EXHIBIT 10.17
THIRD AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement"), dated
as of the 1st day of January, 2003, between XXXXXX'X RESTAURANT GROUP, INC.
("MRG"), a Delaware corporation, and XXXXX X. XXXXXXXXX ("Xxxxxxxxx"), an
individual.
WHEREAS, MRG and Xxxxxxxxx entered into the Second Amended and
Restated Employment Agreement dated as of February 28, 1995, as amended by the
First Amendment dated as of October 1, 1998 and the Second Amendment, dated as
of December 6, 2002 (in the aggregate, the "Second Amended and Restated
Employment Agreement"); and
WHEREAS, MRG and Xxxxxxxxx have agreed to amend and restate the Second
Amended and Restated Employment Agreement by this THIRD AMENDED AND RESTATED
EMPLOYMENT AGREEMENT.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. EMPLOYMENT.
(a) MRG hereby continues to employ Xxxxxxxxx and Xxxxxxxxx
hereby accepts such continued employment for a term beginning as of January 1,
2003 (the "Commencement Date") and continuing thereafter for a five (5) year
period; provided, that upon the second anniversary of the Commencement Date (the
"Second Anniversary"), the employment term shall continue thereafter such that
at any date following the Second Anniversary, the term of Xxxxxxxxx'x employment
shall be three (3) years (the period before or after the Second Anniversary
shall be referred to as the "Employment Period"), unless in any either case
sooner terminated as hereinafter provided.
(b) At any time during the Employment Period, MRG may send a
notice to Xxxxxxxxx, terminating his employment ("MRG's Notice"). MRG's Notice
shall set forth the date of termination, which shall in no event be earlier than
(x) prior to the Second Anniversary, the number of months equal to the remaining
portion of the Employment Period or (y) on and after the Second Anniversary,
thirty-six (36) months. Following the delivery of MRG's Notice, MRG's
compensation obligation to Xxxxxxxxx shall be as set forth in Section 7(f).
2. COMPENSATION; BENEFITS; EXPENSES; AND BONUS
(a) As compensation for the services to be rendered hereunder,
until December 31, 1999, MRG shall pay to Xxxxxxxxx a base salary (as adjusted
hereafter pursuant to the next sentence hereof, the "Base Salary") at the rate
of $625,000 per annum, payable in equal installments at such times as shall be
agreed upon by MRG and Xxxxxxxxx, but no less frequently than monthly. The
annual Base Salary for the Employment Year commencing January 1, 2000,
shall increase at the rate of increase in the Consumer Price Index for Urban
Wage Earners and Clerical Workers, as complied by the U.S. Bureau of Labor
Statistics for the preceding year (the "CPI"). The Base Salary may be increased
at a faster rate than that of the CPI, at the discretion of the Board of
Directors, and depending upon the profitability and growth of MRG.
(b) Xxxxxxxxx shall be eligible to participate in benefit
programs, if any, of MRG which are in effect for its executive personnel from
time to time, including but not limited to profit sharing, pension, insurance,
incentive or other supplemental or special compensation plans or arrangements,
and stock purchase programs, in each case in accordance with the terms of such
program.
(c) MRG recognizes that Xxxxxxxxx, in rendering the services
hereunder, will be required to spend sums of money for the entertainment of
various persons and representatives of companies and organizations with whom MRG
is having, or would like to have business relations. MRG will advance and/or
reimburse reasonable travelling or other out-of-pocket expenses incurred or to
be incurred by Xxxxxxxxx in rendering the services hereunder in behalf of MRG,
and MRG will advance such funds to Xxxxxxxxx, or reimburse Xxxxxxxxx upon
presentation of vouchers or other documents reasonably necessary to verify the
expenditures and sufficient, in form and substance, to satisfy Internal Revenue
Service ("IRS") requirement for any traveling or other expenses.
(d) MRG further recognizes the importance and value to MRG of
Xxxxxxxxx'x active membership in the Young Presidents Organization or similar
organization and Xxxxxxxxx'x attendance at its meetings and conferences. MRG
agrees to pay membership dues for Xxxxxxxxx in the Young Presidents Organization
or similar organization and to pay all other reasonable expenses incurred by
Xxxxxxxxx to attend meetings and conferences of the Young Presidents
Organization or similar organization upon presentation of vouchers or other
documents as required pursuant to paragraph (c) above.
(e) (i) In addition to the Base Salary, Xxxxxxxxx shall be
eligible to receive an annual bonus incentive payment ("Bonus"). At the
beginning of each fiscal year, the Board of Directors shall establish a
profitability target on which the Bonus will be based (the "Target"). In its
discretion, the Board of Directors may base the Target on net income, operating
income, or any other basis it considers most appropriate. The Bonus shall be
payable to Xxxxxxxxx within thirty (30) days of receipt by MRG of the statement
of profits and losses for the preceding fiscal year, on a fully consolidated
basis, from its independent certified public accountant then regularly auditing
the books and records of MRG.
(ii) The amount of the Bonus to be paid shall be based on
the rate by which MRG achieves the Target, on a fully consolidated basis. If MRG
attains less than 50% of the Target, no Bonus shall be payable. If MRG attains a
level of profitability between 50% and 150% of the Target, the bonuses amount
payable to Xxxxxxxxx shall be 1.2% of his Base Salary for every 1.0% of the
Target achieved between 50% and 150%. If MRG attains 150% or more of the Target,
the Bonus shall be 120% of Xxxxxxxxx'x Base Salary.
3. DUTIES.
(a) MRG hereby employs Xxxxxxxxx on the terms set forth in this
Agreement, and Xxxxxxxxx hereby accepts such employment. Xxxxxxxxx shall have
the title of Chairman of the Board of Directors and Chief Executive Officer of
MRG, and perform the general duties that the Board of Directors may from time to
time require of him in that capacity. Such duties will not require his full time
and attention but will require a majority of his business time. Xxxxxxxxx shall
also serve, if elected or appointed, without additional compensation, as a
director and an officer of MRG and/or as a director and an officer of any and
all restaurant businesses (each, an "Operating Company", or collectively, the
"Operating Companies") wholly or partly owned by MRG. Xxxxxxxxx shall not be
required to devote his exclusive services to MRG, but shall assist in the
development of the Operating Companies, and the determination and implementation
of policy pertaining to merchandising, production, distribution, promotion,
advertising and sales.
(b) In furtherance thereof, subject to the direction of the
Board of Directors of MRG and to the Bylaws of MRG, Xxxxxxxxx shall have the
authority to (i) hire and dismiss or discharge any or all personnel; (ii)
execute checks drawn on, or withdrawals from the bank accounts of the Operating
Companies and MRG in a manner which is consistent with disbursement controls and
procedures established by the Board of Directors of MRG and the Operating
Companies; (iii) arrange for all necessary insurance; (iv) retain as the
accountants for MRG, such accounting firm as the Board of Directors may
determine, and also retain the services of other Certified Public Accountants to
perform accounting services to MRG, other than accounting services rendered in
connection with an audit or other investigation or review; and (v) take all
other actions consistent with his duties hereunder.
(c) In addition, during the term of this Agreement, Xxxxxxxxx
shall seek out opportunities for MRG to receive fees, commissions or other
compensation through brokering, finding or managing restaurant businesses for
others.
4. EXTENT OF SERVICES. Xxxxxxxxx may spend such time as is
reasonable and appropriate to perform services for, and the duties of a member
of the Board of Directors of, his own or other businesses so long as such
services and duties shall not interfere with Xxxxxxxxx'x performance of his
duties and responsibilities hereunder, in the reasonable judgment of the Board
of Directors.
5. WORKING FACILITIES. Xxxxxxxxx shall be furnished with a private
office, stenographic help and services suitable to his position and adequate for
the performance of his duties. Additionally, MRG recognizes that it is essential
to Xxxxxxxxx'x performance of his duties hereunder, that he be provided with an
automobile and chauffeur. MRG agrees to provide for Xxxxxxxxx'x use, at MRG's
sole cost and expenses, an automobile and chauffeur. The automobile provided to
Xxxxxxxxx hereunder shall be a luxury type and shall be a new automobile every
two (2) years.
6. NON COMPETITION.
(a) Upon the termination of the Employment Period or at such
other times as MRG may request, Xxxxxxxxx agrees to return to MRG all originals
and copies, whether generated by Xxxxxxxxx or anyone else, of all documents,
files, lists, forms, contracts, notebooks, rolodexes, keys, credit cards, and
any other material which, during the Employment Period, came into, and continue
to be in, Xxxxxxxxx'x possession and relate to MRG, the Operating Companies,
their respective businesses or their potential acquisitions and investments.
(b) Xxxxxxxxx acknowledges that the provisions of this Section 6
are essential to the continued goodwill and profitability of MRG and the
Operating Companies, and have provided a substantial inducement to MRG to enter
into this Agreement. Xxxxxxxxx further acknowledges that the application or
operation thereof will not involve a substantial hardship upon his future
livelihood. Should any court determine that the provisions of this Section 6
shall be unenforceable in respect of scope, duration or geographic area, such
court shall be empowered to substitute, to the extent enforceable, provisions
similar hereto or other provisions so as to provide to MRG, to the fullest
extent permitted by applicable law, the benefits intended by this Section 6.
(c) The parties hereto intend to and hereby confer jurisdiction
to enforce the covenants contained in this Section 6 upon the courts of any
state within the geographic scope of such covenants. In the event that the
courts of any one or more of such states shall hold such covenants wholly
unenforceable by reason of the breadth of such scope or otherwise, it is the
intention of the parties hereto that such determination not bar or in any way
affect MRG's right to the relief provided in this Agreement in the courts of any
other state within the geographic scope of such covenants, as to breaches of
such covenants in such other respective jurisdictions, the above covenants as
they relate to each state being, for this purpose, severable into diverse and
independent covenants.
7. DEATH OR DISABILITY OF XXXXXXXXX; OTHER TERMINATION.
(a) If Xxxxxxxxx is unable to perform his duties by reason of
illness or incapacity (a "Disability") for a continuous period of more than six
(6) months, the compensation otherwise payable to him during the continued
period of such illness or incapacity after such six (6) months period shall be
at the annual rate of $226,500.00. Xxxxxxxxx'x full compensation shall be
reinstated upon his return to employment and the discharge of his full duties
hereunder. Notwithstanding anything herein to the contrary, if Xxxxxxxxx shall
be absent from his employment by reason of illness or incapacity for a
continuous period of more than eighteen (18) months, this Agreement shall
terminate, except Xxxxxxxxx'x legal representatives shall be entitled to receive
the compensation herein provided to the last day of the eighteenth month of such
continuous period.
(b) If Xxxxxxxxx dies during the term of this Agreement, this
Agreement shall terminate, except that Xxxxxxxxx'x legal representatives shall
be entitled to receive the compensation herein provided (including pursuant to
Section 7(f)) only to the last day of the month in which Xxxxxxxxx'x death
occurs.
(c) In addition to MRG's rights set forth in clauses (a) and (b)
above, subject to clause (d) below, this Agreement shall terminate in the event:
(i) A licensed physician shall determine that Xxxxxxxxx
is a "drug dependent person" (as defined in the New York Mental Hygiene Law or
any successor statute); or
(ii) Xxxxxxxxx shall be declared to be incompetent
pursuant to the New York Mental Hygiene Law or any successor or similar statute,
or a conservator of his property shall have been appointed pursuant to the New
York Mental Hygiene Law or any successor or similar statute; or
(iii) Xxxxxxxxx is convicted in a court of law of theft,
embezzlement, fraud or other felony or of any other crime that constitutes a
felony in the jurisdiction involved; or
(iv) Xxxxxxxxx wilfully breaches a substantial provision
of this Agreement or commits any act not approved by the Board of Directors of
MRG involving any material conflict of interest which substantially adversely
affects MRG or any Operating Company.
(d) In the event of a termination pursuant to Section 7(c)(iv)
above, MRG shall deliver to Xxxxxxxxx a notice setting fourth a reasonably
detailed description of the breached provision or unauthorized conduct
constituting the basis for termination, and this Agreement shall not terminate
unless Xxxxxxxxx fails to cure same within 20 days after receipt of notice, or,
if Xxxxxxxxx cannot reasonably be expected to effect a cure within such 20 days
period, if Xxxxxxxxx fails to commence such cure within such 20 day period and
diligently proceed to effect same within 90 days after the aforesaid notice. In
the event of a termination pursuant to Section 7(c)(i)-(iii) above, MRG shall
deliver to Xxxxxxxxx a notice stating which of the ground(s) it alleges for
termination of this Agreement, together with a reasonably detailed description
of such ground(s).
(e) Xxxxxxxxx'x obligations under this Agreement shall terminate
at Xxxxxxxxx'x option, in the event (i) Xxxxxxxxx is assigned any duties or
responsibilities inconsistent with his positions as President and Chief
Executive Officer of MRG (including status, offices, titles and reporting
requirements), or (ii) MRG fails to pay any sum of money to Xxxxxxxxx when the
same becomes due and payable and such failure continues for thirty (30) days
after such sum of money is due; provided, however, if the failure to pay any
such sums of money, in the judgment of the Board of Directors, reasonably
exercised, is due to the fact that MRG has not received all or any substantial
part of the Annual Overhead Fee payable to MRG by each Operating Company,
because such fee is being subordinated to debt interest payments required to be
made by such Operating Company or Companies, Xxxxxxxxx'x obligations hereunder
shall not terminate, unless such non-payment exceeds one-sixth (1/6) of
Xxxxxxxxx'x then Base Salary or continues for more than 60 days from the date
such sum becomes due and payable.
(f) In the event (i) this Agreement terminates pursuant to
Section 7(e) or (ii) MRG has delivered MRG's Notice (the date of such
termination or delivery being the "Measuring Date"), MRG covenants and agrees to
pay and be liable for, on the days originally fixed herein for the payments
thereof, and for a period of (x) prior to the Second Anniversary, the number of
months equal to the remaining portion of the Employment Period or (y) on and
after the Second Anniversary, thirty-six (36) months following the Measuring
Date, Xxxxxxxxx'x compensation (except Bonus shall be due only for the calendar
year during which the Measuring Date occurs, and prorated, on an annualized
basis for that year), reimbursement to Xxxxxxxxx of the costs and expenses for
the automobile and chauffeur as set forth in Section 5 at the cost thereof as of
the Measuring Date, membership dues and other reasonable expenses for Xxxxxxxxx
to attend meetings and conferences of the Young President's Organization and
other expenses under the terms of this Agreement as they become due, together
with all reasonable expenses which Xxxxxxxxx may then or thereafter incur for
legal expenses and all other reasonable costs paid or incurred by Xxxxxxxxx for
enforcing the payment of such amounts. As an alternative, at the election of
Xxxxxxxxx made within thirty days of the Measuring Date, provided that such
election shall only be applicable with respect to the delivery of MRG's Notice
until the Second Anniversary, MRG shall pay to him as damages such a sum as at
the time of such termination represents the number of months from (x) or (y)
above, as applicable, multiplied by $67,800, together with all reasonable
expenses which Xxxxxxxxx may then or thereafter incur for legal expenses and all
other reasonable costs paid or incurred by Xxxxxxxxx for enforcing payment of
such amounts. Xxxxxxxxx agrees to use his best efforts to seek alternative
employment as an executive earning a salary reasonably comparable with that
being paid to Xxxxxxxxx by MRG, upon any such termination. Upon and after
Xxxxxxxxx'x acquisition of such alternative employment, (i) MRG's only
obligation hereunder shall be the payment to Xxxxxxxxx of $50,600 per month, or
part thereof, until the number of months from (x) or (y) above, as applicable,
following the Measuring Date, if Xxxxxxxxx has not made the election referred to
in the second preceding sentence, or (ii) if Xxxxxxxxx has made such election,
he shall repay to MRG an amount equal to the product of $17,366 multiplied by
"X", where X equals the difference between number of months from (x) or (y)
above, as applicable, and the number of months between the Measuring Date and
the date Xxxxxxxxx commences such new employment.
8. INSURANCE.
(a) MRG in its discretion at any time after the execution of
this Agreement, may apply for and procure as owner and for its own benefit,
insurance on the life of Xxxxxxxxx, in such amounts and in such form or forms as
MRG may choose. Xxxxxxxxx shall have no interest whatsoever in any such policy
or policies, but he shall, at the request of MRG, submit to such medical
examinations, supply such information, and execute such documents as may be
required by the insurance company or companies to whom MRG has applied for such
insurance.
(b) MRG shall, for so long as Xxxxxxxxx is employed by it, pay
for the benefit of Xxxxxxxxx the premiums on the life insurance policies
insuring the life of Xxxxxxxxx described on Schedule "B" annexed hereto. Upon
Xxxxxxxxx'x request, MRG shall provide him with proof showing the payment of
such premiums within ten (10) days of their due dates.
(c) MRG shall, for so long as Xxxxxxxxx is employed by it, pay
for the benefit of Xxxxxxxxx the premium on the medical policies presently being
provided to executive employees of MRG, or policies substantially similar to
same.
(d) Upon the termination of Xxxxxxxxx'x employment, Xxxxxxxxx
shall have the option, within thirty (30) days thereafter, to acquire MRG's
interest in the policy or policies that may be procured by MRG pursuant to
subparagraph (a) above, to the extent permitted by such policy or policies, upon
payment to MRG of such policy's or policies' then cash surrender value. If
Xxxxxxxxx exercises such option, MRG will take whatever reasonable steps are
necessary to assign all the rights in the entire policy or policies to
Xxxxxxxxx, to the extent permitted by such policy or policies, and to deliver
physical possession of the policy or policies to Xxxxxxxxx. If Xxxxxxxxx shall
fail to exercise such option, MRG may cancel the policy or policies and take
down their cash surrender value, and neither Xxxxxxxxx nor any person claiming
through Xxxxxxxxx shall have any rights whatsoever in any part of the policy or
policies or their values.
(e) MRG shall, for so long as Xxxxxxxxx is employed by it,
procure and maintain a disability insurance policy (the "Disability Policy").
The Disability Policy will provide that during the period commencing after the
sixth month of a Disability of Xxxxxxxxx and terminating when Xxxxxxxxx reaches
the age of 65, Xxxxxxxxx shall be provided with benefits equal to approximately
$325,000 per annum. Any benefits received by Xxxxxxxxx pursuant to this Section
8(e) shall be in addition to, and not exclusive of, any compensation to be paid
to Xxxxxxxxx pursuant to Section 7(a) hereof.
9. SURVIVAL OF OBLIGATIONS. Notwithstanding the expiration of the
term of this Agreement or any termination of this Agreement, any duty or
obligation which has been incurred and which has not been fully observed,
performed and/or discharged, and any right, unconditional or conditional, which
has been created and has not been fully enjoyed, enforced, and/or satisfied,
shall survive such expiration or termination until such duty or obligation has
been fully observed, performed and/or discharged and such right has been
enforced, enjoyed and/or satisfied.
10. REMEDIES, LEGAL FEES AND RIGHT OF OFFSET.
(a) The parties recognize that irreparable damage will result in
the event that the provisions of Section 6 hereof shall not be specifically
enforced. If any dispute arises concerning action in violation of any such
provision, the parties hereto agree that an injunction be issued restraining
such action pending determination of such controversy and that no bond or other
security shall be required in connection therewith. If any dispute arises
concerning the right or obligation of any party hereto, such right or obligation
shall be enforceable by a decree of specific performance. Such remedies shall,
however, not be exclusive of and shall be in addition to any other remedies
which the parties may have, including injunctive relief and actions for damages.
(b) In the event that any action, suit or other proceeding in
law or in equity is brought to enforce the covenants contained in Section 6
hereof, or to obtain money damages for the breach thereof , and such action
results in the award of a judgment for money
damages or in the granting of any injunction or restraining order in favor of
MRG, all expenses (including reasonable attorneys' fees) of MRG in such action,
suit or other proceeding shall be paid promptly by Xxxxxxxxx.
(c) MRG shall have the right to set off and apply against any
amount due and payable to Xxxxxxxxx hereunder any other amount then due and
owing by Xxxxxxxxx to MRG or any subsidiary or affiliate thereof, whether
arising under this Agreement or otherwise.
11. NOTICES. All notices hereunder shall be in writing and shall be
mailed, delivered by hand or telecopied. All such notices shall be deemed to
have been given or delivered three days after the date mailed in any general or
branch United States Post Office enclosed in a registered postpaid envelope
addressed to the address of the respective parties stated below, on the date of
the by hand delivery if delivered, or on the date of receipt, if telecopied. The
notices shall be addressed as follows:
If to Xxxxxxxxx:
XXXXX X. XXXXXXXXX
c/o Morton's Restaurant Group, Inc.
0000 Xxx Xxxx Xxxx Xxxx
Xxxxx 000
New Hyde Park, New York 11042
with a copy to:
Salamon, Gruber, Xxxxxx & Blaymore, P.C.
00 Xxxxxxxxxx Xxxx
Xxxxxx Xxxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxx, Esq.
If to MRG:
XXXXXX'X RESTAURANT GROUP, INC.
c/o Xxxxxx Xxxxxx, Inc.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx, Esq.
or to such other address as a party hereto may notify the other pursuant to this
Section 11.
12. WAIVER. Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition, nor shall any waiver or relinquishment of any right or
power hereunder at any one time or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
13. SEVERABILITY. The invalidity or unenforceability of any
provisions hereof shall in no way affect the validity or enforceability of any
other provision.
14. MODIFICATION. This Agreement cannot be changed, modified or
discharged orally, but only if consented to in writing by both parties.
15. ASSIGNMENT. This Agreement is a personal contract and, except as
specifically set forth herein, the rights and interests of Xxxxxxxxx herein may
not be sold, transferred, assigned, pledged or hypothecated. In the event of any
attempted assignment or transfer of rights hereunder contrary to the provisions
hereof, MRG shall have no further liability for payments hereunder.
16. BENEFIT. Except as otherwise herein expressly provided, this
Agreement shall inure to the benefit of and be binding upon MRG, its successors
and assigns, including but not limited to any corporation which may acquire all
or substantially all of MRG's assets and business or with or into which MRG may
be consolidated or merged, and Xxxxxxxxx, his heirs, executors, administrators
and legal representatives, provided that the obligation of Xxxxxxxxx hereunder
may not be delegated.
17. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such State.
18. INDEMNITY. MRG shall indemnify Xxxxxxxxx and hold him harmless
for any acts or decisions made by him in good faith while performing services
for MRG as an officer of MRG and shall include him under any insurance policy
now in force or hereinafter obtained during the term of this Agreement, covering
the other officers and directors of MRG against lawsuits; provided, however, MRG
shall be under no obligation to obtain any such coverage. To the extent
permitted under the Delaware General Corporation Law, MRG will pay reasonable
all expenses, including attorneys' fee, actually and necessarily incurred by
Xxxxxxxxx in connection with the defense of such act, suit or proceeding and in
connection with any appeal thereon including the cost of court settlements.
19. WITHHOLDING OF TAXES. MRG may withhold from any amounts or
benefits payable under this Agreement all federal, state, city and other taxes
as shall be required pursuant to any law or governmental regulation or ruling.
20. CONTRACT HEADINGS. All headings of the Articles of this Agreement
have been inserted for convenience of reference only, are not to be considered a
part of this Agreement, and shall in no way affect the interpretation of any of
the provisions of this Agreement.
21. PRIOR AGREEMENT. Effective upon the Commencement Date, the Second
Amended and Restated Employment Agreement shall terminate and be of no further
force or effect.
22. ENTIRE AGREEMENT. The foregoing contains the entire agreement of
the parties.
IN WITNESS WHEREOF, the parties have signed this Agreement the day and
year first above written.
/s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
XXXXX X. XXXXXXXXX
Attest: XXXXXX'X RESTAURANT GROUP, INC.
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------- ---------------------------------
Xxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxx
Vice President of Communications Title: Executive Vice President
Chief Financial Officer
