JATO COMMUNICATIONS CORP.
FOUNDERS EMPLOYMENT TRANSITION AND SEPARATION AGREEMENT
FOR
XXXXX X. XXXXX
THIS FOUNDER EMPLOYMENT TRANSITION AND SEPARATION AGREEMENT
("AGREEMENT") is entered into as of the 10th day of February, 2000 ("Execution
Date") by and between XXXXX X. XXXXX ("Xx. Xxxxx") and JATO COMMUNICATIONS
Corp., a Delaware corporation (the "Company").
RECITALS
WHEREAS, Xx. Xxxxx is currently employed by the Company as its Vice
President, Customer Operations and Executive; and
WHEREAS, the Company and Xx. Xxxxx are parties to an employment
agreement dated April 16, 1999; and
WHEREAS, the Company has materially reduced the job responsibilities of
Xx. Xxxxx; and
WHEREAS, as a result of the material reduction of his job
responsibilities, Xx. Xxxxx has tendered his resignation with the Company under
the terms and conditions hereinafter set forth; and
WHEREAS, the Company has accepted Xx. Xxxxx' resignation as Vice
President, Customer Operations and Executive; and
WHEREAS, the Company and Xx. Xxxxx desire to replace the terms of the
April 16, 1999 Employment Agreement; and
WHEREAS, the Company wishes to employ Xx. Xxxxx in the capacity and
under the terms and conditions hereinafter set forth, and Xx. Xxxxx is willing
to be so employed by the Company.
NOW, THEREFORE, in consideration of the recitals set forth above that
are incorporated by reference herein and the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties hereto as
follows:
AGREEMENT
1. RESIGNATION. Xx. Xxxxx has tendered and the Company has accepted Xx.
Xxxxx' resignation as Vice President, Customer Operations and Executive and any
and all other positions he may have held with the Company or any affiliates or
subsidiaries of the Company.
2. CONTINUED EMPLOYMENT BY THE COMPANY. Xx. Xxxxx will continue as an
employee of the Company until such time as his employment is terminated as set
forth in paragraph 6 herein. From the Execution Date through the Separation
Date, as defined in paragraph 6 below, Xx. Xxxxx shall be available to provide
such services as are requested by the Company's Board of Directors.
2.1 COMPENSATION. The Company agrees to continue to compensate Xx.
Xxxxx at the same rate of regular salary he received as of the Execution Date,
less all applicable deductions and withholdings, payable on a semi-monthly basis
or in accordance with the Company's customary practices (as they may be changed
by the Company from time to time in its sole discretion).
2.2 BENEFITS. The Company shall continue to make available to Xx.
Xxxxx all Company benefits available and received by Xx. Xxxxx immediately
before the Execution Date. Notwithstanding the prior sentence, Xx. Xxxxx agrees
and acknowledges that from the Execution Date through the Separation Date, Xx.
Xxxxx is not entitled to nor will he accrue any vacation time, holiday leave or
sick leave.
2.3 RESTRICTED STOCK. As of the Execution Date, Xx. Xxxxx owns or
is deemed to be the beneficial owner of 1,157,334 shares of Common Stock, of
which 347,200 are vested and which 810,134 are not yet vested. Unless Xx. Xxxxx
voluntarily resigns as an employee or is terminated for Cause (as defined in
paragraph 6 below) prior to such date, the 810,134 unvested shares will vest the
earlier of the Company's initial public offering or in two equal installments of
405,067 shares on each of March 31, 2000 and June 30, 2000.
2.4 VOLUME LIMITATION. Should the Company launch a $130 million
initial public offering (IPO"), $5 million will be allocated for the sale of a
portion of the Founders' shares (for purposes herein the term "Founders" refers
to Xxxxx X. Xxxxx, Xxxxxxx Xxxxxx and Xxxxx X. Xxxx). The portion of the
offering allocated for the sale of the Founders' shares can be utilized only
after the Company has raised $125 million in gross proceeds. If, due to strong
market conditions, the size of the offering is increased above $130 million, 50%
of such increase will be allocated for the sale of additional Founders' shares.
If the Company raises at least $125 million in gross proceeds and if the
underwriter's over allotment option (the "Greenshoe") is exercised, 50% of the
Greenshoe will also be allocated for the sale of the Founders' shares. Xx. Xxxxx
and the other Founders, in addition to being bound by the standard 180 day
lockup agreement (the "Standard Lockup"), also agree that the number of shares
the Founders can sell during the 180 day period following the expiration of the
Standard Lockup (the "Additional Lockup") will be limited (the "Volume
Limitation Period"). The terms of the Volume Limitation Period are as follows:
(a) The Founders will be limited to the sale of an
aggregate of 750,000 shares every three months during the Volume Limitation
Period. The Founders shall be solely responsible for allocating the number of
shares each Founder will be permitted to sell per each three month period during
the Volume Limitation Period. However, if the Founders are not permitted to sell
at least $5 million of securities during the IPO, the three month period
limitation will be increased from 750,000 shares to 875,000 shares per each
three month period. Shares
sold under this provision may be sold in only broadly distributed underwritten
public offerings or normal Rule 144 open market transactions.
(b) As long as Xx. Xxxxx maintains ownership in the
Company Xx. Xxxxx shall also be bound by the following restrictions:
(i) to not knowingly sell his shares of the Company
stock to a person or group who, as a result of such sale, would own 5% or more
of the Company's outstanding stock or to directly or indirectly solicit any
person or group to purchase from him or any other Founder shares in the Company
if such person or group, as a result of such purchase, would own 5% or more of
the Company's outstanding stock; and
(ii) to not knowingly sell his shares of the Company
stock to a Company competitor (as defined in paragraph 8.1 below) or to directly
or indirectly solicit any competitor (as defined in paragraph 8.1 below) to
purchase from him shares in the Company; and
(iii) to not engage in, or support, a hostile proxy
solicitation.
2.5 THE DYNEX & CO. SHARES. The Company agrees, as allowed by
applicable law, to exclude from the Additional Lockup 66,666 shares of the
Company's Series A Preferred Stock held by DYNEX & Co of which Xx. Xxxxx' owes a
beneficial one-third interest in.
2.6 VACATION PAY-OUT. The parties agree that on the Separation
Date the accrued but unused vacation shall be 20 days.
2.7 SEPARATION AND RELEASE AGREEMENT. As part of this Agreement,
Xx. Xxxxx agrees to enter into the Separation and Release Agreement attached
hereto as Exhibit B, within the time set forth in said Separation and Release
Agreement.
3. POLICIES AND PROCEDURES. Xx. Xxxxx agrees that he is subject to and
will comply with the policies and procedures of the Company, as such policies
and procedures may be modified, added to or eliminated from time to time at the
sole discretion of the Company Board of Directors, except to the extent any such
policy or procedure specifically conflicts with the express terms of this
Agreement. Xx. Xxxxx further agrees and acknowledges that any written or oral
policies and procedures of the Company do not constitute contracts between the
Company and Xx. Xxxxx.
4. PROPRIETARY INFORMATION OBLIGATIONS.
4.1 AGREEMENT. Except as set forth herein, Xx. Xxxxx agrees to
continue to abide by Xx. Xxxxx' previously executed Non-Competition, Proprietary
Information and Inventions Agreement attached hereto as EXHIBIT A.
4.2 REMEDIES. Xx. Xxxxx' duties under the Non-competition,
Proprietary Information and Inventions Agreement shall survive termination of
his employment with the Company. Xx. Xxxxx acknowledges that a remedy at law for
any breach or threatened breach by him of the provisions of the Non-competition,
Proprietary Information and Inventions Agreement would be inadequate, and he
therefore agrees that the Company shall be entitled to injunctive relief in case
of any such breach or threatened breach. By seeking injunctive relief the
Company does not waive any other rights or remedies it may have.
5. OUTSIDE ACTIVITIES. Except with the prior written consent of the
Company's Board of Directors, Xx. Xxxxx will not, from the Execution Date
through the Separation Date, undertake or engage in any other employment,
occupation or business enterprise, other than those in which Xx. Xxxxx is a
passive investor, non-executive board member or which takes less than 10% of Xx.
Xxxxx' business time. Xx. Xxxxx may engage in civic and not-for-profit
activities so long as such activities do not materially interfere with the
performance of his duties hereunder.
6. TERMINATION OF EMPLOYMENT. Either Xx. Xxxxx or the Company may
terminate the employment relationship at any time for any reason whatsoever,
with thirty (30) days prior written notice by the Company and with thirty (30)
days' prior written notice by Xx. Xxxxx with or without Cause or advance notice.
This at-will employment relationship cannot be changed except in a writing
approved by the Board. Notwithstanding this at-will employment relationship, Xx.
Xxxxx' employment with the Company and any affiliates or subsidiaries of the
Company, including any position as a member of the board of directors of the
Company or any affiliates or subsidiaries of the Company shall automatically
terminate upon the earlier of the closing of the Company's initial public
offering or on June 30, 2000. Whether terminated for cause, without cause,
automatically as provided in the previous sentence or voluntarily terminated by
Xx. Xxxxx, such termination is defined herein as the "Separation Date."
6.1 SEVERANCE PAYMENT. If the Company terminates Xx. Xxxxx'
employment without Cause at any time or if Xx. Xxxxx employment terminates
automatically as set forth in paragraph 6 herein, Xx. Xxxxx will receive as
severance: (i) a lump sum payment equal to one (1) year of base salary, less
payroll deductions and required withholdings, pursuant to the terms of the
Separation Agreement, attached as Exhibit B (ii) a lump sum payment of that
portion of the bonus Xx. Xxxxx is entitled to for the calendar year pro-rated
based upon the number of full months Xx. Xxxxx was employed in such year,
pursuant to the terms of the Separation Agreement, attached as Exhibit B (iii)
continuation of all company benefits for a period of one (1) year pursuant to
the terms of the Separation Agreement, attached as Exhibit B, and (iv)
termination of all repurchase rights on Xx. Xxxxx' stock, in exchange for the
execution of a release of all claims against the Company in the form attached as
Exhibit B; PROVIDED, THAT, in the event of termination due to Disability, this
subsection (iv) shall apply only with respect to 50% of any unvested stock held
by Xx. Xxxxx on the date of termination and with respect to the waiver of
repurchase rights of 50% of any unvested shares held by Xx. Xxxxx on the date of
termination; PROVIDED, FURTHER, that Xx. Xxxxx shall remain a party to, and
subject to the provisions of, the Investors' Rights Agreement. If Xx. Xxxxx
voluntarily resigns or if Xx. Xxxxx' employment is terminated for Cause, all
compensation and benefits will cease immediately and Xx. Xxxxx will receive no
severance benefits.
6.2 CAUSE. For purposes of this Agreement, "CAUSE" shall mean
misconduct, including: (i) conviction of any felony or any crime involving moral
turpitude or dishonesty; (ii) participation in a fraud or act of dishonesty
against the Company; (iii) willful breach of the Company's policies; (iv)
intentional damage to the Company's property; (v) material breach of this
Agreement or Xx. Xxxxx' Proprietary Information and Inventions Agreement; (vi) a
failure or refusal in a material respect of Xx. Xxxxx to follow the reasonable
policies or directions of the
Company as specified by the Board of Directors after being provided with notice
of such failure and an opportunity to cure within seven (7) days of receipt of
such notice; or (vii) failure to carry out the duties of the Xx. Xxxxx' position
after being provided with notice of such failure and an opportunity to cure.
Disability shall not constitute "Cause."
6.3 DISABILITY. For purposes of this Agreement, "DISABILITY" shall
mean a disability that prevents Xx. Xxxxx from substantially performing his
duties under this Agreement for a period of at least 90 consecutive days or 180
non-consecutive days within any 365-day period.
6.4 DEATH. In the event of death, the Company shall pay to
Xx. Xxxxx' estate any earned but unpaid salary at the time of death and, at the
time such amount would otherwise have been due, a pro rata portion of a
discretionary bonus, if any, which may otherwise have been paid to Xx. Xxxxx
with respect to the annual period in which the death occurs. The Company shall
waive its repurchase rights with respect to 50% of any unvested shares as of the
date of death; PROVIDED, HOWEVER, that Xx. Xxxxx' estate, administrator or
distributor shall become a party to, and be subject to the provisions of, the
Investors' Rights Agreement. In addition, the acceleration provisions set forth
in paragraph 2.3 herein shall remain in effect, PROVIDED, HOWEVER, that Xx.
Xxxxx' estate, administrator or distributor shall become a party to, and be
subject to the provisions of, this Agreement.
7. BUSINESS EXPENSE REIMBURSEMENT. The Company agrees to reimburse Xx.
Xxxxx for those reasonable business expenses he necessarily incurs in his
capacity as a Company employee and member of the Board of Directors consistent
with the Company's policies in this regard. Xx. Xxxxx must submit the necessary
documentation establishing the amount, date and reason for expenses he incurred
and for which he seeks reimbursement.
8. NON-COMPETITION AND NON-SOLICITATION. Xx. Xxxxx acknowledges that prior
to the Separation Date, the Company employed him, among other things, as a
member of executive and management personnel. Xx. Xxxxx further acknowledges
that during his employment at the Company, he was and will be privy to extremely
sensitive, confidential and valuable commercial information, which constitutes
trade secrets belonging to the Company, the disclosure of which information and
secrets would greatly harm the Company.
8.1 NON-COMPETITION COVENANT. As a reasonable measure to protect
the Company from the harm of such disclosure and use of its information and
trade secrets against it, Xx. Xxxxx agrees to the following as part of this
Agreement: Xx. Xxxxx agrees that he shall not, individually or together with
others, directly or indirectly, during his employment with the Company and for a
period of twelve (12) months from the Separation Date, for any reason, whether
as an owner, consultant, partner, joint venturer, stockholder, broker, agent,
financial agent, principal, trustee, licensor or in any other capacity
whatsoever, own, manage, operate, join, control, finance or participate in the
ownership, management, operation, control or financing of, or be connected as an
officer, director, employee, partner, principal, agent, representative,
consultant, licensor, licensee or otherwise with, any business or enterprise in
any city, county, or state of the United States, or any other xxxxxxxx, xxxxxx,
xxxxxxxxx, country, or jurisdiction, which provides high speed data transmission
services in a market in which the Company has at least one (1) operational DSLAM
or at least one (1) central office location under construction as of the
Separation Date. An acquisition or ownership of less than 5% of the
outstanding shares of any publicly traded company will not constitute a
violation of this Agreement.
8.2 NON-SOLICITATION COVENANT. As a reasonable measure to protect
the Company from the harm of such disclosure and use of its information and
trade secrets against it, the parties agree to the following as part of this
Agreement: Xx. Xxxxx acknowledges and agrees that information regarding
employees of the Company is Confidential Information, including without
limitation, the names of the Company employees; information regarding the skills
and knowledge of employees of the Company; information regarding any past,
present, or intended compensation, benefits, policies and incentives for
employees of the Company; and information regarding the management and reporting
structure of the Company. Xx. Xxxxx agrees that he will not, individually or
with others, directly or indirectly (including without limitation, individually
or through any business, venture, proprietorship, partnership, or corporation in
which they control or own more than a five (5) percent interest, through any
agents, through any contractors, through recruiters, by their successors, by
their employees, or by their assigns) hire, solicit, or induce any employee of
the Company to leave the Company during the period Xx. Xxxxx is employed by the
Company and for a period of twelve (12) months from the Separation Date. Xx.
Xxxxx further agrees that during the period he is employed by the Company and
for a period of twelve (12) months from the Separation Date, he will not, either
directly or indirectly, solicit or attempt to solicit any customer, client,
supplier, investor, vendor, consultant or independent contractor of the Company
to terminate, reduce or negatively alter his, her or its relationship with the
Company. The geographic scope of the covenants in this paragraph shall include
any city, county, or state of the United States and any such other city,
territory, country, or jurisdiction in which the Company does business. Nothing
in this paragraph should be construed to narrow the obligations of Xx. Xxxxx
imposed by any other provision herein, any other agreement, law or other source.
8.3 REASONABLE. Xx. Xxxxx agrees and acknowledges that the time
limitation and the geographic scope on the restrictions in this paragraph 8 and
its subparts are reasonable. Xx. Xxxxx also acknowledges and agrees that the
limitation in this paragraph 8 and its subparts is reasonably necessary for the
protection of the Company, that through this Agreement he shall receive adequate
consideration for any loss of opportunity associated with the provisions herein,
and that these provisions provide a reasonable way of protecting the Company's
business value which was imparted to him. In the event that any term, word,
clause, phrase, provision, restriction, or section of this paragraph 8 of this
Agreement is more restrictive than permitted by the law of the jurisdiction in
which the Company seeks enforcement thereof, the provisions of this Agreement
shall be limited only to that extent that a judicial determination finds the
same to be unreasonable or otherwise unenforceable. Moreover, notwithstanding
any judicial determination that any term, word, clause, phrase, provision,
restriction, or section of this Agreement is not specifically enforceable, the
parties intend that the Company shall nonetheless be entitled to recover
monetary damages as a result of any breach hereof.
8.4 LEGAL AND EQUITABLE REMEDIES. In view of the nature of the
rights in goodwill, employee relations, trade secrets, and business reputation
and prospects of the Company to be protected under this paragraph 8 of this
Agreement, Xx. Xxxxx understands and agrees that the Company could not be
reasonably or adequately compensated in damages in an action at law for Xx.
Xxxxx' breach of his obligations hereunder. Accordingly, Xx. Xxxxx specifically
agrees that
the Company shall be entitled to temporary and permanent injunctive relief,
specific performance, and other equitable relief to enforce the provisions of
this paragraph 8 of this Agreement and that such relief may be granted without
the necessity of proving actual damages, and without bond. XX. XXXXX
ACKNOWLEDGES AND AGREES THAT THE PROVISIONS IN THIS PARAGRAPH 8 AND ITS SUBPARTS
ARE ESSENTIAL AND MATERIAL TO THIS AGREEMENT, AND THAT UPON BREACH OF THIS
PARAGRAPH 8 BY HIM, THE COMPANY IS ENTITLED TO WITHHOLD PROVIDING PAYMENTS OR
CONSIDERATION, TO EQUITABLE RELIEF TO PREVENT CONTINUED BREACH, TO RECOVER
DAMAGES AND TO SEEK ANY OTHER REMEDIES AVAILABLE TO THE COMPANY. This provision
with respect to injunctive relief shall not, however, diminish the right of the
Company to claim and recover damages or other remedies in addition to equitable
relief.
8.5 EXTENSION OF TIME. In the event that Xx. Xxxxx breaches any
covenant, obligation or duty in this paragraph 8 or its subparts, any such duty,
obligation, or covenants to which the parties agreed by this paragraph 8 and its
subparts shall automatically toll from the date of the first breach, and all
subsequent breaches, until the resolution of the breach through private
settlement, judicial or other action, including all appeals. The duration and
length of Xx. Xxxxx' duties and obligations as agreed by this paragraph 8 and
its subparts shall continue upon the effective date of any such settlement, or
judicial or other resolution.
9. GENERAL PROVISIONS.
9.1 NOTICES. Any notices provided hereunder must be in writing and
shall be deemed effective upon the earlier of personal delivery (including
personal delivery by telex) or the third day after mailing by first class mail,
to the Company at its primary office location and to Xx. Xxxxx at his address as
listed on the Company's then current payroll records.
9.2 TAX CONSEQUENCES. Xx. Xxxxx agrees to indemnify the Company
and hold the Company harmless from any and all claims or penalties asserted
against the Company for any failure to pay taxes due on any consideration
provided by the Company pursuant to this Agreement. Xx. Xxxxx expressly
acknowledges that the Company has not made, nor herein makes, any representation
about the tax consequences of any consideration provided by the Company to Xx.
Xxxxx pursuant to this Agreement.
9.3 COOPERATION. Xx. Xxxxx agrees to fully cooperate with the
Company with respect to its corporate relationships. Xx. Xxxxx further agrees to
cooperate with the Company in connection with any defense of or prosecution by
the Company regarding any litigation in which the Company may be involved as a
party or non-party in from time to time.
9.4 NON-DISPARAGEMENT. Xx. Xxxxx and the Company agree that
neither party will at any time disparage the other to third parties in any
manner likely to be harmful to the other party, their business reputation, or
the personal or business reputation of its directors, shareholders and/or
employees. Notwithstanding the prohibition in the preceding sentence, each party
shall respond accurately and fully to any question, inquiry, or request for
information when required by legal process, or when posed by a governmental
entity
9.5 THE COMPANY PROPERTY. Unless authorized by the Company, on the
Separation Date, Xx. Xxxxx agrees to return to the Company all Company documents
(and all copies
thereof) and any and all other Company property in Xx. Xxxxx' possession,
custody or control, including, but not limited to, financial information,
customer information, customer lists, employee lists, Company files, notes,
cellular telephones, personal computers, personal computers, contracts,
drawings, records, business plans and forecasts, financial information,
specifications, computer-recorded information, software, tangible property,
credit cards, entry cards, identification badges and keys, and any materials of
any kind which contain or embody any proprietary or confidential material of the
Company (and all reproductions thereof).
9.6 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
9.7 WAIVER. If either party should waive any breach of any
provisions of this Agreement, he or it shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision of
this Agreement.
9.8 COMPLETE AGREEMENT. This Agreement and EXHIBITS A AND B
hereto, constitute the entire agreement between Xx. Xxxxx and the Company and it
is the complete, final, and exclusive embodiment of their agreement with regard
to this subject matter. This Agreement supersedes and replaces the Employment
Agreement dated April 16, 1999. It is entered into without reliance on any
promise or representation other than those expressly contained herein, and it
cannot be modified or amended except in a writing signed by an officer of the
Company.
9.9 COUNTERPARTS. This Agreement may be executed in separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
Agreement.
9.10 HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
9.11 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Xx. Xxxxx and the Company, and
their respective successors, assigns, heirs, executors and administrators,
except that Xx. Xxxxx may not assign any of his duties hereunder and he may not
assign any of his rights hereunder without the written consent of the Company,
which shall not be withheld unreasonably.
9.12 ATTORNEY FEES. If either party hereto brings any action to
enforce his or its rights hereunder, the prevailing party in any such action
shall be entitled to recover his or its reasonable attorneys' fees and costs
incurred in connection with such action.
9.13 CHOICE OF LAW. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the law of the
State of Colorado.
9.14 SURVIVAL. The following provisions of this Agreement shall
survive the termination of Xx. Xxxxx' employment as an employee or independent
contractor and the assignment of this Agreement by the Company to any successor
in interest or other assignee: Sections 2.4, 4, 8, and 9.
9.15 INJUNCTIVE RELIEF. Xx. Xxxxx acknowledges that the
restrictions set forth in Sections 2.4, 4, 8, and 9 above are necessary to
protect the Company's confidential proprietary information and other legitimate
business interests and are reasonable in all respects, including duration,
territory and scope of activity restricted. Xx. Xxxxx further acknowledges that
the provisions of Sections 2.4, 4, 8, and 9 hereof are essential to the Company,
that the Company would not enter into this Agreement if it did not include these
provisions and that damages sustained by the Company as a result of a breach of
these provisions cannot be adequately remedied by damages, and Xx. Xxxxx agrees
that the Company, in addition to any other remedy it may have under this
Agreement or at law, shall be entitled to injunctive and other equitable relief
to prevent or curtail any breach of Sections 2.4, 4, 8, and 9 of this Agreement.
Xx. Xxxxx agrees that the existence of any claim or cause of action by Xx. Xxxxx
against the Company or its affiliates, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
any of the provisions of this Agreement. Xx. Xxxxx shall have no right to
enforce any of his rights under this Agreement by seeking or obtaining
injunctive or other equitable relief and acknowledges that damages are an
adequate remedy for any breach by the Company of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
JATO COMMUNICATIONS CORP.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Xxxxxxx X. Xxxxx,
Senior Vice President, Finance
and Strategic Planning
By: /s/ Xxxxx X. Xxxxx
---------------------------------
XXXXX X. XXXXX
