EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of December 12, 2000 (this
"AGREEMENT"), is entered into by and between XXXX, Inc., an Alabama corporation
(the "COMPANY"), and Xxxxxx Xxxx (the "EXECUTIVE").
WHEREAS, the Executive has developed and possesses skills and
experience that are of value to the Company; and
WHEREAS, the Company desires to secure the continued services
and employment of the Executive on behalf of the Company, its parent and related
companies, and the Executive is willing to render such services on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, the parties hereto agree as follows:
1. EMPLOYMENT TERM. Subject to the terms and provisions of
this Agreement, the Company hereby agrees to employ the Executive, and the
Executive hereby agrees to be employed by the Company, for the period commencing
on the date of this Agreement and ending on the third anniversary of the date of
this Agreement, unless terminated sooner as hereinafter provided (the
"EMPLOYMENT TERM").
2. DUTIES. During the Employment Term the Executive shall
serve as President of XXXX, Inc., and shall perform such duties, services and
responsibilities on behalf of the Company and its subsidiaries as may be
determined from time to time by the Chief Executive Officer ("CEO") and the
Board of Directors of the Company (the "Board") and shall have the authority
commensurate with such position. In performing his duties hereunder, the
Executive will report directly to the CEO or to such person as designated by
the CEO. The Executive shall devote his full business time, attention and
skill to the performance of such duties, services and responsibilities, and
will use his best efforts to promote the interests of the Company. The
Executive may engage in any civic or charitable activity or deliver lectures,
fulfill speaking engagements or teach at educational institutions, provided
such activities do not materially interfere with the performance of his duties
hereunder.
3. COMPENSATION. In full consideration of the
performance by the Executive of the Executive's obligations during the
Employment Term (including any services by the Executive as an officer,
director, employee or member of any committee of any subsidiary or affiliate of
the Company, or otherwise on behalf of Company), the Executive shall be
compensated as follows:
(a) BASE SALARY. The Executive shall receive a base
salary (the "BASE SALARY") at an annual rate of $200,000 per year, subject to
review by the CEO from time to time in the CEO's sole discretion, PROVIDED,
HOWEVER, that the CEO shall review the Base Salary on or prior to March 31st of
each year during the Employment Term. The Base Salary shall be payable in
accordance with the normal payroll practices of the Company then in effect.
(b) Signing Bonus. Upon the signing of this Agreement
the Company shall pay the Executive a signing bonus in the amount of $75,000,
which signing bonus shall be subject to normal payroll withholdings and
practices of the Company then in effect.
(c) BONUS. During the Employment Term, and subject to
review by the Board from time to time in the Board's sole discretion, the
Executive shall be eligible to participate in the Company's annual management
incentive bonus plan, under which the Executive's target bonus, starting in
2001, will be 50% of his Base Salary.
(d) BENEFITS. During the Employment Term, the
Executive shall be entitled to participate in any employee or executive benefit
plans, policies or programs that are provided generally to senior executives of
the Company as such plans, policies or programs may be in effect from time to
time.
(e) VACATIONS. During the Employment Term, the
Executive shall be entitled to 20 paid vacation days in each vacation year
determined by the Company in accordance with the Company's vacation policies
in effect from time to time.
(f) TAXES. The Executive shall be solely responsible
for taxes imposed on the Executive by reason of any compensation and benefits
provided under this Agreement and all such compensation and benefits shall be
subject to applicable withholding taxes.
4. TERMINATION. The Executive's employment with the Company
hereunder and the Employment Term shall terminate upon the occurrence of any of
the following events (the date of termination, the "TERMINATION DATE"):
(a) DEATH. The death of the Executive.
(b) DISABILITY. The termination of employment by the
Company for Disability upon thirty (30) days written notice to the Executive,
provided the Executive has not returned to work on a full-time, permanent basis
prior to the end of such thirty (30) day period.
(c) CAUSE. The termination of employment by the
Company for Cause. The Executive's termination for Cause shall be effective upon
delivery of written
-2-
notice specifying the matter or matters the Company deems to constitute Cause.
(d) WITHOUT CAUSE. The termination of employment
by the Company other than for Cause or Disability.
(e) GOOD REASON. The termination of employment by the
Executive for Good Reason; provided, however that (i) the Executive must deliver
a notice of termination within sixty (60) days after the occurrence of the
event(s) constituting Good Reason, and (ii) the Company shall have (30) days
following the receipt of the Executive's notice of termination within which to
cure the event(s) identified by the Executive as constituting Good Reason and,
if so cured, Good Reason shall be deemed not to have occurred.
(f) EXPIRATION OF AGREEMENT. The third anniversary of
the date of this Agreement.
In the event of termination of the Executive's employment,
for whatever reason (other than death), the Executive agrees to cooperate with
the Company, its subsidiaries and affiliates and to be reasonably available to
the Company, its subsidiaries and affiliates with respect to continuing and/or
future matters arising out of the Executive's employment hereunder or any other
relationship with the Company, its subsidiaries and affiliates, whether such
matters are business-related, legal or otherwise.
5. TERMINATION PAYMENTS.
(a) DEATH OR DISABILITY. If the Executive's
employment with the Company is terminated by reason of the Executive's death,
or by the Company for Disability, the Company's sole obligation hereunder,
shall be to pay the Executive or his estate, as the case may be, the Accrued
Compensation and the Pro Rata Bonus Amount.
(b) BY COMPANY FOR CAUSE; BY EXECUTIVE WITHOUT
GOOD REASON. If the Executive's employment with the Company is terminated by
the Company for Cause or by the Executive without Good Reason, or the
Executive's employment hereunder terminates pursuant to SECTION 4(f) of this
Agreement, the Company's sole obligation hereunder shall be to pay the
Executive the Accrued Compensation.
(c) BY COMPANY WITHOUT CAUSE. If the Executive's
employment with the Company is terminated by the Company for any reason other
than Cause or Disability, the Company's sole obligation hereunder shall be to
pay the Executive the Accrued Compensation, the Pro Rata Bonus Amount and, so
long as the Executive is not in violation of the covenants contained in SECTION
6 hereof, to continue to pay the Executive the Base Salary (at the rate in
effect on the Termination Date) in accordance with the normal payroll practices
of the Company for twelve (12) months following the
-3-
Termination Date. The obligation of the Company to make payments to the
Executive in accordance with this paragraph 5(c) shall survive the non-renewal
or termination of this Agreement.
(d) GOOD REASON. If the Executive's employment with
the Company is terminated by the Executive for Good Reason, the Company's sole
obligation hereunder shall be to pay the Executive the Accrued Compensation, the
Pro Rata Bonus Amount and to continue to pay the Executive the Base Salary (at
the rate in effect on the Termination Date) in accordance with the normal
payroll practices of the Company, for twelve (12) months following the
Termination Date.
(e) NO MITIGATION. 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, nor shall such amounts be reduced by any earnings or benefits that
the Executive may receive from any other source.
(f) INTERNAL REVENUE CODE SECTION 280G.
Notwithstanding anything contained in this Agreement to the contrary, to the
extent that any payment or distribution of any type to or for the benefit of
the Executive by the Company, any affiliate of the Company, any person who
acquires ownership or effective control of the Company or ownership of a
substantial portion of the Company's assets (within the meaning of Section
280G of the Internal Revenue Code (the "Code"), and the regulations thereunder),
or any affiliate of such person, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise (the "Total
Payments") is or will be subject to the excise tax imposed under Section 4999 of
the Code (the "Excise Tax"), then the Total Payments shall be reduced (but not
below zero) if and to the extent that a reduction in the Total Payments would
result in the Executive retaining a larger amount, on an after-tax basis (taking
into account federal, state and local income taxes and the Excise Tax), than if
the Employee received the entire amount of such Total Payments. Unless the
Executive shall have given prior written notice specifying a different order to
the Company to effectuate the foregoing, the Company shall reduce or eliminate
the Total Payments, by first reducing or eliminating the portion of the Total
Payments which are not payable in cash (other than Total Payments attributable
to stock options or other equity awards ("EQUITY AWARDS")) and then by reducing
or eliminating cash payments, in each case in reverse order beginning with
payments or benefits which are to be paid the latest in time, and then by
reducing Equity Awards in the manner which will maximize the after-tax benefit
to the Executive. Any notice given by the Executive pursuant to the preceding
sentence shall take precedence over the provisions of any other plan,
arrangement or agreement governing the Executive's rights and entitlements to
any benefits or compensation. The determination of whether the Total Payments
shall be reduced pursuant to the foregoing and the amount of such reduction
shall be made, at the
-4-
Company's expense, by an accounting firm selected by the Company which is one of
the five largest accounting firms in the United States (other than the Company's
regular independent auditor).
(g) For purposes of this SECTION 5, the Executive's
employment shall not be treated as terminated for so long as he is an employee
of the Company or any of its subsidiaries.
6. EXECUTIVE COVENANTS.
(a) UNAUTHORIZED DISCLOSURE. The Executive agrees and
understands that in the Executive's position with the Company, the Executive has
been and will be exposed to and has and will receive information relating to the
confidential affairs of the Company, its subsidiaries and affiliates, including
but not limited to technical information, intellectual property, business and
marketing plans, strategies, customer information, other information concerning
the products, promotions, development, financing, expansion plans, business
policies and practices of the Company, its subsidiaries and affiliates, and
other forms of information considered by the Company to be confidential and in
the nature of trade secrets ("Confidential Information"). The Executive agrees
that during the Employment Term and thereafter, the Executive will not disclose
such Confidential Information, either directly or indirectly, to any third
person or entity without the prior written consent of the Company. This
confidentiality covenant has no temporal, geographical or territorial
restriction. Upon termination of the Employment Term, the Executive will
promptly supply to the Company all property, keys, notes, memoranda, writings,
lists, files, reports, customer lists, correspondence, tapes, disks, cards,
surveys, maps, logs, machines, technical data or any other tangible product or
document which has been produced by, received by or otherwise submitted to the
Executive during or prior to the Employment Term. Any material breach of the
terms of this paragraph shall be considered Cause.
(b) NON-COMPETITION. By and in consideration of the
Company's entering into this Agreement and the payments to be made and benefits
to be provided by the Company hereunder, and further in consideration of the
Executive's exposure to the proprietary information of the Company, the
Executive agrees that the Executive will not, during the Employment Term, and
thereafter during the "Non-competition Term" (as defined below), directly or
indirectly, own, manage, operate, join, control, be employed by, or participate
in the ownership, management, operation or control of, or be connected in any
manner with, including but not limited to holding any position as a shareholder,
director, officer, consultant, independent contractor, employee, partner, or
investor in, any "Restricted Enterprise" (as defined below); PROVIDED, that in
no event shall the ownership of less than 1% of the outstanding equity
securities of any issuer whose securities are registered under the Securities
and Exchange Act of 1934, as amended, standing alone, be prohibited by this
SECTION 6(b). For purposes of this SECTION 6(b), the term "RESTRICTED
-5-
ENTERPRISE" shall mean any person, corporation, partnership or other entity that
competes, directly or indirectly, with any business or activity conducted or
proposed to be conducted by the Company or any of its subsidiaries or affiliates
as of the date of the Executive's termination of employment. Following
termination of the Employment Term, upon request of the Company, the Executive
shall notify the Company of the Executive's then current employment status. For
purposes of this Agreement, the "NON-COMPETITION TERM" shall mean the period
beginning on the Termination Date and ending on the second anniversary of such
date. Any material breach of the terms of this SECTION 6(b) shall be considered
Cause. Notwithstanding the foregoing, in the event the Executive's employment
with the Company is terminated following a Change in Control by the Company
without Cause or by the Executive for Good Reason, the Executive shall not be
subject to this SECTION 6(b), and this SECTION 6(b) shall have no force or
effect.
(c) NON-SOLICITATION. During the Non-competition
Term, the Executive shall not, and shall not cause any other person to,
interfere with or harm, or attempt to interfere with or harm, the relationship
of the Company, any of its subsidiaries or affiliates with, or endeavor to
entice away from the Company, any of its subsidiaries or affiliates, or hire,
any person who at any time during the Employment Term was an employee or
customer of the Company, or any of its subsidiaries or affiliates.
Notwithstanding the foregoing, in the event the Executive's employment with the
Company is terminated following a Change in Control by the Company without Cause
or by the Executive for Good Reason, the Executive shall not be subject to this
SECTION 6(c), and this SECTION 6(c) shall have no force or effect.
(d) REMEDIES. The Executive agrees that any breach of
the terms of this SECTION 6 would result in irreparable injury and damage to the
Company, its subsidiaries and/or affiliates for which the Company, its
subsidiaries and/or affiliates would have no adequate remedy at law; the
Executive therefore also agrees that in the event of said breach or any threat
of breach, the Company, its subsidiaries and/or affiliates, as applicable, shall
be entitled to an immediate injunction and restraining order to prevent such
breach and/or threatened breach and/or continued breach by the Executive and/or
any and all persons and/or entities acting for and/or with the Executive,
without having to prove damages, in addition to any other remedies to which the
Company, its subsidiaries and/or affiliates may be entitled at law or in equity.
The terms of this SECTION 6(d) shall not prevent the Company, its subsidiaries
and/or affiliates from pursuing any other available remedies for any breach or
threatened breach hereof, including but not limited to the recovery of damages
from the Executive. The Executive and the Company further agree that the
provisions of the covenants contained in this SECTION 6 are reasonable and
necessary to protect the businesses of the Company, its subsidiaries and
affiliates because of the Executive's access to Confidential Information and his
material participation in the operation of such businesses. The Executive hereby
acknowledges that due to the global aspects of the Company's, its subsidiaries'
and affiliates' businesses
-6-
and competitors it would not be appropriate to include any geographic limitation
on this SECTION 6. Should a court or arbitrator determine, however, that any
provision of the covenants contained in this SECTION 6 are not reasonable or
valid, either in period of time, geographical area, or otherwise, the parties
hereto agree that such covenants should be interpreted and enforced to the
maximum extent which such court or arbitrator deems reasonable or valid.
The existence of any claim or cause of action by the Executive
against the Company, its subsidiaries and/or affiliates, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of the covenants contained in this SECTION 6.
7. NON-WAIVER OF RIGHTS. The failure to enforce at any time
the provisions of this Agreement or to require at any time performance by any
other party of any of the provisions hereof shall in no way be construed to be
a waiver of such provisions or to affect either the validity of this Agreement
or any part hereof, or the right of any party to enforce each and every
provision in accordance with its terms.
8. NOTICES. Every notice relating to this Agreement shall be
in writing and shall be given by personal delivery, by a reputable same-day or
overnight courier service (charges prepaid), by registered or certified mail,
postage prepaid, return receipt requested or by facsimile to the recipient with
a confirmation copy to follow the next day to be delivered by personal delivery
or by a reputable same-day or overnight courier service; to:
If to the Company: XXXX Industries, Inc.
0000 Xxxx Xxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: President
If to the Employee: Xxxxxx Xxxx
@ address last known to
Company
Either of the parties hereto may change their address for
purposes of notice by given notice in writing to such other party pursuant to
this SECTION 8. The date of service of such notice shall be the date such notice
is personally delivered, three business days after the date of mailing if sent
by certified or registered mail, two business days after the date of delivery to
the courier if sent by courier, or the next business day after the date of
transmittal if by facsimile.
9. BINDING EFFECT/ASSIGNMENT. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, executors,
-7-
personal representatives, estates, successors (including, without limitation, by
way of merger) and assigns. Notwithstanding the provisions of the immediately
preceding sentence, the Executive shall not assign all or any portion of this
Agreement without the prior written consent of the Company.
10. ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, written or oral, between them as to such
subject matter. This Agreement may not be amended, nor may any provision hereof
be modified or waived, except by an instrument in writing duly signed by the
party to be charged.
11. SEVERABILITY. If any provision of this Agreement, or any
application thereof to any circumstances, is invalid, in whole or in part, such
provision or application shall to that extent be severable and shall not affect
other provisions or applications of this Agreement.
12. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Illinois, without
reference to the principles of conflict of laws.
13. HEADINGS. The headings contained herein are solely for the
purposes of reference, are not part of this Agreement and shall not in any way
affect the meaning or interpretation of this Agreement.
14. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
15. DEFINITIONS. As used in this Agreement, the following
terms shall have the following meanings:
"ACCRUED COMPENSATION" shall mean any accrued and unpaid Base
Salary as of the Termination Date, all benefits accrued under any benefit plans,
programs or arrangements in which the Executive shall have been a participant as
of the date of such termination, in accordance with the applicable terms and
conditions of such plans, programs or arrangements, and an amount equal to such
reasonable and necessary business expenses incurred by the Executive in
connection with the Executive's employment on behalf of the Company on or prior
to the Termination Date but not previously paid to the Executive.
"CAUSE" shall mean: (i) the Executive's material breach of
this Agreement, (ii) conduct by the Executive that is fraudulent or unlawful,
(iii) gross negligence of or
-8-
willful misconduct by the Executive in the performance of his duties, or (iv)
repeated failure of the Executive to perform his duties hereunder.
"CHANGE IN CONTROL" shall mean the occurrence of any one of
the following events:
(a) An acquisition (other than directly from the
Company) of any common stock, par value $.01 per share, of the Company
("Common Stock") or other voting securities of the Company by any "Person" (as
the term person is used for purposes of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), immediately after which
such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of fifty percent (50%) or more of either (i)
the then outstanding Common Stock or (ii) the combined voting power of the
Company's then outstanding voting securities entitled to vote for the election
of directors (the "Voting Securities"); PROVIDED, HOWEVER, in determining
whether a Change in Control has occurred, Common Stock or Voting Securities
which are acquired in a "Non-Control Acquisition" (as hereinafter defined) shall
not constitute an acquisition which would cause a Change in Control. A
"Non-Control Acquisition" shall mean an acquisition by (i) an employee benefit
plan (or a trust forming a part thereof) maintained by (A) the Company or (B)
any corporation or other Person of which a majority of its voting power or its
voting equity securities or equity interest is owned, directly or indirectly, by
the Company (for purposes of this definition, a "Related Entity"), (ii) the
Company or any Related Entity, (iii) any Person in connection with a
"Non-Control Transaction" (as hereinafter defined), or (iv) the UNR
Asbestos-Disease Claims Trust;
(b) The individuals who, as of the date of this
Agreement are members of the Board (the "Incumbent Board"), cease for any reason
to constitute at least a majority of the members of the Board; PROVIDED,
HOWEVER, that if the election, or nomination for election by the Company's
common stockholders, of any new director was approved by a vote of at least
two-thirds of the Incumbent Board, such new director shall, for purposes of this
Agreement, be considered as a member of the Incumbent Board; PROVIDED, FURTHER,
HOWEVER, that no individual shall be considered a member of the Incumbent Board
if such individual initially assumed office as a result of either an actual or
threatened "Election Contest" (as described in Rule 14a-11 promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board (a "Proxy Contest"), including
by reason of any agreement intended to avoid or settle any Election Contest or
Proxy Contest; or
(c) The consummation of:
(i) A merger, consolidation or reorganization
with or into the Company or in which securities of the Company are issued (a
"Merger"), unless the
-9-
Merger is a "Non-Control Transaction." A "Non-Control Transaction" shall mean a
Merger if:
(A) the stockholders of the Company
immediately before such Merger own directly or indirectly immediately following
the Merger at least fifty percent (50%) of the outstanding common stock and the
combined voting power of the outstanding voting securities of (x) the
corporation resulting from such Merger (the "Surviving Corporation"), if fifty
percent (50%) or more of the combined voting power of the then outstanding
voting securities of the Surviving Corporation is not Beneficially Owned,
directly or indirectly by another corporation (a "Parent Corporation"), or (y)
the Parent Corporation, if fifty percent (50%) or more of the combined voting
power of the Surviving Corporation's then outstanding voting securities is
Beneficially Owned, directly or indirectly, by a Parent Corporation;
(B) the individuals who were members of the
Incumbent Board immediately prior to the execution of the agreement providing
for the Merger, constitute at least a majority of the members of the board of
directors of, (x) the Surviving Corporation, if fifty percent (50%) or more of
the combined voting power of the then outstanding voting securities of the
Surviving Corporation is not Beneficially Owned, directly or indirectly by a
Parent Corporation, or (y) the Parent Corporation, if fifty percent (50%) or
more of the combined voting power of the Surviving Corporation's then
outstanding voting securities is Beneficially Owned, directly or indirectly, by
a Parent Corporation; and
(C) no Person other than (1) the Company or
another corporation that is a party to the agreement of Merger, (2) any Related
Entity, or (3) any employee benefit plan (or any trust forming a part thereof)
that, immediately prior to the Merger, was maintained by the Company or any
Related Entity, or (4) any Person who, immediately prior to the Merger had
Beneficial Ownership of fifty percent (50%) or more of the then outstanding
Common Stock or Voting Securities, has Beneficial Ownership immediately
following the Merger, directly or indirectly, of fifty percent (50%) or more of
the combined voting power of the outstanding voting securities or common stock
of (x) the Surviving Corporation, if fifty percent (50%) or more of the combined
voting power of the then outstanding voting securities of the Surviving
Corporation is not Beneficially Owned, directly or indirectly by a Parent
Corporation, or (y) the Parent Corporation, if fifty percent (50%) or more of
the combined voting power of the Surviving Corporation's then outstanding voting
securities is Beneficially Owned, directly or indirectly, by a Parent
Corporation;
(ii) A complete liquidation or dissolution of the
Company; or
(iii) The sale or other disposition of all or
substantially all of the assets of the Company to any Person (other than a
transfer to a Related Entity or
-10-
under conditions that would constitute a Non-Control Transaction with the
disposition of assets being regarded as a Merger for this purpose or the
distribution to the Company's stockholders of the stock of a Related Entity or
any other assets).
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
solely because any Person (the "Subject Person") acquired Beneficial Ownership
of more than the permitted amount of the then outstanding Common Stock or Voting
Securities as a result of the acquisition of Common Stock or Voting Securities
by the Company which, by reducing the number of Common Stock or Voting
Securities then outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Persons, provided that if a Change in Control
would occur (but for the operation of this sentence) as a result of the
acquisition of Common Stock or Voting Securities by the Company, and after such
share acquisition by the Company, the Subject Person becomes the Beneficial
Owner of any additional Common Stock or Voting Securities which increases the
percentage of the then outstanding Common Stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in Control shall occur.
"DISABILITY" shall mean the inability of the Executive to
perform his duties, services and responsibilities hereunder by reason of a
physical or mental infirmity, as reasonably determined by the Board, for a total
of 180 calendar days in any twelve-month period during the Employment Term.
"GOOD REASON" shall mean after a Change in Control, the
occurrence of any of the following events: (i) a material diminution in the
Executive's position, duties or responsibilities; (ii) a reduction in the
Executive's Base Salary; or (iii) a relocation of the Company's corporate
headquarters to a location that is more than 50 miles from the location of the
corporate headquarters immediately before the Change in Control.
"PRO RATA BONUS AMOUNT" shall mean an amount equal to the
annual bonus paid to the Executive for the year prior to the year in which the
Executive's employment is terminated, multiplied by a fraction, the numerator of
which is the number of days elapsed from the beginning of the bonus period
through and including the Termination Date, and the denominator of which is 365.
-11-
IN WITNESS WHEREOF, each of the Company has caused this
Agreement to be executed by authority of its Board of Directors, and the
Executive has hereunto set his hand, on the day and year first above written.
XXXX, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxx
Xxxxxx Xxxx
/s/ Xxxxxx Xxxx
-------------------------------
-12-
