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EXHIBIT 10.3
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement") dated as of September 17,
1997, by and among NB FINANCIAL LIMITED, a corporation organized pursuant to the
laws of the Xxxx Islands ("Buyer"), XXX X. XXXXX, an individual residing in the
State of California ("Xxxxx"), and XXXXXX X. XXXXXXXX, an individual residing in
the State of California ("Shepston"). Xxxxx and Shepston are stockholders of
EXIBITRONIX, INC., a Nevada corporation ("Company"), and may be collectively
referred to hereinafter as "Stockholder."
R E C I T A L S
X. Xxxxx and Shepston respectively own 5,120,101 and 214,660 shares of
common stock, $0.001 par value per share, of Company (the "Stock").
B. Stockholder desires to sell, and Buyer desires to purchase, the
Stock pursuant to the terms and conditions of this Agreement, that certain
Secured Promissory Note, of even date herewith, made by and between Buyer and
Xxxxx (the "Note"), that certain Stock Pledge Agreement, of even date herewith,
made by and between Buyer and Xxxxx (the "Pledge Agreement"), and that certain
Agreement to Hold Funds in Trust Account, dated as of August 15, 1997, made by
and among Geier, Shepston, Buyer, and Xxxxx & Xxxxxx (the "Funds Agreement").
This Agreement, the Note, the Pledge Agreement, and the Funds Agreement
collectively may be referred to hereinafter as the "Transaction Documents."
C. The parties hereto acknowledge that the current reporting status of
the Company's common stock with the Securities and Exchange Commission and the
current status thereof on the Nasdaq's OTC Bulletin Board, as well as the
current good standing of the Company in the office of the Nevada Secretary of
State and with the Internal Revenue Service is due to the efforts of the
Stockholder for the benefit of all of the Company's stockholders.
D. The parties hereto acknowledge that the sale of the Stock, as
detailed hereinbelow, will result in a change of control of the Company, subject
to the terms and conditions of the Pledge Agreement and that Buyer's failure to
pay all principal and interest accrued thereon in accordance with the terms and
conditions of the Note will, as among the parties hereto and the Company, create
an irrebuttable presumption of Buyer's financial insecurity, which would cause
irreparable harm to the Company and all of its stockholders, with the exception
of the Buyer, as well as to the equity or debt holders of any enterprise that
engages with the Company in any business combination transaction of the type or
nature contemplated by Section 5.2(i) of the Pledge Agreement.
E. The parties hereto acknowledge that, in the event of any such
financial insecurity, it will be in the best interest of the Company and all of
its stockholders, with the exception of the Buyer, as well as in the best
interest of the equity or debt holders of any enterprise that engages with the
Company in any business combination transaction of the type or nature
contemplated by Section 5.2(i) of the Pledge Agreement or any acquisition of
equity or assets of any third party or any assumption of liabilities of any
third party, to rescind each and every such transaction, such that
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each such transaction will be void ab initio and that Stockholder and Buyer
shall use their respective best efforts and take, or cause to be taken, all such
actions as may be required to accomplish same, such that, upon Stockholder's
exercise of his rights under the Pledge Agreement, the Company's financial
status will become substantially similar to its current status, with the
exception that any sales of the Company's equity for cash shall not be subject
to such rescission.
F. The parties hereto acknowledge that the Company's current status
with the Securities and Exchange Commission, Nasdaq, the office of the Nevada
Secretary of State, and the Internal Revenue Service is of value and is
beneficial to the Company and all of its stockholders and that, from and after
the consummation of the transactions contemplated hereby, Buyer will use its
best efforts to maintain or enhance such status.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, and for such other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound hereby, the parties hereto agree as follows:
ARTICLE 1
SALE OF STOCK
1. Sale of Stock. Subject to the terms and conditions of the
Transaction Documents, Stockholder agrees to sell, assign, transfer and deliver
to Buyer on the Closing Date (as herein defined), and Buyer agrees to purchase
from Stockholder on the Closing Date, the following shares of Stock for a
purchase price of Two Hundred Thousand and 00/100 Dollars ($200,000) as follows
(the "Purchase Price"):
# of Purchase
Stockholder Shares Price
----------- --------- --------
Xxxxx 5,000,000 $192,493
Shepston 195,000 7,507
--------- --------
5,195,000 $200,000
========= ========
The certificates representing the Stock shall be duly endorsed in blank, or
accompanied by stock powers duly executed in blank, by Stockholder. Stockholder
shall cure any deficiencies with respect to the endorsement of the certificates
representing the Stock owned by Stockholder or with respect to the stock power
accompanying any such certificates, such that, then and there, Buyer shall
become the beneficial owner, and may become the record owner, thereof, subject
to the Pledge Agreement.
1.1 Purchase Price. The Purchase Price shall be payable on the date
set forth in the Funds Agreement as follows: Buyer shall (a) pay to Xxxxx
Forty-Two Thousand Four Hundred Ninety-Three and 00/100 Dollars ($42,493) and to
Shepston Seven Thousand Five Hundred Seven and 00/100 Dollars ($7,507) in
immediately available funds by check drawn upon the Trust
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Account, as that term is defined in the Funds Agreement, and (b) issue and
deliver to Xxxxx the Note in the amount of One Hundred Fifty Thousand and 00/100
Dollars ($150,000).
1.2 Closing. The sale referred to in Section 1 shall take place at
10:00 A.M. at the offices of Xxxxx & Xxxxxx, 0 Xxxx Xxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxxxx 00000 on September 17, 1997, or at such other time and date as the
parties shall designate in writing. Such time and date are herein referred to as
the "Closing Date."
ARTICLE 2
REPRESENTATIONS OF STOCKHOLDER
2. Representations of Stockholder. Stockholder represents and warrants
to, and agrees with, Buyer as follows:
2.1 Ownership of Stock. Stockholder is the lawful owner of the
Stock, free and clear of all liens, encumbrances, restrictions and claims of
every kind; Stockholder has full legal right, power and authority to enter into
the Transaction Documents and to sell, assign, transfer and convey the shares of
Stock so owned by Stockholder pursuant to the Transaction Documents; and the
delivery to Buyer of the Stock will transfer to Buyer valid title thereto, free
and clear of all liens, encumbrances, restrictions, preemptive rights, options
and claims of every kind, except as set forth in the Pledge Agreement.
2.2 Authorization. Upon their execution and delivery by Stockholder,
the Transaction Documents will be the legal, valid and binding obligations of
Stockholder enforceable in accordance with their respective terms, except to the
extent that (i) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and (ii) such enforcement may be
subject to general principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law).
2.3 Broker's or Finder's Fees. Stockholder has not employed any
broker, finder, or financial advisor or incurred any liability for any such fee
or commissions in connection with any of the transactions contemplated by the
Transaction Documents.
2.4 Consents. Any consents of third parties to the transfer of the
Stock have been obtained.
2.5 Financial Statements. Stockholder has delivered to Buyer the
Company's Annual Report on Form 10-KSB for the fiscal year ended December 31,
1996, and Quarterly Report on Form 10-QSB for the quarters ended March 31, 1997
and June 30, 1997, which are complete in all material respects, were filed with
the Securities and Exchange Commission, fairly present the financial position of
the Company as of the dates of and periods covered by said reports, and, with
respect to the financial statements included therein, have been prepared in
accordance
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with generally accepted accounting principles applied on a consistent basis. The
financial statements included in the Company's Quarterly Reports on Form 10-QSB
for the quarters ended March 31, 1997 and June 30, 1997, are subject to year-end
adjustments.
ARTICLE 3
REPRESENTATIONS OF BUYER
3. Representations of Buyer. Buyer represents and warrants to, and
agrees with, Stockholder as follows:
3.1 Existence and Good Standing; Power and Authority. Buyer is a
corporation duly organized, validly existing and in good standing under the laws
of the Xxxx Islands. Buyer has the corporate power and authority to make,
execute, deliver and perform the transactions contemplated by each of the
Transaction Documents. Each of the Transaction Documents has been duly
authorized and approved by all required corporate action of Buyer.
3.2 Restrictive Documents. Buyer is not subject to any charter,
by-law, mortgage, lien, lease, agreement, instrument, order, law, rule,
regulation, judgment or decree, or any other restriction of any kind or
character, which would prevent consummation of the transactions contemplated by
each of the Transaction Documents.
3.3 Binding Nature. Each of the Transaction Documents has been duly
authorized and, when executed and delivered in accordance with the terms hereof
or thereof will, constitute legal, valid and binding obligations of Buyer
enforceable in accordance with their respect terms except to the extent that (i)
such enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and (ii) such enforcement may be subject to general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
3.4 No Breach. The execution, delivery, and performance of the
Transaction Documents has not resulted and will not result in any violation of,
or conflict with, or constitute a default under any agreements, or any
applicable statue, rule, regulation, order or restriction of any federal or
state governmental entity or agency thereof nor result in the creation of any
mortgage, pledge, lien, encumbrances, or charge upon any of the properties or
assets of Buyer that would have a material adverse effect upon Buyer, except as
contemplated by the Transaction Documents.
3.5 Purchase for Investment. Buyer will acquire the Stock for its
own account for investment and not with a view toward any resale or distribution
thereof; provided, however, that the disposition of Buyer's property shall at
all times remain within the sole control of Buyer.
3.6 Broker's or Finder's Fees. Neither Buyer nor any of its
officers, directors, employees, or agents has employed any broker, finder, or
financial advisor or incurred any liability
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for any such fee or commissions in connection with any of the transactions
contemplated by the Transaction Documents.
3.7 Restrictions. Buyer understands that (i) neither the Stock nor
the sale thereof to it has been registered under the Securities Act of 1933, as
amended ("Securities Act"), or qualified under any state securities law; (ii) no
registration statement has been filed with the Securities and Exchange
Commission ("Commission"), nor with any other regulatory authority and that, as
a result, any benefit which might normally accrue to an investor such as the
Buyer by an impartial review of such a registration statement by the Commission
or other regulatory commission will not be forthcoming; and (iii) the Stock is
characterized as a "restricted security" under the federal securities laws
inasmuch as it is being acquired from Stockholder in a transaction not involving
a public offering and that under such laws and applicable regulations such
securities may be resold without registration under the Securities Act only in
certain limited circumstances. In this connection, Buyer represents that it is
familiar with the Commission's Rule 144, as presently in effect, and agrees that
it will not sell all or any portion of the Stock without registration under all
applicable securities laws or exemptions therefrom.
3.8 Information. Buyer has made an investigation of Stockholder and
the Company, had an opportunity to speak with Stockholder and the directors and
officers of the Company, and received all information from Stockholder and/or
the Company that Buyer has requested, or such information has been made
available to Buyer.
3.9 Effective Control. Upon the Closing Date, and subject to the
Pledge Agreement, the Buyer will exercise effective control of the Company.
ARTICLE 4
CONDITIONS TO BUYER'S OBLIGATIONS
4. Conditions to Buyer's Obligations. The purchase of the Stock by
Buyer on the Closing Date is conditioned upon satisfaction or waiver by Buyer,
on or prior to such date, of the following conditions:
4.1 Truth of Representation and Warranties. The representations and
warranties of Stockholder contained in the Transaction Documents or in any
Schedule attached hereto or thereto shall be true and correct on and as of the
Closing Date with the same effect as though such representations and warranties
had been made on and as of such date.
4.2 Performance of Obligations. All of the obligations of
Stockholder to be performed on or before the Closing Date pursuant to the terms
of the Transaction Documents shall have been duly performed.
4.3 No Litigation Threatened. No action or proceedings shall have
been instituted or, to the best knowledge, information and belief of
Stockholder, threatened before a
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court or other government body or by any public authority to restrain or
prohibit the consummation of any of the transactions contemplated by the
Transaction Documents.
4.4 Approvals and Consents. All governmental consents and approvals
and other third party consents and approvals, if any, necessary to permit the
consummation of the transactions contemplated by the Transaction Documents shall
have been received.
4.5 Proceedings. All proceedings to be taken in connection with the
transactions contemplated by the Transaction Documents shall be reasonably
satisfactory in form and substance to Buyer, and Buyer shall have received
copies of all such documents and other evidences as it may reasonably request in
order to establish the consummation of such transactions and the taking of all
proceedings in connection therewith.
4.6 Funds Agreement. Stockholder shall have executed and delivered
the Funds Agreement.
ARTICLE 5
CONDITIONS TO STOCKHOLDER'S OBLIGATIONS
5. Conditions to Stockholder's Obligations. The sale of the Stock by
Stockholder on the Closing Date is conditioned upon satisfaction or waiver by
Stockholder, on or prior to such date, of the following conditions:
5.1 Truth of Representations and Warranties. The representations and
warranties of Buyer contained in the Transaction Documents or in any Schedule
attached hereto or thereto shall be true and correct on and as of the Closing
Date with the same effect as though such representations and warranties had been
made on and as of such date, and Buyer shall have delivered to Stockholder a
certificate, dated the Closing Date, to such effect.
5.2 Performance of Obligations. All of the obligations of Buyer to
be performed on or before the Closing Date pursuant to the terms of the
Transaction Documents shall have been duly performed, and Buyer shall have
delivered to Stockholder a certificate, dated the Closing Date, to such effect.
5.3 Approvals and Consents. All governmental consents and approvals
and other third party consents and approvals, if any, necessary to permit the
consummation of the transactions contemplated by the Transaction Documents shall
have been received.
5.4 No Litigation Threatened. No action or proceedings shall have
been instituted or, to the best knowledge, information and belief of Buyer,
threatened before a court or other government body or by any public authority to
restrain or prohibit the consummation any of the transactions contemplated by
the Transaction Documents.
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5.5 Proceedings. All proceedings to be taken in connection with the
transactions contemplated by the Transaction Documents shall be reasonably
satisfactory in form and substance to Stockholder, and Stockholder shall have
received copies of all such documents and other evidences as they may reasonably
request in order to establish the consummation of such transactions and the
taking of all proceedings in connection therewith.
5.6 Resolutions. Buyer shall have furnished Stockholder with a
certified copy of the resolutions duly adopted by the Board of Directors of
Buyer approving the Transaction Documents and the transactions contemplated
herein and therein.
5.7 Stock Pledge Agreement. Buyer shall have executed and delivered
to Stockholder the Pledge Agreement and an undated stock assignment as set forth
is the Pledge Agreement.
5.8 Issuance of Note. Buyer shall have authorized and validly issued
the Note.
5.9 Funds Agreement. Buyer shall have executed and delivered the
Funds Agreement, and shall have delivered the Trust Account Funds to the Trust
Fund Account Holder as set forth in the Funds Agreement.
ARTICLE 6
JOINT CONDITIONS SUBSEQUENT
6. Joint Conditions Subsequent. The obligation of the parties to
consummate the sale of the Stock contemplated by this Agreement shall be subject
to satisfaction or waiver in writing by all parties of the requirements for
release of the Trust Account Funds as set forth in the Funds Agreement.
ARTICLE 7
BUYER'S COVENANTS
7.1 Notification and Conformity. During the term of the Pledge
Agreement, Buyer will use its best efforts (i) to cause the Company to provide
written notice to Xxxxx, which notice shall be given to Xxxxx not less than 10
days prior to the Company engaging, directly or indirectly, in any transaction
listed in Section 5.2(i) of the Pledge Agreement, and shall include (X) the
substance of each proposed transaction and (Y) the name, address, fax and
telephone numbers, and contact person of each party to such proposed
transaction; and (ii) to ensure that any documents memorializing and/or relating
to such proposed transaction reflect and conform with the provisions of Sections
5.2(i) and 5.3 of the Pledge Agreement.
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7.2 Certain Rescission Transactions. In the event that Buyer fails
to pay all principal and interest accrued in accordance with the terms and
conditions of the Note, and Xxxxx takes such action and provides such notice as
required or permitted by either or both of the Note and the Pledge Agreement,
Buyer shall use its best efforts and take, or cause to be taken, all such
actions as may be required to rescind each and every business combination
transaction or acquisition of equity or assets of any third party or any
assumption of liabilities of any third party, such that each such transaction
will be void ab initio, such that, upon Xxxxx'x exercise of his rights under the
Pledge Agreement, the Company's financial status will become substantially
similar to its current status, with the exception that any sales of the
Company's equity for cash shall not be subject to such rescission.
7.3 Filing Status. From and after the consummation of the
transactions contemplated hereby, Buyer will use its best efforts to maintain or
enhance the Company's current status with the Securities and Exchange
Commission, Nasdaq, the office of the Nevada Secretary of State, and the
Internal Revenue Service for the benefit of the Company and all of its
stockholders.
ARTICLE 8
SURVIVAL; INDEMNIFICATION
8.1 Survival of Representations and Warranties and Related
Agreements. All of the terms, covenants, representations and warranties and
agreements contained in or made pursuant to the Transaction Documents shall
terminate upon the Closing Date hereunder.
8.2 General Indemnification.
(a) Xxxxx and Shepston shall, jointly and severally, indemnify
and hold harmless Buyer and its respective officers, directors, employees and
agents from and against, and shall reimburse such party on demand for, any loss,
liability, damage or expense (including, interest, penalties, attorneys' fees,
costs of investigation and costs of appeals), resulting from any breach of any
representation, warranty, agreement or covenant on the part of Stockholder
contained in the Transaction Documents.
(b) Buyer shall indemnify and hold harmless both Xxxxx and
Shepston from and against, and shall reimburse such Stockholder on demand for,
any loss, liability, damage or expense (including, interest, penalties,
attorneys' fees, costs or investigation and costs of appeals), resulting from
any breach of any representation, warranty, agreement or covenant on the part of
Buyer contained in the Transaction Documents.
(c) If a third party asserts a claim against any indemnified
party for which indemnification would be available under this Section 8.2 hereof
(a "Claim"), the indemnified party shall promptly give notice of such Claim,
describing such Claim with reasonable specificity, to the indemnifying party;
provided, however, that the failure to give such notice shall not affect the
right of the indemnified party to indemnification hereunder except to the extent
that
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such failure prejudices the ability of the indemnifying party to defend any
Claim or take any other remedial action. The indemnifying party shall be
entitled to assume the defense of such Claim, including the employment of
counsel reasonably satisfactory to the indemnified party; provided, however,
that in the event that the indemnified party reasonably determines (based upon
the written advice of counsel) that a conflict of interest with regard to such
Claims may exist between such indemnified party and the indemnifying party, such
indemnified party shall have the right to participate in the defense of such
Claim and to have its reasonable legal expenses reimbursed with respect to such
Claim (but in no event for more than one counsel). In addition, in the event
that such indemnified party will (upon further notice to such indemnifying
party) have the right to participate in its defense of such Claim for the
account of such indemnifying party and to have its expenses reimbursed with
respect to such Claim, regardless of which party is controlling the defense of
any Claim, (i) both the indemnifying party and the indemnified party shall act
in good faith and (ii) no settlement of such Claim may be agreed to without the
written consent of both the indemnifying party and the indemnified party. The
controlling party shall deliver, or cause to be delivered, to the other party
copies of all correspondence, pleadings, motions, briefs, appeals or other
written statements relating to or submitted in connection with the defense of
any such Claim, and timely notices of, and the right to participate in (as an
observer), any hearing or other court proceeding relating to such Claim.
ARTICLE 9
MISCELLANEOUS
9.1 Expenses. Buyer shall pay all of the legal expenses of
Stockholder relating to the transactions contemplated by the Transaction
Documents, not to exceed $10,000.
9.2 Governing Law. The interpretation and construction of the
Transaction Documents, and all matters relating hereto or thereto, shall be
governed by the laws of the State of California applicable to agreements
executed and to be performed solely within such State.
9.3 Jurisdiction; Agents for Service of Process. Any judicial
proceeding brought against any of the parties to the Transaction Documents on
any dispute arising out of the Transaction Documents or any matter related
hereto or thereto may be brought in the courts of the County of Orange, State of
California, or in the United States District Court for the Central District,
and, by execution and delivery of the Transaction Documents, each of the parties
to the Transaction Documents accepts the exclusive jurisdiction of such courts,
and irrevocably agrees to be bound by any judgment rendered thereby in
connection with the Transaction Documents.
9.4 Captions. The Article and Section captions used herein are for
reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
9.5 Notices. Any notice or other communication required or permitted
under the Transaction Documents shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or by telex
or confirmed facsimile, or one day after
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deposit with Federal Express or similar overnight express delivery service (for
next day delivery), or seven days after deposit with a domestic Post Office, by
registered or certified mail, return receipt requested, postage prepaid and
addressed to the party to be notified at the address indicated for such party
below, or at such other address as such party may designate by ten days' advance
written notice to the other party:
(a) If to Buyer: NB Financial Limited
c/x Xxxxxxxxx Limited
Attention: Xxxx Xxxxxx
Bank of Xxxxxxx Xxxxx
Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxx Xxxxxxx
(x) If to Xxxxx: Xxx X. Xxxxx
0000 Xxxxxxxxx Xxxxx, #00X
Xxxxxx, Xxxxxxxxxx 00000
With copy to: Xxxxx & Xxxxxx
0 Xxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile (000) 000-0000
(c) If to Shepston: Xxxxxx Xxxxxxxx
0000 Xxxxxxxxx Xxxxx, #00X
Xxxxxx, Xxxxxxxxxx 00000
With copy to: Xxxxx & Xxxxxx
0 Xxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile (000) 000-0000
9.6 Parties in Interest. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns. Notwithstanding, Buyer shall
not assign, transfer, or otherwise convey its rights to purchase the Stock under
this Agreement.
9.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original and all of
which taken together shall constitute one instrument.
9.8 Entire Agreement. The Transaction Documents contain the entire
understanding of the parties hereto and thereto with respect to the subject
matter contained herein
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and therein. The Transaction Documents supersede all prior agreements and
understandings between the parties with respect to such subject matter.
9.9 Amendments and Waivers. This Agreement may be changed only by an
agreement in writing signed by Buyer and Stockholder. The failure by any party
hereto to comply with any obligation, covenant, agreement or condition contained
herein may be expressly waived in writing by the party or parties hereto
adversely affected by such failure, but such waiver or failure to insist upon
strict compliance should not operate as a waiver of, or estoppel with respect
to, any subsequent or other failure.
9.10 Severability. In case any provision in this Agreement shall be
held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof will not in any way be
affected or impaired thereby.
9.11 Third Party Beneficiaries. Each party hereto intends that the
Transaction Documents shall not benefit or create any right or cause of action
in or on behalf of any person other than the parties hereto.
9.12 Attorneys' Fees. In the event any arbitration or action at law
or equity is necessary to enforce or interpret the terms of the Transaction
Documents, the prevailing party shall be entitled to reasonable attorneys' fees,
costs and necessary disbursements in addition to any other relief to which such
party may be entitled.
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IN WITNESS WHEREOF, the parties hereto each have executed or have
caused a duly authorized officer or representative to execute this Agreement,
all as of the day and year first above written.
BUYER:
NB FINANCIAL LIMITED
By: XXXXXXXXX LIMITED
as Director by its Nominee
Its: /s/ XXXXX XXXXXX
----------------------------
Name: Xxxxx Xxxxxx
STOCKHOLDER:
/s/ XXX X. XXXXX
-----------------------------
Xxx X. Xxxxx
/s/ XXXXXX X. XXXXXXXX
-----------------------------
Xxxxxx X. Xxxxxxxx
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