EXHIBIT 10.13
EMPLOYMENT AGREEMENT
XXXXX X. XXXXXX
PARTIES
This Employment Agreement (this "Agreement") effective as of
February 10, 1999, (the "Effective Date") is entered into by and between Weider
Nutrition Group, Inc., a Utah corporation with offices at 0000 Xxxxx 0000 Xxxx,
Xxxx Xxxx Xxxx, Xxxx 00000-0000 (the "Company") and Xxxxx X. Xxxxxx residing at
9 Xxxxxxx, Xxxxxx, XX 00000 ("Executive").
TERMS OF AGREEMENT
In consideration of the mutual covenants in this Agreement, the
parties agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the terms
listed below shall be defined as indicated.
AFFILIATE: A domestic or foreign business entity
controlled by, controlling, under common control with, or in joint venture
with, the applicable person or entity.
ANNUAL BONUS: See Sectionn 3.2.
BASE SALARY: The salary described in Section 3.1 for a 12
month period.
BOARD: The Board of Directors of the Company.
CHANGE IN CONTROL: The occurrence of both (a) and (b) below.
(a) CHANGE IN THE BOARD. There is a change in the composition
of the Board over a period of twelve consecutive months (or less) such that a
majority of the Board members (rounded up to the nearest whole number) ceases to
be comprised of individuals who either (i) have been Board members continuously
since the beginning of such period or (ii) have been elected or nominated for
election as Board members during such period by at least a majority of the Board
members described in clause (i) who were still in office at the time such
election or nomination was approved by the Board; and
(b) One of:
(i) SALE OF ASSETS. The sale of all or
substantially all of the assets and business of the Company in
substantially a single transaction;
(ii) MERGER. The merger or consolidation of the Company
with
and into another corporation if, following such merger or consolidation,
persons who were not direct or indirect shareholders of the Company
immediately prior to such event (other than persons in which such original
shareholders themselves have an interest) ("New Shareholders"), will
collectively own stock in the surviving corporation representing both (A)
more than 30% of the surviving corporation's total equity value and (B)
more than that percentage of the surviving corporation's total equity
value owned by the Weider Group, PROVIDED, HOWEVER, that such merger or
consolidation shall not be covered by this paragraph (ii) if the Weider
Group owns 30% or more of the surviving corporation's total equity value
and no New Shareholders who constitute a "group" within the meaning of
Section 13(d)(3) of the Securities Exchange Act of 1934 own more than that
percentage of the surviving corporation's total equity value owned by the
Weider Group; or
(iii) SALE OF STOCK. Acquisition of 50% or more of the
fair market value of the outstanding capital stock of the Company by one
or more other persons if, following such acquisition, persons who were not
direct or indirect shareholders of the Company immediately prior to such
event (other than persons in which such original shareholders themselves
have an interest), will collectively own stock of the Company representing
more than 50% of the Company's total equity value.
COMPETITION DATE: See Section 7.4.
CONFIDENTIAL INFORMATION: All secret proprietary information
of the Company and its Affiliates, not otherwise publicly disclosed, whether or
not discovered or developed by Executive, known by Executive as a consequence of
Executive's employment with the Company at any time as an employee or agent.
Without limiting the generality of the foregoing, such proprietary information
shall include (a) customer lists; (b) acquisition, expansion, marketing,
financial and other business information and plans; (c) research and
development; (d) computer programs; (e) sources of supply; (f) identity of
specialized consultants and contractors and confidential information developed
by them for the Company and its Affiliates; (g) purchasing, operating and other
cost data; (h) special customer needs, cost and pricing data; (i) manufacturing
methods; (j) quality control information; (k) inventory techniques; (l) employee
information; any of which information is not generally known in the industries
in which the Company and its Affiliates are conducting business or shall at any
time during Executive's employment conduct business including (without
limitation) the Nutraceutical Industry. Confidential Information also includes
the overall business, financial, expansion and acquisition plans of the Company
and its Affiliates, and includes information contained in manuals, memoranda,
projections, minutes, plans, drawings, designs, formula books, specifications,
computer programs and records, whether or not legended or otherwise identified
by the Company and its Affiliates as Confidential Information, as well as
information which is the subject of meetings and discussions and not so
recorded. Notwithstanding the foregoing, Confidential Information shall not
include (i) information, from a source other than the Company, which is in
Executive's possession on the date hereof or subsequently becomes available to
Executive so long as such information was lawfully obtained and is not, to the
knowledge of Executive, subject to another confidentiality agreement or
obligation of secrecy to
2
the Company or another person, or (ii) information which becomes generally
available to the public other than directly or indirectly as a result of
disclosure by Executive.
CLOSING PRICE: The closing price, as reported in the Wall
Street Journal, of a share of Common Stock (or any successor Company's
equivalent shares) on the principal exchange on which such shares are traded
(currently the New York Stock Exchange), subject to equitable adjustment for
stock splits, recapitalizations or similar transactions including stock received
or exchanged on any merger, consolidation or similar event.
COMMON STOCK: Class A common stock of Company.
DEVELOPMENTS: Those discoveries, inventions, improvements,
advances, methods, practices and techniques, concepts and ideas, whether or not
patentable, relating to or arising out of Executive's employment activities with
the Company and/or the Products.
EFFECTIVE DATE: See preamble.
EMPLOYMENT PERIOD: The period from March 1, 1999 through the
Expiration Date, except as terminated earlier or extended as provided in this
Agreement.
EXPIRATION DATE: May 31, 2002.
INVENTIONS: Those discoveries, developments, concepts and
ideas, whether or not patentable, relating to the present, future and
prospective activities and Products and Services of the Company and its
Affiliates, which such activities and Products and Services are known to
Executive by virtue of Executive's employment with the Company and its
Affiliates.
OPTION PLAN: The Company's 1997 Equity Plan.
OPTIONS: See Section 3.3.
NUTRACEUTICAL INDUSTRY: The manufacture and sale of
nutritional products whether in the form of drinks, bars, herbs, minerals,
supplements, powders, vitamins or pills or otherwise but not the food and
beverage industry generally.
PRODUCTS AND SERVICES: All products or services sold, rented,
leased, rendered or otherwise made available to its customers by the Company and
its Affiliates, or otherwise the subject of the business of the Company and its
Affiliates.
WEIDER GROUP: Weider Health and Fitness (or its
successor) and its Affiliates.
2. EMPLOYMENT. Subject to the terms and conditions of this
Agreement, Executive hereby accepts employment as the Chief Executive Officer of
the Company reporting to the Board and agrees to perform to the best of
Executive's ability, experience and talent those acts and duties and to furnish
those services to the Company and its Affiliates in connection with and related
to such position as the Board shall from time to time direct, provided such acts
and
3
directives are consistent with the duties of a chief executive officer.
Executive shall use Executive's best and most diligent efforts to promote the
interests of the Company and its Affiliates. Executive shall devote his full
business time to his duties to the Company, except that he shall be permitted to
engage in the activities ("Permitted Activities") set forth on Exhibit A with
respect to the entities there described. In the event of any conflict between
his duties to the Company and the Permitted Activities, his duties to the
Company shall prevail. Executive shall be provided with secretarial services, an
office and similar support services and facilitates as appropriate to
Executive's position and responsibilities. The Board shall also nominate
Executive for a seat on the Board
During the first six months of the Employment Period, Executive's
principal place of employment shall be located at the Company's principal place
of business or principal executive office within the Salt Lake City, Utah
metropolitan area. Thereafter, at the Executive's request, the Company shall
re-locate the Company's principal executive office to the Orange County,
California metropolitan area and for the balance of the Employment Period
following any such relocation Executive's principal business office shall
continue to be in the Orange County, California metropolitan area.
3. Compensation and Benefits; Disability.
3.1. SALARY. During the Employment Period, the Company shall
pay Executive a Base Salary at an annual rate of $400,000, payable in equal
installments pursuant to the Company's customary payroll policies in force at
the time of payment (but in no event less frequently than monthly), less
required payroll deductions. Executive's Base Salary shall be subject to review
and increase in the sole discretion of the Compensation Committee of the Board.
3.2. ANNUAL BONUS. In addition to Executive's Base Salary,
during the Employment Period Executive shall be eligible to participate in a
Bonus Plan established by the Board or the Board's Compensation Committee for
senior executives. The Bonus Plan will correspond to the Company's fiscal year
and payments under the Bonus Plan shall be paid to Executive within 120 days
after the end of the Company's fiscal year. Executive's target bonus under the
Bonus Plan shall be not less than 150% of his Base Salary actually paid for the
applicable period. For the periods ending on the last days of the Company's
fiscal years ending in 1999 and 2000, Executive's actual Annual Bonus shall not
be less than 100% of his Base Salary actually paid in such fiscal years,
respectively. If, for any future Company fiscal year, the Company achieves the
targets of its financial plan approved by the Board, Executive's Annual Bonus
shall not be less than 100% of his Base Salary actually paid for such fiscal
year. Subject to the foregoing, 80% of the amount of Executive's Annual Bonus
under the Bonus Plan shall be determined on the basis of reasonable quantitative
factors and 20% of the amount of Executive's Annual Bonus under the Bonus Plan
shall be determined on the basis of reasonable qualitative factors.
3.3. STOCK OPTIONS. As of the Effective Date Executive shall
be granted options to purchase shares of Common Stock (the "Options") subject to
the following conditions:
4
(a) (i) 500,000 Options shall become exercisable in
equal installments on the first three anniversaries of the date of grant
and all shall become exercisable upon a Change in Control;
(ii) 250,000 Options shall become exercisable
in equal installments on the first three anniversaries of the date of
grant, and all shall become exercisable upon the happening of any Change
in Control which is consummated on or after the first anniversary of the
date of grant.
(b) The Options shall be exercisable at the Closing
Price on the Effective Date.
(c) The Options shall be subject to the terms and
conditions of the Option Plan and the Company's form of Option Agreement
pursuant thereto.
3.4. STUB PERIOD COMPENSATION. As of the March 1, 1999 the
Company shall pay the Executive the amount of $20,000 as compensation for the
stub period from the Effective Date through February 28, 1999.
3.5. FRINGE BENEFITS. Executive shall be entitled to
(a) An automobile allowance in the amount of $15,000 per
year; and
(b) Reimbursement of up to $3,000 of the fees incurred by
Executive for financial counseling in each 12 month period commencing on the
beginning of the Employment Period and each anniversary date thereof.
3.6. OTHER BENEFITS. Executive shall be entitled, during the
Employment Period, to participate, in any life insurance (with coverage at not
less than two times his Base Salary), disability insurance (covering Executive
for the after-tax equivalent of 100% of his Base Salary after a waiting period
of no more than six months with such benefit to continue until the earlier of
the cessation of Executive's disability or attainment of age 65, health
insurance or hospital plans or other fringe benefits or benefit plans presently
in effect and hereafter maintained by the Company for executives generally.
3.7. VACATION. Executive shall be entitled to such amount of
vacation time as is the current Company policy for senior executives, but in no
event less than four weeks per year.
3.8. EXPENSES. Pursuant to the Company's customary policies in
force at the time of payment, Executive shall be promptly reimbursed, against
presentation of vouchers or receipts therefor, for all authorized expenses
properly incurred by Executive on the Company's behalf in the performance of
Executive's duties hereunder.
3.9. DISALLOWANCES. Any payments made to Executive such as
interest or entertainment expenses incurred by Executive, which shall be
disallowed in whole or in part
5
as a deductible expense by the Internal Revenue Service, shall be reimbursed by
Executive to the Company to the full extent of such disallowance. In lieu of
payment by Executive, subject to the determination of the Board, proportionate
amounts may be withheld from Executive's future compensation payments until the
amount owed to the Company has been recovered.
4. EMPLOYMENT PERIOD.
4.1. TERMINATION OF EMPLOYMENT PERIOD. The Employment Period
shall continue through the Expiration Date unless terminated prior to such date
by the earliest of (a) Executive's discharge for cause pursuant to Section 5.1,
(b) Executive's discharge without cause pursuant to Section 5.3, (c) Executive's
death, (d) Executive's termination because of disability, pursuant to Section
5.4(b) or (e) termination of this Agreement by Executive pursuant to Section
5.2. In all events, the post employment provisions of Section 7 shall survive
termination of the Employment Period.
5. TERMINATION OF EMPLOYMENT.
5.1. BY COMPANY FOR CAUSE. The Company may discharge Executive
and terminate this Agreement for cause. As used in this Section, "cause" shall
mean any one or more than one of the following:
(a) Gross or willful misconduct of Executive during (i)
the Employment Period or (ii) any prior period of
employment of Executive in an executive capacity by any
person or entity if not disclosed to the Company prior
to the execution hereof; (b) Executive's conviction of a
fraud or felony during the Employment Period; (c)
Failure to follow substantive written directions or
resolutions of the Board; (d) drug or alcohol abuse; or
(e) any material breach of any of the terms of this
Agreement which is not corrected after notice and a
reasonable cure period not to exceed 15 days.
Upon discharge of Executive for cause, the Company shall be relieved and
discharged of all obligations to make payments to Executive which would
otherwise be due under this Agreement, except as to Base Salary earned for
actual services rendered prior to the date of discharge.
5.2. BY EXECUTIVE. Executive may terminate this Agreement for
cause. As used in this Section 5.2, "cause" shall mean the Company's material
breach of any of the terms of this Agreement. It shall also constitute "cause"
hereunder if a business entity not affiliated with the Weider Group acquires 50%
or more of the fair market value of the outstanding capital stock of the Company
and Executive does not become the chief executive officer of the principal
operating business of such entity.
5.3. BY COMPANY WITHOUT CAUSE. The Company may, on 30 days
6
written notice to Executive, terminate this Agreement without cause at any time
during the Employment Period.
5.4. TERMINATION ON EXECUTIVE'S DEATH OR DISABILITY.
(a) This Agreement and the Employment Period shall terminate,
and the Company shall be relieved and discharged of all obligations to make
further payment to Executive after the date of the death of Executive, except as
described in subsection (c).
(b) If, during the Employment Period, Executive shall become
ill, disabled, or otherwise incapacitated so as to be unable regularly to
perform Executive's usual duties for a period in excess of 180 total days during
any consecutive 12 months, then the Company shall have the right to terminate
this Agreement on 10 days' notice to Executive.
(c) In case of terminations of employment described in
subsections (a) and (b), the Company shall pay to Executive, or his estate, all
salary earned for actual services rendered prior to the date of termination and,
in addition, a pro-rated bonus at the level of 100% of his Base Salary
(calculated as the product of his then rate of Annual Base Salary and the
fraction of the fiscal year elapsed through the date of termination of
Executive's employment).
6. PAYMENTS ON CERTAIN TERMINATIONS.
6.1. SEVERANCE PAYMENTS. Upon a termination of
Executive's employment pursuant to Sections 5.2 or 5.3,
(a) the Company shall make payments to Executive, as
liquidated damages in lieu of all other claims, of an amount equal to the sum of
(i) Executive's Base Salary and (ii) the greater of Executive's Annual Bonus for
the prior year or Executive's Base Salary. Such amount shall be paid in 12 equal
monthly installments. The Company shall have no obligation to make such payments
in the event of a breach by Executive of Executive's covenants in Section 7, and
(b) (i) all Options that would have become exercisable on the
next following anniversary of the date of grant shall thereupon become
exercisable and,
(ii) all otherwise exercisable Options shall remain
exercisable until at least the 90th day following such termination of
employment.
6.2. TREATMENT OF STOCK OPTIONS UPON DEATH OR DISABILITY. Upon
a termination of Executive's employment pursuant to Sections 5.4(a) or (b), all
Options that would have become exercisable on the next following anniversary of
the date of grant shall thereupon become exercisable.
7. INVENTIONS, CONFIDENTIAL INFORMATION AND RELATED MATTERS.
7.1. ASSIGNMENT OF INVENTIONS. All Inventions which are at any
time made by Executive, acting alone or in conjunction with others, including
those made (a) during
7
Executive's employment under this Agreement, or (b) any extensions or
modifications hereof, or (c) if based on or related to any Confidential
Information, made by Executive within one year after the termination of such
employment or retention, whichever shall occur later, shall be the property of
the Company and its Affiliates. Executive agrees that Executive shall, at the
cost and expense of the Company and its Affiliates, execute formal application
for U.S. and other patents, and also do all other acts and things (including,
among others, the execution and delivery of instruments of further assurance or
confirmation) deemed by the Company and its Affiliates to be necessary or
desirable at any time to perfect the full assignment to the Company and its
Affiliates of Executive's right and title (if any) to such Inventions.
7.2. RESTRICTIONS ON USE AND DISCLOSURE. Except as required by
Executive's duties hereunder, Executive shall never, directly or indirectly,
use, publish, disseminate or otherwise disclose any Confidential Information or
Inventions without the prior written consent of the Board. Nothing in this
Section shall prevent disclosure of information which has been completely
disclosed in a published patent or other integrated publication of general
circulation, nor shall this Section govern the right to use Inventions for which
a patent may have issued.
7.3. RETURN OF DOCUMENTS AND MATERIALS. Upon termination of
Executive's employment, Executive shall forthwith deliver to the Company all
Confidential Information and Inventions embodied in any form, including all
copies, then in Executive's possession or control, whether prepared by Executive
or others, as well as all other Company property in Executive's possession or
control.
7.4. COMPETITIVE ACTIVITIES. From the date hereof and (a)
during the term of this Agreement and (b) thereafter until the "Competition
Date" which shall be
(i) in the case of terminations of Executive's
employment pursuant to Sections 5.2 or 5.3, the six month anniversary of
the date of such termination, or
(ii) in the case of any other termination of Executive's
employment, the twelve month anniversary of the date of such termination,
Executive shall not, directly or indirectly, within the territorial United
States, become an employee or consultant or otherwise render services to, lend
funds to, serve on the board of, invest in (other than as a 1% or less
shareholder of a publicly-traded corporation) or guarantee the debts of, any of:
TwinLabs, Rexall Sundown, Xxxxxx Health Products, Perrigo, Nature's Bounty,
General Nutrition Corporation, the Solgar division of American Home Products,
NuSkin, Balance Bar and Xxxxxx Xxxxxxx-Quanterra, or any newly created,
successor or acquired businesses of same which competes with the Company in the
Nutraceutical Industry or any business newly created by Executive following
termination of employment which competes with the Company in the Nutraceutical
Industry. The Board may in its sole discretion give Executive written approval
to engage in such activities or render such services after termination of this
Agreement if Executive and such prospective firm or business organization gives
the Company written assurances, satisfactory to the Board in its sole
discretion, that the integrity of the Confidential Information, the Inventions
and the good will of the Company and its majority
8
owned Affiliates will not be jeopardized by such employment. Executive shall,
for a period of 12 months after the Competition Date notify the Company of any
change in address and identify each subsequent employment or business activity
in which Executive shall engage during such 12 months, stating the name and
address of the employer or business organization and the nature of Executive's
position.
7.5. SOLICITATION OF EXECUTIVES. From the date hereof until 24
months after the termination of Executive's employment with the Company,
Executive shall not, without the prior written approval of the Board of the
Company, directly or indirectly, solicit, raid, entice or induce any person who
presently is or at any time during the term hereof shall be an employee of the
Company or its majority owned Affiliates and who was or is eligible for a grant
under the Option Plan or any successor plan, to become employed by any other
person, firm or corporation in any business in competition with the Company.
8. NO OTHER CONTRACTS. Executive represents and warrants that
neither the execution and delivery of this Agreement by Executive nor the
performance by Executive of Executive's obligations hereunder, shall constitute
a default under or a breach of the terms of any other agreement, indenture or
contract to which Executive is a party or by which Executive is bound, nor shall
the execution and delivery of this Agreement by Executive or the performance of
Executive's duties and obligations hereunder give rise to any claim or charge
against either Executive or the Company based upon any other contract, indenture
or agreement to which Executive is a party or by which Executive is bound.
9. NOTICES. Any notices or communication given by any party hereto
to the other party shall be in writing and personally delivered or mailed by
registered or certified mail, return receipt requested, postage prepaid. Notices
shall be addressed to the parties at the addresses set forth above. Mailed
notices shall be deemed given when received. Any person entitled to receive
notice may designate in writing, by notice to the others, such other address to
which notices to such party shall thereafter be sent.
10. MISCELLANEOUS.
10.1. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties in respect of its subject matter and supersedes all
prior oral and written agreements and understandings between the parties with
respect to such subject matter.
10.2. AMENDMENT; WAIVER. This Agreement may not be amended,
supplemented, canceled or discharged, except by written instrument executed by
the party affected thereby. No failure to exercise, and no delay in exercising,
any right, power or privilege hereunder shall operate as a waiver thereof. No
waiver of any preceding or succeeding breach of this Agreement.
10.3. BINDING EFFECT; ASSIGNMENT. The rights and obligations
of this Agreement shall bind and inure to the benefit of any successor or
successors of the Company by reorganization, merger or consolidation, or any
assignee of all or substantially all of the Company's business and properties;
Executive's rights or obligations under this Agreement may
9
not be assigned by Executive. The Company acknowledges that the provisions of
the last paragraph of Section 2 were a material inducement to Executive in
entering into this Agreement.
10.4. HEADINGS. The headings contained in this Agreement
(except those in Section 1) are for reference purposes only and shall not
affect the meaning or interpretation of this Agreement.
10.5. GOVERNING LAW; INTERPRETATION. This Agreement shall be
construed in accordance with and governed for all purposes by the laws and
public policy of the State of Utah applicable to contracts executed and to be
wholly performed within such State. Service of process in any dispute shall be
effective (a) upon the Company, if served on any senior officer of the Company;
(b) upon Executive, if served at Executive's residence last known to the
Company. Executive acknowledges that breach of Sections 7.1 through 7.5 would
entail irreparable injury and that, in addition to the Company's other express
and implied remedies, the Company shall be entitled to injunctive and other
equitable relief to prevent any actual, intended or likely such breach.
10.6. FURTHER ASSURANCES. Each party agrees at any time, and
from time-to-time, to execute, acknowledge, deliver and perform, and/or cause to
be executed, acknowledged, delivered and performed, all such further acts, deeds
assignments, transfers, conveyances, powers of attorney and/or assurances as may
be necessary, and/or proper to carry out the provisions and/or intent of this
Agreement.
10.7. GENDER; SINGULAR/PLURAL. In this Agreement, the use of
one gender (e.g., "he", "she" and "it") shall mean each other gender; and the
singular shall mean the plural, and vice versa, all as the context may require.
10.8. SEVERABILITY. The parties acknowledge that the terms of
this Agreement are fair and reasonable at the date signed by them. However, in
light of the possibility of a change of conditions or differing interpretations
by a court of what is fair and reasonable, the parties stipulate as follows: if
any one or more of the terms, provisions, covenants and restrictions of this
Agreement shall be determined by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated; further, if any
one or more of the provisions contained in this Agreement shall for any reason
be determined by a court of competent jurisdiction to be excessively broad as to
duration, geographical scope, activity or subject, it shall be construed, by
limiting or reducing it, so as to be enforceable to the extent compatible with
then applicable law.
10.9. COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which will be deemed an original.
10.10. INDEMNIFICATION. The Company indemnifies
Executive to the full extent available under the Company's Articles of
Incorporation and Bylaws.
10.11. ATTORNEY'S FEES. The Company shall reimburse the
Executive for
10
up to $7,500 in attorney's fees incurred in connection with this Agreement.
10.12. ARBITRATION. Except as described below, any dispute or
controversy arising under or related to this Agreement shall be settled
exclusively by arbitration, conducted before a panel of three arbitrators. The
venue of the arbitration shall be a location in Orange County, California,
selected by the panel. The arbitration shall be conducted in accordance with the
rules, but not under the auspices of, JAMS/Endispute. Each of Executive and the
Company shall select one arbitrator and such arbitrators shall agree among
themselves on a third arbitrator who shall be the chair of the panel.
Depositions and other discovery shall be permitted in the 90 days prior to
hearing as scheduled by the panel. Judgment may be entered on the panel's award
in any court having jurisdiction. The fees and expense of the arbitrator
selected by each party shall be borne by that party and the expenses of the
third arbitrator and other administrative expenses of the arbitration (not
including fees and expenses of attorneys and experts) shall be borne equally by
the parties. Notwithstanding the foregoing, the Company shall be entitled to
seek a restraining order or injunction in any court of competent jurisdiction to
prevent any continuation of any violation of the provisions of Sections 7.1 -
7.5 and the Executive hereby consents that such restraining order or injunction
may be granted without the necessity of the Company posting any bond.
EXECUTION
The parties, intending to be legally bound, executed this Agreement
as of the date first above written, whereupon it became effective in accordance
with its terms.
Attest:
By:______________________________________
-------------------------------------
Witness
------------------------------------- --------------------------------------
11
