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EXHIBIT 10.8
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT made and entered into as of the 23rd day of
April, 1996 made by Xxxx Xxxxxx, a resident of the State of California
("Xxxxxx"), Xxxxx Xxxxxxx, a resident of the State of California ("Xxxxxxx"),
Xxx Xxxx, a resident of the State of California ("Ezra"), Xxxxxx X. Xxxxxx, Xx.,
a resident of the State of California ("Xxxxxx"; and together with Xxxxxx,
Xxxxxxx and Xxxx being sometimes hereinafter referred to individually as a
"Shareholder" and collectively as the "Shareholders") in favor of Xxxxxxxxx ESOP
Capital Partners, A Minnesota Limited Partnership ("CECP").
WITNESSETH
WHEREAS, prior to giving effect to the Transactions (each capitalized
term not otherwise defined herein being used herein as defined in the Purchase
Agreement hereinafter described), the Shareholders own beneficially and of
record all of the issued and outstanding shares of the existing common stock of
Xxxxx Instruments Corp. (the "Company");
WHEREAS, the Shareholders desire to consummate the Managing Group Stock
Sale and to cause the Company to consummate the other Transactions;
WHEREAS, in connection with the consummation of the Transactions, the
Company and CECP have entered into a Securities Purchase Agreement dated as of
the date hereof (the "Purchase Agreement") pursuant to which CECP will purchase
1,000 shares of the Company's Series A Preferred Stock, no par value (the
"Preferred Stock") and Warrants permitting CECP to acquire 1,000,000 shares of
the Series A Common Stock;
WHEREAS, CECP has required that the Shareholders enter into this
Agreement as a condition precedent to CECP's obligation to purchase the
Preferred Stock and the Warrants:
WHEREAS, each Shareholder deems it in his best interest to enter into
this Agreement in order to induce CECP to purchase the Preferred Stock and the
Warrants.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Shareholders,
intending to be legally bound unto CECP, agree with CECP as follows:
1. Personal Representations and Warranties. In order to induce CECP to purchase
the Preferred Stock and the Warrants, each Shareholder severally (and not
jointly and severally) represents and warrants (such representations and
warranties being such Shareholder's "Personal Representations and Warranties")
to CECP that:
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a. Residency; etc. Such Shareholder is a resident of
California and has all requisite power and authority and full legal
capacity to execute and deliver the Transaction Documents to which such
Shareholder is a party.
b. Authorization; Approvals. The execution, delivery and
performance by such Shareholder of the Transaction Documents to which
such Shareholder is party do not conflict with or result in any breach
of any provision of, or the creation of any Lien upon any of such
Shareholder's property or require any consent, approval or filing
pursuant to any law, regulation, order, judgment, writ, injunction,
license, permit, agreement or instrument.
c. Enforceability. The execution and delivery by such
Shareholder of the Transaction Documents to which such Shareholder is a
party will result in legally binding obligations of such Shareholder
enforceable against such Shareholder in accordance with the respective
terms and provisions thereof, except to the extent that: (i) such
enforceability is limited by applicable law, including bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors' rights; or (ii) the
availability of the remedy of specific performance or injunctive or
other equitable relief is subject to the discretion of the court before
which any proceeding therefor may be brought.
d. Capital Structure. On the Closing Date, after giving effect
to the Transactions and the exercise of the Warrants, the Company will
have no outstanding capital stock other than 3,500,000 shares of Series
A Common Stock, 1,500,000 shares of Series B Common Stock and 1,000
shares of Preferred Stock, all of which will be owned as set forth in
Schedule 4.4(a) to the Purchase Agreement and will be duly authorized,
validly issued, fully paid and nonassessable. Except for the Warrants
and the Series B Common Stock, the Company has no outstanding rights
(either pre-emptive or other) or options to subscribe for or purchase
from the Company and no warrants or other agreements providing for or
requiring the issuance by the Company of, any capital stock or any
securities convertible into or exchangeable for its capital stock.
e. Stock Ownership. On the Closing Date, after giving effect
to the Transactions, such Shareholder (and, in the case of Xxxxxx or
Xxxxxxx, the Xxxxxx Trust or the Xxxxxxx Trust, as the case may be)
owns good title to the shares of Series A Common Stock of the Company
described on Exhibit A to the Shareholder Agreement free and clear of
all liens, proxies, encumbrances, security interests, contractual
rights or any other known claims of any kind whatsoever except for
those imposed by the Shareholder Agreement.
f. Brokerage. There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the
Transactions based on any arrangement or agreement made by or on behalf
of such Shareholder.
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g. Incorporation of Shareholder's Representations and
Warranties in Related Agreements. The representations and warranties
made by such Shareholder in Section 3(a)(i) and Section 3(a)(ii) of the
ESOP Purchase Agreement to which such Shareholder is a party are true
and correct in all material respects as of the date hereof with the
same force and effect as though made on and as of the date hereof, and
such representations and warranties are hereby confirmed to CECP and
made as part of the Personal Representations and Warranties of such
Shareholder hereunder as fully as if set forth herein.
h. Potential Conflicts of Interest. Except as set forth on
Schedule 4.23 to the Purchase Agreement, neither such Shareholder nor
any Affiliate of such Shareholder: (i) owns, directly or indirectly,
any interest in (excepting not more than 1% stock holdings for
investment purposes in securities of publicly held and traded
companies) or is an officer, director, employee or consultant of any
Person which is a competitor, lessor, lessee, customer or supplier of
the Company; (ii) owns, directly or indirectly, in whole or in part,
any tangible or intangible property which the Company is using or the
use of which is necessary for the business of the Company; or (iii) has
any cause of action or other claim whatsoever against, or owes any
amount to, the Company, except for claims in the ordinary course of
business, such as for accrued vacation pay, accrued benefits under
employee benefit plans and similar matters and agreements.
i. Survival. The Personal Representations and Warranties shall
survive the Closing Date and the consummation of the Transactions,
subject to the limitations set forth in Section 3 hereof.
2. Joint and Several Representations and Warranties. In order to induce
CECP to purchase the Preferred Stock and the Warrants, the Shareholders jointly
and severally represent and warrant (such representations and warranties being
the "Joint and Several Representations and Warranties") to CECP that:
a. Incorporation of the Company's Representations and
Warranties in Purchase Agreement. All representations and warranties
made by the Company in the Purchase Agreement are true and correct in
all material respects as of the date hereof with the same force and
effect as though made on and as of the date hereof, and such
representations and warranties are hereby confirmed to CECP and made
the Joint and Several Representations and Warranties of the
Shareholders hereunder as fully as if set forth herein as being made by
the Shareholders; provided, however, that the Joint and Several
Representations and Warranties, other than those constituting Major
Joint and Several Representations and Warranties described in
subsection b. below, are, in and every case, qualified as being made
only to the best of the Shareholders' Knowledge thereof.
b. Major Joint and Several Representations and Warranties. The
Joint and
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Several Representations and Warranties made by the Company in Section
4.6(a)(i) and (ii), Section 4.6(b), Section 4.6(c), Section 4.13,
Section 4.14, Section 4.19, Section 4.22(a) and/or Section 4.28(b) of
the Purchase Agreement are sometimes hereinafter referred to as the
"Major Joint and Several Representations and Warranties") and are not
qualified as being made only to the best of the Shareholders' Knowledge
thereof.
c. Knowledge. For purposes of this Agreement, "Shareholders'
Knowledge" shall mean only the present actual knowledge of any
Shareholder.
d. Survival. The Joint and Several Representations and
Warranties shall survive the Closing Date and the consummation of the
Transactions, subject to the limitations set forth in Section 3 hereof.
3. Indemnification.
a. Several Shareholder Indemnity. Subject to the limitation on
the time period during which CECP must assert a claim for
indemnification set forth in subsection c. below and to the limitation
on a Shareholder's Maximum Liability for claims for indemnification set
forth in subsection g. below, each Shareholder shall severally (and not
jointly and severally) indemnify CECP and hold it harmless against any
Loss which CECP suffers, sustains or becomes subject to as a result of
any breach by such Shareholder of his Personal Representations and
Warranties or any breach by such Shareholder of his duties,
obligations, covenants and agreements under the Shareholder Agreement
(any such Losses collectively being the "Individual Losses" and any
such Loss individually being an "Individual Loss"); provided, however,
that CECP shall not be entitled to seek indemnification from any
Shareholder until the aggregate amount of the Individual Losses
sustained by CECP as a result of any breach by such Shareholder of his
Personal Representations and Warranties or any breach by such
Shareholder of his duties, obligations, covenants and agreements under
the Shareholder Agreement exceeds $125,000, in which case CECP shall be
entitled to indemnification against all such Losses relating back to
the first dollar for: (A) 50% of the first $62,500 of all Individual
Losses; and (B) 100% of all Individual Losses in excess of $62,500.
b. Joint and Several Shareholder Indemnity. Subject to the
limitation on the time period during which CECP must assert a claim for
indemnification set forth in subsection c. below and to the limitation
on a Shareholder's Maximum Liability for claims for indemnification set
forth in subsection g. below, the Shareholders shall jointly and
severally indemnify CECP and hold it harmless against any Losses which
CECP suffers, sustains or becomes subject to as a result of any breach
of the Joint and Several Representations and Warranties including,
without limitation, the Major Joint and Several Representations and
Warranties (any such Losses collectively being the "Joint and Several
Losses" or any such Loss individually being a "Joint and Several
Loss"); provided, however, that:
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i. except for those Joint and Several Losses which
result from a breach of a Major Representation and Warranty
where no Shareholder had Knowledge of such breach on the
Closing Date as to which CECP may only seek indemnification if
the threshold specified in subsection ii. is satisfied, CECP
shall not be entitled to seek indemnification for any Joint
and Several Loss until the aggregate amount of Joint and
Several Losses is at least $500,000 in which case CECP shall
be entitled to indemnification relating back to the first
dollar for: (A) 50% of the first $500,000 of all Joint and
Several Losses; and (B) 100% of all Joint and Several Losses
in excess of $500,000; or
ii. with respect to any Joint and Several Loss
resulting from a breach of a Major Representation and Warranty
where no Shareholder had Knowledge of such breach on the
Closing Date, CECP shall not be entitled to seek
indemnification for any such Joint and Several Loss described
in this subsection ii. until the aggregate amount of such
Joint and Several Losses is at least $2,000,000 in which case
CECP shall be entitled to indemnification relating back to the
first dollar for: (A) 50% of the first $2,000,000 of such
Joint and Several Losses; and (B) 100% of all such Joint and
Several Losses in excess of $2,000,000.
c. Notice of Claim. No Shareholder shall be liable for
any claim for indemnification under subsections a. or b. above unless
written notice specifying in reasonable detail the nature of the claim
for indemnification is delivered by CECP to the applicable Shareholder
prior to:
i. the second anniversary of the Closing Date with
respect to claims for indemnification arising from a breach of
either a Personal Representation and Warranty or a Joint and
Several Representation and Warranty (other than a Major Joint
and Several Representation and Warranty);
ii. the third anniversary of the Closing Date with
respect to claims for indemnification arising from a breach of
a Major Joint and Several Representation and Warranty; or
iii. the expiration of the applicable statute of
limitations with respect to claims for indemnification arising
from any breach by any Shareholder of any of his duties,
obligations, covenants and agreements under the Shareholder
Agreement.
d. Third Party Claims.
i. Promptly after the assertion by any third party
of any claim (a "Third Party Claim") against CECP that results
or may result in the incurrence
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by CECP of any Loss for which CECP would be entitled to
indemnification pursuant to this Agreement, CECP shall
promptly notify each Shareholder of such Third Party Claim;
provided, however, that the failure of CECP to give such
notice promptly shall not relieve the non-notified Shareholder
of any liability under this Agreement unless such failure
prevents such Shareholder from effectively defending CECP
against such Third Party Claim.
ii. If, within 30 days after CECP has given
notice of the Third Party Claim in accordance with subsection
i. above, one or more of the Shareholders obligated to
indemnify CECP against any Loss from such Third Party Claim
notifies CECP in writing that such Shareholder (the
"Indemnifying Shareholder(s)") will indemnify CECP from and
against the Loss which CECP may suffer resulting from, arising
out of, relating to, in the nature of, or caused by the Third
Party Claim to the extent required by this Agreement, then
such Indemnifying Shareholders will have the right to defend
CECP against the Third Party Claim with counsel (which is
reasonably satisfactory to CECP) selected by the relevant
Indemnifying Shareholder with respect to any claim for
indemnification against any Individual Loss or jointly by the
Indemnifying Shareholders with respect to any claim for
indemnification against any Joint and Several Loss and, in
either case, so long as:
A. the Third Party Claim involves only money
damages and does not seek an injunction or other
equitable relief;
B. settlement of, or an adverse judgment
with respect to, the Third Party Claim is not, in the
good faith judgment of CECP, likely to establish a
precedential custom or practice materially adverse to
the continuing business interests of CECP;
C. the Indemnifying Shareholders conduct the
defense of the Third Party Claim actively and
diligently;
D. counsel employed by the Indemnifying
Shareholders on behalf of CECP is reasonably
satisfactory to CECP and no conflict of interest has
arisen which would prevent counsel for the
Indemnifying Shareholders from also representing CECP
because the defendants in any action include both
CECP and any Indemnifying Shareholder;
E. no conflict of interest or other conflict
or disagreement has arisen between or among the
Shareholders which CECP determines, in its reasonable
business judgment, could impair CECP's defense of
such Third Party Claim;
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F. the Indemnifying Shareholders have posted
any bond reasonably requested by CECP to secure the
Shareholders' indemnification obligations hereunder
with respect to such Loss; and/or
G. no Shareholder will consent to the entry
of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior
written consent of CECP (not to be withheld
unreasonably).
In the event any of the conditions of this subsection ii. is
or becomes unsatisfied, CECP may defend against, and consent
to the entry of any judgment or enter into any settlement with
respect to, the Third Party claim in any manner it may
reasonably deem appropriate (and CECP need not consult with,
or obtain any consent from, any Shareholder in connection
therewith) and the Shareholders obligated to indemnify CECP
under this Agreement will reimburse CECP promptly and
periodically for the costs of defending against the Third
Party Claim (including reasonable attorneys' fees and
expenses); and (xvii) such Shareholders will remain
responsible for any Loss which CECP may suffer resulting from,
arising out of, relating to, in the nature of, or caused by
the Third Party Claim to the fullest extent provided for and
required by this Agreement.
iii. So long as the Indemnifying Shareholders are
conducting the defense of the Third Party Claim in accordance
with subsection ii. above, CECP: A. may retain separate
co-counsel at its sole cost and expense and participate in the
defense of the Third Party Claim; B. will not consent to the
entry of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior written
consent of the relevant Indemnifying Shareholder with respect
to any claim for indemnification against any Individual Loss
or of all of the Indemnifying Shareholders with respect to any
claim for indemnification against any Joint and Several Loss
(in either case, not to be withheld unreasonably).
e. Co-operation. From time to time, as and when
requested by any party hereto and at such party's expense, any other
party shall execute and deliver, or cause to be executed and delivered,
all such documents and instruments and shall take, or cause to be
taken, all such further or other actions as such other party may
reasonably deem necessary or desirable to evidence and effectuate the
transactions contemplated by this Agreement.
f. Certain Company Settlements. During any period when
CECP is exercising its rights under the Charter and the Purchase
Agreement to designate the majority of the Company's directors after
the occurrence of a Specified Event of Non-Compliance, then CECP and
the Shareholders agree to the following with respect to any claim
then or thereafter asserted by or against the Company (a "Company
Claim") that
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may give rise to a Loss:
i. CECP shall promptly notify each Shareholder of
any Company Claim first arising after CECP's designated
directors constitute a majority of the Company's board of
directors (such date being the "CECP Control Date"); provided,
however, that the failure of CECP to give such notice promptly
shall not relieve the Shareholders of any liability under this
Agreement; and
ii. CECP agrees that it will not consent to the entry
of any judgment or enter into any settlement on behalf of the
Company with respect to any Company Claim (regardless of
whether first asserted before or after the CECP Control Date)
that may give rise to a Loss without the prior written consent
of the "Majority Shareholders" (as defined in the Shareholder
Agreement), which consent is not to be withheld unreasonably;
provided, however, that the Shareholders' rights to withhold
consent are expressly conditioned upon each of the
Shareholders, within 10 days after CECP has notified the
Shareholders of CECP's intent to consent to the entry of a
judgment or to enter into such settlement: A. delivering an
agreement in writing to indemnify CECP against the Loss to the
extent required by this Agreement; and B. posting security
reasonably acceptable to CECP to secure the Shareholder's
indemnification obligations hereunder with respect to such
Loss; provided further, however, that the failure of any one
or more of the Shareholders to agree to indemnify CECP and/or
post security shall not affect the other Shareholders' rights
to consent to a settlement hereunder if the other Shareholders
agree to increase their respective indemnification obligations
and provide additional security by the amount necessary to
satisfy the conditions of subsections A. and B. above as if
all of the Shareholders had complied with such conditions. If
the Shareholders fail to satisfy the conditions to withholding
consent set forth in this subsection, then CECP may consent to
the entry of the relevant judgment or enter into the relevant
settlement without affecting any Shareholder's obligations
under this Agreement. Each Shareholder hereby agrees to be
bound by the acts of the Majority Shareholders with respect to
the granting or the withholding of the consent permitted by
this Section; provided, however, that nothing in this Section
affects the rights of the Shareholders among themselves.
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g. Limitation of Liability. Notwithstanding anything to the
contrary set forth in this Agreement, no Shareholder shall be liable
for Losses that exceed the aggregate amount set forth in the following
table for such Shareholder (such amount being such Shareholder's
"Maximum Liability"):
Shareholder Maximum Liability
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Xxxxxx $4,589,979.00
Xxxxxxx $2,744,987.00
Ezra $1,061,996.00
Xxxxxx $ 602,997.00.
h. Settlements. CECP and each Shareholder reserve the right to
settle any claim for indemnification against such Shareholder for any
Joint and Several Loss without affecting CECP's rights against any
other Shareholder so long as CECP agrees to indemnify such settling
Shareholder against any claim made by any other Shareholder for
contribution or indemnity for damages claimed by CECP against the
non-settling Shareholders, whether such claim for contribution or
indemnification by the non-settling Shareholders is alleged by reason
of judgment, settlement or otherwise, but specifically excluding any
claim by the non-settling Shareholders arising out of an express
written indemnification or contribution agreement between the settling
Shareholder and the non-settling Shareholder.
i. Loss. For purpose of this Agreement, "Loss(es)" shall mean
any loss, liability, damage or expense (including reasonable legal and
accounting fees and expenses) which CECP suffers, sustains or becomes
subject to as a result of the described event.
5. Miscellaneous
a. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this subsection, may not be amended,
modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless such amendment,
modification, supplement, waiver or consent is approved in writing by
CECP and the Indemnifying Shareholder with respect to any matter
relating to such Shareholder's liability for CECP's Individual Losses
or each Shareholder with respect to any matter relating to the
Shareholders' liability for CECP's Joint and Several Losses
b. Notices. Any notice provided for in this Agreement will be
in writing and will be deemed properly delivered if either personally
delivered or sent by overnight courier or telecopier or mailed
certified or registered mail, return receipt requested, postage
prepaid, to the recipient at the address specified below:
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i. If to CECP, at CECP's address for notices
under the Shareholder Agreement; and
ii. If to any Shareholder, at:
00000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
and thereafter at such other address, notice of which is given in
accordance with the provisions of this subsection b. Any such notice
shall be effective (A) if delivered personally or by telecopy, when
received, (B) if sent by overnight courier, when receipted for, and (C)
if mailed, three (3) days after being mailed as described above.
c. Successors and Assigns. This Agreement shall bind and
inure to the benefit of the parties hereto and their respective
successors, assigns, heirs and personal representatives.
d. Counterparts. This Agreement may be executed in two
or more counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same instrument.
e. Headings. The headings in this Agreement are for
convenience of reference only and shall not constitute a part of this
Agreement, nor shall they affect their meaning, construction or effect.
f. Governing Law. The validity, performance,
construction and effect of this Agreement shall be governed by and
construed in accordance with the internal laws of the State of
Minnesota, without giving effect to any choice or conflict of law
provision or rule that would cause the application of the domestic
substantive laws of any other state.
g. Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
h. Effect of Third Party Awards or Tax Benefits. Without
any party agreeing or admitting what the basis will be for calculating
CECP's damages arising from any Loss, CECP and the Shareholders agree
that, if the calculation of CECP's damages as based on a reduction in
the value of the Company, then CECP's claim shall be adjusted pro rata
based on CECP's interest in the Company for all Third Party Awards
actually
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recovered by the Company and all Tax Benefits. As used herein, "Third
Party Awards" shall mean any actual net recoveries by the Company from
third parties (including, without limitation, from insurance and third
party indemnifications) arising in connection with the any claim for a
Loss for which Shareholder is also potentially liable. As used herein,
"Tax Benefits" shall mean the then net present value to the Company of
any permanent tax related loss, deduction or credits actually used by
the Company or any of its subsidiaries (computed after taking into
account any indemnification payment made, including taxes thereon) in
connection with a Loss for which a Shareholder is also potentially
liable.
i. Entire Agreement. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof and
supersede all prior agreements and understandings with respect to such
subject matter, and the parties hereto have made no agreements,
representations or warranties relating to the subject matter of this
Agreement which are not set forth herein.
j. CONSENT TO JURISDICTION. AT THE OPTION OF CECP, THIS
AGREEMENT MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE COURT
SITTING IN MINNEAPOLIS OR ST. XXXX, MINNESOTA; AND EACH SHAREHOLDER
CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY
ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT THAT
ANY SHAREHOLDER COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE
UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM
THE RELATIONSHIP CREATED BY THIS AGREEMENT, THEN CECP, AT ITS OPTION,
SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE
JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE
ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT
PREJUDICE. EACH SHAREHOLDER CONSENTS THAT SERVICE OF PROCESS WITH
RESPECT TO ANY SUCH COURTS IN AND OF THE STATE OF MINNESOTA MAY BE MADE
BY REGISTERED MAIL TO HIM AT HIS ADDRESS FOR NOTICES HEREUNDER.
k. WAIVER OF JURY TRIAL. EACH SHAREHOLDER AND CECP HEREBY
EXPRESSLY WAIVE ANY RIGHT THEY MAY HAVE TO A JURY TRIAL IN ANY SUIT,
ACTION OR PROCEEDING EXISTING UNDER OR RELATING TO THIS AGREEMENT.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Indemnity Agreement as of the date set forth in the first paragraph hereof.
/s/ XXXX XXXXXX
-----------------------------------
Xxxx Xxxxxx
/s/ XXXXX XXXXXXX
-----------------------------------
Xxxxx Xxxxxxx
/s/ XXX EZRA
-----------------------------------
Xxx Xxxx
/s/ XXXXXX X. XXXXXX, XX.
-----------------------------------
Xxxxxx X. Xxxxxx, Xx.
Accepted as of this 23rd day of April, 1996.
Xxxxxxxxx ESOP Capital Partners,
A Minnesota Limited Partnership
By: Xxxxxxxxx Capital Investment Partners,
A Minnesota Limited Partnership
Its: General Partner
By: Xxxxxxxxx Capital, Inc.
Its: General Partner
By: /s/ XXXXXX X. XXXXX
-----------------------------
Its: Vice President
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