiaries and
affiliates, subject to the conditions that (i) such services shall be
performed within the United States of America, (ii) Executive shall
not be required to devote a major portion of his time to such
services, (iii) such services shall not unreasonably interfere with
the performance of other employment or consulting duties Executive may
have, (iv) Executive shall not be required to perform such services
during usual vacation periods and reasonable periods of illness or
other incapacitation, (v) such services shall be performed at times
and places as shall be chosen by Executive, and which will result in
the least inconvenience to Executive, and (vi) all other provisions of
this Section 9 shall apply. The Company shall reimburse Executive for
actual out-of-pocket expenses incurred in rendering the services
performed by Executive upon the request of the Board of Directors, or
other officers of the Company or its subsidiaries or affiliates,
payable at the end of each month during such period. Notwithstanding
the foregoing, in the event that Executive seeks full-time employment
with a third party and such third party will not accept Executive's
services for as long as he is committed under this subsection (e) to
provide consulting services to the Company, then if the Board of
Directors of the Company determines in its reasonable discretion that
Executive's employment with the third party will not cause him to
breach the provisions of Section 9 of this Agreement (other than this
subsection (e)) and Executive provides the Board of Directors with a
letter signed by the third party stating that such third party will
not accept Executive's services as described above, the provisions of
this subsection (e) shall immediately terminate and be of no further
force or effect.
(f) Notwithstanding anything herein to the contrary, this
Section 9 shall automatically terminate if the Company elects not to
renew this Agreement, if the Company terminates Executive's employment
within two years following the effective date of a Change in Control
of the Company, or if the Company fails to make any payments due to
Executive under Sections 7(g), 7(h), 7(i) or 9(e).
10. INVENTIONS AND DISCOVERIES
(a) Upon execution of this Agreement and thereafter
Executive shall promptly and fully disclose to the Company, and with
all necessary detail for a complete understanding of the same, all
existing and future developments, know-how, discoveries, inventions,
improvements, concepts, ideas, writings, formulae, processes and
Methods (whether copyrightable, patentable or otherwise) made,
received, conceived, acquired or written during working hours, or
otherwise, by Executive (whether or not at the request or upon the
suggestion of the Company) during the period of his employment with,
or rendering of advisory or consulting services to, the Company or any
of its subsidiaries and affiliates, solely or jointly with others in
or relating to any activities of the Company or its subsidiaries and
affiliates known to him as a consequence of his employment or the
rendering of advisory and consulting services hereunder (collectively
the "Subject Matter").
(b) Executive hereby assigns and transfers, and agrees to
assign and transfer, to the Company) all his rights, title and
interest in and to the Subject Matter, and Executive further agrees to
deliver to the Company any and all drawings, notes, specifications and
data relating to the Subject Matter, and to execute, acknowledge and
deliver all such further papers, including applications for copyrights
or patents, as may be necessary to obtain copyrights and patents for
any thereof in any and all countries and to vest title thereto to the
Company. Executive shall assist the Company in obtaining such
copyrights or patents during the term of this Agreement, and any time
thereafter on reasonable notice and at mutually convenient times, and
Executive agrees to testify in any prosecution or litigation involving
any of the Subject Matter; provided, however, that Executive shall be
compensated in a timely manner at the rate of $1,500 per day (or
portion thereof), plus out-of-pocket expenses incurred in rendering
such assistance or giving or preparing to give such testimony if it is
required after the Severance Period.
11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
(a) Executive shall not, during the term of this Agreement,
or at any time following termination of this Agreement, directly or
indirectly, disclose or permit to be known (other than as is required
in the regular course of his duties (including without limitation
disclosures to the Company's advisors and consultants) or is required
by law (in which case Executive shall give the Company prior written
notice of such required disclosure) or with the prior written consent
of the Board of Directors of the Company), to any person, firm or
corporation, any confidential information acquired by him during the
course of, or as an incident to, his employment or the rendering of
his advisory or consulting services hereunder, relating to the Company
or any of its subsidiaries and affiliates, the directors of the
Company or its subsidiaries and affiliates, any client of the Company
or any of its subsidiaries and affiliates, or any corporation,
partnership or other entity owned or controlled, directly or
indirectly, by any of the foregoing, or in which any of the foregoing
has a beneficial interest, including, but not limited to, the business
affairs of each of the foregoing. Such confidential information shall
include, but shall not be limited to, proprietary technology, trade
secrets, patented processes, research and development data, know-how,
market studies and forecasts, competitive analyses, pricing policies,
employee lists, personnel policies, the substance of agreements with
customers, suppliers and others, marketing or dealership arrangements,
servicing and training programs and arrangements, customer lists and
any other documents embodying such confidential information. This
confidentiality obligation shall not apply to any confidential
information which thereafter becomes publicly available other than
pursuant to a breach of this Section 11(a) by Executive.
(b) All information and documents relating to the Company
and its affiliates as hereinabove described (or other business
affairs) shall be the exclusive property of the Company, and Executive
shall use commercially reasonable best efforts to prevent any
publication or disclosure thereof. Upon termination of Executive's
employment with the Company, all documents, records, reports, writings
and other similar documents containing confidential information,
including copies thereof then in Executive's possession or control
shall be returned and left with the Company.
12. SPECIFIC PERFORMANCE
Executive agrees that if he breaches, or threatens to commit
a breach of, any of the provisions of Sections 9, 10 or 11 (the
"Restrictive Covenants"), the Company shall have, in addition to, and
not in lieu of, any other rights and remedies available to the Company
under law and in equity, the right to have the Restrictive Covenants
specifically enforced by an court of competent jurisdiction, it being
agreed that any breach or threatened breach of the Restrictive
Covenants would cause irreparable injury to the Company and that money
damages would not provide an adequate remedy to the Company.
Notwithstanding the foregoing, nothing herein shall constitute a
waiver by Executive of his right to contest whether a breach or
threatened breach of any Restrictive Covenant has occurred.
13. AMENDMENT OR ALTERATION
No amendment or alteration of the terms of this Agreement
shall be valid unless made in writing and signed by both of the
parties hereto.
14. GOVERNING LAW
This Agreement shall be governed by, and construed and
enforced in accordance with the substantive laws of The Commonwealth
of Massachusetts, without regard to its principles of conflicts of
laws.
15. SEVERABILITY
The holding of any provision of this Agreement to be invalid
or unenforceable by a court of competent jurisdiction shall not affect
any other provision of this Agreement, which shall remain in full
force and effect.
16. NOTICES
Any notices required or permitted to be given hereunder
shall be sufficient if in writing, and if delivered by hand or
courier, or sent by certified mail, return receipt requested, to the
addresses set forth above or such other address as either party may
from time to time designate in writing to the other, and shall be
deemed given as of the date of the delivery or at the expiration of
three days in the event of a mailing.
17. WAIVER OR BREACH
It is agreed that a waiver by either party of a breach of
any provision of this Agreement shall not operate, or be construed as
a waiver of any subsequent breach by that same party.
18. ENTIRE AGREEMENT AND BINDING EFFECT
This Agreement contains the entire agreement of the parties
with respect to the subject matter hereof, supersedes all prior
agreements, both written and oral, between the parties with respect to
the subject matter hereof, and shall be binding upon and inure to the
benefit of the parties hereto and their respective legal
representatives, heirs, distributors, successors and assigns.
19. SURVIVAL
Except as otherwise expressly provided herein, the
termination of Executive's employment hereunder or the expiration of
this Agreement shall not affect the enforceability of Sections 4, 7,
9, 10, 11 and 12 hereof.
20. FURTHER ASSURANCES
The parties agree to execute and deliver all such further
documents, agreements and instruments and take such other and further
action as may be necessary or appropriate to carry out the purposes
and intent of this Agreement.
21. HEADINGS
The Section headings appearing in this Agreement are for the
purposes of easy reference and shall not be considered a part of this
Agreement or in any way modify, demand or affect its provisions.
22. COUNTERPARTS
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, under seal, as of the date and year first above written.
DESIGNS, INC.
By:/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Senior Vice President
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
