Exhibit 10.34
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT"), dated as of December 14,
1998, is by and between FirstWorld Communications, Inc., a Delaware corporation
(the "COMPANY"), and Xxxxxxx X. Xxxxx ("EXECUTIVE").
RECITAL
The Company desires to employ Executive, effective as of January 4,
1999 (the "COMMENCEMENT DATE"), on the terms and conditions set forth in this
Agreement, and Executive desires to be so employed.
AGREEMENT
IN CONSIDERATION of the premises and the mutual covenants set forth
below, the parties hereby agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ Executive as the
General Counsel of the Company, and Executive hereby accepts such employment, on
the terms and conditions hereinafter set forth.
2. TERM. The period of employment of Executive by the Company hereunder
(the "EMPLOYMENT PERIOD") shall commence at the Commencement Date and shall
continue through January 3, 2001. The Employment Period may be sooner terminated
by either party in accordance with Section 5 of this Agreement.
3. POSITION AND DUTIES. During the Employment Period, Executive shall
serve as the General Counsel of the Company. Executive shall devote such time,
attention and energies to Company affairs as are necessary to fully perform his
duties (other than absences due to illness or vacation) for the Company. During
the Employment Period, Executive shall not, directly or indirectly, render
services to any other organization, entity or person, as an employee,
independent contractor, consultant or otherwise, with or without compensation,
without the prior written consent of the Board of Directors of the Company (the
"BOARD"); PROVIDED, HOWEVER, that, without obtaining the prior written consent
of the Board, Executive may (i) render services, with or without compensation,
to Executive's and his wife's business distributing health products and (ii)
provide occasional legal advice and assistance to friends and family, so long as
the provision of any of the foregoing services does not interfere with
Executive's ability to perform his duties to the Company hereunder.
4. COMPENSATION AND RELATED MATTERS.
(a) EQUALIZATION PAYMENT. To compensate Executive for certain
benefits that he may lose or forfeit as a result of his termination of
employment with his former employer and commencement of employment with the
Company, the Company shall pay Executive in cash a
$30,000 payment (the "EQUALIZATION PAYMENT") payable with Executive's first
regularly scheduled paycheck in January, 1999.
(b) SALARY. During the Employment Period, the Company shall
pay Executive an annual base salary of an amount not less than $160,000 per year
("BASE SALARY"). Executive's Base Salary shall be paid in approximately equal
installments in accordance with the Company's customary payroll schedule and
practices. Executive's Base Salary shall be subject to annual reviews commencing
December 1999 and each year thereafter. If Executive's Base Salary is increased
by the Company, such increased Base Salary shall then constitute the Base Salary
for all purposes of this Agreement. All compensation paid to Executive shall be
subject to withholding and other employment taxes imposed by applicable law.
(c) ANNUAL BONUS. The Board's compensation committee (the
"COMPENSATION COMMITTEE") shall review Executive's performance at least once
annually during each year of the Employment Period and, based on Executive's
performance, recommend whether the Company should award Executive a cash bonus
("BONUS") in order to reward Executive for services rendered to the Company
and/or as an incentive for continued service to the Company. The amount of
Executive's Bonus, if any, shall be determined in the reasonable discretion of
the Compensation Committee and shall be dependent upon, among other things, the
achievement of certain performance levels by the Company, including, without
limitation, (i) the nature, magnitude and quality of the services performed by
Executive for the Company, (ii) the condition (financial and other) and results
of operations of the Company and (iii) the compensation paid for positions of
comparable responsibility and authority within the telecommunications industry.
The targeted amount of Executive's Bonus shall be an amount equal to 35% of Base
Salary at 100% completion of applicable performance levels, to be set forth in
the Company's Annual Bonus Plan.
(d) STOCK OPTIONS. Effective as of the Commencement Date,
Executive shall be awarded a stock option (the "STOCK OPTION") to purchase
150,000 shares of the Company's Series B Common Stock, par value $.0001 per
share (the "COMMON STOCK"). The shares of Common Stock subject to the Stock
Option shall vest in increments of 37,500 shares on each of the first, second,
third and fourth anniversaries of the Commencement Date, with the shares in the
first such increment having an exercise price of $6.00, shares in the second
such increment having an exercise price of $6.50, shares in the third such
increment having an exercise price of $7.00 and shares in the fourth such
increment having an exercise price of $7.50. The Stock Option will be granted
under one of the Company's stock option plans and the terms and conditions of
the Stock Option will be determined in accordance with the applicable stock
option plan. Notwithstanding any provision in this Agreement to the contrary,
the Common Stock subject to the Option shall, if not already vested, immediately
vest prior to a change in control of the Company whereby the Company is no
longer controlled by the persons or entities who currently own more than fifty
percent of the voting control of the Company or upon termination of Executive's
employment by the Company without Cause or by the Executive for Good Reason.
(e) EXPENSES. The Company shall promptly reimburse Executive
for all reasonable business expenses upon the presentation of reasonably
itemized statements of such expenses in accordance with the Company's policies
and procedures now in force or as such
2
policies and procedures may be modified with respect to all senior executive
officers of the Company.
(f) WELFARE AND PENSION PLANS. In addition to Executive's Base
Salary and any incentive compensation and bonuses awarded to Executive
hereunder, he (and his family) shall be entitled to participate, to the extent
that he is (and they are) eligible under the terms and conditions thereof, in
any pension, retirement, hospitalization, insurance, disability or medical
service plan generally available to the executive officers of the Company that
may be in effect from time to time during the Employment Period. The Company
shall be under no obligation to institute or continue the existence of any such
employee benefit plan.
5. TERMINATION. Executive's employment hereunder may be terminated
during the Employment Period under the following circumstances:
(a) DEATH. Executive's employment hereunder shall terminate
upon his death.
(b) DISABILITY. If, as a result of Executive's incapacity due
to physical or mental illness, Executive shall have been substantially unable to
perform his duties hereunder for an entire period of ninety (90) consecutive
days, and within thirty (30) days after written Notice of Termination (as
defined in Section 6(a)) is given after such ninety (90) day period, Executive
shall not have returned to the substantial performance of his duties on a
full-time basis, the Company shall have the right to terminate Executive's
employment hereunder for "Disability," and such termination in and of itself
shall not be, nor shall it be deemed to be, a breach of this Agreement.
(c) CAUSE. The Company shall have the right to terminate
Executive's employment for Cause (as defined), and such termination in and of
itself shall not be, nor shall it be deemed to be, a breach of this Agreement.
For purposes of this Agreement, the Company shall have "Cause" to terminate
Executive's employment upon Executive's:
(i) conviction of, or plea of guilty or nolo
contendere to, any crime constituting a felony;
(ii) commission of a material act of dishonesty,
fraud, misrepresentation or other act of moral turpitude that
would, in the Board's reasonable judgment, prevent the
effective performance of his duties hereunder;
(iii) continued failure to substantially and
materially perform his duties hereunder to the reasonable
satisfaction of the Board (other than such failure resulting
from Executive's incapacity due to physical or mental illness
or subsequent to the issuance of a Notice of Termination by
Executive for Good Reason (as defined in Section 5(d)) after
demand for substantial performance is delivered by the Board
in writing that specifically identifies the manner in which
the Board believes Executive has not used reasonable best
efforts to substantially perform his duties; or
3
(iv) willful misconduct (including, but not limited
to, a willful breach of the provisions of Section 8) that is,
in the Board's reasonable judgment, injurious to the Company
or to any entity in control of, controlled by or under common
control with the Company ("AFFILIATE").
For purposes of this Section 5(c), no act, or failure to act, by
Executive shall be considered "willful" unless committed in bad faith and
without a reasonable belief that the act or omission was in the best interests
of the Company or any Affiliates thereof; PROVIDED, HOWEVER, that the
requirements outlined in paragraphs (iii) or (iv) above shall be deemed to have
occurred if Executive's action or non-action continues for more than thirty (30)
days after Executive has received written notice of the inappropriate action or
non-action. This Section 5(c) shall not prevent Executive from challenging the
Board's determination that Cause exists or that Executive has failed to cure any
act (or failure to act) that purportedly formed the basis for the Board's
determination, under the arbitration procedures set forth in Section 10 below.
(d) GOOD REASON. Executive may terminate his employment for
"Good Reason" within thirty (30) days after Executive has actual knowledge of
the occurrence, without the written consent of Executive, of one of the
following events that has not been cured within thirty (30) days after written
notice thereof has been given by Executive to the Company (PROVIDED, that with
respect to this Section 5(d), the Company shall have the right to challenge
Executive's determination that he has the right to terminate his employment for
"Good Reason" under the arbitration procedures set forth in Section 10 below):
(i) a reduction by the Company in Executive's Base
Salary or a failure by the Company to pay any such amounts
when due;
(ii) any purported termination of Executive's
employment for Cause which is not effected pursuant to the
procedures of Section 5(c) (and for purposes of this
Agreement, no such purported termination shall be effective);
(iii) the Company's failure to provide the Stock
Option or the Company's material breach of one or more of the
stock option agreements pursuant to which the Stock Option was
issued to Executive;
(iv) the Company's failure to substantially provide
any material employee benefits due to be provided to
Executive; or
(v) the Company's failure to provide in all material
respects the indemnification set forth in the agreement
referenced in Section 9 of this Agreement.
Executive's continued employment during the thirty (30) day period
referred to above in this paragraph (d) shall not constitute Executive's consent
to, or a waiver of rights or remedies with respect to, any act or failure to act
constituting Good Reason hereunder.
4
(e) WITHOUT GOOD REASON OR CAUSE. Executive shall have the
right to terminate his employment hereunder without Good Reason and the Company
shall have the right to terminate Executive's employment hereunder without Cause
by providing the other with a Notice of Termination, and such termination shall
not in and of itself be, nor shall it be deemed to be, a breach of this
Agreement.
6. TERMINATION PROCEDURE.
(a) NOTICE OF TERMINATION. Any termination of Executive's
employment by the Company or by Executive during the Employment Period (other
than termination pursuant to Section 5(a)) shall be communicated by written
Notice of Termination (as defined below) to the other party hereto in accordance
with Section 12 below. For purposes of this Agreement, a "Notice of Termination"
shall mean a notice which shall indicate the specific termination provision in
this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(b) DATE OF TERMINATION. "Date of Termination" shall mean (i)
if Executive's employment is terminated by his death, the date of his death,
(ii) if Executive's employment is terminated pursuant to Section 5(b), thirty
(30) days after Notice of Termination (provided that Executive shall not have
returned to the substantial performance of his duties on a full-time basis
during such thirty (30) day period) and (iii) if Executive's employment is
terminated for any other reason, the date on which a Notice of Termination is
given or any later date (within thirty (30) days after the giving of such
notice) set forth in such Notice of Termination.
7. COMPENSATION UPON TERMINATION OR DURING DISABILITY. In the event
Executive is disabled or his employment terminates during the Employment Period,
the Company shall provide Executive with the payments and benefits set forth
below. Executive acknowledges and agrees that the payments set forth in this
Section 7 constitute liquidated damages for termination of his employment during
the Employment Period.
(a) TERMINATION BY COMPANY WITHOUT CAUSE OR BY EXECUTIVE FOR
GOOD REASON. If Executive's employment is terminated by the Company without
Cause or by Executive for Good Reason:
(i) the Company shall pay to Executive a severance
payment equal to the amount of Base Salary Executive would have
received under the Agreement if Executive had remained employed
throughout the Employment Period stated in Section 2, plus accrued
vacation, within thirty (30) days following the Date of Termination;
(ii) the Company shall reimburse Executive pursuant
to Section 4(e) for reasonable expenses incurred, but not paid prior to
such termination of employment; and
(iii) Executive shall be entitled to any other
rights, compensation and/or benefits as may be due to Executive in
accordance with the terms and provisions of any
5
agreements, plans or programs of the Company, including, but not
limited to, the items described in Section 5(d)(iii), (iv) and (v)
above.
(b) TERMINATION BY COMPANY FOR CAUSE OR BY EXECUTIVE WITHOUT
GOOD REASON. If Executive's employment is terminated by the Company for Cause or
by Executive (other than for Good Reason):
(i) the Company shall pay Executive his Base Salary
and, to the extent required by law or the Company's vacation policy,
his accrued vacation pay through the Date of Termination, as soon as
practicable following the Date of Termination;
(ii) the Company shall reimburse Executive pursuant
to Section 4(e) for reasonable expenses incurred, but not paid prior to
such termination of employment, unless such termination resulted from a
misappropriation of Company funds; and
(iii) Executive shall be entitled to any other
rights, compensation and/or benefits as may be due to Executive in
accordance with the terms and provisions of any agreements, plans or
programs of the Company, including, but not limited to, the items
described in Section 5(d)(iii), (iv) and (v) above.
(c) DISABILITY. During any period that Executive fails to
perform his duties hereunder as a result of incapacity due to physical or mental
illness, Executive shall continue to receive his full Base Salary set forth in
Section 4(b) until his employment is terminated pursuant to Section 5(b). In the
event Executive's employment is terminated for Disability pursuant to Section
5(b):
(i) the Company shall pay to Executive his Base
Salary and accrued vacation pay through the Date of Termination, within
30 days following the Date of Termination;
(ii) the Company shall reimburse Executive pursuant
to Section 4(e) for reasonable expenses incurred, but not paid prior to
such termination of employment; and
(iii) Executive shall be entitled to any other
rights, compensation and/or benefits as may be due to Executive in
accordance with the terms and provisions of any agreements, plans or
programs of the Company, including, but not limited to, the items
described in Section 5(d)(iii), (iv) and (v) above.
(d) DEATH. If Executive's employment is terminated by his
death:
(i) the Company shall pay in a lump sum to
Executive's beneficiary, legal representatives or estate, as the case
may be, Executive's Base Salary through the Date of Termination;
6
(ii) the Company shall reimburse Executive's
beneficiary, legal representatives, or estate, as the case may be,
pursuant to Section 4(e) for reasonable expenses incurred, but not paid
prior to such termination of employment; and
(iii) Executive's beneficiary, legal representatives
or estate, as the case may be, shall be entitled to any other rights,
compensation and benefits as may be due to any such persons or estate
in accordance with the terms and provisions of any agreements, plans or
programs of the Company, including, but not limited to, the items
described in Section 5(d)(iii), (iv) and (v) above.
8. CONFIDENTIAL INFORMATION, OWNERSHIP OF DOCUMENTS.
(a) CONFIDENTIAL INFORMATION. Executive shall hold in a
fiduciary capacity for the benefit of the Company all Confidential Information
(as defined below) relating to the Company and its businesses and investments,
which shall have been obtained by Executive during Executive's employment by the
Company and which is not generally available public knowledge (other than by
acts of Executive in violation of this Agreement). Except as may be required or
appropriate in connection with his carrying out his duties under this Agreement,
Executive shall not, without the prior written consent of the Company or as may
otherwise be required by law or any legal process, or as is necessary in
connection with any adversarial proceeding against the Company (in which case
Executive shall use his reasonable best efforts in cooperating with the Company
in obtaining a protective order against disclosure by a court of competent
jurisdiction), communicate or divulge any such Confidential Information relating
to the Company to anyone other than the Company and those designated by the
Company or on behalf of the Company in the furtherance of its business or to
perform duties hereunder.
For the purposes hereof, the term "Confidential Information" means, with respect
to any person, any information concerning such person or its business, products,
financial condition, prospects and affairs that is not generally available to
the public. The term Confidential Information shall not include information
that: (i) is already known to the recipient and was properly obtained by the
recipient prior to the date of this Agreement; (ii) is in the public domain
other than through a negligent act or omission or willful misconduct of the
recipient; (iii) is acquired in good faith from a third party and, at the time
of the acquisition, the recipient had no knowledge or reason to believe that
such information was wrongfully obtained or disclosed by the third party; (iv)
is independently developed by the recipient from information not defined as
"Confidential Information" in this Agreement, as evidenced by the recipient's
written records; (v) is disclosed to third parties by the disclosing party
without restriction; (vi) is required to be disclosed under applicable law or by
a valid subpoena or other court or governmental order, decree, regulation or
rule; PROVIDED, HOWEVER, that if disclosure is required under this provision the
recipient shall advise the disclosing party of the requirement to disclose the
Confidential Information prior to such disclosure and as soon as reasonably
practicable after the recipient becomes aware of such required disclosure; and
FURTHER PROVIDED THAT upon the request of the disclosing party, the recipient
agrees to cooperate in good faith with any reasonable and lawful actions which
the disclosing party takes to resist such disclosure, Limit the information to
be disclosed or limit the
7
extent to which the information so disclosed may be used or made available to
third parties, at the cost of the disclosing party.
(b) REMOVAL OF DOCUMENTS; RIGHTS TO PRODUCTS. All records,
files, drawings, documents, models, equipment, and the like relating to the
Company's business, which Executive has control over shall not be removed from
the Company's premises by Executive without the Board's written consent, unless
such removal is in the furtherance of the Company's business or is in connection
with Executive's carrying out his duties under this Agreement and, if so removed
by Executive, shall be returned to the Company promptly after termination of
Executive's employment hereunder, or otherwise promptly after removal if such
removal occurs following termination of employment. Executive shall assign to
the Company all rights to trade secrets and other products relating to the
Company's business developed by him alone or in conjunction with others at any
time while employed by the Company.
(c) CONTINUING OPERATION. Except as specifically provided in
this Section 8, the termination of Executive's employment or of this Agreement
shall have no effect on the continuing operation of this Section 8.
9. INDEMNIFICATION. Upon the Commencement Date, Executive will enter
into the Company's standard directors and officers indemnification agreement.
10. ARBITRATION. Any controversy between Executive and the Company
involving the construction or application of any of the terms, provisions or
conditions of this Agreement, including, without limitation, the determination
of whether "Cause" or "Good Reason" exists under Section 5(c) or Section 5(d)
hereof and claims involving specific performance, shall on the written request
of either party served on the other in accordance with Section 12 below be
submitted to binding arbitration. EACH PARTY, BY SIGNING THIS AGREEMENT,
VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY WAIVES ANY RIGHTS SUCH PARTY MAY
OTHERWISE HAVE TO SEEK REMEDIES IN COURT OR OTHER FORUMS, INCLUDING THE RIGHT TO
A JURY TRIAL. Arbitration shall comply with and be governed in accordance with
the Commercial Arbitration Rules of the American Arbitration Association (the
"AAA"). The arbitration will be conducted only in Denver, Colorado, before a
single arbitrator selected by the parties or, if they are unable to agree on an
arbitrator, before an arbitrator selected by the AAA. The arbitrator shall have
full authority to order specific performance and award damages and other relief
available under this Agreement or applicable law, but shall have no authority to
add to, detract from, change or amend the terms of this Agreement or existing
law. All arbitration proceedings, including settlements and awards, shall be
confidential. The decision of the arbitrator will be final and binding, and
judgment on the award by the arbitrator may be entered in any court of competent
jurisdiction. THIS SUBMISSION AND AGREEMENT TO ARBITRATE WILL BE SPECIFICALLY
ENFORCEABLE. The arbitrator will have no power to award punitive or exemplary
damages, to ignore or vary the terms of this Agreement and any other agreement
between Executive and the Company and will be bound to apply controlling law.
Each party shall pay its own costs and attorneys' fees associated with the
arbitration. Each party will be responsible for 1/2 of the amounts payable to
the arbitrator in connection with the arbitration.
8
11. SUCCESSORS; BINDING AGREEMENT.
(a) COMPANY'S SUCCESSORS. No rights or obligations of the
Company under this Agreement may be assigned or transferred, except that the
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as herein before defined and any
successor to its business and/or assets (by merger, purchase or otherwise) which
executes and delivers the agreement provided for in this Section 11 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
(b) EXECUTIVE'S SUCCESSORS. No rights or obligations of
Executive under this Agreement may be assigned or transferred by Executive other
than his rights to payments or benefits hereunder, which may be transferred only
by will or the laws of descent and distribution. Upon Executive's death, this
Agreement and all rights of Executive hereunder shall inure to the benefit of
and be enforceable by Executive's beneficiary or beneficiaries, personal or
legal representatives or estate, to the extent any such person succeeds to
Executive's interests under this Agreement. Executive shall be entitled to
select and change a beneficiary or beneficiaries to receive any benefit or
compensation payable hereunder following Executive's death by giving the Company
written notice thereof. In the event of Executive's death or a judicial
determination of his incompetence, reference in this Agreement to Executive
shall be deemed, where appropriate, to refer to his beneficiary(ies), estate or
other legal representative(s). If Executive should die following his Date of
Termination while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts unless otherwise provided herein shall be
paid in accordance with the terms of this Agreement to such person or persons so
appointed in writing by Executive, or otherwise to his legal representatives or
estate.
12. NOTICE. For the purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered either personally or by
United States certified or registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to Executive:
Xxxxxxx X. Xxxxx
0000 X. Xxxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
9
If to the Company:
FirstWorld Communications, Inc.
0000 X. Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn.: Secretary
Telecopy: (000) 000-0000
With a copy to:
Xxxxx X. Xxxx, Esq.
Xxxxxx & Xxxxxxx
000 "X" Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
13. WAIVER. No provisions of this Agreement may be amended, modified,
or waived unless such amendment or modification is agreed to in a writing signed
by Executive and by a duly authorized officer of the Company, and such waiver is
set forth in writing and signed by the party to be charged. No waiver by either
party hereto at any time of any breach by the other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
14. SURVIVAL. Except as otherwise expressly set forth herein, the
respective rights and obligations of the parties under this Agreement shall
survive Executive's termination of employment and the termination of this
Agreement to the extent necessary for the intended preservation of such rights
and obligations.
15. CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Colorado without regard to its conflicts of law principles.
16. VALIDITY. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument. Facsimile signatures will
be deemed to be effective originals hereunder.
10
18. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto in respect of such
subject matter. Any prior agreement of the parties hereto in respect of the
subject matter contained herein is hereby terminated and canceled.
19. WITHHOLDING. All payments hereunder shall be subject to any
required withholding of Federal, state and local taxes pursuant to any
applicable law or regulation.
20. SECTION HEADINGS. The section headings in this Agreement are for
convenience of reference only, and they form no part of this Agreement and shall
not affect its interpretation.
[REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY]
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
FIRSTWORLD COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXX
------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
/s/ XXXXXXX X. XXXXX
--------------------
XXXXXXX X. XXXXX
12
