SEVERANCE AGREEMENT
Exhibit
10.1
THIS
SEVERANCE AGREEMENT (the “Agreement”) is made and entered into this 18th day of
December, 2008, between BIMINI CAPITAL MANAGEMENT, INC., a Maryland corporation
(the “Company”) and XXXXXX X. XXXXXX (“Executive”). Certain
capitalized terms used in this Agreement are defined in
Section 7.
Background
The
Company acknowledges that Executive has made and is expected to make significant
contributions to the growth and success of the Company. The Company
also acknowledges that there exists the possibility of a Change in Control of
the Company. The Company recognizes that the possibility of a Change
in Control may contribute to uncertainty on the part of senior management and
may result in the departure or distraction of senior management from their
operating responsibilities.
Outstanding
management of the Company is always essential to advancing the best interests of
the Company and its shareholders. In the event of a threat or
occurrence of a bid to acquire or change control of the Company or to effect a
business combination, it is particularly important that the business of the
Company be continued with a minimum of disruption. The Company
believes that the objective of securing and retaining outstanding management
will be achieved if the Company’s key management employees are given certain
assurances so that they will not be distracted by personal uncertainties and
risks created by such circumstances.
NOW,
THEREFORE, in consideration of the mutual covenants and obligations herein and
the compensation the Company agrees herein to pay to Executive, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Executive agree as follows:
1. Term of
Agreement. The Effective Date of this Agreement is the
day and year first above written. The Term of this Agreement begins
on the Effective Date and ends on December 31,
2009. Notwithstanding the preceding sentence (x) the Term of this
Agreement shall be extended for an additional twelve month period, as of each
January 1 beginning January 1, 2010 (each such January 1 being a “Renewal
Date”), unless the Company gives Executive written notice, at least ninety days
prior to the applicable Renewal Date, that the Term of this Agreement will not
be extended and (y) the Term of this
Agreement shall be extended automatically to the day preceding the anniversary
of a Control Change Date if a Control Change Date occurs during the Term of this
Agreement.
2. Right to Receive Termination
Benefits. Executive shall be entitled to receive the
Termination Benefits described in Section 3 if during the Term of this
Agreement (x) the
Company terminates Executive’s employment with the Company without Cause or
(y) Executive resigns
from the employment of the Company and Executive has Good Reason to resign from
the Company. No amounts will be payable under this Agreement unless
Executive’s employment with the Company is terminated as described in the
preceding sentence.
3. Termination
Benefits. Upon a termination of Executive’s employment in
accordance with Section 2, Executive shall be entitled to receive the
following Termination Benefits:
(a) Payment
of any accrued but unpaid salary from the Company through the date that
Executive’s employment terminates.
(b) Payment
of any bonus that has been approved by the Compensation Committee of the Board
(the “Committee”) but which remains unpaid as of Executive’s termination of
employment.
(c) Reimbursement
for any expenses that Executive incurred on behalf of the Company prior to
termination of employment to the extent that such expenses are reimbursable
under the Company’s standard reimbursement policies.
(d) A
severance benefit equal to the amount described in either (i), (ii) or (iii), as
applicable.
(i) This
Section 3(d)(i) applies if either (x) the Company terminates
Executive’s employment with the Company without Cause within six months before
or after a Control Change Date or (y) Executive resigns from the
employment of the company within six months after a Control Change Date and
Executive has Good Reason to resign from the Company. The severance
benefit payable under this Section 3(d)(i) is equal to Executive’s Current Cash
Compensation. The term “Current Cash Compensation” means the sum of
one year of Executive’s annual base salary from the Company as in effect on the
date Executive’s employment terminates and the average of the annual cash
bonuses paid to Executive for the Company’s two fiscal years ending before the
date Executive’s employment with the Company terminates; provided that any
extraordinary bonuses shall not be considered in determining Current Cash
Compensation. (For this purpose, a bonus is an “extraordinary bonus”
if it is characterized as such in a resolution approved by the Committee in
connection with the payment of the bonus.)
(ii) This
Section 3(d)(ii) applies if Executive’s employment terminates in accordance with
Section 2 but the requirements of Section 3(d)(i) are not satisfied and Section
3(d)(iii) does not apply. The severance benefit payable under this
Section 3(d)(ii) is equal to one-half of Executive’s Current Cash Compensation
(as defined in Section 3(d)(i)).
(iii) This
Section 3(d)(iii) applies if, before 2010, either (x) the holders of the
securities of the Company entitled to vote thereon approve a plan of complete
liquidation of the Company (or, if such approval is not required by applicable
law and is not solicited by the Company, the commencement of actions
constituting such a plan), (y) the Company is dissolved
or (z) the Company is a
party to a proceeding as a debtor under the United States Bankruptcy
Code. For the avoidance of doubt, this Section 3(d)(iii) does not
apply if the Company ceases to exist as a result of a merger, recapitalization
or reorganization, sale of assets or any transaction that constitutes a Change
in Control. The severance benefit payable under this Section
3(d)(iii) is equal to three hundred thousand dollars
($300,000). Notwithstanding the preceding sentences, the Termination
Benefit described in this Section 3(d)(iii) shall not be paid if the Board
determines that the Company had grounds to terminate Executive for Cause as
provided in clause (i) or (ii) of Section 7(d).
(e) The
Company shall pay the cost of continued health plan coverage for Executive and
his qualified beneficiaries through the end of the month that includes the
earlier of (i) either (x) the first anniversary of the date Executive’s
employment terminates (if Executive is entitled to receive the severance benefit
described in Section 3(d)(i), or (y) the 90th day
after the date Executive’s employment terminates (if Executive is entitled to
receive the severance benefit described in Section 3(d)(ii)) and (ii) the date
that Executive or Executive’s qualified beneficiaries, as applicable, become
eligible for other health plan coverage.
The
Termination Benefits described in Sections 3(a), 3(b), 3(c), and 3(d)(ii) shall
be payable in a single cash sum within thirty days after Executive’s termination
of employment and the Termination Benefit described in Section 3(d)(iii) shall
be payable in a single cash sum on the date of an event described therein;
provided, however, that any amount payable under Section 3(a), 3(b), 3(c),
3(d)(ii) or 3(d)(iii) that is subject to Code Section 409A shall be payable in a
single cash sum on the date that is six months after Executive’s termination of
employment. Sixty-five percent of the Termination Benefit described
in Section 3(d)(i) shall be payable in a single cash sum on the date that is six
months after Executive’s termination of employment and, subject to Executive’s
compliance with the provisions of Section 5 hereof, the balance of the
Termination Benefit described in Section 3(d)(i) shall be payable in a single
sum on the first anniversary of Executive’s termination of
employment. The Termination Benefit described in Section 3(e) shall
be paid by the Company to the insurance provider or health plan as the premium
or contribution for the continued health plan coverage is due. The
payment of the Termination Benefits shall be reduced by amounts required to be
withheld for applicable income and employment taxes.
In
addition to the Termination Benefits described in this Section 3, Executive
also shall be entitled to receive any benefits or payments that Executive is
entitled to receive under any employee benefit plans or other arrangements or
agreements, including by way of example, restricted stock and stock option
awards, that cover Executive. If (and only if) Executive is entitled
to receive the Termination Benefits pursuant to Section 2 hereof, nonvested
restricted stock, stock options and other equity awards will become
automatically vested on the date of Executive’s termination of employment.
4. Excise Tax
Indemnification. Executive shall be entitled to a payment
under this Agreement if any payment or benefit provided under this Agreement or
any other plan or agreement with the Company constitutes a “parachute payment”
(as defined in Section 280G(b)(2)(A) of the Internal Revenue Code of 1986
(the “Code”), but without regard to Code Section 280G(b)(2)(A)(ii)) and
Executive incurs a liability under Code Section 4999. The amount
payable to Executive under this Section 4 shall be the amount required to
indemnify Executive and hold him harmless from the application of Code Sections
280G and 4999 with respect to benefits, payments, accelerated exercisability and
vesting and other rights under this Agreement or otherwise, and any income,
employment, hospitalization, excise and other taxes attributable to the
indemnification payment. The benefit payable under this
Section 4 shall be calculated and paid not later than the date (or extended
filing date) on which the tax return reflecting liability for the Code
Section 4999 excise tax is required to be filed with the Internal Revenue
Service. To the extent that any other plan or agreement requires that
Executive be indemnified and held harmless from the application of Code Sections
280G and 4999, any such indemnification and the amount required to be paid to
Executive under this Section 4 shall be coordinated so that such
indemnification is paid only once and the Company’s obligations under this
Section 4 shall be satisfied to the extent of any such other payment (and
vice versa). Executive shall be entitled to the benefit described in
Section 4 without regard to whether he becomes entitled to receive the
Termination Benefits described in Section 3.
5. Covenants of the
Executive. Executive acknowledges that (i) the principal
business of the Company (which expressly includes for purposes of this
Section 5 and any related enforcement provisions hereof, its successors and
assigns) is the acquiring, owning and selling of residential mortgage-related
securities and/or debt securities issued or guaranteed by the U.S. government,
U.S. government sponsored or chartered enterprises or U.S. government agencies
(such business herein being referred to as the “Business”); (ii) the
Company is one of a limited number of persons who have developed such a
business; (iii) the Company’s Business is, in part, national in scope; (iv)
Executive’s work for the Company has given and will continue to give him access
to the confidential affairs and proprietary information of the Company; (v) the
covenants and agreements of Executive contained in this Section 5 are
essential to the business and goodwill of the Company; and (vi) the Company
would not have entered into this Agreement but for the covenants and agreements
set forth in this Section 5. Accordingly, the Executive
covenants and agrees that:
(a) By
and in consideration of the benefits to be provided by the Company hereunder,
including the change in control severance arrangements set forth herein, and
further in consideration of Executive’s exposure to the proprietary information
of the Company, Executive covenants and agrees that, during the period
commencing on the date hereof and ending one year following the date upon which
Executive shall cease to be an employee of the Company, he shall not in the
United States, directly or indirectly, except with the prior approval of the
Board, (i) engage in the Business with or on behalf of a real estate
investment trust (other than for the Company or its affiliates) or otherwise
compete with the Company or its affiliates, (ii) render any services to any
real estate investment trust (other than the Company or its affiliates) engaged
in the elements of the Business, or (iii) become interested in any real
estate investment trust (other than the Company or its affiliates) engaged in
the elements of the Business, as a partner, shareholder, principal, agent,
employee, consultant or in any other relationship or capacity; provided,
however, that, notwithstanding the foregoing, the Executive may invest in
securities of any entity, solely for investment purposes and without
participating in the business thereof, if (A) such securities are traded on any
national securities exchange or the National Association of Securities Dealers,
Inc. Automated Quotation System, (B) Executive is not a controlling person of,
or a member of a group which controls, such entity and (C) Executive does not,
directly or indirectly, own 5% or more of any class of securities of such
entity. Notwithstanding the foregoing, the restrictions of this
Section 5 shall not apply to any existing investments or other activities
of the Executive which have been disclosed in writing to the Board prior to the
date hereof.
(b) During
and after the period of Executive’s employment with the Company and its
affiliates, Executive shall keep secret and retain in strictest confidence, and
shall not use for his benefit or the benefit of others, except in connection
with the business and affairs of the Company and its affiliates, all
confidential matters relating to the Company’s Business and the business of any
of its affiliates learned by Executive heretofore or hereafter directly or
indirectly from the Company or any of its affiliates (the “Confidential Company
Information”); and Executive shall not disclose such Confidential Company
Information to anyone outside of the Company except with the Company’s express
written consent and except for Confidential Company Information which is at the
time of receipt or thereafter becomes publicly known through no wrongful act of
Executive or is received from a third party not under an obligation to keep such
information confidential and without breach of this Agreement.
(c) During
the period commencing on the date hereof and ending one year following the date
upon which Executive shall cease to be an employee of the Company and its
affiliates, (i) Executive shall not, without the Company’s prior written
consent, directly or indirectly, knowingly (x) solicit or encourage
to leave the employment or other service of the Company, or any of its
affiliates, any employee or independent contractor thereof or (y) hire (on behalf of
Executive or any other person or entity) any employee or independent contractor
who has left the employment or other service of the Company or any of its
affiliates within the one-year period which follows the termination of such
employee’s or independent contractor’s employment or other service with the
Company and its affiliates, and (ii) Executive will not, whether for his
own account or for the account of any other person, firm, corporation or other
business organization, intentionally interfere with the Company’s or any of its
affiliates’ relationship with any person who during the Term of this Agreement
is or was a counterparty, investor and/or vendor of the Company or any of its
affiliates.
(d) All
memoranda, notes, lists, records, property and any other tangible product and
documents (and all copies thereof), whether visually perceptible,
machine-readable or otherwise, made, produced or compiled by Executive or made
available to Executive concerning the business of the Company or its affiliates,
(i) shall at all times be the property of the Company (and, as applicable,
any affiliates) and shall be delivered to the Company at any time upon its
request, and (ii) upon Executive’s termination of employment, shall be
immediately returned to the Company (except that in all events Executive may
retain a copy of his contacts list).
6. Company
Remedies. Executive acknowledges and agrees that any breach by
him of any of the provisions of Section 5 (the “Restrictive Covenants”) would
result in irreparable injury and damages for which money damages would not
provide an adequate remedy. Therefore, if Executive breaches, or
threatens to commit a breach of, any of the Restrictive Covenants, the Company
and its affiliates, in addition to, and not in lieu of, any other rights and
remedies available to the Company and its affiliates under law or in equity
(including, without limitation, the recovery of damages), shall be entitled to
the following:
(a) The
Company and its affiliates shall have the right and remedy to have the
Restrictive Covenants specifically enforced by any court having equity
jurisdiction, including, without limitation, the right to an entry against
Executive of restraining orders and injunctions (preliminary, mandatory,
temporary and permanent) against violations, threatened or actual, and whether
or not then continuing, of such covenants.
(b) Executive
shall not be entitled to any additional payments of the Termination Benefit
described in Section 3(d)(i) and Executive shall pay the Company, in a single
cash sum within fifteen days after receipt of a written demand from the Company,
any Termination Benefit described in Section 3(d)(i) or (ii) previously paid to
Executive.
(c) Within
fifteen days after receipt of a written demand from the Company, Executive shall
convey or transfer to the Company, without payment or consideration, any shares
of Company stock that vested under Section 3 on account of a termination of
employment described in Section 2. Executive shall make a single cash
payment to the Company, equal to the date of disposition fair market value, of
any such shares that Executive no longer owns.
(d) Within
fifteen days after receipt of a written demand from the Company, Executive shall
surrender to the Company, for cancellation without payment or consideration, any
outstanding stock option, stock appreciation right or other equity-based award
that vested under Section 3 on account of a termination of employment described
in Section 2 and that remains outstanding upon receipt of the Company’s
notice. If such stock option, stock appreciation right or other
equity-based award was previously exercised or settled, Executive shall return,
convey or transfer to the Company, within fifteen days after receipt of the
Company’s notice, any cash or shares delivered to Executive upon exercise or
settlement of such award, less any amount paid by Executive to exercise such
award. If any such award was exercised, settled in shares and such
shares are no longer owned by Executive, then Executive shall pay the Company,
in a single cash sum within fifteen days after receipt of the Company’s notice,
an amount equal to the date of disposition fair market value of such shares,
less any amount paid by Executive to exercise the award and acquire the
shares.
7. Certain
Definitions. As used in this Agreement, certain terms have the
definitions set forth below.
(a) Acquiring Person
means that a Person, considered alone or together with all Control Affiliates
and Associates of that Person, is or becomes directly or indirectly the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of securities
representing at least fifty percent (50%) of the Company’s then outstanding
securities entitled to vote generally in the election of the Board.
(b) Associate, with
respect to any Person, is defined in Rule 12b-2 under the Exchange Act; provided, however, that an
Associate shall not include the Company or a majority-owned affiliate of the
Company.
(c) Board means the
Board of Directors of the Company.
(d) Cause means
(i) willful, deliberate and continued failure by Executive (other than for
reason of mental or physical illness) to perform his duties as established by
the Board, or fraud or dishonesty in connection with such duties; (ii) a
material breach by Executive of his fiduciary duties of loyalty or care to the
Company; (iii) conviction of any crime (or upon entering a plea of guilty
or nolo contendere to a charge of any crime) constituting a felony; (iv)
misappropriation of the Company’s funds or property; or (v) willful, flagrant,
deliberate and repeated infractions of material published policies and
regulations of the Company of which Executive has actual knowledge.
(e) Change in Control
means (i) a Person is or becomes an Acquiring Person; (ii) the closing
of a transaction or series of related transactions that involves the transfer of
more than fifty percent (50%) of the Company’s and its affiliates’ total assets
on a consolidated basis, as reported in the Company’s consolidated financial
statements filed with the Securities and Exchange Commission, to a Person;
(iii) the closing of a transaction or series of related transactions
pursuant to which the Company undergoes a merger, consolidation, or statutory
share exchange with a company, regardless of whether the Company is intended to
be the surviving or resulting entity after the merger, consolidation, or
statutory share exchange, other than a transaction that results
in the voting securities of the Company carrying the right to vote in elections
of persons to the Board outstanding immediately prior to the closing of the
transaction continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than fifty
percent (50%) of the Company’s voting securities carrying the right to vote in
elections of persons to the Board, or such securities of such surviving entity,
outstanding immediately after the closing of such transaction; (iv) the
Continuing Directors cease for any reason to constitute a majority of the Board;
(v) holders of the securities of the Company entitled to vote thereon approve a
sale by the Company of substantially all of the assets of the Company and its
affiliates (or, if such approval is not required by applicable law and is not
solicited by the Company, the commencement of actions to effect such a sale); or
(vi) the Board adopts a resolution to the effect that, in its judgment, as
a consequence of any one or more transactions or events or series of
transactions or events, a Change in Control of the Company has effectively
occurred.
(f) Continuing Director
means any member of the Board, while a member of the Board and (i) who was
a member of the Board on the Effective Date or (ii) whose nomination for or
election to the Board was recommended or approved by a majority of the members
of the Board who, on the date of such recommendation or approval, are Continuing
Directors.
(g) Control
Affiliate, with respect to any Person, means an affiliate as defined
in Rule 12b-2 under the Exchange Act.
(h) Control Change
Date means the date on which a Change in Control
occurs. If a Change in Control occurs on account of a series of
transactions or events, the “Control Change Date” is the date of the last of
such transactions or events in the series.
(i) Exchange
Act means the Securities Exchange Act of 1934, as
amended.
(j) Good
Reason means Executive’s resignation from the employment of the
Company on account of one or more of the following events:
(i) the
failure by the Board to reelect Executive to Executive’s current position with
the Company;
(ii) a
material diminution by the Board of Executive’s duties, functions and
responsibilities with respect to the Company without Executive’s consent;
provided, however, that Good Reason will not exist under this Section 7(j)(ii)
on account of any change in Executive’s duties, functions or responsibilities
that is attributable to the Company not having common stock or other securities
that are publicly traded.
(iii) the
failure of the Company to permit Executive to exercise such responsibilities as
are consistent with Executive’s positions and are of such a nature as are
usually associated with such offices of a corporation engaged in substantially
the same business as the Company; provided, however, that Good Reason will not
exist under this Section 7(j)(iii) on account of any change in the
responsibilities that Executive is permitted to exercise if such change is
attributable to the Company not having common stock or other securities that are
publicly traded.
(iv) the
Company’s causing Executive to relocate his employment more than fifty (50)
miles from Vero Beach, Florida, without the consent of Executive;
(v) the
Company’s failure to make a payment when due to Executive, after receipt of
written notice of such failure and the Company’s failure to cure such failure
within ten (10) days after receipt of such written notice;
(vi) the
Company’s reduction of Executive’s (A) annual base salary, as such may be
increased from time to time after the date of this Agreement; (B) annual bonus,
such that the aggregate threshold, target, or maximum bonus opportunity for
Executive for a fiscal year is lower than the aggregate threshold, target, or
maximum bonus, respectively, projected for Executive for the immediately
preceding fiscal year; or (C) employee welfare, fringe or pension benefits,
other than reductions determined to be necessary to comply with the Employee
Retirement Income Security Act of 1974, as amended, or to retain the
tax-qualified or tax favored status of the benefit under the Code, which
determination shall be made by the Board in good faith; or
(vii) the
Company or the Board directs Executive to engage in unlawful or unethical
conduct or conduct contrary to the Company’s good business
practices.
(k) Person means any
human being, firm, corporation, partnership, or other
entity. “Person” also includes any human being, firm, corporation,
partnership, or other entity as defined in sections 13(d)(3) and 14(d)(2) of the
Exchange Act. The term “Person” does not include the Company, or any
Related Entity, and the term Person does not include any employee-benefit plan
maintained by the Company or any Related Entity, and any person or entity
organized, appointed, or established by the Company or any Related Entity for or
pursuant to the terms of any such employee-benefit plan, unless the Board
determines that such an employee-benefit plan or such person or entity is a
“Person.”
(l) Related Entity means
any entity that is part of a controlled group of corporations or is under common
control with the Company within the meaning of section 1563(a), 414(b) or 414(c)
of the Code.
8. No Attorneys’
Fees. Executive and the Company each shall bear their costs
for any attorneys’ fees and any other reasonable expenses incurred in enforcing
or protecting the rights of Executive or the Company under this
Agreement.
9. No
Assignment. Except as required by applicable law, no right to
receive payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge or
hypothecation or to execution, attachment, levy or similar process or assignment
by operation of law and any attempt to effect any such action shall be null,
void and no effect.
10. Governing Law. This Agreement
shall be governed by the laws of the State of Florida other than its choice of
law provisions to the extent that they would require the application of the laws
of a State other than the State of Florida.
11. Successors. The
Company shall require any successor to all or substantially all of the Company’s
respective business or assets (whether direct or indirect, by purchase, merger,
consolidation or otherwise), to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure
of the Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle Executive to resign from the employ of the Company and to receive
the Termination Benefits and other benefits under this Agreement in the same
amount and on the same terms as Executive would be entitled to hereunder if he
terminated his employment for Good Reason following a Change in
Control. References in this Agreement to the “Company” include the
Company as herein before defined and any successor to the Company’s business,
assets or both which assumes and agrees to perform this Agreement by operation
of law or otherwise.
12. Binding Agreement. This
Agreement shall be binding on and inure to the benefit of, and be binding on and
enforceable by or against Executive and his personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Executive dies while any amount remains payable to him
hereunder, all such amounts shall be paid in accordance with the terms of this
Agreement to Executive’s devisee, legatee or other designee or, if there is
none, to Executive’s estate.
13. No Employment
Rights. Nothing in this Agreement confers on Executive any
right to continuance of employment by the Company or any
affiliate. Nothing in this Agreement interferes with the right of the
Company or an affiliate to terminate Executive’s employment at any time for any
reason whatsoever, with or without Cause, subject to the requirements of this
Agreement. Nothing in this Agreement restricts the right of Executive
to terminate his employment with the Company and affiliates at any time, for any
reason whatsoever, with or without Good Reason.
14. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together constitute one and the same
instrument.
15. Entire
Agreement. This Agreement expresses the whole and entire
agreement between the parties with reference to the payment of the Termination
Benefits and supersedes and replaces any prior agreement, understanding or
arrangement (whether oral or written) by or between the Company and Executive
with respect to the payment of the Termination Benefits.
16. Notices. All
notices, requests and other communications to any party under this Agreement
shall be in writing and shall be given to such party at its address set forth
below or such other address as such party may hereafter specify for the purpose
by notice to the other party:
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If
to Executive:
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0000
Xx. Xxxxxxx Xxxxxx Xxxxx
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Xxxx
Xxxxx, XX 00000
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If
to the Company:
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0000
Xxxxxxxx Xxxxx
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Xxxx
Xxxxx, Xxxxxxx 00000
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Each
notice, request or other communication shall be effective if (i) given by
mail, seventy-two hours after such communication is deposited in the mails with
first class postage prepaid, address as aforesaid or (ii) if given by any
other means, when delivered at the address specified in this
Section 16.
17. Modification of Agreement. No
waiver or modification of this Agreement shall be valid unless in writing and
duly executed by the party to be charged therewith. No evidence of
any waiver or modification shall be offered or received in evidence at any
proceeding, arbitration or litigation between the parties unless such waiver or
modification is in writing, duly and executed. The parties agree that
this Section 17 may not be waived except as herein set forth.
18. Recitals. The
Recitals to this Agreement are incorporated herein and shall constitute an
integral part of this Agreement.
IN
WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
XXXXXX X. XXXXXX
_/s/ Xxxxxx X.
Cauley_________________________
By: _/s/ X. Xxxxxxxxxxx
Clifton__________________
Name: J.
Xxxxxxxxxxx Xxxxxxx
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Title: Executive
Vice President, General Counsel, Chief Compliance Officer &
Secretary
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