EXHIBIT 10.35
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of
September 5, 2000 by Endo Pharmaceuticals Holdings Inc., a Delaware
corporation (the "Employer"), and Xxxxxxxx X. Xxxxx, Esq. (the "Employee").
Intending to be legally bound, and in consideration of the mutual
agreements contained herein, the parties agree as follows:
ARTICLE 1. DEFINITIONS.
For the purposes of this Agreement, the following terms
have the meanings specified or referred to in this Article 1.
"AGREEMENT" means this Employment Agreement, including
the Exhibits hereto, as amended from time to time.
"BASIC COMPENSATION" means Salary and Benefits.
"BENEFITS" shall have the meaning set forth in Section
3.1(b).
"BOARD OF DIRECTORS" means the board of directors of the
Employer.
"CONFIDENTIAL INFORMATION" means any and all:
(a) trade secrets concerning the business and affairs of
the Employer, product specifications, data, know-how, formulae,
compositions, processes, designs, sketches, photographs, graphs, drawings,
samples, inventions and ideas, past, current, and planned research and
development, current and planned manufacturing or distribution methods and
processes, customer lists, current and anticipated customer requirements,
price lists, market studies, business plans, computer software and programs
(including object code and source code), computer software and database
technologies, systems, structures, and architectures (and related formulae,
compositions, processes, improvements, devices, know-how, inventions,
discoveries, concepts, ideas, designs, methods and information);
(b) information concerning the business and affairs of
the Employer (which includes historical financial statements, financial
projections and budgets, historical and projected sales, capital spending
budgets and plans, the names and backgrounds of key personnel, personnel
training and techniques and materials) however documented; and
(c) notes, analysis, compilations, studies, summaries,
and other material prepared by or for the Employer containing or based, in
whole or in part, on any information included in the foregoing.
"CPI" means the Consumer Price Index-All Xxxxx Xxxxxxxxx,
Xxxxxxxxxxxx Xxxxxx (0000-0000 = 100), as published by the United States
Department of Labor.
"DISABILITY" shall have the meaning set forth in Section 6.2.
"EFFECTIVE DATE" means the date stated in the first paragraph of
this Agreement.
"EMPLOYMENT PERIOD" shall have the meaning set forth in Section
2.2.
"FISCAL YEAR" means the Employer's fiscal year, as it exists on
the Effective Date or as changed from time to time.
"FOR CAUSE" shall have the meaning set forth in Section 6.3.
"FOR GOOD REASON" shall have the meaning set forth in Section 6.4.
"INCENTIVE COMPENSATION" shall have the meaning set forth in
Section 3.2.
"PERSON" means any individual, corporation (including any
non-profit corporation), general or limited partnership, limited liability
company, joint venture, estate, trust, association, organization, or
governmental body.
"POST-EMPLOYMENT PERIOD" shall have the meaning set forth in
Article 8.
"RENEWAL TERM" shall have the meaning set forth in Section 2.2.
"SALARY" shall have the meaning set forth in Section 3.1(a).
ARTICLE 2. EMPLOYMENT TERMS AND DUTIES.
SECTION 2.1 EMPLOYMENT. The Employer hereby employs the
Employee, and the Employee hereby accepts employment by the Employer, upon
the terms and conditions set forth in this Agreement.
SECTION 2.2 TERM. Subject to the provisions of Article 6,
the initial term of the Employee's employment under this Agreement will be
one (1) year, beginning on the Effective Date and ending on the first
anniversary of the Effective Date (the "Initial Term"). The term of this
Agreement may be renewed by the Employee and the Employer for additional
periods of one year (each, a "Renewal Term"; the Initial Term together with
all Renewal Terms, if any, are hereinafter referred to as the "Employment
Period").
SECTION 2.3 DUTIES. The Employee will have such duties as
are assigned or delegated to the Employee by the Chief Executive Officer,
and will initially serve as General Counsel, a Senior Vice President and
Secretary of the Employer. The Employee will devote the Employee's
business, time, attention, skill, and energy to the business of the
Employer, will promote the success of the Employer's business, and will
cooperate with the Chief Executive Officer and the Board of Directors in
the advancement of the best interests of the Employer. Nothing in this
Section 2.3, however, will prevent the Employee from engaging in additional
activities in connection with personal investments and community affairs
that are not inconsistent with the Employee's duties under this Agreement.
It is expressly understood and agreed that to the extent any such
activities have been conducted by the Employee prior to the Effective Date,
the continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the Effective Date shall
not thereafter be deemed to be inconsistent with the Employee's duties
under this Agreement. The Employee shall, from time to time, inform the
Board of Directors of those additional activities in which the Employee is
engaged. If the Employee is elected as a director of the Employer or as a
director or officer of any of Employer's subsidiaries, the Employee will
fulfill the Employee's duties as such director or officer without
additional compensation.
SECTION 2.4 DIRECTOR'S AND OFFICER'S LIABILITY COVERAGE.
The Employer shall cause the Employee to be (a) indemnified as an officer
and director of the Employer or any of its affiliates, to the extent
applicable, to the maximum extent permitted by applicable law, and (b)
covered by director's and officer's liability insurance as may be in effect
from time to time in connection with the Employee serving as an officer and
director of Employer or any of its affiliates. The provisions of this
Section 2.4 shall survive termination of this Agreement for any reason.
ARTICLE 3. COMPENSATION.
SECTION 3.1 BASIC COMPENSATION.
(A) SALARY. The Employee will be paid an annual salary of
$240,000, subject to adjustment as provided below (the "Salary"), which
will be payable in equal periodic installments according to the Employer's
customary payroll practices, but no less frequently than monthly. The
Salary will be reviewed by the Chief Executive Officer and the Board of
Directors not less frequently than annually, and be adjusted in the sole
discretion of the Chief Executive Officer and the Board of Directors, but
in no event will the Salary be less than $240,000 per year. In determining
the amount of any adjustment to Salary, the Chief Executive Officer and the
Board of Directors shall take into account inflation, merit, changes in
responsibilities and industry salary practices for executives. Any increase
in Salary shall not serve to limit or reduce any other obligation to the
Employee under this Agreement. Salary shall not be reduced after such
increase unless such reduction is part of a reduction in salaries of
specified management personnel of the Employer undertaken in a program
approved by the Employer's Board of Directors.
(B) BENEFITS. The Employee will, during the Employment
Period, be permitted to participate in such incentive, savings, pension,
profit sharing, bonus, life insurance, hospitalization and major medical,
and other employee benefit plans, practices, policies and programs, of the
Employer that may be in effect from time to time, to the extent the
Employee is eligible under the terms of those plans (collectively, the
"Benefits").
The Employee is permitted to participate in those
benefits listed on schedule A in accordance with the companies policies and
procedures, in effect from time to time.
(C) STOCK OPTIONS. To the extent the Employer determines
to award stock options or other similar consideration to management
personnel based upon duration of employment or achieving performance
targets, or both, Employee shall be permitted to participate in such
programs, and the Employer and the Employee shall enter into an addendum to
this Agreement outlining the terms of such participation.
SECTION 3.2 INCENTIVE COMPENSATION. For each Fiscal Year
or part thereof during the Employment Period the Employee shall be paid in
cash as additional compensation (the "Incentive Compensation") for the
services to be rendered by the Employee pursuant to this Agreement, an
amount equal to thirty percent (30%) of the Salary for such Fiscal Year (or
such lesser (including zero) or greater (not to exceed two hundred) percent
of the Salary for such Fiscal Year as is recommended in good faith to the
Board of Directors by the Chief Executive Officer of the Employer and
approved by the Board of Directors) if the Employer meets the performance
targets set by the Board of Directors (the "Performance Targets") for such
Fiscal Year; provided, however, that for Fiscal Year 2000 only, the
Employer hereby guarantees to pay the Employee her full Incentive
Compensation in accordance with this paragraph. Incentive Compensation for
each Fiscal Year or part thereof shall be paid as soon as practicable
following the receipt by the Employer of its audited financial statements
for the Fiscal Year for which the Incentive Compensation is being paid,
unless the Employee shall elect to defer the receipt of such Incentive
Compensation.
ARTICLE 4. FACILITIES AND EXPENSES.
The Employer will furnish the Employee office space,
equipment, supplies, and such other facilities and personnel as the
Employer deems necessary or appropriate for the performance of the
Employee's duties under this Agreement. The Employer will pay the
Employee's dues in such professional societies and organizations as are
appropriate, and will pay on behalf of the Employee (or reimburse the
Employee for) reasonable expenses incurred by the Employee at the request
of, or on behalf of, the Employer in the performance of the Employee's
duties pursuant to this Agreement, and in accordance with the Employer's
employment policies, including reasonable expenses incurred by the Employee
in attending conventions, seminars, and other business meetings, in
appropriate business entertainment activities, and for promotional
expenses. The Employee must file expense reports with respect to such
expenses in accordance with the Employer's policies.
ARTICLE 5. VACATIONS AND HOLIDAYS.
The Employee will be entitled to paid vacation each
Fiscal Year in accordance with the vacation policies of the Employer in
effect for its executive officers from time to time, provided that in no
event shall such number of paid vacation days be fewer than twenty.
Vacation must be taken by the Employee at such time or times as approved by
the Chief Executive Officer. The Employee will also be entitled to the paid
holidays and other paid leave set forth in the Employer's policies.
Vacation days and holidays during any Fiscal Year that are not used by the
Employee during such Fiscal Year may be used in any subsequent Fiscal Year.
ARTICLE 6. TERMINATION AND ELECTION NOT TO RENEW.
SECTION 6.1 EVENTS OF TERMINATION. The Employment Period,
the Employee's Basic Compensation and Incentive Compensation, and any and
all other rights of the Employee under this Agreement or otherwise as an
employee of the Employer will terminate (except as otherwise provided in
this Article 6):
(a) upon the death of the Employee;
(b) upon the disability of the Employee (as defined in
Section 6.2);
(c) for cause (as defined in Section 6.3), immediately
upon notice from the Employer to the Employee, or at such later time as
such notice may specify, unless otherwise provided in Section 6.3; or
(d) for good reason (as defined in Section 6.4) upon not
less than thirty days' prior notice from the Employee to the Employer.
SECTION 6.2 DEFINITION OF DISABILITY. For purposes of
Sections 6.1 and 6.3, the Employee will be deemed to have a "disability"
if, as a result of the Employee's incapacity due to reasonably documented
physical illness or injury or mental illness, the Employee shall have been
unable for more than six months in any twelve month period to perform
Employee's duties hereunder on a full time basis and within 30 days after
written notice of termination has been given to the Employee, the Employee
shall not have returned to the full time performance of such duties. The
date of termination in the case of a termination for "disability" shall be
the last day of the aforementioned 30-day period.
SECTION 6.3 DEFINITION OF "FOR CAUSE." For purposes of
Section 6.1, the phrase "for cause" means: (a) the continued failure, after
written demand is delivered to the Employee which specifically identifies
the failure, by the Employee substantially to perform the Employee's duties
under this Agreement (other than any such failure resulting from
"disability"), (b) the engagement by the Employee in serious misconduct
that has caused, or in the good faith judgment of the Board of Directors
may cause if not discontinued, material harm (financial or otherwise) to
the Employer or any of its subsidiaries, if any (provided that with respect
to misconduct that the Board of Directors determines may cause material
harm if not discontinued, a written demand is delivered to the Employee
specifically identifying the misconduct and the Employee continues the
misconduct), such material harm to include, without limitation, (i) the
disclosure of material secret or confidential information of the Employer
or any of its subsidiaries, if any, (ii) the debarment of the Employer or
any of its subsidiaries, if any, by the U.S. Food and Drug Administration
or any successor agency (the "FDA"), or (iii) the registration of the
Employer or any of its subsidiaries, if any, with the U.S. Drug Enforcement
Administration of any successor agency (the "DEA") to be revoked or an
application with the DEA to be denied, (c) the debarment of the Employee by
the FDA, or (d) the continued material breach by the Employee of this
Agreement or the amended and restated Stockholders Agreement, dated as of
July 14, 2000, among the Employee, the Employer and other parties named
therein (the "Stockholders Agreement") after written demand is delivered to
the Employee which specifically identifies the breach.
SECTION 6.4 DEFINITION OF "FOR GOOD REASON." For purposes
of Section 6.1, the phrase "for good reason" means any of the following:
(a) the Employer's material breach Section 2.4, 3.1 or 3.2 or of this
Agreement or its obligations under the Stockholder's Agreement for the
benefit of Employee; or (b) the assignment of the Employee without the
Employee's consent to a position, responsibilities, or duties of a
materially lesser status or degree of responsibility than the Employee's
position, responsibilities, or duties at the Effective Date.
SECTION 6.5 TERMINATION PAY. Effective upon the
termination of this Agreement, the Employer will be obligated to pay the
Employee (or, in the event of Employee's death, Employee's designated
beneficiary as defined below) only such compensation as is provided in this
Section 6.5 or Section 6.6. For purposes of this Section 6.5, the
Employee's designated beneficiary will be such individual beneficiary or
trust, located at such address, as the Employee may designate by notice to
the Employer from time to time or, if the Employee fails to give notice to
the Employer of such a beneficiary, the Employee's estate. Notwithstanding
the preceding sentence, the Employer will have no duty, in any
circumstances, to attempt to open an estate on behalf of the Employee, to
determine whether any beneficiary designated by the Employee is alive or to
ascertain the address of any such beneficiary, to determine the existence
of any trust, to determine whether any person or entity purporting to act
as the Employee's personal representative (or the trustee of a trust
established by the Employee) is duly authorized to act in that capacity, or
to locate or attempt to locate any beneficiary, personal representative, or
trustee.
(a) TERMINATION BY THE EMPLOYEE FOR GOOD REASON. If the
Employee terminates this Agreement for good reason, the Employer will (i)
pay (A) monthly to the Employee the Employee's Salary for the remainder of
the Employment Period or twelve (12) months, whichever is longer, and (B)
the Employee's Incentive Compensation for the Fiscal Year during which the
termination is effective, prorated through the date of termination,
provided that the applicable Performance Targets are met, and (ii) continue
to provide the Employee with the Benefits for the remainder of the
Employment Period or twelve (12) months, whichever is longer.
(b) TERMINATION BY THE EMPLOYER FOR CAUSE. If the
Employer terminates this Agreement for cause, the Employee will be entitled
to receive the Employee's Salary and Incentive Compensation prorated
through the date such termination is effective
(c) TERMINATION UPON DISABILITY. If this Agreement is
terminated by either party as a result of the Employee's disability, as
determined under Section 6.2, the Employer will pay the Employee the Salary
and Incentive Compensation (if the applicable Performance Targets are met)
through the remainder of the calendar month during which such termination
is effective and the period until disability insurance benefits commence
("Disability Coverage Commencement") under the disability insurance
coverage furnished by the Employer to the Employee. From and after
Disability Coverage Commencement and for twelve (12) consecutive months
thereafter, the Employer will make regular payments to the Employee in the
amount by which the Salary exceeds the Employee's disability insurance
benefits.
(d) TERMINATION UPON DEATH. If this Agreement is
terminated because of the Employee's death, the Employee will be entitled
to receive the Employee's Salary through the end of the calendar month in
which the Employee's death occurs, and Incentive Compensation (if the
applicable Performance Targets are met) for the Fiscal Year during which
the Employee's death occurs, prorated through the date of the Employee's
death.
(e) BENEFITS. Unless otherwise specifically provided
herein or otherwise provided for in the Benefits, the Employee's accrual
of, or participation in plans providing for, the Benefits will cease at the
effective date of the termination of this Agreement, and the Employee will
be entitled to accrued Benefits pursuant to such plans only as provided in
such plans.
SECTION 6.6 ELECTION NOT TO RENEW. If the Employee elects
to renew this Agreement for a Renewal Term, but the Employer does not, and
the Employer's election not to renew is not for cause, the Employee will be
entitled to receive, the Salary for the remainder, if any, of the calendar
month in which such termination is effective and for twelve (12)
consecutive calendar months thereafter and the Benefits for twelve (12)
consecutive months after the date of termination.
SECTION 6.7 ADJUSTMENTS FOR CPI. The amounts payable to
the Employee pursuant to Sections 6.5(a) and 6.6 shall be adjusted based on
CPI every twelve (12) months to account for changes in the cost of living.
ARTICLE 7. NON-DISCLOSURE COVENANT.
SECTION 7.1 ACKNOWLEDGMENTS BY THE EMPLOYEE. The Employee
acknowledges that (a) during the Employment Period and as a part of the
Employee's employment, the Employee will be afforded access to Confidential
Information; and (b) public disclosure of such Confidential Information
could have an adverse effect on the Employer and its business.
SECTION 7.2 AGREEMENTS OF THE EMPLOYEE. In consideration
of the compensation and benefits to be paid or provided to the Employee by
the Employer under this Agreement, the Employee covenants as follows:
(a) During and following the Employment Period, the
Employee will hold in confidence the Confidential Information and will not
disclose it to any person except with the specific prior written consent of
the Employer, as otherwise may be required by law or legal process or
except as otherwise expressly permitted by the terms of this Agreement.
(b) If any information that the Employer deems to be a
trade secret is found by a court of competent jurisdiction not to be a
trade secret for purposes of this Agreement, such information will,
nevertheless, be considered Confidential Information for purposes of this
Agreement. The Employee hereby waives any requirement that the Employer
submit proof of the economic value of any trade secret or post a bond or
other security.
(c) None of the foregoing obligations and restrictions
applies to any part of the Confidential Information that the Employee
demonstrates was or became generally available to the public other than as
a result of a disclosure by the Employee.
(d) Upon termination of this Agreement by either party,
or upon the request of the Employer during the Employment Period, the
Employee will return to the Employer all Confidential Information in the
Employee's possession or subject to the Employee's control, and the
Employee may not retain any copies, abstracts, sketches, or other physical
embodiment of any of the Confidential Information.
ARTICLE 8. NON-COMPETITION AND NON-INTERFERENCE.
The Employee covenants that the Employee will not,
directly or indirectly during the Employment Period, except in the course
of the Employee's employment hereunder, and during the Post-Employment
Period, directly or indirectly manage, operate, control, or participate in
the management, operation, or control of, be employed by, associated with,
or in any manner connected with, lend the Employee's name to, or render
services or advice to, any third party or any business whose products
compete in whole or in part with the products of the Employer (disregarding
any non-pain management products that were not products promoted by the
Employer during the last three years).
For purposes of this Article 8, the term "Post-Employment
Period" means the period beginning on the effective date of termination of
the Employee's employment hereunder and ending on the later to occur of (i)
12 months after the effective date of such termination or (ii) the date
amounts payable to Employee under Section 6.5 (a) and (c) and Section 6.6
are to have been paid in full pursuant to this Agreement (provided that
notwithstanding anything in this Agreement to the contrary, such amounts
are being timely paid by the Employer) .
If any covenant in this Article 8 is held to be
unreasonable, arbitrary, or against public policy, such covenant will be
considered to be divisible with respect to scope, time, and geographic
area, and such lesser scope, time, or geographic area, or all of them, as a
court of competent jurisdiction may determine to be reasonable, not
arbitrary, and not against public policy, will be effective, binding, and
enforceable against the Employee.
ARTICLE 9. GENERAL PROVISIONS.
SECTION 9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY. The
Employee acknowledges that the injury that would be suffered by the
Employer as a result of a breach of the provisions of this Agreement
(including any provision of Articles 7 and 8) would be irreparable and that
an award of monetary damages to the Employer for such a breach would be an
inadequate remedy. Consequently, the Employer will have the right, in
addition to any other rights it may have, to obtain injunctive relief to
restrain any breach or threatened breach or otherwise to specifically
enforce any provision of this Agreement, and the Employer will not be
obligated to post bond or other security in seeking such relief.
SECTION 9.2 ESSENTIAL AND INDEPENDENT COVENANTS. The
covenants by the Employee in Articles 7 and 8 are essential elements of
this Agreement, and without the Employee's agreement to comply with such
covenants, the Employer would not have entered into this Agreement or
employed or continued the employment of the Employee. The Employer and the
Employee have independently consulted their respective counsel and have
been advised in all respects concerning the reasonableness and propriety of
such covenants, with specific regard to the nature of the business
conducted by the Employer.
If the Employee's employment hereunder expires or is
terminated, this Agreement will continue in full force and effect as is
necessary or appropriate to enforce the covenants and agreements of the
Employee in Articles 7 and 8.
SECTION 9.3 DUTY TO MITIGATE. The Employee shall not be
required to mitigate damages or the amount of any payment required under
this Agreement, nor shall the payments due the Employee hereunder be
reduced or offset by reason of any payments the Employee may receive from
any other source.
SECTION 9.4 REPRESENTATIONS AND WARRANTIES BY THE
EMPLOYEE. The Employee represents and warrants to the Employer that the
execution and delivery by the Employee of this Agreement do not, and the
performance by the Employee of the Employee's obligations hereunder will
not, with or without the giving of notice or the passage of time, or both:
(a) violate any judgment, writ, injunction, or order of any court,
arbitrator, or governmental agency applicable to the Employee; or (b)
conflict with, result in the breach of any provisions of or the termination
of, or constitute a default under, any agreement to which the Employee is a
party or by which the Employee is or may be bound.
SECTION 9.5 WAIVER. The rights and remedies of the
parties to this Agreement are cumulative and not alternative. Neither the
failure nor any delay by any party in exercising any right, power, or
privilege under this Agreement will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such
right, power, or privilege or the exercise of any other right, power, or
privilege.
SECTION 9.6 BINDING EFFECT; DELEGATION OF DUTIES
PROHIBITED. This Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective successors, assigns,
heirs, and legal representatives, including any entity with which the
Employer may merge or consolidate or to which all or substantially all of
its assets may be transferred. The duties and covenants of the Employee
under this Agreement, being personal, may not be delegated.
SECTION 9.7 NOTICES. All notices, consents, waivers, and
other communications under this Agreement must be in writing and will be
deemed to have been duly given when (a) delivered by hand (with written
confirmation of receipt), (b) sent by telecopier (with written confirmation
of receipt), provided that a copy is mailed by registered mail, return
receipt requested, or (c) when received by the addressee, if sent by a
nationally recognized overnight delivery service (receipt requested), in
each case to the appropriate addresses and telecopier numbers set forth
below (or to such other addresses and telecopier numbers as a party may
designate by notice to the other parties):
If to the Employer: Endo Pharmaceuticals Inc.
000 Xxxxxxxxxx Xxxx Xxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
If to the Employee: Attention: Xxxxx X. Xxxxx
000 Xxxxxxxxxx Xxxx Xxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
SECTION 9.8 ENTIRE AGREEMENT; AMENDMENTS. This Agreement,
together with the attached schedule A, contains the entire agreement
between the parties with respect to the subject matter hereof and thereof
and supersedes all prior agreements and understandings, oral or written,
between the parties hereto with respect to the subject matter hereof and
thereof. This Agreement may not be amended orally, but only by an agreement
in writing signed by the parties hereto.
SECTION 9.9 GOVERNING LAW. This Agreement will be
governed by and construed under the laws of the State of Delaware without
regard to conflicts of laws principles.
SECTION 9.10 SECTION HEADINGS, CONSTRUCTION. The headings
of Sections in this Agreement are provided for convenience only and will
not affect its construction or interpretation. All references to "Section"
or "Sections" refer to the corresponding Section or Sections of this
Agreement unless otherwise specified. All words used in this Agreement will
be construed to be of such gender or number as the circumstances require.
Unless otherwise expressly provided, the word "including" does not limit
the preceding words or terms.
SECTION 9.11 SEVERABILITY. If any provision of this
Agreement is held invalid or unenforceable by any court of competent
jurisdiction, the other provisions of this Agreement will remain in full
force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect
to the extent not held invalid or unenforceable.
SECTION 9.12 COUNTERPARTS. This Agreement may be executed
in one or more counterparts, each of which will be deemed to be an original
copy of this Agreement and all of which, when taken together, will be
deemed to constitute one and the same agreement.
[SIGNATURES FOLLOW]
IN WITNESS WHEREOF, the parties have executed and
delivered this Agreement as of the date first written above.
ENDO PHARMACEUTICALS INC.
By: /s/ XXXXX X. XXXXX
--------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
/s/ Xxxxxxxx X. Xxxxx
----------------------------
Xxxxxxxx X. Xxxxx
