EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this
1st day of April 1998 by and between Bay View Capital Corporation (the
"Corporation"), a Delaware Corporation, and Xxxxx X. Xxxxxxxxx (the
"Executive").
R E C I T A L S:
A. The parties desire to enter into this Agreement setting forth the
terms and conditions of the employment relationship between the Corporation and
the Executive.
B. The Board of Directors of the Corporation (or "Board") believes it
is in the best interests of the Corporation to enter into this Agreement with
the Executive in order to assure continuity of management of the Corporation,
and has approved and authorized the execution by the Corporation of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises herein contained, the parties hereto agree as follows:
1. Executive's Title, Duty, Authority and Time Commitment.
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a. Title. The Executive's position and title with the
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Corporation shall be that of Executive Vice President and Chief Financial
Officer.
b. Duties and Authority. The Executive's duties and authority
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shall be consistent with those of a Executive Vice President and Chief Financial
Officer. The Executive shall render such administrative and management services
to the Corporation as are customarily performed by persons employed in the
banking and financial services industry in a similar executive capacity. In
addition, the Executive shall perform such other duties as the Board, or its
authorized representative, may from time to time require. All duties performed
by the Executive hereunder shall be in accordance with such reasonable standards
as are established from time to time by the Board, or its authorized
representative, and performance evaluations shall be conducted by or under the
direction of the Board and reviewed with the Executive annually.
c. Time Commitment. During the "Term of this Agreement", as
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defined in Section 5 of this Agreement, unless the Executive has obtained the
prior written consent of the Board, or its authorized representative,
(1) The Executive shall render his full productive time and
services to the Corporation, keeping normal business hours, but is authorized to
engage in such banking trade association and related activities during normal
business hours which, in his judgment, with the concurrence of his immediate
supervisor, are in the business interests of the Corporation; and
(2) The Executive shall not render personal services to any
other person or entity for compensation, either as an Executive, consultant,
director or officer, if such services would conflict with the Executive's duty
to the Corporation or adversely affect the Executive's judgment in the
performance of his responsibilities. Executive shall remain free to engage in
community, charitable, political and personal pursuits which do not interfere
with his performance under this Agreement.
2. Compensation. The Corporation agrees to pay the Executive during
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the Term of this Agreement a base salary as follows: $275,000 per annum, with
the salary to be reviewed on July 1, 1998, and annually on each July 1st
thereafter during the Term of this Agreement. Salary increases are not
guaranteed or automatic. The salary provided for in this Agreement shall be
payable semi-monthly in accordance with the practices of the Corporation.
3. Discretionary Bonuses. The Executive shall be entitled to
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participate in discretionary bonuses and incentive payments which are now or
become authorized and declared by the Board or its authorized representative.
Executive shall be entitled to an annual performance bonus of up to fifty
percent (50%) of base salary depending upon the achievement of specific goals
set by the Company's Board of Directors.
4. Additional Benefits.
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a. Participation in Executive Benefit Plans. The Executive
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shall be entitled to participate in any plan of the Corporation, as such plan
may from time to time provide, relating to pension, thrift, deferred profit
sharing, group insurance coverage, education or retirement or other supplemental
Executive benefits that the Corporation has adopted or adopts for the benefit of
its Executives.
b. Fringe Benefits. The Executive shall be entitled to
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participate in any other program which is or becomes applicable to the
Corporation's executives, as such program may from time to time provide
including a reasonable expense account, the payment of reasonable expenses for
attending educational seminars and annual and periodic meetings of trade
associations, and other benefits which are commensurate with the
responsibilities and functions to be performed by the Executive under this
Agreement.
2.
5. Term.
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a. Initial Term and Automatic Extension. The initial term of
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employment under this Agreement shall be for a period commencing on January 1,
1998 and ending on December 31, 1998. On January 1, 1999 and on each January 1st
thereafter, the Term of this Agreement shall be extended automatically by one
additional year beyond the then current expiration date, unless either the
Corporation or the Executive gives contrary written notice to the other not less
than 45 days in advance of the date on which this Agreement would otherwise be
extended. Reference herein to the "Term of this Agreement" shall refer to the
term as so extended. Section 9, entitled "Change in Control," shall survive the
expiration of this Agreement for a period of one (1) year so long as Executive
is employed by the Corporation. If Executive is terminated by the Corporation
without cause pursuant to Section 7a(2), said Section 9 shall survive this
Agreement for a period of one (1) year from the date of termination of
employment.
b. Consequences of Non-Extension. If this Agreement is not
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extended, on the expiration of the Term of this Agreement, the Executive shall
be deemed to be employed by the Corporation for no specific term and the
Executive's rights as an Executive of the Corporation shall be no less than
those provided by the laws of the State of California and the laws of the United
States; provided, however, that such post expiration employment may be
terminated at any time by the Executive or by the Board, or its authorized
representative, with or without cause by delivery to the Executive of a written
notice (the "Termination Notice") of such termination.
6. Voluntary Absences. At such reasonable times as the Board, or
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its authorized representative, shall in its discretion permit, the Executive
shall be entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment under this Agreement. All such voluntary absences
shall count as holidays, vacation time, floating holidays, sick leave,
compensatory time or other paid time off as specified in Corporation policy,
provided that:
a. Vacation Entitlement. The Executive shall be entitled to an
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annual paid vacation of 20 days per year.
b. Timing of Vacation. Vacations shall be scheduled in a
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reasonable manner by the Executive and subject to the Corporation's needs,
except that the Executive shall take not less than ten (10) days vacation
consecutively in each calendar year.
3.
7. Termination of Employment.
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a. Termination by Corporation. The Executive's employment under
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this Agreement may be terminated, with or without cause, at any time by the
Board, or its authorized representative, by delivery to the Executive of a
written notice (the "Termination Notice") of such termination. The Termination
Notice shall state the effective date of such termination and whether such
termination is for "cause," as defined in Section 7a(1), or without cause
pursuant to Section 7a(2). Unless the Termination Notice states that the
termination is for cause and states with reasonable particularity the cause, the
termination shall be deemed to be without cause pursuant to Section 7a(2). In
the event an arbitrator appointed pursuant to Section 13 of this Agreement
determines that a purported termination for cause was in fact without proper
cause, the termination shall nonetheless be effective, but the Executive shall
be entitled to the severance payment pursuant to Section 7a(2) hereof.
(1) Termination by Corporation for Cause. The Executive's
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employment under this Agreement may be terminated at any time by the Board, or
its authorized representative, for "cause," which shall include, but not be
limited to the following:
(a) The commission by the Executive of an act of
misconduct (including, but not limited to, the violation of any law, rule,
regulation or cease and desist order applicable to the Executive or the
Corporation or its insured subsidiaries), or an act which constitutes a breach
of a fiduciary duty owed by the Executive involving personal profit;
(b) The Executive's material breach of this Agreement,
dishonesty, incompetence, willful misconduct, habitual unexcused absence from
work, intentional failure to perform duties, or gross negligence in the
performance of stated duties;
(c) The Executive's becoming physically or mentally
incapable of performing the essential functions of his employment position, with
or without reasonable accommodation, for a period in excess of the applicable
leave entitlement mandated by Federal or State law; or
(d) Any criminal conviction of the Executive (other
than for a minor traffic violation or similar offense), whether or not in the
line of duty.
In the event of termination for cause under this Section 7a(1), the Executive
shall have no right to receive compensation or other benefits under this
Agreement for any period after such termination.
4.
(2) Termination by Corporation Without Cause. The
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Executive's employment under this Agreement may be terminated at any time by the
Board, or its authorized representative, without cause; provided, however, that
unless the termination of this Agreement is for "cause," as set forth in Section
7a(1), or pursuant to Sections 7b, 7c, or 9, then, upon such termination, in
addition to any benefits that had accrued to the date of termination but in lieu
of any rights or benefits that would have accrued following such termination,
the Executive shall be entitled, upon execution of a Severance Agreement and
Release as provided in Exhibit A, to a lump sum severance payment of eighteen
(18) months salary.
b. Termination by the Executive. This Agreement may be
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terminated by the Executive at any time upon 30 days written notice to the
Corporation or upon such shorter period as may be agreed upon between the
Executive and the Board.
c. Termination by Death. In the event of the death of the
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Executive during the Term of this Agreement, the Executive's estate, or such
person as the Executive may have previously designated in writing for group
insurance purposes, shall be entitled to receive the salary due the Executive
through the last day of the calendar month in which his death shall have
occurred.
8. Disability. If the Executive shall become disabled or
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incapacitated to the extent that he is unable to perform the essential functions
of his employment position, with or without reasonable accommodation, he shall
be entitled to receive disability benefits of the type provided for other
employees of the Corporation. In such event, 90 days after the last day the
Executive worked, any rights of the Executive to receive the salary provided in
Section 2 of this Agreement shall be suspended until the Executive is able to
resume performance of his duties.
9. Change in Control. If during the Term of this Agreement, or
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within one (1) year following the expiration of this Agreement and if Executive
is employed by the Corporation, there is a "change in control," of the
Corporation, as hereinafter defined, the Executive shall be entitled, upon
execution of a Severance Agreement and Release as provided in Exhibit A, to a
severance payment in the event the Executive's employment is terminated, other
than for "cause" as set forth in Section 7a(1) or pursuant to Sections 7b
(except as provided below), or 7c, within twenty-four (24) months after the
change in control. The amount of this payment shall equal two hundred
percent(200%) of the Executive's annual salary as of the date of termination and
shall be in lieu of any severance payment that would be due Executive under
Section 7a(2). Except as provided above, such termination or severance payment
shall be in addition to all other
5.
amounts payable to the Executive pursuant to this Agreement. This termination or
severance payment shall also be made in the case of a termination of employment
by the Executive pursuant to Section 7b of this Agreement within twenty-four
(24) months after a change in control because during such twenty-four (24) month
period there has been a material diminution of or interference with the
Executive's duties, responsibilities and benefits as Executive Vice President
and Chief Financial Officer of the Corporation and Executive Vice President and
Chief Operating Officer of Bay View Bank. By way of example and not by way of
limitation, any of the following actions, if unreasonable or materially adverse
to the Executive, shall constitute such diminution or interference unless
consented to in writing by the Executive: (i) a change in the principal
workplace of the Executive to a location more than 25 highway miles from the
Executive's current office location; (ii) a reduction or adverse change in the
salary or benefits which had theretofore been provided to the Executive, other
than as part of an overall program applied uniformly and with equitable effect
to all members of senior management of the Corporation; or (iii) a change in
Executive's title.
Any payments made to the Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with 12 U.S.C.
Section 1828(k) and any regulations promulgated thereunder.
The term "change in control" as applied to the Corporation is defined
solely as any acquisition of control of the Corporation (other than pursuant to
the acquisition by a trustee or other fiduciary holding securities under an
Executive benefit plan of the Corporation), as defined in 12 C.F.R. Section
574.4, or any successor regulation, which would require the filing of an
application for acquisition of control or notice of change in control as set
forth in 12 C.F.R. Section 574.3, or any successor regulation.
10. Successors and Assigns. The terms, provisions, covenants, and
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conditions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; provided,
however, that the Executive may not sell, assign, pledge, hypothecate or
otherwise transfer this Agreement or any part thereof without the prior written
consent of the Corporation, which consent may be withheld by the Corporation for
any reason it deems appropriate. "Successors and assigns" shall mean, in the
case of the Corporation, any successor pursuant to a merger, consolidation or
sale or transfer of all or substantially all of the assets of the Corporation.
6.
11. Indemnification. The Corporation hereby agrees that the
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Corporation shall indemnify the Executive to the fullest extent permitted by the
Corporation's Bylaws and by Delaware corporate law.
12. Excise Taxes. In the event it shall be determined that any
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payment or distribution by the Corporation or its affiliates to or for the
benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of the Agreement or otherwise, but
determined without regard to any additional payments required under this Section
12) (a "Payment") would be subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code (the "Code") or any interest or penalties are incurred
by the Executive with respect to such excise (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by the
Executive of all taxes (including any interest or penalties imposed with respect
to such taxes), including, without limitations, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payment.
13. Confidential Information
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a. Non-Disclosure. Employee hereby agrees that, during the Term
of this Agreement and thereafter, he will not disclose to any person, or
otherwise use or exploit any of the proprietary or confidential information or
knowledge, including without limitation, trade secrets, processes, records of
research, proposals, reports, methods, techniques, customer lists and customers,
computer software or programming, budgets or financial information, or other
confidential information and/or trade secrets, regarding the Corporation, its
businesses, properties or affairs obtained by him at any time prior to or
subsequent to the execution of this Agreement, except to the extent required by
his performance or assigned duties for the Corporation. Executive understands
that proprietary or confidential information does not include any of the
foregoing items which (i) have become publicly known or made generally available
through no wrongful act of Executive or of others who were under confidentiality
obligations as to the item or items involved, or (ii) are independently
developed by the Executive without the use of proprietary or confidential
information. In addition, Employee agrees not to divulge, publish or otherwise
reveal, during the Term of this Agreement or thereafter, either directly or
indirectly, or through another, to any person, firm or corporation, for
competitive purposes, any knowledge or information or any facts concerning the
methods and techniques used by the Corporation to conduct
7.
business, the names of customers and others who have relationships with the
Company, or other confidential information and/or trade secrets used by the
Corporation in the operation of its business. During the Term of this Agreement:
(i) Employee agrees to disclose to the Corporation the identity and nature of
any contacts with any person or entity soliciting from Employee disclosure of
any such information or soliciting Employee's involvement in any business
venture competitive with the Corporation; and (ii) Employee shall not conceal
from or fail to disclose to the Corporation, or divert or exploit for his own
personal profit or that of others, any business opportunity or other opportunity
to acquire an interest in or a contractual relationship with any person or
entity where such person or entity is in the Corporation's line of business or
where such contractual relationship would be considered a feasible and
advantageous opportunity for the Corporation.
b. Return of Materials. Upon termination of employment,
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Employee will deliver to the Corporation all tangible displays and repositories
of process, records of research, proposals, reports, memoranda, computer
software and programming, budgets and other financial information, and other
materials or records or writings of any type (including any copies thereof)
made, used or obtained by Employee in connection with his employment by the
Corporation; provided, however, that documents relating to Employee's employment
arrangements with the Corporation or his personal affairs shall be excluded from
the provisions herein. Notwithstanding the foregoing, Employee will be entitled
to have reasonable access to such property as is necessary for and in order to
prosecute or defend any legal action or proceeding or to respond to a court or
arbitration order.
c. The Employee acknowledges that the restrictions contained in
the foregoing paragraphs of this Section 13, in view of the nature of the
businesses in which the Corporation is engaged, are reasonable and necessary in
order to protect the legitimate interests of the Corporation, and that any
violation thereof would result in irreparable and substantial harm to the
Corporation for which the Corporation does not have an adequate remedy at law,
and the Employee therefore acknowledges that, in the event of his actual or
threatened violations of any of these restrictions, the Corporation shall be
entitled to obtain from any court of competent jurisdiction temporary,
preliminary and permanent injunctive relief as well as damages and equitable
accounting of all earnings, profits and other benefits arising from such
violation, which rights shall be cumulative and in addition to any other rights
or remedies to which the Corporation may be entitled.
d. In the event that the Corporation believes that it is
entitled to relief under this Section 13, the Corporation will provide written
notice to Employee specifying the
8.
nature of any alleged breach of this section. The Corporation shall be obligated
to discuss with Employee in good faith whether such breach has occurred and, if
so, whether such breach can be cured. If Employee cures such breach within
fifteen (15) days from the date of such notice, Employee shall not be deemed to
be in breach of this Section 13.
14. Arbitration. The parties hereby agree that any controversy or
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dispute arising out of or relating to this Agreement shall be resolved pursuant
to this Section 14.
a. Agreement to Negotiate. Prior to submitting any controversy,
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dispute or claim arising out of, or relating to, this Agreement to arbitration,
the parties hereto agree to observe the following procedures:
(1) The party desiring to submit any such controversy,
dispute or claim to arbitration (the "claimant") first shall give written notice
thereof to the other party (the "recipient") setting forth in detail the
pertinent facts and circumstances relating to such controversy, dispute or
claim;
(2) The recipient shall have a period of fifteen (15) days
after receipt of written notice in which to consider the controversy, dispute or
claim which is the subject of the notice and to furnish in writing to the
claimant a written statement of the recipient's position;
(3) Within seven (7) days of claimant's receipt of
recipient's written statement, the parties shall meet in an effort to resolve
amicably any differences which may exist and, failing such resolution, either or
both of the parties shall have the right to submit the matter to arbitration.
b. Procedure for Arbitration.
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(1) The parties hereby agree that any controversy, dispute
or claim arising out of, or relating to, this Agreement, or breach of this
Agreement, including disputes concerning termination of this Agreement, shall be
settled by arbitration in San Mateo, California. This agreement to arbitrate
shall be specifically enforceable. Judgment upon any award rendered by an
arbitrator may be entered in any court having jurisdiction.
(2) Any demand for arbitration must be served on the other
party within forty-five (45) days of the act or omission giving rise to the
controversy, dispute or claim.
(3) There shall be one impartial arbitrator chosen by the
parties from a list procured from the California Mediation and Conciliation
Service.
9.
(4) The arbitrator shall not extend, modify or suspend any
of the terms of this Agreement.
(5) The decision of the Arbitrator within the scope of the
submission shall be final and binding on all parties, and any right to judicial
action on any matter subject to arbitration hereunder is hereby waived (unless
otherwise provided by applicable law), except suit to enforce this arbitration
award.
(6) Executive agrees that such arbitration shall be the
exclusive forum for any controversy, dispute or claim arising out of or relating
to this Agreement, or breach or termination of this Agreement. Executive further
expressly agrees that in arbitration his exclusive remedy shall be a money award
not to exceed the amount of wages he would have earned under this Agreement but
for the alleged violation and the Executive shall not be entitled to any other
remedy, at law or in equity, including but not limited to reinstatement, other
money damages, punitive damages and/or injunctive relief.
(7) Each party shall pay such party's own attorney or other
representative, and the expenses of such party's witnesses and all other
expenses connected with his case. Other costs of the arbitration, including the
cost of any record or transcript of the arbitration, administrative fees,
arbitrator's fees, and all other fees and costs, shall be borne by the
Corporation; provided, however, that at the discretion of the Arbitrator, and
upon a preponderance of the evidence that one of the parties has engaged in
malice, fraud or oppression relating to the termination of the Executive's
employment, reasonable attorney's fees and costs may be awarded to the other
party.
15. General Provisions.
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a. Notices. Any notice, request, demand or other communication
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required or permitted hereunder shall be deemed to be properly given when
personally served in writing and when deposited in the United States mail,
registered or certified, postage prepaid, addressed to the party at the last
address supplied to the sending party by the addressed party.
b. Waiver. The waiver by any party of a breach of any provision
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of this Agreement by the other shall not operate or be construed as a waiver of
any subsequent breach of the same provision or any other provision of this
Agreement.
c. Entire Agreement. Except as provided herein, this Agreement
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contains the entire agreement of the parties. It supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of the Executive by the Corporation. Each party to this
Agreement
10.
acknowledges that no representations, inducements, promises or agreements, oral
or otherwise, have been made by any party, or anyone acting on behalf of any
party, which are not embodied herein, and that no other agreement, statement or
promise not contained in this Agreement shall be valid and binding.
d. Amendments. No amendments or additions to this Agreement
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shall be binding unless in writing and signed by both parties, except as herein
otherwise provided.
e. Paragraph Headings. The paragraph headings used in this
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Agreement are included solely for convenience and shall not affect, or be used
in connection with, the interpretation of this Agreement.
f. Severability. The provisions of this Agreement shall be
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deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof.
g. Governing Law. Except where federal law governs, this
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Agreement is to be governed by and construed under the internal substantive laws
of the State of California (and not under conflict of law principles) as such
laws apply to contracts made and to be performed entirely in the State of
California.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first hereinabove written.
BAY VIEW CAPITAL CORPORATION
/s/ XXXXXX X. XXXXXXX
________________________________________
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
THE EXECUTIVE
/s/ XXXXX X. XXXXXXXXX
________________________________________
Xxxxx X. Xxxxxxxxx
Executive Vice President
and Chief Financial Officer
11.
