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EXHIBIT 10.13
AGREEMENT
AGREEMENT, dated this 9th day of December 1997, between Commonwealth
Bank (the "Bank"), a federally chartered savings bank, and Xxxxx X. Xxxxxx
(the "Executive").
WITNESSETH
WHEREAS, the Executive is presently Senior Vice President, Chief
Information Officer of the Bank (the "Employer");
WHEREAS, the Employer desires to be ensured of the Executive's
continued active participation in the business of the Employer, and the Bank
desires to have this new Agreement supersede its current agreement with the
Executive dated January 1, 1997; and
WHEREAS, in order to induce the Executive to remain in the employ of
the Employer and in consideration of the Executive's agreeing to remain in the
employ of the Employer, the parties desire to specify the terms of such
employment, including the severance benefits which shall be due the Executive
by the Bank in the event that his employment with the Bank is terminated under
specified circumstances;
NOW THEREFORE, in consideration of the mutual agreements herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. DEFINITIONS. The following words and terms shall have the
meanings set forth below for the purposes of this Agreement:
(a) AVERAGE ANNUAL COMPENSATION. The Executive's "Average Annual
Compensation" for purposes of this Agreement shall be deemed to mean the
average level of compensation paid to the Executive by the Employer or any
subsidiary thereof during the most recent five taxable years preceding the Date
of Termination, including Base Salary (as defined in Section 1(b) hereof) and
bonuses paid to the Executive but excluding amounts relating to the vesting of
Management Recognition Plan shares.
(b) BASE SALARY. "Base Salary" shall mean the Executive's annual
salary exclusive of any pension or other retirement plan, profit sharing, stock
option, employee stock ownership, or other plans, benefits and privileges given
to employees and executives of the Employer.
(c) CAUSE. Termination by the Bank of the Executive's employment
for "Cause" shall mean termination because of personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule or regulation (other than traffic violations or similar
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offenses) or final cease-and-desist order or material breach of any provision
of this Agreement.
(d) CHANGE IN CONTROL OF THE CORPORATION. "Change in Control of
the Corporation" shall mean a change in control of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended
("Exchange Act"), or any successor thereto, whether or not Commonwealth
Bancorp, Inc. (the "Corporation") is registered under the Exchange Act;
provided that, without limitation, such a change in control shall be deemed to
have occurred if (i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Corporation representing 25% or more of the combined voting power of the
Corporation's then outstanding securities; or (ii) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Corporation cease for any reason to constitute at
least a majority thereof unless the election, or the nomination for election by
stockholders, of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were directors at the
beginning of the period.
(e) CODE. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) DATE OF TERMINATION. "Date of Termination" shall mean the
date the Executive's employment is terminated for any reason, as specified in
the Notice of Termination.
(g) DISABILITY. Termination by the Bank of the Executive's
employment based on "Disability" shall mean termination because of any physical
or mental impairment which qualifies the Executive for disability benefits
under the applicable long-term disability plan maintained by the Employer or
any subsidiary or, if no such plan applies, which would qualify the Executive
for disability benefits under the Federal Social Security System.
(h) GOOD REASON. Termination by the Executive of the Executive's
employment for "Good Reason" shall mean termination by the Executive within one
year following a Change in Control of the Corporation based on:
(i) Without the Executive's express written consent, the
failure to elect or to re-elect or to appoint or to
re-appoint the Executive to the office of Senior Vice
President, Chief Information Officer of the Employer
or a material adverse change made by the Employer in
the Executive's functions, duties or responsibilities
as Senior Vice President, Chief Information Officer
of the Employer as they existed immediately prior to
a Change in Control of the Corporation;
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(ii) Without the Executive's express written consent, a
reduction by the Employer in the Executive's Base
Salary as the same may be increased from time to time
or, except to the extent permitted by Section 3(b)
hereof, a reduction in the package of fringe benefits
provided to the Executive, taken as a whole;
(iii) The principal executive office of the Employer is
relocated more than 25 miles from the current
principal executive office or, without the
Executive's express written consent, the Employer
requires the Executive to be based anywhere other
than an area in which the Employer's principal
executive office is located, except for required
travel on business of the Employer to an extent
substantially consistent with the Executive's present
business travel obligations;
(iv) Any purported termination of the Executive's
employment for Cause, Disability or Retirement which
is not effected pursuant to a Notice of Termination
satisfying the requirements of paragraph (j) below;
or
(v) The failure by the Bank to obtain the assumption of
and agreement to perform this Agreement by any
successor as contemplated in Section 9 hereof.
(i) IRS. IRS shall mean the Internal Revenue Service.
(j) NOTICE OF TERMINATION. Any purported termination of the
Executive's employment by the Bank for any reason, including without limitation
for Cause, Disability or Retirement, or by the Executive for any reason,
including without limitation for Good Reason, shall be communicated by written
"Notice of Termination" to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a dated notice which (i)
indicates the specific termination provision in this Agreement relied upon,
(ii) 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, (iii) specifies a Date of Termination, which shall be
not less than thirty (30) nor more than ninety (90) days after such Notice of
Termination is given, except in the case of the Bank's termination of the
Executive's employment for Cause, which shall be effective immediately; and
(iv) is given in the manner specified in Section 10 hereof.
(k) RETIREMENT. "Retirement" shall mean voluntary termination by
the Executive in accordance with the Employer's retirement policies, including
early retirement, generally applicable to their salaried employees.
(l) GENDER NEUTRAL PRONOUN USAGE. The use of the masculine
pronoun shall be deemed to include the feminine pronoun throughout this
Agreement.
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2. TERM OF EMPLOYMENT.
(a) The Bank hereby employs the Executive as Senior Vice
President, Chief Information Officer and the Executive hereby accepts said
employment and agrees to render such services to the Bank on the terms and
conditions set forth in this Agreement. The term of employment under this
Agreement shall be for three years, commencing on the date of this Agreement
and, upon approval of the Board of Directors of the Bank, shall extend for an
additional year on each annual anniversary of the date of this Agreement such
that at any time the remaining term of this Agreement shall be from two to
three years. Prior to the first annual anniversary of the date of this
Agreement and each annual anniversary thereafter, the Board of Directors of the
Bank shall consider and review (taking into account all relevant factors,
including the Executive's performance hereunder) an extension of the term of
this Agreement, and the term shall continue to extend each year if the Board of
Directors approves such extension unless the Executive gives written notice to
the Employer of the Executive's election not to extend the term, with such
written notice to be given not less than thirty (30) days prior to any such
anniversary date. If the Board of Directors elects not to extend the term, it
shall give written notice of such decision to the Executive not less than
thirty (30) days prior to any such anniversary date. If any party gives timely
notice that the term will not be extended as of any annual anniversary date,
then this Agreement shall terminate at the conclusion of its remaining term.
References herein to the term of this Agreement shall refer both to the initial
term and successive terms.
(b) During the term of this Agreement, the Executive shall perform
such executive services for the Bank as may be consistent with his titles and
from time to time assigned to him by the Bank's Board of Directors.
3. COMPENSATION AND BENEFITS.
(a) The Employer shall compensate and pay the Executive for his
services during the term of this Agreement at a minimum Base Salary of $115,700
per year, which may be increased from time to time in such amounts as may be
determined by the Board of Directors of the Employer and may not be decreased
without the Executive's express written consent. In addition to his Base
Salary, the Executive shall be entitled to receive during the term of this
Agreement such bonus payments as may be determined by the Board of Directors of
the Employer.
(b) During the term of this Agreement, the Executive shall be
entitled to participate in and receive the benefits of any pension or other
retirement benefit plan, profit sharing, stock option, employee stock
ownership, or other plans, benefits and privileges given to employees and
executives of the Employer, to the extent commensurate with his then duties and
responsibilities, as fixed by the Board of Directors of the Employer. The Bank
shall not make any changes in such plans, benefits or privileges which would
adversely affect the Executive's rights or benefits thereunder, unless such
change occurs pursuant to a program applicable to all executive officers of the
Bank and does not result in a
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proportionately greater adverse change in the rights of or benefits to the
Executive as compared with any other executive officer of the Bank. Nothing
paid to the Executive under any plan or arrangement presently in effect or made
available in the future shall be deemed to be in lieu of the salary payable to
the Executive pursuant to Section 3(a) hereof.
(c) During the term of this Agreement, the Executive shall be
entitled to paid annual vacation in accordance with the policies as established
from time to time by the Board of Directors of the Employer, which shall in no
event be less than four weeks per annum. The Executive shall not be entitled
to receive any additional compensation from the Employer for failure to take a
vacation, nor shall the Executive be able to accumulate unused vacation time
from one year to the next, except to the extent authorized by the Board of
Directors of the Employer.
(d) During the term of this Agreement, in keeping with past
practices, the Employer shall continue to provide the Executive with the use of
an Employer-owned automobile appropriate to his positions with the Employer and
to pay all costs associated with such automobile, including registration,
licensing, insurance and costs of operation.
(e) In the event the Executive's employment is terminated by the
Bank for any reason other than Cause, the Employer shall provide continued
group insurance (other than disability insurance unless the Executive was
disabled and was receiving disability insurance benefits prior to the Date of
Termination), life insurance, and health and accident insurance substantially
identical to the coverage maintained by the Employer for the Executive
immediately prior to his termination. Such coverage shall cease upon the
expiration of the remaining term of this Agreement.
4. EXPENSES. The Employer shall reimburse the Executive or
otherwise provide for or pay for all reasonable expenses incurred by the
Executive in furtherance of or in connection with the business of the Employer,
including, but not by way of limitation, automobile expenses described in
Section 3(d) hereof, traveling expenses, and all reasonable entertainment
expenses (whether incurred at the Executive's residence, while traveling or
otherwise), subject to such reasonable documentation and other limitations as
may be established by the Board of Directors of the Employer. If such expenses
are paid in the first instance by the Executive, the Employer shall reimburse
the Executive therefor.
5. TERMINATION.
(a) The Bank shall have the right, at any time upon prior Notice
of Termination, to terminate the Executive's employment hereunder for any
reason, including without limitation termination for Cause, Disability or
Retirement, and the Executive shall have the right, upon prior Notice of
Termination, to terminate his employment hereunder for any reason. The
Executive's employment and his status as an officer shall terminate (i)
immediately upon being given a Notice of Termination for Cause, or (ii) on the
Date of Termination for any other reason.
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(b) In the event that (i) the Executive's employment is terminated
by the Bank for Cause or (ii) the Executive terminates his employment hereunder
other than for Disability, Retirement, death or Good Reason, the Executive
shall have no right pursuant to this Agreement to compensation or other
benefits for any period after the applicable Date of Termination.
(c) In the event that the Executive's employment is terminated as
a result of Disability, Retirement or the Executive's death during the term of
this Agreement, the Executive shall have no right pursuant to this Agreement to
compensation or other benefits for any period after the applicable Date of
Termination, except as provided for in Section 3(e) hereof.
(d) In the event that (i) the Executive's employment is terminated
by the Bank for other than Cause, Disability, Retirement or the Executive's
death or (ii) such employment is terminated by the Executive (a) due to a
material breach of this Agreement by the Bank, which breach has not been cured
within fifteen (15) days after a written notice of non-compliance has been
given by the Executive to the Employer, or (b) for Good Reason, then the Bank
shall, subject to the provisions of Section 6 hereof, if applicable
(A) pay to the Executive, within thirty (30) days
following the Date of Termination, a lump cash severance amount equal
to three (3) times the Executive's Average Annual Compensation, and
(B) maintain and provide for a period ending at the
earlier of (i) the expiration of twenty-four (24) months from the
Executive's Date of Termination or (ii) the date of the Executive's
full-time employment by another employer (provided that the Executive
is entitled under the terms of such employment to benefits
substantially similar to those described in this subparagraph (B)), on
a tax-adjusted basis at no cost to the Executive, the Executive's
continued participation in all group insurance (other than disability
insurance unless the Executive was disabled and was receiving
disability insurance benefits prior to the Date of Termination), life
insurance, health and accident insurance and other employee benefit
plans, programs and arrangements offered by the Bank in which the
Executive was entitled to participate immediately prior to the Date of
Termination (other than stock option, employee stock ownership and
restricted stock plans).
6. LIMITATION OF BENEFITS UNDER CERTAIN CIRCUMSTANCES. If the
payments and benefits pursuant to Section 5 hereof, either alone or together
with other payments and benefits which the Executive has the right to receive
from the Bank, would constitute a "parachute payment" under Section 280G of the
Code, the payments and benefits payable by the Bank pursuant to Section 5
hereof shall be reduced, in the manner determined by the Executive, by the
amount, if any, which is the minimum necessary to result in no portion of the
payments and benefits payable by the Bank under Section 5 being non-deductible
to the Bank pursuant to Section 280G of the Code and subject to the excise tax
imposed under
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Section 4999 of the Code. The parties hereto agree that the payments and
benefits payable pursuant to this Agreement by the Bank to the Executive upon
termination shall be limited to a maximum of three times the Executive's "base
amount" (as defined in Section 280G(b)(3) of the Code) in accordance with OTS
Regulatory Bulletin 27a. The determination of any reduction in the payments
and benefits to be made pursuant to Section 5 shall be based upon the opinion
of independent tax counsel selected by the Bank's independent public
accountants and paid by the Bank. Such counsel shall be reasonably acceptable
to the Bank and the Executive; shall promptly prepare the foregoing opinion,
but in no event later than thirty (30) days from the Date of Termination; and
may use such actuaries as such counsel deems necessary or advisable for the
purpose. Nothing contained herein shall result in a reduction of any payments
or benefits to which the Executive may be entitled upon termination of
employment under any circumstances other than as specified in this Section 6,
or a reduction in the payments and benefits specified in Section 5 below zero.
7. MITIGATION; EXCLUSIVITY OF BENEFITS.
(a) The Executive, unless his employment is terminated for
Disability, Retirement, death, a Change in Control of the Corporation or
pursuant to Section 5(d)(ii) hereof, shall be required to mitigate the amount
of any payments and benefits hereunder by seeking other employment or
otherwise. In the event that the Executive obtains other employment during the
period that the Executive is receiving payments pursuant to Section 5(d)(i)
hereof, the cash amounts to be paid to the Executive pursuant thereto shall be
reduced by any compensation received by the Executive as a result of employment
by another employer after the Date of Termination, unless the termination was
in connection with a Change in Control of the Corporation.
(b) The specific arrangements referred to herein are not intended
to exclude any other benefits which may be available to the Executive upon a
termination of employment with the Employer pursuant to employee benefit plans
of the Employer or otherwise.
8. WITHHOLDING. All payments required to be made by the Bank
hereunder to the Executive shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Bank may reasonably
determine should be withheld pursuant to any applicable law or regulation.
9. ASSIGNABILITY. The Bank may assign this Agreement and its
rights and obligations hereunder in whole, but not in part, to any corporation,
bank or other entity with or into which the Bank may hereafter merge or
consolidate or to which the Bank may transfer all or substantially all of its
assets, if in any such case said corporation, bank or other entity shall by
operation of law or expressly in writing assume all obligations of the Bank
hereunder as fully as if it had been originally made a party hereto, but may
not otherwise assign this Agreement or its rights and obligations hereunder.
The Executive may not assign or transfer this Agreement or any rights or
obligations hereunder.
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10. NOTICE. For the purposes of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by certified
or registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Bank: Secretary
Commonwealth Bank
0 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
To the Executive: Xxxxx X. Xxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxxxx 00000
11. CONFIDENTIALITY. The Executive acknowledges that by virtue of
his employment hereunder, he will maintain an intimate knowledge of the
activities and affairs of the Employer, including confidential matters. As a
result, the Executive agrees to maintain the confidentiality of all
confidential information relating to the Employer during the term of employment
hereunder and any period that the Executive may be receiving payments pursuant
to this Agreement, provided that nothing in this Section 11 shall be deemed to
prevent the Executive from either (a) being employed by any other corporation,
firm or entity upon termination of the Executive's employment by the Employer
as long as the Executive does not violate the foregoing prescription, or (b)
responding to inquiries from regulatory authorities.
12. ARBITRATION. The Executive and the Employer agree to submit
to final and binding arbitration pursuant to the rules of the American
Arbitration Association, any and all claims arising from the termination, for
any reason, of the Executive's employment by the Employer including, but not
limited to:
(a) any and all claims for wages and benefits (including without
limitation salary, stock, commissions, royalties, license fees, health and
welfare benefits, severance pay, vacation pay, and bonuses);
(b) any and all claims for wrongful discharge and breach of
contract (whether express or implied), and implied covenants of good faith and
fair dealing;
(c) any and all claims for alleged employment discrimination on
the basis of age, race, color, religion, sex, national origin, veteran status,
disability and/or handicap, in violation of any federal, state or local
statute, ordinance, judicial precedent or executive order, including but not
limited to claims for discrimination under the following statutes: Title VII
of the Civil Rights Act of 1964, 42 U.S.C. Section 2000 et. seq., the Civil
Rights Act of 1866, 42 U.S.C. Section 1981, the Age Discrimination in
Employment Act, as amended, 29 U.S.C. Section 621 et. seq., the Older Workers
Benefit Protection Act, the Rehabilitation Act of 1972, as
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amended, 29 U.S.C. Section 701 et. seq., the Americans with Disabilities Act,
42 U.S.C. Section 12101 et. seq., and the Pennsylvania Human Relations Act, 43
P.S. Section 951 et. seq.;
(d) any and all claims under any federal or state statute relating
to employee benefits or pensions;
(e) any and all claims in tort (including but not limited to any
claims for misrepresentation, defamation, interference with contract or
prospective economic advantage, intentional infliction of emotional distress
and negligence); and
(f) any and all claims for attorney's fees and costs.
13. AMENDMENT; WAIVER. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and such officer or officers as
may be specifically designated by the Board of Directors of the Bank to sign on
its behalf. No waiver by any party hereto at any time of any breach by any
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
14. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United
States where applicable and otherwise by the substantive laws of the
Commonwealth of Pennsylvania.
15. NATURE OF OBLIGATIONS. Nothing contained herein shall create
or require the Bank to create a trust of any kind to fund any benefits which
may be payable hereunder, and to the extent that the Executive acquires a right
to receive benefits from the Bank hereunder, such right shall be no greater
than the right of any unsecured general creditor of the Bank.
16. HEADINGS. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
17. VALIDITY. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
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19. REGULATORY ACTIONS. The following provisions shall be
applicable to the parties to the extent that they are required to be included
in employment agreements between a savings bank and its employees pursuant to
Section 563.39(b) of the Regulations Applicable to all Savings Associations, 12
C.F.R. Section 563.39(b), or any successor thereto, and shall be controlling in
the event of a conflict with any other provision of this Agreement, including
without limitation Section 5 hereof.
(a) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank's affairs pursuant to
notice served under Section 8(e)(3) or Section 8(g)(1) of the Federal Deposit
Insurance Act ("FDIA")(12 U.S.C. Sections 1818(e)(3) and 1818(g)(1)), the
Bank's obligations under this Agreement shall be suspended as of the date of
service, unless stayed by appropriate proceedings. If the charges in the
notice are dismissed, the Bank may, in its discretion: (i) pay the Executive
all or part of the compensation withheld while its obligations under this
Agreement were suspended, and (ii) reinstate (in whole or in part) any of its
obligations which were suspended.
(b) If the Executive is removed from office and/or permanently
prohibited from participating in the conduct of the Bank's affairs by an order
issued under Section 8(e)(4) or Section 8(g)(1) of the FDIA (12 U.S.C. Sections
1818(e)(4) and (g)(1)), all obligations of the Bank under this Agreement shall
terminate as of the effective date of the order, but vested rights of the
Executive and the Bank as of the date of termination shall not be affected.
(c) If the Bank is in default, as defined in Section 3(x)(1) of
the FDIA (12 U.S.C. Section 1813(x)(1)), all obligations under this Agreement
shall terminate as of the date of default, but vested rights of the Executive
and the Bank as of the date of termination shall not be affected.
(d) All obligations under this Agreement shall be terminated
pursuant to 12 C.F.R. Section 563.39(b)(5) (except to the extent that it is
determined that continuation of the Agreement for the continued operation of
the Bank is necessary): (i) by the Director of the OTS, or his/her designee, at
the time the Federal Deposit Insurance Corporation ("FDIC") enters into an
agreement to provide assistance to or on behalf of the Bank under the authority
contained in Section 13(c) of the FDIA (12 U.S.C. Section 1823(c)); or (ii) by
the Director of the OTS, or his/her designee, at the time the Director or
his/her designee approves a supervisory merger to resolve problems related to
operation of the Bank or when the Bank is determined by the Director of the OTS
to be in an unsafe or unsound condition, but vested rights of the Executive and
the Employer as of the date of termination shall not be affected.
20. REGULATORY PROHIBITION. Notwithstanding any other provision
of this Agreement to the contrary, any payments made to the Executive pursuant
to this Agreement, or otherwise, are subject to and conditioned upon their
compliance with Section 18(k) of the FDIA (12 U.S.C. Section 1828(k)) and any
regulations promulgated thereunder.
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21. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement between the Bank and the Executive with respect to the matters agreed
to herein. All prior agreements between the Bank and the Executive with
respect to the matters agreed to herein, including without limitation the
Agreement between the Employer and the Executive dated January 1, 1997, are
hereby superseded and shall have no force or effect.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
Attest: COMMONWEALTH BANK
By:
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Xxxxxxx X. Xxxx, President and Secretary ________________, Director and
Member of the Compensation and
Benefits Committee of the
Board of Directors
Witness: EXECUTIVE
By:
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Xxxxxxx X. Xxxx Xxxxx X. Xxxxxx
