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EXHIBIT 10.055
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is entered into
as of this 14th day of June 1999, between BIOSHIELD TECHNOLOGIES, INC., a
Georgia corporation (the "COMPANY"), and Xxxx X. Xxxxx, a Georgia resident (the
"EXECUTIVE").
1. Employment. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to be employed by the Company, on
the terms and conditions set forth herein.
2. Term. The employment of the Executive by the Company as
provided in Section 1 will commence on June 14, 1999 (the "COMMENCEMENT DATE")
and will terminate at 12:01 a.m. on June 14, 2000 (the "INITIAL TERM") unless
same terminated as hereinafter provided. Thereafter, this Agreement can be
renewed annually for additional one (1) year terms (hereinafter referred to
individually a "RENEWAL TERM") after the end of the Initial Term or any Renewal
Term, unless terminated as hereinafter provided or either party notifies the
other party by giving written notice to the other party that they do not wish
to renew the Agreement for a subsequent term. Such notice must be given at
least ninety (90) days before the end of the Initial Term, or the then Renewal
Term, as the case may be. Compensation for renewal will be negotiated on a
year-to-year basis. The term of the Employee's employment with the Company
shall be referred to herein as the "EMPLOYMENT PERIOD."
3. Position, Duties and Responsibilities.
(a) Position. The Executive hereby agrees to serve as
Executive Vice President of Business Planning and Development of the Company.
The Executive shall devote his best efforts and substantially full time and
attention to the performance of services to the Business of the Company in his
capacity as an officer thereof and as may reasonably be requested by the Board.
The Company retains the right to direct the means and methods by which the
Executive performs the above services. For purposes of this Agreement,
"BUSINESS" shall mean development, marketing, and sale of products and services
provided by BioShield Technologies, Inc. and associated companies.
(b) Place of Employment. During the term of this Agreement,
the Executive shall perform the services required by this Agreement at the
Company's principal place of business in Atlanta, Georgia; provided, however,
that should the Company relocate its principal place of business to another
city or state more than fifty (50) miles from its principal place of business
as of the effective date of this Agreement and require Executive to relocate to
such principal place of business, Executive may terminate this Agreement in
accordance with Section 5(e) below.
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(c) Other Activities. Except with the prior written approval
of the Board (which the Board may grant or withhold in its sole and absolute
discretion), the Executive, during the Employment Period, will not (i) accept
any other employment, (ii) serve as an officer or on the board of directors or
similar body of any other business entity (except as otherwise set forth below)
that is or may be competitive with, or that might place him in a competing
position to, the Business of the Company or any of its affiliates, or (iii)
engage, directly or indirectly, in any other business activity (whether or not
pursued for pecuniary advantage) that is or may be competitive with, or that
might place him in a competing position to, the Business of the Company or any
of its affiliates. Notwithstanding the foregoing, the Company agrees that the
Executive (or affiliates of the Executive) shall be permitted (i) to undertake
the activities set forth in Section 8, (ii) to make any other passive personal
investment that is not in a business activity that is directly or indirectly
competitive with the Business of the Company, (iii) to participate in industry
organizations, and (iv) to participate in charitable or educational activities.
4. Compensation and Related Matters.
(a) Salary. During year one of the Employment Period, the
Company shall pay the Executive a salary of not less than $80,000 annually. All
salary is to be paid consistent with the standard payroll practices of the
Company (e.g., timing of payments and standard employee deductions, such as
income tax withholdings, social security), but not less frequently than monthly
with each payment being that portion of the annual salary which is payable
based upon the applicable period.
(b) Bonus. In addition to the Base Salary set forth above,
Employee shall be entitled to bonuses as indicated in the periodically adjusted
bonus guidelines that may be presented from time to time to Employee by the
President of Employer. Employee understands that Employer is under no
obligation to pay bonuses or create guidelines, and that such bonus guidelines
if adopted, will likely change, due in part to a changing emphasis of Employer
goals, focus and objectives.
(c) Business Expenses. The Company shall reimburse the
Executive in connection with the conduct of the Company's business upon
presentation of sufficient tangible evidence of such expenditures consistent
with the Company's policies as in place from time to time.
(d) Stock Option Benefits. The Company agrees to grant the
Executive a non- qualified stock option to acquire up to 80,000 shares of the
Company's common stock at an exercise price of the closing price on June 11,
1999, which was 19.0625 (19 1/16) per share pursuant to the Company's 1997
Stock Incentive Plan (the "OPTION PLAN"). The option shall vest at the first
anniversary of the Commencement Date. In the event the Executive is terminated
without cause pursuant to Section 5(d) below or the Executive terminates this
Agreement for Good Cause pursuant to Section 5(e) below, then the vesting
period shall be accelerated such that any option shares that would have vested
at the end of the year in which the Date of Termination occurs (the
"TERMINATION YEAR") shall become immediately vested; provided, however, that
the Executive shall exercise all options vested upon termination no later than
180 days following
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Date of Termination. The Company agrees that within a reasonable time following
the execution of this Agreement it will execute an option agreement with the
Executive (the "OPTION AGREEMENT") on these terms. Except as otherwise set
forth in this Section 4 and except with respect to the Company's obligations
under this Agreement with respect to the Option Agreement and the Option Plan,
nothing herein is intended, or shall be construed to require the Company to
institute or continue any, or any particular, plan or benefits.
(e) Health and Similar Benefits. The Executive shall be
entitled to participate in or receive health, welfare, life insurance,
long-term disability insurance and similar benefits as the Company provides
generally from time to time to its executives.
(f) Fringe Benefits. The Executive will be entitled to fringe
benefits as may be determined or granted from time-to-time by the Board.
(g) Vacation. The Executive shall be entitled to four
vacation weeks (20 business days) in each calendar year on a pro-rated basis.
The Executive will be entitled to all Company holidays.
5. Termination. The Executive's employment hereunder shall be,
or may be, as the case may be, terminated under the following circumstances:
(a) Death. The Executive's employment hereunder shall
terminate upon his death.
(b) Disability. The Executive's employment hereunder shall
terminate on the Executive's physical or mental disability or infirmity.
Disability shall be conclusively established if the Executive is unable to
perform his duties under this Agreement for more than 85 business days during
any 180 calendar day period.
(c) Cause. The Company may terminate the Executive's
employment hereunder for Cause. "CAUSE" shall mean (i) Employee's material
breach of any of the terms of this Agreement, (ii) his conviction of a crime
involving moral turpitude or constituting a felony under the laws of any state,
the District of Columbia or of the United States, or (iii) his gross
negligence, willful misconduct or fraud in the performance of his duties
hereunder.
(d) Termination for Any Reason. Subject to Section 6 hereof,
the Executive hereby agrees that the Company may dismiss him at any time under
this Section 5(d) without regard (i) to any general or specific policies
(whether written or oral) of the Company relating to the employment or
termination of its employees, or (ii) to any statements made to the Executive,
whether made orally or contained in any document, pertaining to the Executive's
relationship with the Company. Notwithstanding anything to the contrary
contained herein, including Sections 2 and 4, the Executive's employment with
the Company is not for any specified term, is at will and may be terminated by
the Company at any time by delivery of a notice of termination to the
Executive, for any reason, with or without cause, without liability except with
respect to the payments provided for by Section 6.
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(e) Voluntary Resignation. The Executive may voluntarily
resign his position and terminate his employment with the Company at any time
for any reason or for Good Cause. For purposes of this Agreement, "GOOD CAUSE"
shall mean, without the express written consent of Executive, the occurrence of
any of the following events unless such events are substantially corrected
within thirty (30) days following written notification by Executive to the
Company that he intends to terminate his employment hereunder for one of the
following reasons: (i) any material reduction or diminution in the duties,
responsibilities and status of Executive's position; (ii) a material breach by
the Company of any provision of this Agreement; (iii) a relocation by the
Company of its principal place of business to another city or state more than
fifty (50) miles from its principal place of business as of the effective date
of this Agreement and the Company requires the Executive to relocate to such
new principal place of business; and (iv) the occurrence of a Change in
Control. The Executive understands, acknowledges and agrees that any voluntary
resignation by him as a result of any personal or family reasons not otherwise
set forth in this Section 5(e) shall not constitute Good Cause. As used in this
Agreement, "CHANGE OF CONTROL" means the occurrence of any of the following:
(i) the adoption of a plan relating to the liquidation or dissolution of the
Company, (ii) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any person
or group, other than Xxxxxxx Xxxxxxx or Xxxxxxx X. Xxxxx or their affiliates
(the "PRINCIPALS"), becomes the "beneficial owner" (as such term is defined in
Rule 13d-3 and Rule 13d-5 under the Securities Exchange Act of 1934), directly
or indirectly, of more than eighty percent (80%) of the total voting power of
the total outstanding voting stock of the Company on a fully diluted basis or
(iii) the consummation of the first transaction (including, without limitation,
any merger or consolidation) the result of which is that any person or group,
other than the Principals, becomes the beneficial owner, directly or
indirectly, of more than eighty percent (80%) of the total voting power of the
total outstanding voting stock of the Company. If the Executive elects to
resign for any reason or for Good Cause, the Executive shall deliver written
notice of resignation to the Company (the "NOTICE OF RESIGNATION"). The Notice
of Resignation shall set forth the date such resignation shall become effective
(the "DATE OF RESIGNATION"), which date shall, in any event, be at least thirty
(30) days and no more than sixty (60) days from the date the Notice of
Resignation is delivered to the Company. At its option, the Company may reduce
such notice period to any length, upon ten (10) days written notice to the
Executive.
(f) Notice. Any termination of the Executive's employment by
the Company shall be communicated by written Notice of Termination to the
Executive. For purposes of this Agreement, a "NOTICE OF TERMINATION" shall mean
a notice that 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 the Executive's
employment under the provision so indicated.
(g) "DATE OF TERMINATION" shall mean (i) if the Executive's
employment is terminated by his death, the date of his death, (ii) if the
Executive's employment is terminated by reason of his disability, the date that
the Company declares the disability referred to in Section 5(b), above, (iii)
if the Executive's employment is terminated by the Company for Cause pursuant
to subsection 5(c) above, or without Cause by the Company pursuant to
subsection 5(d)
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above, the date specified in the Notice of Termination and (iv) if the Executive
voluntarily resigns pursuant to subsection 5(e) above, the date of the Notice
of Resignation.
(h) Termination Obligations.
(i) The Executive hereby acknowledges and agrees
that all Personal Property and equipment furnished to or prepared by the
Executive in the course of or incident to his employment, belongs to the
Company and shall be promptly returned to the Company upon termination of the
Employment Period. "PERSONAL PROPERTY" includes, without limitation, all books,
manuals, records, reports, notes, contracts, lists, formulae, blueprints, and
other documents, or materials, or copies thereof (including computer files),
and all other proprietary information relating to the business of the Company.
Following termination, the Executive will not retain any written or other
tangible material containing any proprietary information of the Company.
(ii) Upon termination of the Employment Period, the
Executive shall be deemed to have resigned from all offices then held
with the Company or any affiliate.
(iii) The representations and warranties contained
herein and the Executive's obligations under Sections 5(h), 6, 7, 8, 9
and 15 through 18 shall survive termination of the Employment Period
and the expiration of this Agreement.
(i) Release. In exchange for the Company entering into
the Agreement, the Executive agrees that, at the time of his resignation or
termination from the Company, he will execute a release acceptable to the
Company of all liability of the Company and its officers, shareholders,
employees and directors to the Executive in connection with or arising out of
his employment with the Company, except with respect to any then-vested rights
under the Company's Option Plan and except with respect to any Severance
Payments which may be payable to him under the terms of the Agreement.
6. Compensation Upon Termination.
(a) Death. If the Executive's employment shall be
terminated pursuant to Section 5(a), the Company shall pay the estate of the
Executive (the "ESTATE") his base salary payable pursuant to Section 4(a) and
benefits described in Sections 4.1(d) and 4(e) through the Date of Termination.
At the Estate's expense, the Executive's dependents shall also be entitled to
any continuation of health insurance coverage rights under any applicable law.
(b) Disability. If the Executive's employment shall be
terminated by reason of disability pursuant to Section 5(b), the Executive
shall receive his base salary payable pursuant to Section 4(a) and benefits
described in Sections 4(d) and 4(e) up to the Date of Termination and for 90
days thereafter; provided, however, that payments so made to the Executive
during the disability shall be reduced by the sum of the amounts, if any,
payable to the Executive at or prior to the time of any such payment under any
disability benefit plan of the Company. At the
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Executive's own expense, the Executive and his dependents shall also be
entitled to any continuation of health insurance coverage rights under any
applicable law.
(c) Cause. If the Executive's employment shall be terminated
for Cause pursuant to Section 5(c) hereof, the Company shall pay the Executive
his base salary pursuant to Section 4(a) through the Date of Termination. At
the Executive's own expense, the Executive and his dependents shall also be
entitled to any continuation of health insurance coverage rights under any
applicable law.
(d) Other Terminations by the Company. If the Company shall
terminate the Executive's employment without cause pursuant to Section 5(d)
hereof, the Company shall pay the Executive his then current base salary at the
Date of Termination pursuant to Section 4(a) for a period of the lesser of (i)
the remaining unexpired term of this Agreement or (ii) nine (9) months from the
Date of Termination (the "SEVERANCE PAYMENT"). The Company shall pay on behalf
of the Executive the cost of any continuation of the then existing health
insurance coverage of the Executive for a period of the lesser of (i) the
remaining unexpired term of this Agreement, (ii) nine (9) months from the Date
of Termination or (iii) until the Executive obtains Full Time Employment (the
"SEVERANCE BENEFIT"). For purposes of this Agreement, "FULL TIME EMPLOYMENT"
shall mean employment at a subsequent full time employer or in connection with
a full time consulting practice or other self-employment or any full time
venture founded by the Executive.
(e) Voluntary Resignation. If the Executive terminates his
employment with the Company pursuant to Section 5(e) hereof for Good Cause, the
Company shall pay the Executive his Severance Payment and Severance Benefit.
(f) If the Executive terminates his employment with the
Company pursuant to Section 5(e) hereof without Good Cause, the Company shall
have no obligation to pay the Severance Payment or Severance Benefit or
otherwise compensate the Executive following the Date of Resignation.
(g) In the event of any Termination pursuant to Section 5,
the Executive shall be entitled to retain any and all options to purchase
capital stock of the Company granted to the Executive pursuant to the terms and
conditions of the Option Agreement that have vested, either by passage of time
or by virtue of acceleration pursuant to Section 4(c), as of the Date of
Termination.
(h) Any Severance Payment made pursuant to this Section 6
shall be payable in accordance with the regular pay schedule for the Company
over the required duration set forth in Sections 6(a) through 6(e).
(i) The continuing obligation of the Company to make the
Severance Payment to the Executive is expressly conditioned upon the Executive
complying and continuing to comply with his obligations and covenants under
Sections 7 and 8 of this Agreement following termination of employment with the
Company.
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7. Confidentiality and Non-Solicitation Covenants.
(a) Confidentiality. In addition to the agreements set forth
in Section 5(h)(i), the Executive hereby agrees that the Executive will not,
during the Employment Period or at any time thereafter directly or indirectly
disclose or make available to any person, firm, corporation, association or
other entity for any reason or purpose whatsoever, any Confidential Information
(as defined below). The Executive agrees that, upon termination of his
employment with the Company, all Confidential Information in his possession
that is in written or other tangible form (together with all copies or
duplicates thereof, including computer files) shall be returned to the Company
and shall not be retained by the Executive or furnished to any third party, in
any form except as provided herein; provided, however, that the Executive shall
not be obligated to treat as confidential, or return to the Company copies of
any Confidential Information that (i) was publicly known at the time of
disclosure to the Executive, (ii) becomes publicly known or available
thereafter other than by any means in violation of this Agreement or any other
duty owed to the Company by any person or entity or (iii) is lawfully disclosed
to the Executive by a third party. As used in this Agreement the term
"CONFIDENTIAL INFORMATION" means: information disclosed to the Executive or
known by the Executive as a consequence of or through his relationship with the
Company, about the owners, customers, employees, business methods, public
relations methods, organization, procedures or finances, including, without
limitation, information of or relating to owner or customer lists of the
Company and its affiliates.
(b) Non-Solicitation. In the event of termination for any
reason other than pursuant to Section 5(d) or Section 5(e) if termination is
for "GOOD CAUSE", the Executive agrees that during the Employment Period and
for one (1) year thereafter the Executive will not, either on his own account
or jointly with or as a manager, agent, officer, employee, consultant, partner,
joint venturer, owner or shareholder or otherwise on behalf of any other
person, firm or corporation, (i) carry on or be engaged or interested directly
or indirectly in, or solicit, the manufacture or sale of goods or provision of
services to any person, firm or corporation which, at any time during the
Employment Period has been or is a customer of or in the habit of dealing with
the Company in its Business, (ii) endeavor directly or indirectly to canvas or
solicit in competition with Company or to interfere with the supply of orders
for goods or services from or by any person, firm or corporation which during
the Employment Period has been or is a supplier of goods or services to Company
or (iii) directly or indirectly solicit or attempt to solicit away from Company
any of its officers or employees or offer employment to any person who, on or
during the six (6) months immediately preceding the date of such solicitation
or offer, is or was an officer or employee of Company.
8. Covenant Not to Compete.
(a) The Executive agrees that during the Employment Period he
will devote substantially full-time to the Business of the Company and not
engage in any type of business in competition with the Business of the Company.
Subject to such full-time requirement and the restrictions set forth below in
this Section 8 and Section 3(c) above, the Executive shall be permitted to
continue his existing business investments and activities and may pursue
additional
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business investments; provided, however, that the Executive shall not serve as
officer or director of any public company resulting from such business
investments. The Executive agrees that he shall not (i) invest in, manage,
consult or participate in any way in any other business in competition with the
Business (in either an active or passive manner), (ii) participate in or advise
any business wherein activities similar to the Business are a relevant business
segment or (iii) act for or on behalf of any business that intends to enter or
participate in the activities similar to the Business, in each case unless the
independent members of the Company's Board of Directors determine that such
action is in the best interest of the Company. Notwithstanding the foregoing,
the Executive may purchase stock as a stockholder in any publicly traded
company, including any company which is involved in activities similar to the
Business; provided, however, that the Executive does not own (together or
separately or through his affiliates) more than 5% of any company (other than
the Company) in such business.
(b) The provisions of this Section 8 shall survive for one
(1) year following any termination of employment, except in the event of
termination pursuant to Section 5(d) or Section 5(e) herein.
9. Injunctive Relief and Enforcement. In the event of breach by
the Executive of the terms of Sections 5(h), 5(i), 7 or 8, and only following
mediation or attempted mediation as set forth in Section 16 below (unless the
Company is suffering irreparable injury, in which case Section 16 will not
prevent the Company from seeking injunctive relief against the Executive in any
court or forum), the Company shall be entitled to institute legal proceedings
to enforce the specific performance of this Agreement by the Executive and to
enjoin the Executive from any further violation of Sections 5(h), 5(i), 7 or 8
and to exercise such remedies cumulatively or in conjunction with all other
rights and remedies provided by law and not otherwise limited by this
Agreement. The Executive acknowledges, however, that the remedies at law for
any breach by him of the provisions of Sections 5(h), 5(i), 7 or 8 may be
inadequate. In addition, in the event the agreements set forth in Sections
5(h), 5(i), 7 or 8 shall be determined by any court of competent jurisdiction
to be unenforceable by reason of extending for too great a period of time or
over too great a geographical area or by reason of being too extensive in any
other respect, each such agreement shall be interpreted to extend over the
maximum period of time for which it may be enforceable and to the maximum
extent in all other respects as to which it may be enforceable, and enforced as
so interpreted, all as determined by such court in such action.
10. 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 personally delivered when
transmitted by telecopy with receipt confirmed, or one day after delivery to an
overnight air courier guaranteeing next day delivery, addressed as follows:
If to the Executive: Xxxx X. Xxxxx
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If to the Company: BioShield Technologies, Inc.
0000 Xxxxxxxxxxxxx Xxxxxxxxx
Xxxxx X-000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
With a copy to: Xxxxxxxxx, Xxxxxxx & Xxxxx, LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
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.
11. Severability. 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; provided, however, that if any one or more of the terms
contained in Sections 5(h), 7 or 8 hereto shall for any reason be held to be
excessively broad with regard to time, duration, geographic scope or activity,
that term shall not be deleted but shall be reformed and constructed in a
manner to enable it to be enforced to the extent compatible with applicable
law.
12. Assignment. This Agreement may not be assigned by the
Executive, but may, subject to the provisions of Section 5(e), be assigned by
the Company to any successor to its Business and will inure to the benefit and
be binding upon any such successor.
13. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Headings. The headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
15. Choice of Law. This Agreement shall be construed, interpreted
and the rights of the parties determined in accordance with the laws of the
State of Georgia, except with respect to matters of law concerning the internal
corporate affairs of any corporate entity which is a party to or the subject of
this Agreement, and as to those matters the law of the jurisdiction under which
the respective entity derives its powers shall govern.
16. LIMITATION ON LIABILITIES. IF EITHER THE EXECUTIVE OR THE
COMPANY IS AWARDED ANY DAMAGES AS COMPENSATION FOR ANY BREACH OR ACTION RELATED
TO THIS AGREEMENT, A BREACH OF ANY COVENANT CONTAINED IN THIS AGREEMENT
(WHETHER EXPRESS OR IMPLIED BY EITHER LAW OR FACT), OR ANY OTHER CAUSE OF
ACTION
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BASED IN WHOLE OR IN PART ON ANY BREACH OF ANY PROVISION OF THIS AGREEMENT,
SUCH DAMAGES SHALL BE LIMITED TO CONTRACTUAL DAMAGES AND SHALL EXCLUDE (I)
PUNITIVE DAMAGES, AND (II) CONSEQUENTIAL AND/OR INCIDENTAL DAMAGES (E.G., LOST
PROFITS AND OTHER INDIRECT OR SPECULATIVE DAMAGES). THE MAXIMUM AMOUNT OF
DAMAGES THAT THE EXECUTIVE MAY RECOVER FOR ANY REASON SHALL BE THE AMOUNT EQUAL
TO ALL AMOUNTS OWED (BUT NOT YET PAID) TO THE EXECUTIVE PURSUANT TO THIS
AGREEMENT THROUGH ITS NATURAL TERM OR THROUGH ANY SEVERANCE PERIOD, PLUS
INTEREST ON ANY DELAYED PAYMENT AT THE MAXIMUM RATE PER ANNUM ALLOWABLE BY
APPLICABLE LAW FROM AND AFTER THE DATE(S) THAT SUCH PAYMENTS WERE DUE.
17. Entire Agreement. This Agreement contains the entire
agreement and understanding between the Company and the Executive with respect
to the employment of the Executive by the Company as contemplated hereby, and
no representations, promises, agreements or understandings, written or oral,
not herein contained shall be of any force or effect. This Agreement shall not
be changed unless in writing and signed by both the Executive and the Company
(by duly adopted resolution of its Board of Directors).
18. The Executive's Acknowledgment. The Executive acknowledges
(a) that he has had the opportunity to consult with independent counsel of his
own choice concerning this Agreement, and (b) that he has read and understands
the Agreement, is fully aware of its legal effect, and has entered into it
freely based on his own judgment.
IN WITNESS WHEREOF, the parties have executed this Employment
Agreement as of the date and year first above written.
BIOSHIELD TECHNOLOGIES, INC.
By:
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Title:
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"EXECUTIVE"
Xxxx X. Xxxxx
Signed, sealed and
delivered this _____
day of
______________, 1998.
[SEAL]
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NOTARY PUBLIC
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