EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of April 16, 1999 (the
"Effective Date"), between XXXXXX INDUSTRIES, INC., a Texas corporation (the
"Company"), and X. X. XXXXXXXXX ("Executive").
WHEREAS, the Company desires to employ Executive, and Executive desires to
be employed by the Company, upon the terms and subject to the conditions set
forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Employment and Duties. Upon the terms and subject to the conditions
set forth herein, the Company hereby employs Executive during the Term (as such
term is hereinafter defined), and Executive accepts employment with the Company
during the Term, to serve as President and Chief Executive Officer of the
Company. Executive shall perform such additional executive duties and
responsibilities with the Company and/or its direct or indirect subsidiaries,
and shall enjoy such additional offices and powers, as may be assigned or
delegated to Executive from time to time by the Board of Directors of the
Company or its designee. The Executive shall report to the Board of Directors
of the Company or its designee.
2. Term. The initial term of this Agreement and Executive's employment
hereunder shall commence on the Effective Date and continue until December 31,
2000 (the "Initial Expiration Date"), unless sooner terminated pursuant to the
termination provisions hereof. The term of this Agreement and Executive's
employment hereunder is referred to herein as the "Term".
3. Exclusive Service. Executive shall devote his exclusive and full time
services to the performance of his duties and obligations hereunder during the
Term and to the business of the Company; provided, however, that, subject to
Executive's fiduciary duties and to the restrictions set forth in Sections 9
through 11 hereof, (i) Executive shall not be prohibited from investing his
assets in such form or manner as will not require his services in the operation
of the affairs of the entities in which such investments are made or, in the
aggregate, detract from the performance by Executive of his duties and
obligations hereunder, and (ii) Executive may engage in activities involving
charitable, educational, religious and similar types of organizations, speaking
engagements and similar type activities to the extent that such other activities
do not detract from the performance by Executive of his duties and obligations
hereunder.
4. Compensation. As compensation for services rendered to the Company
pursuant to this Agreement, the Company shall pay to Executive a base salary
(the "Base Salary"). The Base Salary shall be paid at an annual rate of
$425,000. The Base Salary will be paid in equal periodic installments in
accordance with the standard payroll policies, practices and procedures of the
Company as from time to time in effect, from which shall be deducted state and
federal income taxes, local income or earnings taxes, social security taxes, and
such other and similar payroll taxes and charges as may be required or
appropriate under applicable law. In addition to Base Salary, Executive shall
be entitled to participate in any bonus program for officers or key employees of
the Company, if and to the extent and for such period of time that the Company,
in its sole discretion, establishes such a program, subject to such performance
goals, targets and other terms and conditions as may be made applicable to
Executive under any such program, which terms and conditions may be different
from those offered to other officers and employees of the Company. Further, the
Company shall (a) grant to Executive an option to purchase 18,000 shares of the
common stock of the Company, in accordance with the terms of the Company's 1999
Performance Incentive Plan and the Stock Option Agreement attached hereto as
Exhibit A, and (b) grant to Executive 10,000 shares of restricted common stock
in accordance with the terms of the Company's 1999 Performance Incentive Plan
and the Restricted Stock Award Agreement attached hereto as Exhibit B.
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5. Expense Reimbursement. The Company shall pay or reimburse Executive
for all reasonable out-of-pocket expenses incurred or paid by the Executive in
the course of his duties hereunder in accordance with the Company's standard
policies, practices and procedures as in effect generally from time to time with
respect to a person holding an executive office with the Company.
6. Other Benefits. During the Term, Executive shall be entitled to such
holidays and sick leave as are consistent with the Company's standard policies
for a person holding an executive office with the Company. Executive shall also
be eligible, from and after the Effective Date, for participation in such group
insurance, hospitalization, major medical, dental and disability insurance as
such programs may be from time to time implemented, modified or maintained and
made available in the sole discretion of the Company for a person holding an
executive office with the Company.
7. Early Termination of Term of Agreement; Effect of Termination.
(a) The Term and the employment of Executive hereunder may be
terminated (a "Termination") prior to the Initial Expiration Date or any Renewal
Expiration Date in any of the following circumstances:
(i) immediately, if Executive dies; or
(ii) by the Company in the event of illness, accident or other
disability (physical or mental) of Executive as a result of which
Executive is unable to perform the duties required hereunder for such
period of time provided by the Company's then disability policy or, if
no such disability policy is in effect, for a period of 60 days during
any 12 month period. The Company may terminate the employment of
Executive by written notice to Executive, which notice shall be
effective upon the date of sending such notice.
(iii) by the Company at any time for its convenience and
without Cause upon 30 days' prior written notice thereof to Executive;
or
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(iv) by Executive for his convenience and without cause at any
time upon 30 days' prior written notice thereof to the Company; or
(v) at the option of the Company for "Cause" (as such term is
hereinafter defined) upon the Company providing written notice thereof
to the Company of the basis of such Termination.
(b) In addition to the foregoing, upon any expiration of the Term or
the occurrence of a Termination for any reason, then, except as otherwise
specified in this Agreement, the Company and Executive shall be released from
any further obligations hereunder, but the Company and Executive shall retain
and may exercise any and all remedies against the other, provided that
Executive's receipt of severance benefits pursuant to Section 8 hereof shall
constitute Executive's sole remedy with respect to this Agreement.
Notwithstanding the foregoing, the provisions of this Section 7(b) and Sections
8 through 18 hereof shall survive and continue after the effective date of any
expiration of the Term or any Termination.
(c) For purposes of this Agreement, "Cause" means (i) Executive shall
have committed an act of fraud, embezzlement, misappropriation or breach of
fiduciary duty against the Company, including without limitation the offer,
payment, solicitation or acceptance of any unlawful bribe or kickback with
respect to the Company's business, (ii) Executive shall have been convicted by a
court of competent jurisdiction of, or pleaded guilty or nolo contendere to, any
felony or any crime involving moral turpitude, (iii) Executive's breach of any
of the provisions of Section 3 or 9 hereof, (iv) the failure or refusal on the
part of Executive to follow the legitimate directions of the Company, (v)
Executive shall have reported to work impaired by or under the influence of
alcohol or illegal drugs, (vi) Executive shall have engaged in sexual harassment
or otherwise violated any harassment or discrimination law, (vii) Executive
shall have engaged in the unlawful use (including being under the influence) or
possession of illegal drugs on the Company's premises, (viii) excessive
absenteeism by Executive not related to illness, sick leave or vacations (but
only after written notice from the Company followed by a repetition of such
excessive absenteeism), or (ix) dishonesty of Executive.
8. Severance Benefits. If Executive's employment is terminated by his
death or by Company for any reason other than for Cause, then Executive (or his
estate in the event of his death) shall be entitled to receive (i) payment of
the unpaid portion, if any, of the Base Salary attributable to the period ending
on the effective date of such expiration or Termination and (ii) payment of any
expense reimbursements under Section 5 hereof for expenses incurred in the
performance of his duties hereunder prior to such expiration or Termination.
Except as otherwise set forth in this Section 8, Executive shall not be entitled
to any severance or other compensation after expiration or any Termination.
9. Confidentiality. Executive recognizes and acknowledges that he will
have access to certain information of the Company and that such information is
confidential and constitutes valuable, special and unique property of the
Company. Executive shall not at any time, either during or subsequent to the
Term, disclose to others, use, copy or permit to be copied, except in pursuance
of his duties for and on behalf of the Company, its successors, assigns or
nominees, any Confidential Information of the Company (regardless of whether
developed by Executive) without the prior written consent of the Company.
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As used herein, "Confidential Information" means: (i) information submitted
by the Company in connection with the negotiation or performance of this
Agreement, (ii) all information designated by the Company as secret,
confidential, company private or other similar classifications, (iii) all
information in the Company's possession concerning or belonging to third parties
under a contractual or legal obligation to maintain confidentiality, (iv) all
data generated as a result of the services rendered by Executive hereunder, and
(v) any and all documents, cards, tapes, discs and other media upon which such
data or information is contained. Confidential Information excludes information
(x) in the public domain, (y) independently acquired or developed without breach
of any legal or contractual obligation, and (z) information commonly known among
parties familiar with the businesses similar to those conducted by the Company.
10. Delivery of Documents upon Expiration or Termination. Executive shall
deliver to the Company or its designee at the expiration or termination of his
employment all correspondence, memoranda, notes, records, and other documents
and all copies thereof, made, composed or received by Executive, solely or
jointly with others, that are in Executive's possession, custody, or control at
expiration or termination of his employment and that are related in any manner
to the past, present, or anticipated business of the Company. In this regard,
Executive hereby grants and conveys to the Company all right, title and interest
in and to, including without limitation, the right to possess, print, copy, and
sell or otherwise dispose of, any reports, records, papers, summaries, or other
documents, and writings, and copies, abstracts or summaries thereof, that may be
prepared by or under his direction or that may come into his possession in any
way during the term of his employment with the Company that relate in any manner
to the past, present or anticipated business of the Company.
11. Injunctive Relief. Executive acknowledges that a breach of Sections 9
and 10 would cause irreparable damage to the Company, and in the event of
Executive's breach of the provisions of Sections 9 or 10, the Company shall be
entitled to a temporary restraining order and an injunction restraining
Executive from breaching such covenants without the necessity of posting bond or
proving irreparable harm, such being conclusively admitted by Executive.
Nothing shall be construed as prohibiting the Company from pursuing any other
available remedies for such breach, including the recovery of damages from
Executive. Executive acknowledges that the restrictions set forth in Sections 9
and 10 are reasonable in scope and duration, given the nature of the business of
the Company. Executive agrees that issuance of an injunction restraining
Executive from breaching such covenants in accordance with their terms will not
pose an unreasonable restriction on Executive's ability to obtain employment or
other work following the effective date of any Termination.
12. Other Agreements. The provisions of Sections 9 through 11 shall be
independent of and in addition to any other agreement between Executive and the
Company or its subsidiaries or affiliates regarding the subject matter of
Sections 9 through 11.
13. Entire Agreement. This Agreement is the entire agreement between the
parties hereto with respect to the subject matter hereof and shall not be
amended, altered, or modified in any manner whatsoever, except by a written
instrument executed by the parties hereto. This Agreement supersedes all prior
agreements between the Company and Executive with respect to the subject matter
hereof and all such prior agreements shall be void and of no further force or
effect as of the Effective Date.
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14. Waiver. The waiver by any party hereto of a breach of any provision
of this Agreement by the other party shall not operate or be construed as a
waiver of any subsequent breach.
15. Governing Law. THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE INTERPRETED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF TEXAS.
16. Assignability. Executive shall not, without the prior written consent
of the Company, assign, transfer, or otherwise convey this Agreement or any
right or interest herein. This Agreement and all rights and obligations of the
Company or any of its successors may be assigned or otherwise transferred to any
of its successors and shall be binding upon and inure to the benefit of its
successors. As used herein, the term "successor" shall mean any person,
corporation or other entity that, by merger, consolidation, purchase of stock,
assets, liquidation, voluntary or involuntary assignment, or otherwise, acquires
all or a substantial part of the assets of the Company or succeeds to one or
more lines of business of the Company.
17. Interpretation. The parties hereto acknowledge and agree that each
party and its counsel has reviewed and negotiated the terms and provisions of
this Agreement and have contributed to its revision and that the rule of
construction to the effect that any ambiguities are resolved against the
drafting party shall not be employed in the interpretation of this Agreement.
18. Notices. All notices hereunder shall be in writing, shall be
delivered personally or sent by certified or registered mail, postage prepaid,
return receipt requested, or by express or other delivery service, if to
Executive, to his attention at the address set forth below (or such other
address as designated from time to time by such party) and, if to the Company,
at the address set forth below (or such other address as designated from time to
time by such party). All notices hereunder shall be deemed effective when
received as set forth above. No notice shall be effective if given otherwise
than as provided herein.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the Effective Date.
ADDRESS: XXXXXX INDUSTRIES, INC.
0000 Xxxx Xxxxxxx Xxxxxx By: /S/XXXXXXX X. XXXXXX
Xxxx Xxxxx, Xxxxx 00000 -------------------------
Attention: Secretary Printed Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
ADDRESS:
/S/X. X. XXXXXXXXX
----------------------------
X. X. Xxxxxxxxx
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EXHIBIT A
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated April 16, 1999 (the "Option Agreement"),
between Xxxxxx Industries, Inc., a Texas corporation (the "Company"), and X. X.
Xxxxxxxxx (the "Optionee").
WHEREAS, the Company and the Optionee have entered into an Agreement, dated
April 16, 1999 (the "Agreement"); and
WHEREAS, such Agreement provides for the Company to grant a stock option to
the Optionee.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee, subject
to the terms and conditions set forth hereinafter, in the Company's 1999
Performance Incentive Plan (the "Plan") and in the Agreement, an option (the
"Option") to purchase from the Company 18,000 shares (the "Option Shares") of
Common Stock, par value $2.50 per share, of the Company at a purchase price of
$13.0625 per share.
2. Term of Option. The Option shall expire, and all rights granted
hereunder to purchase the Option Shares shall terminate, 5 years from the date
of this Option Agreement.
3. Vesting of Option. The Option shall become fully exercisable on the
second anniversary of the date hereof; provided, however, that in the event of a
Change in Control (as defined in the Agreement), the Option shall become fully
vested and immediately exercisable.
4. Exercise of Option. The Option shall be exercised, subject to the
conditions set forth in Section 5 hereof, by the Optionee's delivering written
notice of the exercise of the Option or any portion thereof to the Company's
Treasurer (or any other officer of the Company who is designated by the Company
to accept such notices on its behalf), specifying the number of shares for which
it is exercised. The Option price shall be paid in full at the time of exercise
either (i) in cash by United States currency or check, (ii) with the consent of
the Company, by tendering to the Company shares of Common Stock of the Company
held by the Optionee having a fair market value equal to the Option price, (iii)
with the consent of the Company, through withholding by the Company of Option
shares being exercised and having a fair market value equal to the Option price,
or (iv) any combination of (i), (ii), and (iii) above; at the election of the
Optionee, any tax due on the gain realized upon exercise of an Option may
likewise be paid, with the consent of the Company, as aforesaid. Upon exercise
of the Option or any portion thereof, the Company will, as promptly as
practicable, issue and deliver at the Company's corporate office a stock
certificate or certificates representing the Option Shares so purchased. If the
Company shall determine that it is required to withhold any federal, state or
local taxes as a result of the Optionee's exercise of the Option, the Company
shall give notice thereof to the Optionee and the Company shall not be obligated
to issue any Option Shares until the Optionee shall have paid to the Company by
certified or cashier's check the amount of such withholding taxes.
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5. Certain Conditions to Exercise of the Option. The Option Shares
delivered pursuant to the exercise of the Option may be subject to certain
restrictions as provided in the Plan.
6. Non-Assignability of Option. This Option shall not be transferable or
assignable by the Optionee otherwise than as permitted by the Plan.
7. Changes to Capital Structure. In the event of any stock dividend,
stock split, combination of shares, merger, consolidation, recapitalization,
reclassification or other similar capital or corporate structure change, the
number of Option Shares unpurchased and remaining subject to this Option and the
purchase price of such Option Shares shall be appropriately adjusted to reflect
such change.
8. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be delivered personally, sent by
facsimile transmission or certified, registered or express mail or overnight
courier service (postage and other charges prepaid), addressed:
If to the Optionee to:
X. X. Xxxxxxxxx
If to the Company to:
Xxxxxx Industries, Inc.
0000 Xxxx Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Attention: Secretary
or to such other address as the person to whom notice is to be given may have
previously furnished to the other in writing in the manner set forth above, and
such notice or communication shall be deemed given when received if personally
delivered or sent by facsimile transmission, or three days after being placed in
the U.S. mail if sent by registered or certified mail, or one day after being
sent by express mail or overnight courier.
9. Miscellaneous. The Optionee shall have no rights as a shareholder of
the Company or any claim to dividends with respect to any Option Shares until
such Option Shares are issued to the Optionee by the Company. Nothing contained
in this Option shall confer upon the Optionee any rights with respect to the
Company except as specifically set forth herein.
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10. Incorporation of Agreement Provisions. This Option Agreement is made
pursuant to the Plan and is subject to all of the terms and provisions of the
Plan as if the same were fully set forth herein. Capitalized terms not
otherwise defined herein shall have the same meanings set forth for such terms
in the Plan.
11. Governing Law. This Option Agreement shall be governed by and
construed in accordance with the law of the State of Texas.
12. Counterparts. This Option Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Option Agreement has been executed by the Company
and the Optionee as of the date first above written.
OPTIONEE:
/S/X. X. XXXXXXXXX
----------------------------
X. X. Xxxxxxxxx
XXXXXX INDUSTRIES, INC.
By: /S/XXXXXXX X. XXXXXX
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
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EXHIBIT B
RESTRICTED STOCK AWARD AGREEMENT
RESTRICTED STOCK AWARD AGREEMENT, dated April 16, 1999, between Xxxxxx
Industries, Inc., a Texas corporation (the "Company"), and X. X. Xxxxxxxxx (the
"Executive").
WHEREAS, pursuant to the provisions of the Company's 1999 Performance
Incentive Plan (the "Plan"), the Compensation Committee of the Board of
Directors of the Company (the "Committee") administers the Plan; and
WHEREAS, the Committee has determined that the Executive be granted a
Restricted Stock Award under the Plan for the number of shares of Common Stock
and upon the terms set forth below;
NOW, THEREFORE, the Company and the Executive hereby agree as follows:
1. Grant of Award. The Executive is hereby granted an award under the
Plan (the "Award"), subject to the terms and conditions hereinafter set forth,
with respect to 10,000 shares of Common Stock (the "Restricted Stock"). The
Executive shall be issued stock certificates evidencing the shares of Restricted
Stock covered by this Award. Such certificates shall be registered in the name
of the Executive, and shall bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to this Award, substantially in the
following form:
The transferability of this certificate and the shares of Common
Stock represented hereby are subject to the terms, conditions and
restrictions (including forfeiture) contained in the 1999 Performance
Incentive Plan of Xxxxxx Industries, Inc. and the Restricted Stock
Award Agreement entered into between the registered owner and Xxxxxx
Industries, Inc. Copies of such Plan and Agreement are on file in the
offices of Xxxxxx Industries, Inc., 0000 Xxxx Xxxxxxx Xxxxxx, Xxxx
Xxxxx, Xxxxx 00000.
The certificates evidencing the shares of Restricted Stock shall be held in
custody by the Company or its designee until the restrictions on such shares
shall have lapsed, and, as a condition of this Award, the Executive shall
deliver a stock power, duly endorsed in blank, relating to the shares of
Restricted Stock covered by this Award.
2. Transfer Restrictions. Except as expressly provided in the Plan, the
Restricted Stock issued with respect to this Award shall not be transferable or
assignable. This Award and the Restricted Stock issued with respect to this
Award may not be pledged or hypothecated or otherwise encumbered and shall not
be subject to execution, attachment or similar process. Upon any attempt to
effect any such disposition, or upon the levy of any such process, the Award
shall immediately become null and void and the shares of Restricted Stock
relating thereto shall be forfeited.
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3. Restrictions. The restrictions on the shares of Restricted Stock
shall lapse and such shares shall vest in accordance with the following
schedule:
(a) 5,000 shares of Restricted Stock shall vest at such time as the
last sale price of the Common Stock in the over-the-counter market as
reported by the Wall Street Journal is $16.00 per share for 10 consecutive
trading days;
(b) 2,500 shares of Restricted Stock shall vest at such time as the
last sale price of the Common Stock in the over-the-counter market as
reported by the Wall Street Journal is $18.00 per share for 10 consecutive
trading days; and
(c) 2,500 shares of Restricted Stock shall vest at such time as the
last sale price of the Common Stock in the over-the-counter market as
reported by the Wall Street Journal is $20.00 per share for 10 consecutive
trading days.
Notwithstanding the foregoing, the restrictions on the shares of Restricted
Stock, including vesting requirements, shall lapse at such time as a Change in
Control (as defined in the Plan) shall have occurred. Shares as to which
restrictions shall have lapsed shall no longer be deemed Restricted Stock. All
shares of Restricted Stock as to which the restrictions thereon shall not have
lapsed within five years following the date of this Agreement shall be
immediately forfeited to the Company.
4. Voting and Dividend Rights. During the period in which the
restrictions provided herein are applicable to the Restricted Stock, the
Executive shall have the right to vote the shares of Restricted Stock and to
receive any dividends paid or other distributions made with respect thereto;
provided, however, that any dividend or distribution payable with respect to
Restricted Stock shall be subject to the same restrictions and shall vest and
become payable or distributable to the Executive at the same time the related
Restricted Stock vests pursuant to Section 3 hereof. Any such dividend or
distribution shall be held by the Company for the account of the Executive,
subject to forfeiture pursuant to Section 3 hereof, until such time as the
related shares of Restricted Stock shall have become fully vested.
5. Distribution Following End of Restrictions. Upon the occurrence of
the vesting events provided in Section 3 hereof as to any portion of the
Restricted Stock, the Company will cause a new certificate evidencing such
number of vested shares of Common Stock to be delivered to the Executive, or in
the case of his death to his legal representative, beneficiary or heir, free of
the legend regarding transferability set forth in Section 1.
6. Tax Withholding. The obligation of the Company to deliver any
certificate to the Executive pursuant to Sections 1 and 5 hereof shall be
subject to the receipt by the Company from the Executive of any withholding
taxes required as a result of the grant of the Award or lapsing of restrictions
thereon. Subject to the consent of the Committee, the Executive may satisfy all
or part of such withholding tax requirement by electing to require the Company
to purchase that number of unrestricted shares of Common Stock designated by the
Executive at a price equal to the last sale price or closing "asked" price of
the Common Stock in the over-the-counter market as reported by the National
Association of Securities Dealers Automatic Quotation System or other national
quotation service on the date of lapse of the restrictions or, if no such sale
of Common Stock is reported on such day, on the next preceding day on which
trading occurred.
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7. Securities Laws Requirements. The Company shall not be required to
issue shares pursuant to the Award unless and until (a) such shares have been
duly listed upon each stock exchange, if any, on which the Common Stock is then
registered; and (b) the Company has complied with applicable federal and state
securities laws. The Committee may require the Executive to furnish to the
Company, prior to the issuance of any shares of Restricted Stock in connection
with this Award, an agreement, in such form as the Committee may from time to
time deem appropriate, in which the Executive represents that the shares
acquired by him under the Award are being acquired for investment and not with a
view to the sale or distribution thereof.
8. Incorporation of Plan Provisions. This Agreement is made pursuant to
the Plan and is subject to all of the terms and provisions of the Plan as if the
same were fully set forth herein, and receipt of a copy of the Plan is hereby
acknowledged by Executive. Capitalized terms not otherwise defined herein shall
have the same meanings set forth for such terms in the Plan.
9. Miscellaneous. This Agreement (a) shall be binding upon and inure to
the benefit of any successor of the Company, (b) shall be governed by the laws
of the State of Texas, and any applicable laws of the United States, and (c) may
not be amended without the written consent of both the Company and the
Executive. No contract or right of employment shall be implied by this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
XXXXXX INDUSTRIES, INC.
By: /S/XXXXXXX X. XXXXXX
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
-
EXECUTIVE:
/S/X. X. XXXXXXXXX
----------------------------
X. X. Xxxxxxxxx
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