EXHIBIT 10(d)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, made effective as of the 8th day of February,
2004, by and between Xxxxx X. Xxxxxxxxx ("Executive") and NORSTAN, INC., a
Minnesota corporation (the "Company"),
W I T N E S S E T H:
WHEREAS, the Company will employ Executive as President and Chief
Executive Officer of Norstan, Inc., effective as of February 8, 2004;
WHEREAS, Executive's experience and knowledge are considered to be
necessary to the continued success of the Company's business;
WHEREAS, the Company wishes to enter into an agreement with Executive
governing the terms and conditions of his employment, and Executive is willing
to be employed on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants hereinafter set forth, the parties do hereby agree as follows:
1. Employment Period. The Company agrees to employ Executive, and
Executive agrees to serve in the full-time employ of the Company, for the period
(the "Employment Period") beginning on February 8, 2004 and ending on February
28, 2006; provided, that on March 1, 2006, and on each March 1 thereafter
("Renewal Date"), the Employment Period shall automatically be extended to the
date which is 24 months after such Renewal Date unless, not later than such
Renewal Date, the Company gives Executive written notice that the Employment
Period shall not be so extended; provided further, that in the event of a
"Change in Control" (as defined in subparagraph 7.e. below), the Employment
Period shall automatically be extended to the date which is 24 months after the
date on which the Change in Control occurs. Notwithstanding the foregoing, in no
event shall the Employment Period continue beyond the earliest to occur of the
date of Executive's 65th birthday, the date as of which Executive's employment
is terminated pursuant to paragraph 4 or paragraph 7, or the date of the
Executive's death.
2. Duties. During the Employment Period, Executive shall serve as
President and Chief Executive Officer of Norstan, Inc., or, except as otherwise
provided in this Agreement, in such other executive positions as the Chairman of
the Board of Directors of the Company shall from time to time determine.
Executive shall perform such executive and managerial duties consistent with
such positions as the Chairman of the Board of Directors of the Company shall
from time to time direct. Executive shall devote his best efforts and all of his
business time and attention (except for usual vacation periods and reasonable
periods of illness or other incapacity) to the business of the Company and its
subsidiaries.
3. Compensation. During the Employment Period, Executive shall be
compensated as follows:
a. Salary. Executive shall be paid a salary at a rate which is
not less than $350,000 per year, exclusive of bonuses, if any, which may from
time to time be awarded to Executive pursuant to any authorized bonus,
incentive, or similar plan maintained by the Company. Executive's salary shall
be subject to annual review and shall be paid in equal, bi-weekly installments.
b. Expenses. Executive shall be reimbursed for all reasonable
business expenses incurred in the performance of his duties pursuant to this
Agreement, to the extent such expenses are substantiated and are consistent with
the general policies of the Company and its subsidiaries relating to the
reimbursement of expenses of executive officers.
c. Benefits. In addition to any other compensation provided
under this Agreement, Executive shall be entitled to participate, during the
Employment Period, in any and all pension, profit sharing, and other employee
benefit plans or fringe benefit programs which are from time to time maintained
by the Company for its executive officers, in accordance with the provisions of
such plans or programs as are from time to time in effect.
d. Other Benefits. Executive shall be granted stock options
and restricted stock awards in amounts consistent with his positions as
President and Chief Executive Officer of the Company as determined by the Board
in its sole discretion. Nothing in this section shall obligate the Board to
grant any stock options and/or restricted stock awards in any amounts or
intervals.
e. Deductions and Withholding. All compensation and other
benefits payable to or on behalf of Executive pursuant to this Agreement shall
be subject to such deductions and withholding as may be agreed to by Executive
or required by applicable law.
4. Disability. If, during the Employment Period, Executive shall
become incapacitated by accident or illness and, as determined under the
Long-Term Disability Plan of the Company, shall be unable to perform the duties
of the positions he then occupies for a period of 150 consecutive days, the
Company shall have the right to terminate the Employment Period effective at any
time after such 150 day period of disability by giving 30 days advance written
notice to Executive. If the Employment Period is thus terminated, Executive
shall not be entitled to receive any compensation or other benefits pursuant to
this Agreement, other than compensation or benefits accrued through the
effective date of such termination.
5. Death. If Executive shall die during the Employment Period
without having been notified, pursuant to subparagraph 7.a. below, of a breach
of any of the terms of this Agreement in any material respect, his base salary
(at the rate in effect at the time of his death) shall be continued for a period
of 12 months to the beneficiary named in the last written instrument signed by
Executive for the purposes of this Agreement and received by the Company prior
to his death. If Executive fails to name a beneficiary, such amounts shall be
paid to his estate.
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6. Other Benefits. The compensation provisions of this Agreement
shall be in addition to, and not in derogation or diminution of, any benefits
that Executive or his beneficiaries may be entitled to receive under the
provisions of any pension, 401(k) plan, disability, or other employee benefit
plan now or hereafter maintained by the Company.
7. Termination.
a. For Cause By Company. The Company may terminate Executive's
employment for cause upon 60 days prior written notice to Executive. Such notice
shall specify in reasonable detail the nature of the cause and, during such 60
day period, Executive shall have the opportunity to cure the stated cause. If
Executive fails to cure a stated cause, the Employment Period shall terminate at
the end of the 60 day notice period, but without prejudice to Executive's right
to contest the existence of any stated cause and/or to contest the fact that the
cause has not been cured. For the purposes of this Agreement, cause shall mean
any conduct by Executive involving an act or acts of dishonesty on the part of
the Executive constituting a felony and resulting or intended to result directly
or indirectly in gain or personal enrichment at the expense of the Company, or
any failure by Executive to substantially comply with the terms of this
Agreement in any material respect.
b. Ineligibility. If the Company terminates Executive's
employment for cause, or if Executive voluntarily terminates his employment
under circumstances other than those specified in subparagraphs 7.c., or 14.a.,
Executive shall not be entitled to receive any compensation or other benefits
pursuant to this Agreement, other than compensation or benefits earned through
the effective date of such termination. Nothing in this section is intended to
vest or accelerate any quarterly or annual AIP (Annual Incentive Plan) payments.
c. Eligibility. If, after or due to a "Change in Control" (as
such term is defined in subparagraph 7.e. below), and prior to the expiration of
the initial or then current extension of the Employment Period, (a) Executive
voluntarily terminates his employment (i) because he has been reassigned to a
position of lesser rank or status or because he has been transferred to a
location which is more than 25 miles from his previous principal place of
employment, or because his base salary or incentive compensation has been
reduced, or because his benefits have been reduced (unless such reduction is
made uniformly in a plan of general application to all of the Company's eligible
employees); or (ii) for Good Reason (as defined below); or (iii) if his health
should become impaired to an extent that makes his continued performance of his
duties hereunder hazardous to his physical or mental health or his life,
provided that the Executive shall have furnished the Company with a written
statement from a qualified physician to such effect and provided, further, that,
at the Company's request, the Executive shall submit to an examination by a
physician selected by the Company and such doctor shall have concurred in the
conclusion of the Executive's doctor; or (b) the Company terminates Executive's
employment for reasons other than those specified in subparagraph 7.a. of this
Agreement, then Executive shall receive the compensation and benefits set forth
in paragraph 8 below.
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(i) For purposes of this Agreement, "Good Reason" shall mean
(A) a failure by the Company to comply with any material provision of this
Agreement which has not been cured within ten (10) days after notice of such
noncompliance has been given by the Executive to the Company, or (B) any
purported termination of the Executive's employment which is not effected
pursuant to a notice of termination which notice 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.
d. Without Cause By Company. If, other than caused by a Change
in Control, the Company terminates Executive's employment at any time prior to
the expiration of the initial or then current extension of the Employment Period
for reasons other than those specified in paragraph 4 or subparagraph 7.a. of
this Agreement, then Executive shall continue to receive his base salary and
monthly cell phone expense (in a comparable amount) for a period of 12 months.
e. Change in Control, Defined. For the purposes of this
Agreement, a Change in Control shall be deemed to occur when and if, during the
Employment Period:
(i) any person (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act, including any affiliate or
associate as defined in Rule 12(b)-2 under the Exchange Act of
such person, other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of
the Company, or any corporation owned, directly or indirectly,
by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company)
becomes a "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of
the Company representing 30% or more of the combined voting
power of the Company's then outstanding securities; or
(ii) individuals who, as of the date hereof, constitute
the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board, provided that any
person becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be,
for purposes of this Agreement, considered as though such
person were a member of the Incumbent Board; or
(iii) the stockholders of the Company approve a
definitive agreement to merge or consolidate the Company with
or into another corporation or other enterprise in which the
holders of outstanding stock of the Company entitled to vote
in elections of directors immediately before such merger or
consolidation hold less than 50% of the voting power of the
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survivor of such merger or consolidation or its parent, or
approve a plan of liquidation; or
(iv) at least 80% of the Company's assets are sold and
transferred to another corporation or other enterprise that is
not a subsidiary, direct or indirect, or other affiliate of
the Company.
8. Compensation on Change in Control. In the event of a termination
under subparagraph 7.c. above, during the Period of Employment or any extension
thereof:
(i) The Company shall pay the Executive any earned and accrued
but unpaid installment of base salary through the Date of
Termination, at the rate in effect on the Date of Termination, or if
greater, on the date immediately preceding the date that a Change in
Control occurs, and all other unpaid amounts to which the Executive
is entitled as of the Date of Termination under any compensation
plan or program of the Company, including, without limitation, all
accrued vacation time; such payments to be made in a lump sum on or
before the fifth day following the Date of Termination.
(ii) In lieu of any further salary payments to the Executive
for periods subsequent to the Date of Termination, the Company shall
pay as liquidated damages to the Executive an amount equal to the
product of (A) the sum of (1) the Executive's annual salary rate in
effect as of the Date of Termination, or if greater, on the date
immediately preceding the date that a Change in Control occurs, and
(2) the greater of: (i) the prior year's actual incentive payment to
the Executive under the Company's incentive plan for that year or
(ii) the dollar amount payable at 100% of target under the Company's
then current incentive plan for the year in which occurs such Date
of Termination, and (B) the number two (2); such payment to be made
in a lump sum on or before the fifth day following the Date of
Termination.
(iii) The Company shall pay all other damages to which the
Executive is entitled as a result of such termination, including
damages for any and all loss of benefits to the Executive under the
Company's employee welfare benefit plans and perquisite programs
which the Executive would have received had the Executive's
employment continued for an additional two (2) years, and including
all reasonable legal fees and expenses incurred by him as a result
of such termination, including the fees and expenses of enforcing
the terms of this Agreement; payment of such fees to be made within
thirty (30) days following the Company's receipt of an appropriate
invoice therefor.
(iv) For a period of twenty-four (24) months following the
Executive's Date of Termination, the Company will reimburse the
Executive in an amount not to exceed $15,000 for all reasonable
expenses of a reputable outplacement organization incurred by him
(but not including any arrangement by which the
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Executive prepays expenses for a period of greater than thirty (30)
days) in seeking employment with another employer.
(v) Executive shall be fully vested in all shares of
restricted stock, performance awards, stock appreciation rights and
stock options granted to him under the Norstan, Inc. 1995 Long-Term
Incentive Plan (or any predecessor or successor plan) on the date of
a Change in Control.
(vi) The present value (as defined herein) of the liquidated
damages payable to the Executive under subsection (ii) above, and
any other payments otherwise payable to the Executive by the Company
on or after a Change in Control, as defined in Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), which are
deemed under said Section 280G to constitute "parachute payments"
(as defined in Section 280G without regard to Section
280G(b)(2)(A)(ii)), shall be less than three times the Executive's
base amount (as defined herein). In the event that the present value
of such payments equals or exceeds such amount, the provisions set
forth in this subparagraph (vi) will apply, and liquidated damages
or other severance benefits payable to the Executive under this
Agreement will be made only in accordance with this subparagraph
(vi) notwithstanding any provision to the contrary in this
Agreement.
(A) Not later than thirty days after the Date of
Termination, the Company will provide the Executive with a
schedule indicating by category the present value of the
liquidated damages payable to the Executive under this
Agreement, all other benefits payable to the Executive under
this Agreement (specifying the paragraph, subparagraph or
clause under which each such payment is to be made) and any
other payments otherwise payable to the Executive by the
Company on or after the Change in Control, which, in the
Company's opinion, constitute parachute payments under Section
280G of the Code. No payments under this Agreement shall be
made until after thirty days from the receipt of such schedule
by the Executive. At any time prior to the expiration of said
30-day period, the Executive shall have the right to select
from all or part of any category of payment to be made under
this Agreement those payments to be made to the Executive in
an amount the present value of which (when combined with the
present value of any other payments otherwise payable to the
Executive by the Company that are deemed parachute payments)
is less than 300 percent of the Executive's base amount. If
the Executive fails to exercise his right to make a selection,
only a lump sum cash severance payment equal to one dollar
less than 300 percent of the Executive's base amount (reduced
by the present value of any other payments otherwise payable
to the Executive by the Company that are deemed parachute
payments and increased, to the extent such increase will not
cause the payment to be an excess parachute payment under
Section 280G of the Code, by interest from the Date of
Termination to
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the date of payment at the Federal short-term rate, compounded
annually, promulgated under Section 1274(d) of the Code as
effective for the month in which the Date of Termination
occurs) shall be made to the Executive on the day after the
expiration of the period extending thirty days from his
receipt of the schedule provided for hereunder, and no other
liquidated damages or other benefits under subparagraphs (ii),
(iii), (iv) and (v) above of this Agreement shall be paid to
the Executive.
(B) If the Company fails to supply the schedule within
thirty days of the Date of Termination, then the provisions of
this subparagraph (vi) shall not apply and the Company shall
be obligated to pay to the Executive the full amount of
liquidated damages and other benefits under this Agreement,
without regard to subparagraph (vi).
(C) If the Executive disagrees with the schedule
prepared by the Company, then the Executive shall have the
right to submit the schedule to arbitration, in accordance
with the provisions of paragraph 12 herein. The period in
which the Executive may select his benefits under this
Agreement shall be extended until fifteen days after a final
and binding arbitration award is issued or a final judgment,
order or decree of a court of competent jurisdiction is
entered upon such arbitration award (the time for appeal
therefrom having expired and no appeal having been perfected),
and the Company's period for paying the Executive's unpaid
benefits under this Agreement shall be extended until ten days
thereafter. If the Executive fails to make a selection within
said fifteen day period, the Company shall pay the unpaid
benefits within five days following the expiration of the
Executive's fifteen day period.
(D) For purposes of this subparagraph (vi), "present
value" means the value determined in accordance with the
principles of Section 1274(b)(2) of the Code under regulations
promulgated under Section 280G of the Code, and "base amount"
means the annualized includible compensation for the base
period payable to the Executive by the Company and includible
in the Executive's gross income for Federal income tax
purposes during the shorter of the period consisting of the
most recent five taxable years ending before the date of any
Change in Control of the Company or the portion of such period
during which the Executive was an employee of the Company.
(E) In the event that Section 280G of the Code, or any
successor statute, is repealed, this subparagraph (vi) shall
cease to be effective on the effective date of such repeal.
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(vii) The Executive shall not be required to mitigate damages
or the amount of any payment provided for under this Agreement by
seeking other employment or otherwise, nor shall the amount of any
payment provided for under this Agreement be reduced by any
compensation earned by the Executive as the result of employment by
another employer after the Date of Termination, or otherwise.
9. Competition.
a. During the Employment Period, Executive will not, except
with the express written consent of the Chairman of the Board of Directors of
the Company become engaged in, or permit his name to be used in connection with
any business other than the businesses of the Company and its subsidiaries,
whether or not such other business is a competitive business.
b. Executive covenants and agrees that for a period of 12
months after the termination of the Employment Period, or for such longer period
as Executive is receiving payments pursuant to paragraph 8, he will not, except
with the express written consent of the then Chairman of the Board of Directors
of the Company, engage directly or indirectly in, or permit his name to be used
in connection with any competitive business in the geographic area serviced by
the Company or its subsidiaries. Executive further covenants and agrees for a
period of 12 months from the date of termination of his employment hereunder not
to solicit or assist anyone else in the solicitation of, any of the Company's
then-current employees to terminate their employment with the Company or to
become employed by any business enterprise with which the Executive may then be
employed, associated, affiliated or connected.
c. For the purposes of this paragraph 9: (i) the phrase,
"engage directly or indirectly in" shall encompass: (A) all of Executive's
activities whether on his own account or as an employee, director, officer,
agent, consultant, independent contractor, or partner of or in any person, firm,
or corporation (other than the Company and its subsidiaries), or (B) Executive's
ownership of more than 10% of the voting stock of any corporation, 5% or more of
the gross income of which is derived from any business or businesses in which
Executive may not then engage; and (ii) the phrase "competitive business" shall
mean: (A) the sale of telephone, telecommunications, or similar equipment, or
(B) any other business in which the Company or its subsidiaries is then engaged.
d. Notwithstanding the foregoing, the restrictions set forth
in subparagraph 9.b. shall not apply if Executive's employment is terminated
under any of the circumstances described in subparagraphs 7.c. or 14.a.
10. Confidential Information. Executive agrees that he will not,
without the prior written consent of the Board of Directors of the Company,
during the term or after termination of his employment under this Agreement,
directly or indirectly disclose to any individual, corporation, or other entity
(other than the Company or any subsidiary thereof, their officers, directors, or
employees entitled to such information, or to any other person or entity to whom
such
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information is regularly disclosed in the normal course of the Company's
business) or use for his own or such another's benefit, any information, whether
or not reduced to written or other tangible form, which:
a. is not generally known to the public or in the industry;
b. has been treated by the Company or any of its subsidiaries
as confidential or proprietary; and
c. is of competitive advantage to the Company or any of its
subsidiaries and in the confidentiality of which the Company or any of its
subsidiaries has a legally protectable interest.
Information which becomes generally known to the public or in the industry, or
in the confidentiality of which the Company and its subsidiaries cease to have a
legally protectable interest, shall cease to be subject to the restrictions of
this paragraph.
11. Enforcement. If, at the time of enforcement of any provision of
paragraphs 9 or 10, a court shall hold that the period, scope, or geographical
area restrictions stated therein are unreasonable under circumstances then
existing, the maximum period, scope, or geographical area reasonable under the
circumstances shall be substituted for the stated period, scope, or area. In the
event of a breach by Executive of any of the provisions of paragraphs 9 or 10,
the Company may, in addition to any other rights and remedies existing in its
favor, apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive or other relief in order to enforce or
prevent any violations of the provisions hereof.
12. Arbitration. Except to the extent provided in paragraph 11, any
controversy or claim arising out of or relating to this Agreement, or any breach
thereof, shall be settled by arbitration before three arbitrators, and judgment
rendered by the arbitrators, or a majority of them, may be entered in any court
having jurisdiction thereof. Within 30 days after notice by either party to the
other requesting such arbitration, each party shall appoint a disinterested and
neutral arbitrator, and the two thus chosen shall appoint a third disinterested
and neutral arbitrator. If the two arbitrators so appointed cannot agree upon
the appointment of a third arbitrator, then such third arbitrator shall be
appointed by the Chief Judge of the United States District Court for the
district that then includes the City of Minneapolis. Such arbitration shall be
conducted in the City of Minneapolis in conformity with the procedures provided
under the Uniform Arbitration Act, as adopted by the State of Minnesota and as
then in effect. Except as provided in paragraph 13 of this Agreement, the
parties shall each pay their own expenses in connection with such arbitration
and any related proceedings.
13. Payment of Costs. If a dispute arises regarding a termination of
Executive's employment after a Change in Control and Executive obtains a final
judgment in his favor from which no appeal may be taken, whether because the
time to do so has expired or otherwise, or his claim is settled by the Company
prior to the rendering of such a judgment, all reasonable legal fees
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and expenses incurred by Executive in contesting or disputing any such
termination, in seeking to obtain or enforce any right or benefit provided for
in this Agreement, or in otherwise pursuing his claim will be promptly paid by
the Company, with interest thereon at the highest Minnesota statutory rate for
interest on judgments against private parties, from the date of payment thereof
by Executive to the date of reimbursement to him by the Company.
14. Successors.
a. Of the Company. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation, or otherwise)
to all or substantially all of the business and/or assets of the Company to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would have been required to perform it if no
such succession had taken place. Failure of the Company to obtain such agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle Executive to terminate his employment with the
Company and to receive the payments and benefits provided for in paragraph 8. As
used in this Agreement, "Company" shall mean the Company as hereinbefore
defined, and any successor to the business and/or assets of the Company which
executes and delivers the agreement provided for in this paragraph 14 or which
otherwise becomes bound by all the terms and provisions of this Agreement as a
matter of law.
b. Of Executive. This Agreement and all rights of the
Executive hereunder shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the Executive's devisee,
legatee, or other designee or, if there be no such designee, to the Executive's
estate.
15. General Provisions.
a. Assignments. Executive's rights and interests under this
Agreement may not be assigned, pledged, or encumbered by him without the
Company's written consent.
b. Effect of Headings. The headings of all of the paragraphs
and subparagraphs of this Agreement are inserted for convenience of reference
only, and shall not affect the construction or interpretation of this Agreement.
c. Modification, Amendment, Waiver. No modification,
amendment, or waiver of any provision of this Agreement shall be effective
unless approved in writing by both parties. The failure at any time to enforce
any of the provisions of this Agreement shall in no way be construed as a waiver
of such provisions and shall not affect the right of either party thereafter to
enforce each and every provision of this Agreement in accordance with its terms.
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d. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
e. No Strict Construction. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
person.
f. Applicable Law. All questions concerning the construction,
validity, and interpretation of this Agreement shall be governed by the laws of
the State of Minnesota.
g. Notices. Any notice to be served under this Agreement shall
be in writing and shall be mailed by registered mail, registry fee and postage
prepaid and return receipt requested, addressed:
If to the Company, to:
Norstan, Inc.
0000 Xxxxx Xxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Chairman of the Board
cc: VP & General Counsel, or
If to Executive, to:
Xxxxx X. Xxxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
or to such other place as either party may specify in writing, delivered in
accordance with the provisions of this subparagraph.
h. Survival. The rights and obligations of the parties shall
survive the term of Executive's employment to the extent that any performance is
required under this Agreement after the expiration or termination of such term.
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i. Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter thereof, and
supersedes all previous agreements between the parties relating to the same
subject matter.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the day and year first above written.
NORSTAN INC. (the "Company")
By /s/ Xxxx Xxxxxxxx
---------------------------
Chairman of the Board
/s/ Xxxxx X. Xxxxxxxxx
----------------------------
Xxxxx X. Xxxxxxxxx (the "Executive")
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