Exhibit 10(c)
SEVERANCE AGREEMENT
AGREEMENT dated as of the 19th day of June, 1997 by and
between Insituform Technologies, Inc., a Delaware corporation
(the "Company"), and Xxxxxx X. Xxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company (the "Board")
has determined that it is in the best interests of the Company
and its stockholders to assure that the Company shall have the
continued dedication of the Executive notwithstanding the
possibility, threat or occurrence of a Change of Control (as
defined below);
NOW, THEREFORE, it is hereby agreed as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the meanings set forth below:
(a) The term "Accrued Obligations" shall mean the sum of
the amounts described in clauses (1), (2), and (3) of Paragraph
(b)(i)(x) of Article II hereof.
(b) The term "Affiliate" shall mean any person controlling,
controlled by or under common control with the subject
referenced.
(c) The term "Annual Base Salary" shall mean an amount
equal to twelve times the highest monthly base salary paid or
payable, including any base salary which has been earned but
deferred, to the Executive by the Company or its Affiliates in
respect of the twelve-month period immediately preceding the
month in which the Effective Date occurs, or, if higher, the
twelve-month period immediately preceding the month in which the
Date of Termination occurs.
(d) The term "Annual Bonus" shall mean the annual bonus
paid or payable, including any bonus or portion thereof which has
been earned but deferred (and annualized for any fiscal year
consisting of less than twelve full months or during which the
Executive was employed for less than twelve full months), for the
most recently completed fiscal year prior to the Effective Date,
or, if higher, for the most recently completed fiscal year prior
to the Date of Termination.
(e) The term "Business Combination" shall mean a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the
Company.
(f) The term "Cause" shall mean:
(i) the willful and continued failure of the
Executive to perform substantially the Executive's duties
with the Company or any of its Affiliates (other than any
such failure resulting from incapacity due to physical or
mental illness), after a written demand for substantial
performance is delivered to the Executive by the Board or
the chief executive officer of the Company which
specifically identifies the manner in which the Board or
chief executive officer believes that the Executive has not
substantially performed the Executive's duties, or
(ii) the willful engaging by the Executive in illegal
conduct or gross misconduct which is materially and
demonstrably injurious to the Company; or
(iii) conviction of a crime other than misdemeanor
traffic offenses or commission of an act of moral turpitude.
For purposes hereof, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or
omitted to be done, by the Executive in bad faith or without
reasonable belief that the Executive's action or omission was in
the best interests of the Company. The cessation of employment of
the Executive shall not be deemed to be for Cause unless and
until there shall have been delivered to the Executive a copy of
a resolution duly adopted by the affirmative vote of not less
than 80% of the entire membership of the Board, finding that, in
the good faith opinion of the Board, the Executive is guilty of
the conduct described in subparagraph (i) or (ii) immediately
preceding.
(g) The term "Change of Control" shall mean:
(i) Prior to December 9, 1998, the election or
appointment of any two members of the Board except: (x)
pursuant to a nomination made in accordance with the
provisions of Section 7.3 of the Agreement and Plan of
Merger dated May 23, 1995 entered into, inter alia, by the
Company, or (y) in the case of a vacancy in the Board, in
accordance with Article VI of the Company's certificate of
incorporation (or, in the case of the re-election or re-
appointment of a member filling a vacancy created by an
increase in the Board, in accordance with the Company's
certificate of incorporation and by-laws); or
(ii) The acquisition by any Person of beneficial
ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of the combined
voting power of the Outstanding Voting Securities; provided,
however, that the following acquisitions shall not
constitute a Change of Control: (w) any acquisition directly
from the Company, (x) any acquisition by the Company, (y)
any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any
Affiliate of the Company, or (z) any acquisition by any
corporation pursuant to a transaction which complies with
clauses (w), (x) and (y) immediately preceding; or
(iii) Individuals who, as of the date hereof,
constitute the Incumbent Board cease for any reason to
constitute at least a majority of the Board unless they are
replaced with a slate nominated by at least a majority of
the Incumbent Board and further provided that any individual
becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority
of the directors then comprising the Incumbent Board shall,
for purposes of this Sub-Paragraph (iii), be considered as
though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual
or threatened election contest with respect to the election
or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a
Person other than the Board acting by at least a majority
thereof; or
(iv) Consummation of a Business Combination, in each
case, unless, following such Business Combination: (x) all
or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding
Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more
than 50% (20% in the case of any Business Combination being
proposed and implemented by at least a majority of the
Incumbent Board) of the combined voting power of the then
outstanding voting securities entitled to vote generally in
the election of directors of the corporation resulting from
such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership,
immediately prior to such Business Combination, of the
Outstanding Voting Securities, (y) no Person beneficially
owns, directly or indirectly, 20% or more of the combined
voting power of the then outstanding voting securities of
such corporation except to the extent that such ownership
existed prior to the Business Combination, and (z) at least
a majority of the members of the board of directors of the
corporation resulting from such Business Combination were
members of the Incumbent Board, or were nominated by at
least a majority of the members of the Incumbent Board, at
the time of the execution of the initial agreement, or by
the action of the Board providing for such Business
Combination; or
(v) Approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
(h) The term "Change of Control Period" shall mean the
period commencing on the date hereof and ending on the third
anniversary of the date hereof.
(i) The term "Code" shall mean the Internal Revenue Code of
1986, as amended.
(j) The term "Date of Termination" shall mean: (i) if the
Executive's employment is terminated during the Protected Period
by the Company for Cause, or by the Executive for Good Reason,
the date of receipt of the Notice of Termination or any later
date specified therein, as the case may be, (ii) if the
Executive's employment is terminated during the Protected Period
by the Company other than for Cause or Disability, the Date of
Termination shall be the date on which the Company notifies the
Executive of such termination, and (iii) if the Executive's
employment is terminated during the Protected Period by reason of
death or Disability, the Date of Termination shall be the date of
death of the Executive or the Disability Effective Date, as the
case may be.
(k) The term "Disability" shall mean the absence of the
Executive from the Executive's duties with the Company on a
full-time basis for 180 consecutive business days as a result of
incapacity due to mental or physical illness which is determined
to be total and permanent by a physician selected by the Company
and reasonably acceptable to the Executive or the Executive's
legal representative. In such event during the Protected Period,
the Executive's employment with the Company shall terminate
effective on the Disability Effective Date.
(l) The term "Disability Effective Date" shall mean the
30th day after receipt by the Executive of Notice of Termination
in the event of Disability.
(m) The term "Effective Date" shall mean the first date
during the Change of Control Period on which a Change of Control
occurs. Anything in this Agreement to the contrary
notwithstanding, if a Change of Control occurs and if the
Executive's employment with the Company is terminated prior to
the date on which the Change of Control occurs, and if it is
reasonably demonstrated by the Executive that such termination of
employment (i) was at the request of a third party who has taken
steps reasonably calculated to effect a Change of Control or
(ii) otherwise arose in connection with or anticipation of a
Change of Control, then for all purposes of this Agreement the
"Effective Date" shall mean the date immediately prior to the
date of such termination of employment.
(n) The term "Exchange Act" shall mean the Securities
Exchange Act of 1934.
(o) The term "Excise Tax" shall mean the excise tax imposed
by Section 4999 of the Code and any interest or penalties
incurred by the Executive with respect to such excise tax.
(p) The term "Good Reason" shall mean:
(i) the assignment to the Executive during the
Protected Period of any duties inconsistent in any respect
with the Executive's position (including status, offices,
titles and reporting requirements), authority, duties or
responsibilities at least commensurate in all material
respects with the most significant of those held, exercised
and assigned at any time during the 120-day period
immediately preceding the Effective Date, or any other
action by the Company during the Protected Period which
results in a diminution in such position, authority, duties
or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith
and which is remedied by the Company promptly after receipt
of notice thereof given by the Executive; or
(ii) the Company's requiring the Executive during the
Protected Period to be based at any office or location other
than the Company's corporate head office or the Company's
requiring the Executive during the Protected Period to
travel on Company business to a substantially greater extent
than required immediately prior to the Effective Date; or
(iii) any purported termination during the Protected
Period by the Company of the Executive's employment
otherwise than for "cause".
For purposes hereof, any good faith determination of "Good
Reason" made by the Executive shall be conclusive. Anything in
this Agreement to the contrary notwithstanding, a termination by
the Executive for any reason during the earlier of the 30-day
period immediately following the first anniversary of the
Effective Date, or (if the Effective Date has occurred) the 30-
day period immediately preceding the expiration of the Protected
Period, shall be deemed to be a termination for Good Reason for
all purposes of this Agreement.
(q) The term "Gross-Up Payment" shall mean the additional
payment described under Paragraph (c) of Article III hereof.
(r) The term "Incumbent Board" shall mean the individuals
who, as of the date hereof, constitute the Board.
(s) The term "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets 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 and (iii) if the Date of
Termination is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than
thirty days after the giving of such notice).
(t) The term "Other Benefits" shall mean the other amounts
and benefits described under clause (iv) of paragraph (b) of
Article II hereof.
(u) The term "Outstanding Voting Securities" shall mean the
then outstanding voting securities of the Company entitled to
vote generally in the election of directors.
(v) The term "Payment" shall mean any payment or
distribution by the Company to or for the benefit of the
Executive pursuant to the terms of this Agreement (but determined
without regard to any additional payments required under
Paragraph (c) of Article III).
(w) The term "Protected Period" shall mean the period from
and after the Effective Date through and including the expiration
of the Change in Control Period.
(x) The term "Person" shall mean any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act).
(y) The term "Welfare Benefit Plans" shall mean all welfare
benefit plans, practices, policies and programs provided by the
Company and its Affiliates (including, without limitation,
medical, prescription, dental, disability, employee life, group
life, accidental death and travel accident insurance plans and
programs) to the extent applicable generally to other peer
executives of the Company and its Affiliates, but in no event
shall such plans, practices, policies and programs provide the
Executive with benefits which are less favorable, in the
aggregate, than the most favorable of such plans, practices,
policies and programs in effect for the Executive at any time
during the 120-day period immediately preceding the Effective
Date or, if more favorable to the Executive, those provided
generally at any time after the Effective Date to other peer
executives of the Company and its Affiliates.
ARTICLE II
OBLIGATIONS OF THE COMPANY UPON
TERMINATION DURING PROTECTED PERIOD
(a) Notice of Termination. Any termination during the
Protected Period by the Company for Cause, or by the Executive
for Good Reason, shall be communicated by Notice of Termination
to the other party hereto given in accordance with Paragraph (a)
of Article IV of this Agreement.
(b) Good Reason; Other Than for Cause, Death or Disability.
If the Company shall, during the Protected Period, terminate the
Executive's employment other than for Cause or Disability or the
Executive shall, during the Protected Period, terminate
employment for Good Reason:
(i) the Company shall pay to the Executive in a lump
sum in cash within 30 days after the Date of Termination the
aggregate of the following amounts:
(x) The sum of (1) the Executive's actual base
salary through the Date of Termination to the extent
not theretofore paid, (2) the product of (x) the Annual
Bonus and (y) a fraction, the numerator of which is the
number of days in the current fiscal year through the
Date of Termination, and the denominator of which is
365 and (3) any compensation previously deferred by the
Executive (together with any accrued interest or
earnings thereon) and any accrued vacation pay, in each
case to the extent not theretofore paid; and
(y) The amount equal to the product of (1) three
and (2) the sum of (x) the Annual Base Salary and (y)
the Annual Bonus; and
(z) An amount equal to any sums accrued or cred-
ited to or for the Executive under or pursuant to any
excess or supplemental retirement plan in which the
Executive participates as a result of any contract
between the Company and the executive or as a result of
any limitations on benefits which can be provided to
highly compensated employees as may be prescribed by
the Code or the Employee Retirement Income Security
Act, as the same may be amended or supplemented from
time to time, or by any act which replaces either of
the foregoing which the Executive would receive if the
Executive's employment continued for three years after
the Date of Termination, assuming for this purpose that
all accrued benefits are fully vested, and assuming
that the Executive's compensation in each of the three
years is equal to the Annual Base Salary and the Annual
Bonus over the actuarial equivalents of the Executive's
actual benefit (paid or payable), if any, under such
retirement plan and such requirements as of the Date of
Termination;
(ii) for three years after the Executive's Date of
Termination, or such longer period as may be provided by the
terms of the appropriate plan, program, practice or policy,
the Company shall continue benefits to the Executive and/or
the Executive's family at least equal to those which would
have been provided to them under the Welfare Benefit Plans
if the Executive's employment had not been terminated or, if
more favorable to the Executive, as in effect generally at
any time thereafter with respect to other peer executives of
the Company and its Affiliates and their families, provided,
however, that if the Executive becomes reemployed with
another employer and is eligible to receive medical or other
welfare benefits under another employer provided plan, the
medical and other welfare benefits described herein shall be
secondary to those provided under such other plan during
such applicable period of eligibility. For purposes of
determining eligibility (but not the time of commencement of
benefits) of the Executive for retiree benefits pursuant to
such plans, practices, programs and policies, the Executive
shall be considered to have remained employed until three
years after the Date of Termination and to have retired on
the last day of such period;
(iii) the Company shall, at its sole expense as
incurred, provide the Executive with out placement services
the scope and provider of which shall be selected by the
Executive in his reasonable discretion; and
(iv) to the extent not theretofore paid or provided,
the Company shall timely pay or provide to the Executive any
other amounts or benefits required to be paid or provided or
which the Executive is eligible to receive under any plan,
program, policy or practice or contract or agreement of the
Company and its affiliated companies.
(c) Death. If the Executive's employment is terminated
during the Protected Period by reason of the Executive's death,
this Agreement shall terminate without further obligations to the
Executive's legal representatives under this Agreement, other
than for payment of Accrued Obligations and the timely payment or
provision of Other Benefits. Accrued Obligations shall be paid to
the Executive's estate or beneficiary, as applicable, in a lump
sum in cash within 30 days of the Date of Termination. Other
Benefits, as utilized in this Paragraph (c), shall include,
without limitation, and the Executive's estate and/or
beneficiaries shall be entitled to receive, benefits at least
equal to the most favorable benefits provided by the Company and
its Affiliates to the estates and beneficiaries of peer
executives of the Company and such Affiliates under such plans,
programs, practices and policies relating to death benefits, if
any, as in effect with respect to other peer executives and their
beneficiaries at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the
Executive's estate and/or the Executive's beneficiaries, as in
effect on the date of the Executive's death with respect to other
peer executives of the Company and its Affiliates and their
beneficiaries.
(d) Disability. If the Executive's employment is terminated
during the Protected Period by reason of the Executive's
Disability, this Agreement shall terminate without further
obligations to the Executive, other than for payment of Accrued
Obligations and the timely payment or provision of Other
Benefits. Accrued Obligations shall be paid to the Executive in
a lump sum in cash within 30 days of the Date of Termination.
Other Benefits, as utilized in this Paragraph (d), shall include,
and the Executive shall be entitled after the Disability Effec-
tive Date to receive, disability and other benefits at least
equal to the most favorable of those generally provided by the
Company and its Affiliates to disabled executives and/or their
families in accordance with such plans, programs, practices and
policies relating to disability, if any, as in effect generally
with respect to other peer executives and their families at any
time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive and/or the
Executive's family, as in effect at any time thereafter generally
with respect to other peer executives of the Company and its
Affiliates and their families.
(e) Cause; Other than for Good Reason. If the Executive's
employment shall be terminated during the Protected Period for
Cause, this Agreement shall terminate without further obligations
to the Executive other than the obligation to pay to the
Executive (x) his actual base salary through the Date of
Termination, (y) the amount of any compensation previously
deferred by the Executive, and (z) Other Benefits, in each case
to the extent theretofore unpaid. If the Executive voluntarily
terminates employment during the Protected Period, excluding a
termination for Good Reason, this Agreement shall terminate
without further obligations to the Executive, other than for
Accrued Obligations and the timely payment or provision of Other
Benefits. In such case, all Accrued Obligations shall be paid to
the Executive in a lump sum in cash within 30 days of the Date of
Termination.
ARTICLE III
CERTAIN COVENANTS
(a) Non-Exclusivity of Rights. Nothing in this Agreement
shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided
by the Company or any of its Affiliates and for which the
Executive may qualify, nor shall anything herein limit or
otherwise affect such rights as the Executive may have under any
contract or agreement with the Company or any of its Affiliates,
except that any and all severance arrangements extended by the
Company to the Executive and otherwise applicable in the
circumstances covered by this Agreement shall no longer operate
and shall be superseded by the provisions hereof.
(b) Full Settlement. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform
its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action
which the Company may have against the Executive or others. In no
event shall the Executive be obligated to seek other employment
or take any other action by way of mitigation of the amounts
payable to the Executive under any of the provisions of this
Agreement and such amounts shall not be reduced whether or not
the Executive obtains other employment. The Company agrees to pay
as incurred, to the full extent permitted by law, all legal fees
and expenses which the Executive may reasonably incur as a result
of any contest (regardless of the outcome thereof) by the
Company, the Executive or others of the validity or
enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as
a result of any contest by the Executive about the amount of any
payment pursuant to this Agreement).
(c) Certain Additional Payments by the Company.
(i) Except as set forth below, in the event it shall
be determined that any Payment would be subject to any Excise
Tax, then the Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that
after payment by the Executive of all taxes, including, without
limitation, any income taxes (and any interest and penalties
imposed with respect thereto), and Excise Tax imposed upon the
Gross-Up Payment, the Executive retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the Payments.
Notwithstanding the foregoing provisions of this Paragraph (c),
if it shall be determined that the Executive is entitled to a
Gross-Up Payment, but that the Payments do not exceed 110% of the
greatest amount that could be paid to the Executive such that the
receipt of Payments would not give rise to any Excise Tax, then
no Gross-Up Payment shall be made to the Executive and the
Payments, in the aggregate, shall be reduced to such greatest
amount.
(ii) All determinations required to be made under this
Paragraph (c) shall be made by the Company's independent
auditors, who shall provide detailed supporting calculations both
to the Company and the Executive within 15 business days of the
receipt of notice from the Executive that there has been a
Payment, or such earlier time as is requested by the Company. All
fees and expenses of the accounting firm acting hereunder shall
be borne solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Paragraph (c), shall be paid by the
Company to the Executive within five days of the receipt of the
accounting firm's determination.
(iii) The Executive shall promptly notify the Company
in writing of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of the
Gross-Up Payment. If the Company notifies the Executive in
writing prior to the expiration of 30 days after receipt of such
notice that it desires to contest such claim, the Executive
shall: (A) give the Company any information reasonably requested
by the Company relating to such claim, and (B) take such action
in connection with contesting such claim as the Company shall
reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect
to such claim by an attorney reasonably selected by the Company,
provided, however, that the Company shall bear and pay directly
all costs and expenses (including additional interest and
penalties) incurred in connection with such contest. Without
limitation on the foregoing provisions of this Paragraph (c), the
Company shall control all proceedings taken in connection with
such contest.
ARTICLE IV
MISCELLANEOUS
(a) Notices. All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the
other party or by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive:
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
If to the Company:
0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: General Counsel
With a copy to:
Krugman Xxxxxxxx & Xxxxxxxx LLP
Park 00 Xxxx - Xxxxx Xxx
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
or to such other address as either party shall have furnished to
the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
addressee.
(b) Entire Agreement. This Agreement shall contain the
entire agreement of the parties with respect to the transactions
contemplated hereby.
(c) Successors.
(i) This Agreement is personal to the Executive and
without the prior written consent of the Company shall not be
assignable by the Executive otherwise than by will or the laws of
descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by the Executive's legal
representatives.
(ii) This Agreement shall inure to the benefit of and
be binding upon the Company and its successors and assigns.
(iii) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or other-
wise) to all or substantially all of the business and/or assets
of the Company to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had
taken place. As used in this Agreement, "Company" shall mean the
Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform
this Agreement by operation of law, or otherwise.
(d) Governing Law; Captions; Amendments. This Agreement
shall be governed by and construed in accordance with the laws of
the State of Delaware, without reference to principles of
conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a
written agreement executed by the parties hereto or their
respective successors and legal representatives.
(e) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
(f) Withholding. The Company may withhold from any amounts
payable under this Agreement such Federal, state, local or
foreign taxes as shall be required to be withheld pursuant to any
applicable law or regulation.
(g) No Waiver. The Executive's or the Company's failure to
insist upon strict compliance with any provision of this
Agreement the failure to assert any right the Executive or the
Company may have hereunder, including, without limitation, the
right of the Executive to terminate employment for Good Reason,
shall not be deemed to be a waiver of such provision or right or
any other provision or right of this Agreement.
(h) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all
of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization from its
Board of Directors, the Company has caused these presents to be
executed in its name on its behalf, all as of the day and year
first above written.
Executive:
s/Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
Insituform Technologies, Inc.
By s/Xxxxx Xxxxxxxx
--------------------------------
Xxxxx Xxxxxxxx*
* (pursuant to resolutions adopted
June 19, 1997 by special committee
of the board of directors created
by resolutions dated June 16,
1997)
