EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into effective as
of the 31st day of December, 1997 by and between SENTO TECHNICAL INNOVATIONS
CORPORATION, a Utah corporation (the "Company"), and Xxxxxx X. Xxxxxx, an
individual (the "Employee").
R E C I T A L S
WHEREAS, the Company is engaged in the business of hardware and software
distribution, service, training and support; and
WHEREAS, contemporaneously with the execution of this Agreement, the
Company and Astron Incorporated, a Utah corporation ("Astron"), among others,
have entered into an Acquisition Agreement dated November 19, 1997, as amended
by an Amendment to Acquisition Agreement dated December 31, 1997 (as amended,
the "Acquisition Agreement"), pursuant to which Astron, will merge with Sento
Acquisition, Inc. and pursuant to which Astron will become a wholly-owned
subsidiary of Sento; and
WHEREAS, the Employee has served as an employee of Astron; and
WHEREAS, in connection with the consummation of the transactions described
in the Acquisition Agreement, the Company desires to retain and employ the
Employee as an employee of Spire Technologies, Inc., a wholly-owned subsidiary
of the Company ("Spire"), and the Employee desires to accept such employment,
on the terms and conditions of this Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of Spire employing the Employee, of the
mutual promises and covenants set forth herein, and for other good and valuable
consideration, the receipt, adequacy and legal sufficiency of which are hereby
acknowledged, the Company and the Employee mutually agree as follows:
i. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 EMPLOYMENT BY SPIRE. The Company hereby agrees to employ the
Employee during the Term (as hereinafter defined) as a full-time employee of
Spire, in the position of Manager of Training & Education, to render such
services and to perform such duties as required by the Bylaws of Spire and as
the Board of Directors of Spire (the "Board of Directors") shall reasonably
request.
1.2 ACCEPTANCE OF EMPLOYMENT BY THE EMPLOYEE. The Employee hereby
accepts such employment and shall render the services required by the Bylaws of
Spire and as requested by Spire's Board of Directors. If appointed or elected,
as applicable, the Employee also shall serve during all or any part of the Term
as any other officer and/or as a director of Spire or any of its affiliates
without any additional compensation therefor other than that specified in this
Agreement.
1.3 TERMINATION OF EXISTING CONTRACTS. The Employee hereby agrees
that all agreements and contracts, whether written or oral, relating to the
current employment of the Employee by Astron, or any of its affiliates, will be
terminated as of the commencement of the Term (as defined in Section 2 below).
ii. TERM OF EMPLOYMENT. The term of the Employee's employment
under this Agreement (the "Term") shall commence on the first
day of January, 1998 (the "Commencement Date") and shall
continue through and expire on the first anniversary thereof
(the "First Anniversary"), unless earlier terminated as herein
provided. Upon the First Anniversary and each subsequent
anniversary thereof, the Term shall be automatically renewed for
an additional period of one (1) year, except that the Term may
be terminated by either the Employee or the Company at any time
and for any reason or no reason following the First Anniversary
upon thirty (30) days written notice.
iii. COMPENSATION AND OTHER BENEFITS.
3.1 COMPENSATION.
3.1.1 ANNUAL SALARY. As compensation for services to be
rendered pursuant to this Agreement, the Company shall cause Spire to pay the
Employee, during the Term, a salary of Sixty Thousand and No/100 Dollars
($60,000) per annum (the "Annual Salary"), subject to such increases as the
Board of Directors may, in its discretion, approve.
3.1.2 SIGNING BONUS. Upon execution hereof, subject to the
terms and conditions set forth in this Agreement, the Company shall pay to the
Employee Forty Thousand and No/100 Dollars ($40,000) in cash and issue to the
Employee Twenty-Five Thousand (25,000) shares of the common stock, par value
$.25, of the Company (the "Shares" and collectively with such cash, the
"Signing Bonus").
The Employee shall also be eligible, during the Term, to receive such other
compensation, whether in the form of cash bonuses, stock options, stock
appreciation rights, restricted stock awards or otherwise, (collectively, with
the Signing Bonus, the "Additional Compensation"), as the Boards of Directors
of the Company and/or Spire (or any committee thereof) may, at their
discretion, approve. The Annual Salary and the Additional Compensation shall
be payable in accordance with the applicable payroll and/or other compensation
policies and plans of the Company or Spire, as applicable, as from time to time
in effect, less such deductions as shall be required to be withheld by
applicable law and regulations. In consideration of the Employee agreeing to
the terms of Article 4 hereof, the parties agree that the Employee shall be
entitled to receive his full Annual Salary for the remainder of the Term if,
during the Term, his employment with Spire is terminated by Spire or the
Company other than pursuant to Article 6 hereof; provided, however, that if the
Employee's employment with Spire is terminated by the Employee or for any
reason beyond the control of Spire or the Company, neither the Company nor
Spire shall have any obligation to pay to the Employee any compensation or
other remuneration for any period subsequent to the date of such termination.
3.2 MID-TERM TERMINATION. If (i) the Employee's employment with
Spire is terminated by Spire prior to the first anniversary of the Commencement
date, other than pursuant to Section 6.2 hereof, (ii) the Employee is not in
breach of any of the representations, warranties, covenants or obligations set
forth in Articles 4 and 5 hereof, and (iii) the termination of the Employee's
employment occurs other than at the conclusion of a calendar year during the
Term, Spire shall pay to the Employee, within sixty (60) days from the
Employee's termination date, a portion of the Additional Compensation as
determined by the Board of Directors in its discretion. Except as set forth in
this Section 3.2, upon the termination of the Employee's employment prior to
the completion of any calendar year during the Term, the Employee shall not be
entitled to any portion of the Additional Compensation for such year.
3.3 PARTICIPATION IN EMPLOYEE BENEFIT PLANS. The Employee shall be
permitted, during the Term, if and to the extent eligible, to participate in
any group life, hospitalization or disability insurance plan, health program,
pension plan, similar benefit plan or other "fringe benefits" of Spire which
may be available to all other employees of Spire generally on the same terms as
such other employees.
3.4 EXECUTIVE SUPPORT. Spire shall provide to the Employee office
facilities, furniture, fixtures and equipment, secretarial and support
personnel and other executive support services as reasonably necessary for the
Employee to perform his obligations under this Agreement.
3.5 REIMBURSEMENT OF BUSINESS EXPENSES. The Employee may incur
reasonable, ordinary and necessary business expenses in the course of
performing his obligations under this Agreement, including expenses for travel,
food, lodging and entertainment. Spire shall reimburse the Employee for all
such business expenses if (i) such expenses are incurred by the Employee in
accordance with Spire's business expense reimbursement policy, if any, as may
be established and modified by Spire from time to time and (ii) the Employee
provides to Spire a record of (A) the amount of the expense, (B) the date, place
and nature of the expense, (C) the business reason for the expense and (D) the
names, occupations and other data concerning individuals entertained sufficient
to establish their business relationship to Spire. Spire shall have no
obligation to reimburse the Employee for expenses that are not incurred and
substantiated as required pursuant to this Section 3.5.
3.6 RESTRICTIONS ON TRANSFER. The Shares will not be registered
under the Securities Act of 1933, as amended (the "Securities Act"), and may
not be sold, transferred, or otherwise disposed of for value unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available, as evidenced by an opinion of counsel retained by
the Employee and addressed to and reasonably satisfactory to the Company. The
certificates, if any, evidencing the Shares shall be stamped or otherwise
imprinted with a legend substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND ARE "RESTRICTED SECURITIES" WITHIN THE
MEANING OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT ( RULE
144"). THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
MAY NOT BE SOLD OR TRANSFERRED WITHOUT COMPLYING WITH RULE 144
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT OR OTHER
COMPLIANCE UNDER THE SECURITIES ACT. THE SECURITIES ARE SUBJECT
TO ADDITIONAL RESTRICTIONS AS SET FORTH IN THAT CERTAIN
EMPLOYMENT AGREEMENT, DATED DECEMBER 31, 1997, BETWEEN SENTO
TECHNICAL INNOVATIONS CORPORATION, A UTAH CORPORATION AND XXXXXX
X. XXXXXX.
Nothing herein shall create any obligation on the part of the Company, Spire or
any of their respective directors, officers or employees to cause the Shares to
be registered under the Securities Act.
iv. NON-COMPETITION.
4.1 COVENANTS AGAINST COMPETITION. The Employee acknowledges that
(i) the Company, which for purposes of this Article 4 includes all of the
Company's subsidiaries, including, without limitation, Spire and Astron, and
all of the Company's present and future subsidiaries and affiliates, including
such subsidiaries and affiliates as may be formed or incorporated during the
Restricted Period (as defined in Section 4.1.1), is engaged in the business
described in the Recitals set forth on the first page hereof (the "Business");
(ii) the Employee is one of a limited number of persons who has performed a
significant role in developing the business and operations of Astron; (iii)
the Business is conducted throughout the United States and internationally;
(iv) the Employee's work for Astron has given him, and his work for Spire and
the Company will continue to give him, trade secrets of and confidential
information concerning the Company; (v) the agreements and covenants contained
in this Article 4 are essential to protect the Business and the goodwill of the
Company; and (vi) the Employee has means to support himself and his dependents
other than by engaging in the Business and the provisions of this Article 4
will not impair such ability. Accordingly, the Employee covenants and agrees
as follows:
4.1.1 NON-COMPETE. For a period commencing on the
Commencement Date hereof and terminating on the date that is three (3) months
following the termination of this Agreement (the "Restricted Period"), the
Employee shall not, within the United States or any other place where the
Company conducts the Business, directly or indirectly, (i) engage in the
Business or any aspect of the Business for the Employee's own account in
competition with the Company; (ii) enter the employ of, or render any services
to, any person engaged in competition with the Company; or (iii) become
interested in any such person in any capacity, including, without limitation,
as an individual, partner, member, manager, shareholder, officer, director,
principal, agent or trustee; provided, however, that the Employee may own,
directly or indirectly, solely as an investment, securities of any person
traded on any national securities exchange or over-the-counter market if the
Employee is not an affiliate (as defined in the Securities Act) of such person
and does not, directly or indirectly, own five percent or more of any class of
securities of such person.
4.1.2 CONFIDENTIAL INFORMATION; PERSONAL RELATIONSHIPS.
During the Restricted Period and thereafter, the Employee shall keep secret and
retain in strict confidence, and shall not use for the benefit of himself or
others, all confidential matters of the Company including, without limitation,
"know-how," trade secrets, customer lists, details of client or consultant
contracts, pricing policies, operational methods, marketing plans or
strategies, product development techniques or plans, business acquisition
plans, new personnel acquisition plans, methods of production and distribution,
technical processes, designs and design projects, inventions and research
projects of the Company learned by the Employee heretofore or during the
Restricted Period; nor may the Employee exploit for his own benefit, or the
benefit of others, personal relationships with customers, suppliers or agents
of the Company in connection with or adversely affecting the Business formed
heretofore or during the Restricted Period.
4.1.3 PROPERTY OF THE COMPANY. All memoranda, notes, lists,
records and other documents or papers (and all copies thereof), including such
items stored in computer memories, on microfiche or by any other means, made or
compiled by or on behalf of the Employee, or made available to the Employee
relating to the Company, other than purely personal matters, are and shall be
the property of the Company, and shall be delivered to the Company promptly
upon the termination of the Employee's employment (whether such termination is
for Cause or otherwise) or at any other time on request of the Company.
4.1.4 EMPLOYEES OF COMPANY. During the Restricted Period
and thereafter for as long as the Employee shall remain an employee of or
consultant to the Company, Employee shall not, directly or indirectly, hire or
solicit any employee of the Company away from the Company or encourage any such
employee to leave such employment.
4.1.5 CONSULTANTS OF THE COMPANY. During the Restricted
Period and thereafter for as long as the Employee shall remain an employee of
or consultant to the Company, the Employee shall not, directly or indirectly,
hire or solicit any consultant then under contract with the Company or
encourage such consultant to terminate such relationship.
4.2 RIGHTS AND REMEDIES UPON BREACH. If the Employee breaches, or
threatens to commit a breach of, any of the provisions of Section 4.1 (the
"Restrictive Covenants"), the Company shall have the following rights and
remedies, each of which rights and remedies shall be independent of the others
and severally enforceable, and each of which is in addition to, and not in lieu
of, any other rights and remedies available to the Company under law or in
equity:
4.2.1 SPECIFIC PERFORMANCE. The right and remedy to have
the Restrictive Covenants specifically enforced by any court of competent
jurisdiction, it being agreed that any breach or threatened breach of the
Restrictive Covenants would cause irreparable injury to the Company and that
money damages would not provide an adequate remedy to the Company.
4.2.2 ACCOUNTING. The right and remedy to require the
Employee to account for and pay over to the Company all compensation, profits,
monies, accruals, increments or other benefits derived or received by the
Employee as the result of any transactions constituting a breach of the
Restrictive Covenants.
4.3 SEVERABILITY OF COVENANTS. The Employee acknowledges and agrees
that the Restrictive Covenants are reasonable and valid in geographical and
temporal scope and in all other respects. If any court determines that any of
the Restrictive Covenants, or any part thereof, is invalid or unenforceable,
the remainder of the Restrictive Covenants shall not thereby be affected and
shall be given full effect, without regard to the invalid portions.
4.4 BLUE-PENCILING. If any court determines that any of the
Restrictive Covenants, or any part thereof, is unenforceable because of the
duration or geographic scope of such provision, such court shall have the power
to reduce the duration or scope of such provision, as the case may be, and, in
its reduced form, such provision shall then be enforceable.
4.5 ENFORCEABILITY IN JURISDICTIONS. The Company and the Employee
intend to and hereby confer jurisdiction to enforce the Restrictive Covenants
upon the courts of any jurisdiction within the geographical scope of the
Restrictive Covenants. If the courts of any one or more of such jurisdictions
hold the Restrictive Covenants unenforceable by reason of the breadth of such
scope or otherwise, it is the intention of the Company and the Employee that
such determination not bar or in any way affect the Company's right to the
relief provided above in the courts of any other jurisdiction within the
geographical scope of the Restrictive Covenants, as to breaches of such
covenants in such other respective jurisdictions, such covenants as they relate
to each jurisdiction being, for this purpose, severable into diverse and
independent covenants.
v. Representations and Warranties. In order to induce the
Company to enter into this Agreement and perform the Company's
obligations contemplated hereby, including, without limitation,
the Company's obligation to issue the Shares to the Employee
pursuant to Section 3.1.2, the Employee hereby acknowledges,
represents, warrants and agrees that:
5.1 The Company has previously made available for inspection by the
Employee financial statements and other financial, corporate and business
information and records with respect to the Company.
5.2 The Employee may have to bear the economic risk of any
investment related to the Shares for an indefinite period of time.
5.3 No representations, promises or agreements have been made
concerning the marketability or value of the Shares or that any of the Shares
will be registered under the Securities Act or any state securities or blue sky
laws at any time in the future or will otherwise be qualified for sale under
the applicable securities laws.
5.4 No representations, warranties, promises or agreements have been
made to the Employee with respect to any of the following:
5.4.1 The approximate or exact length of time the Employee
will be required to remain an owner of the Shares;
5.4.2 The percentage of profit and/or the amount or type of
consideration (including dividends), profit or loss (including tax write-offs
and/or tax benefits) to be realized, if any, as a result of an investment in
the Shares; and/or
5.4.3 That the past performance or experience of the Company
will in any way indicate the results of future operations of the Company, the
results of the ownership of the Shares, or the likelihood of achievement of the
overall objectives of the Company.
5.5 The Employee is able to bear the substantial economic risks of
an investment in the Company, including but not limited to the possibility of
the complete loss of the Employee's investment in the Shares, the lack of a
public market, and the limited transferability of the Shares which may make the
liquidation of this investment impossible for the indefinite future. The
Employee has no need for liquidity in such investment, and could afford a
complete loss of such investment. The Employee has reached the age of majority
and has adequate means of providing for the Employee's current needs and
personal contingencies.
5.6 [Omitted]
5.7 The Employee has such knowledge and experience in financial and
business matters that the Employee is capable of evaluating the merits and
risks of the investment in the Company and of protecting his own interests.
5.8 The Shares will be acquired for the Employee's own account for
investment and not with a view toward resale or distribution thereof, and the
Employee does not now have any reason to anticipate any change in the
Employee's circumstances or other particular occasion or event which would
cause the Employee to sell any of the Shares or any interest therein.
5.9 The Employee has received and reviewed all business, corporate
and financial documents and records concerning the Company that the Employee
wishes to receive and review.
5.10 The Employee has been given an opportunity to discuss the
history, business, corporate matters and prospects of the Company and the
management thereof with the officers and directors of the Company. The
Employee is fully informed with respect to the merits and risks associated
with the Shares and with the history, management business, prospects and
corporate matters of the Company.
5.11 Neither the Employee's execution and delivery of this Agreement
nor the performance of his obligations hereunder will (i) violate any
restriction of any government, governmental agency or court to which the
Employee is subject, (ii) conflict with, result in a breach of, constitute a
default under or require any notice under any agreement, arrangement or
contract to which Employee is a party or by which the Employee is bound or
(iii) be limited or restricted by any such agreement, arrangement or contract.
5.12 All representations and warranties set forth above or in any
other written statement or document delivered by the Employee in connection
with the transactions contemplated hereby will be true and correct in all
respects on and as of the date of the sale of any of the Shares as if made on
and as of such date and will survive such sale and/or exercise.
5.13 The Employee understands the meaning and legal consequences of
the representations and warranties contained in this Agreement and agrees to
indemnify and hold harmless the Company and its directors, officers, agents and
representatives from and against any and all loss, damage or liability due to
or arising out of a breach of or the inaccuracy of any representation or
warranty of the Employee in this Agreement. Notwithstanding any of the
representations, warranties, acknowledgments or arrangements made herein by the
Employee, the Employee does not hereby or in any manner waive any right granted
to the Employee under federal or state securities laws.
vi. TERMINATION.
6.1 TERMINATION UPON DEATH. If the Employee dies during the Term,
this Agreement shall terminate, except that the Employee's legal
representatives, successors, heirs or assigns shall be entitled to receive the
Annual Salary, the Additional Compensation and other accrued benefits, if any,
earned up to the date of the Employee's death; provided, however, if any
Additional Compensation or other benefits are governed by the provisions of any
written employee benefit plan or policy of the Company or any of its
subsidiaries, any written agreement contemplated thereunder or any other
separate written agreement entered into between the Employee and the Company or
any of its subsidiaries, the terms and conditions of such plan, policy or
agreement shall control in the event of any discrepancy or conflict with the
provisions of this Agreement regarding such Additional Compensation or other
benefit upon the death, termination or disability of the Employee pursuant to
Article 6 hereof.
6.2 TERMINATION FOR CAUSE. The Company or Spire has the right, at
any time during the Term, subject to all of the provisions hereof, exercisable
by serving notice, effective in accordance with its terms, to terminate the
Employee's employment under this Agreement and discharge the Employee for
"Cause" (as hereinafter defined). If such right is exercised, the total
obligation of the Company and Spire to the Employee shall be limited to the
payment of any unpaid Annual Salary, Additional Compensation and other
benefits, if any, accrued up to the effective date (which shall not be
retroactive) specified in the notice of termination delivered by the Company or
Spire. As used in this Section 6.2, the term "Cause" shall mean and include
(i) a material breach by the Employee of the terms of this Agreement, (ii)
wrongful misappropriation of any money or other assets or properties of the
Company or any subsidiary or affiliate of the Company, (iii) the conviction of
the Employee for any felony or other serious crime, (iv) chronic alcoholism or
drug addiction, or (v) the Employee's gross moral turpitude relevant to his
office or employment with the Company or any subsidiary or affiliate of the
Company.
6.3 SUSPENSION UPON DISABILITY. If during the Term the Employee
becomes physically or mentally disabled, whether totally or partially, as
evidenced by the written statement of two competent physicians licensed to
practice medicine in the United States, so that the Employee is unable to
substantially perform his services hereunder for (i) a period of six
consecutive months, or (ii) for shorter periods aggregating six months during
any twelve-month period, Spire may at any time after the last day of the six
consecutive months of disability or the day on which the shorter periods of
disability equal an aggregate of six months, by written notice to the Employee,
suspend the Term of the Employee's employment hereunder and discontinue
payments of the Annual Salary, Additional Compensation and other benefits. If
at any time the Employee shall no longer be disabled, as evidenced by the
written statement of a competent physician licensed to practice medicine in the
United Sates, Spire may at its election fully reinstate, and if such disability
was for a period of not more than twelve consecutive months Spire shall fully
reinstate the employment of the Employee pursuant to this Agreement and shall
commence payment of the Annual Salary and all of the terms of this Agreement
shall resume in full force for the balance of the Term. Nothing in this
Section 6.3 shall be deemed to extend the Term.
vii. INSURANCE. The Company or Spire may, from time to time,
apply for and take out, in its own name and at its own expense,
naming itself or others as the designated beneficiary (which it
may change from time to time), policies for health, accident,
disability or other insurance upon the Employee in any amount or
amounts that it may deem necessary or appropriate to protect its
interest. The Employee agrees to aid the Company an/or Spire in
procuring such insurance by submitting to reasonable medical
examinations and by filling out, executing and delivering such
applications and other instruments in writing as may reasonably
be required by an insurance company or companies to which any
application or applications for insurance may be made by or for
the Company or Spire.
viii. OTHER PROVISIONS.
8.1 NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage prepaid. Any such notice shall be deemed
given when so delivered personally, telegraphed, telexed or sent by facsimile
transmission or, if mailed, five days after the date of deposit in the United
States mail, as follows:
(i) if to the Company or Spire, to:
Sento Technical Innovations, Inc.
Attn: Xxxxxx X. Bench
000 Xxxxx Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxx, Xxxx 00000
(ii) if to the Employee, to:
Xxxxxx X. Xxxxxx
000 Xxxxx 0000 Xxxxx #000
Xxxxx, XX 00000
Any party may change its address for notice hereunder by notice to
the other parties hereto.
8.2 ENTIRE AGREEMENT. This Agreement contains the entire agreement
and understanding between the parties with respect to the subject matter hereof
and supersedes all prior agreements, written or oral, with respect thereto;
provided, however, that nothing herein shall in any way limit the obligation,
rights or liabilities of the parties under any written stock option agreement
separately entered into by the parties.
8.3 WAIVERS AND AMENDMENTS. This Agreement may be amended,
modified, superseded, cancelled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance. No delay
on the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any
party of any right, power or privilege hereunder, nor any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
8.4 GOVERNING LAW; VENUE. This Agreement, except as set forth in
Section 4.5 hereof, shall be governed by, and construed in accordance with, the
laws of the State of Utah, without reference to principles governing choice or
conflicts of law.
8.5 ASSIGNMENT. This Agreement, and any rights and obligations
hereunder, may not be assigned by any party hereto without the prior written
consent of the other party, except that the Company may assign this Agreement
to any of its subsidiaries or affiliates, in its discretion.
8.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
8.7 HEADINGS. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
SENTO TECHNICAL INNOVATIONS CORPORATION,
a Utah corporation
By: \S\ Xxxxxx X. Bench
Its: Chief Financial Officer
\S\ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, an individual
