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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made and effective as of this 21st day of October,
1996, between FULCRUM DIRECT, INC., a Delaware corporation (the "Company"), and
Xxxxxxx X. Xxxxxxxx (the "Executive").
The Board of Directors of the Company (the "Board"), in the best
interest of the Company and its shareholders, desires to provide for the
continuous employment of the Executive as the Company's Chairman and Chief
Executive Officer. The Executive is willing to commit himself to serve the
Company, on the terms and conditions herein provided, and the Executive
represents to the Company, that he is under no contractual restraints (including
non-competition agreements) or any physical or mental impairment which might
preclude him from performing fully the duties required of him under this
Agreement.
In order to effect the foregoing, the Company and the Executive wish to
enter into this employment agreement on the terms and conditions set forth below
(the "Agreement"). Accordingly, in consideration of the premises and the
respective covenants and agreements of the parties herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Employment. The Company hereby agrees to employ the Executive, and
the Executive hereby agrees to serve the Company, on the terms and conditions
set forth herein during the Term.
2. Term. This Agreement will commence on the date hereof and end on
December 31, 2001 (the "Term") unless terminated earlier pursuant to Section 6
hereof. If the Executive shall remain in the employ of the Company beyond the
Term, in the absence of any other express agreement between the parties, this
Agreement shall renew on a year to year basis as of December 31st (the "Renewal
Date"), unless terminated as of the Renewal Date by the Company or the Executive
with at least 90 days prior notice thereof.
3. Position and Duties. For the Term of the Agreement, the Executive
shall serve as Chairman of the Board and Chief Executive Officer of the Company
and shall have such responsibilities, duties and authority that are consistent
with such positions and such other duties as may from time to time be assigned
to the Executive by the Board; provided, that the Executive shall at all times
possess the full authority and decision making power customarily granted to the
Chairman and Chief Executive Office of a corporation of the size and nature of
the Company and shall not be assigned any duties inconsistent with such
positions. The Executive shall report solely to the Board. The failure to assign
the Executive duties consistent with those provided for in this Section 3 shall
constitute a material breach of this Agreement. The Executive shall devote a
substantial amount of his working time and efforts to the business and affairs
of the Company; provided, that the Executive shall have flexibility in
determining his work schedule and shall not be required to work in the Company's
headquarters a fixed number of hours during any particular day, week or month;
provided, further, that consistent with the performance of the foregoing duties,
the Executive may also serve on the boards of directors or act as the trustee,
and act as an officer or partner of any other
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companies, partnerships and/or organizations as the Executive in his sole
discretion deems appropriate. The Executive agrees that he will not divert from
the Company, or appropriate for himself or any other person or entity, any
business opportunity which is similar in content to the Company's business and
results from, arises out of, or is in any way connected with, his employment by
the Company.
4. Compensation and Related Matters.
(a) Salary. (i) The Company shall pay Executive a base salary
during the period of the Executive's employment hereunder, which shall be at an
initial rate of one hundred and eighty thousand dollars ($180,000) per annum
(the "Base Salary"). The Base Salary shall be paid in substantially equal
bi-weekly installments, in arrears ("Base Salary Payments"). During the period
of the Executive's employment hereunder, the Board shall make an annual review
of the Executive's compensation, beginning as of December 31, 1996; provided,
that in no event shall such review result in a reduction of the Base Salary; and
(ii) Compensation of the Executive by the Base Salary Payments shall not be
deemed exclusive and shall not prevent the Executive from participating in any
other compensation or benefit plan of the Company. The Base Salary Payments
hereunder shall not in any way limit or reduce any other obligation of the
Company hereunder, and no other compensation, benefit or payment hereunder shall
in any way limit or reduce the obligation of the Company to pay the Executive's
Base Salary hereunder.
(b) Bonus. (i) Not later than ninety (90) days following the close of
each fiscal year, the Board shall determine the amount, if any, of bonus to be
paid to the Executive, which the Board, in its sole discretion, determines
appropriate (such amount being "Bonus"). In determining the amount of Bonus
granted to the Executive, the Board shall evaluate all factors it deems
appropriate including, without limitation, (i) the financial performance of the
Company; (ii) the performance of the Executive as Chairman and CEO of the
Company; (iii) the execution and success of the Company's strategic plans; (iv)
the Executive's Base Salary and Bonus as compared to the compensation provided
by similarly situated corporations; and (v) extraordinary risk taken on behalf
of the Company (such as by providing a personal guaranty for any obligation of
the Company or providing short term unsecured financing for the Company). The
Bonus shall be made either in cash or the Company's Stock (at the election of
the Board) as promptly as possible following declaration of the Bonus by the
Board.
(c) Benefit Plans. The Executive shall be entitled to participate in or
receive benefits under any "employee benefit plan" (as defined in section 3(3)
of the Employee Retirement Security Act of 1974, as amended from time to time
("ERISA") or employee benefit arrangement made available by the Company now or
during the period of the Executive's employment hereunder, to its executives and
key management employees, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans and arrangements; provided,
however, that there shall be no duplication of the benefits or compensation
elements created by this Agreement. Nothing paid to the Executive under any plan
or arrangement presently in effect or made available in the future shall be
deemed to be in lieu of the Base Salary payable to the Executive pursuant to
Section 4(a) hereof.
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(d) Life and Disability Insurance. (i) The Executive shall purchase a
term life insurance policy on the life of the Executive, with a lump sum death
benefit at least equal to $6 million dollars ($6,000,000). The Company shall pay
the Executive in the first pay period of each fiscal year an amount equal to the
premium on such insurance policy plus the amount necessary to provide for all
Federal, state and local taxes on such payment; provided, that the Executive
shall select the Company as the beneficiary of at least one million dollars
($1,000,000) of the life insurance proceeds. The Executive is hereby authorized
to select, in his sole discretion, the beneficiary(s) to which the remainder of
such policy shall be paid upon his death.
(ii) The Company shall provide the Executive with reasonable
and customary disability insurance providing for the
Executive to receive 100% of his Base Salary during any
period of disability.
(e) Moving Expenses. If the headquarters of the Company shall relocate
more than 100 miles from Rio Rancho, New Mexico, then the Company shall, at the
request of the Executive, purchase from the Executive, at the average price of
three appraisals conducted by independent real estate appraisers, his home
located in New Mexico. The Company shall also reimburse the Executive for all of
his (and his immediate family's) out-of-pocket expenses related to moving to the
new headquarters location and the purchase of a new home in such location
(excluding the actual purchase price of such home).
(f) Expenses. During the period of the Executive's employment
hereunder, the Executive shall be entitled to receive prompt reimbursement for
all reasonable and customary expenses incurred by the Executive in performing
services hereunder, including all expenses of travel, entertainment and living
expenses while away from home on business or at the request of and in the
service of the Company, provided that such expenses are incurred and accounted
for in accordance with the policies and procedures established by the Company.
(g) Other. In the event that any payment hereunder results in excise
tax pursuant to Sections 280(G) and 4999 of the Code, or any successor or
similar provision thereto, or comparable state or local tax laws, the Company
shall pay to the Executive such additional compensation as is necessary (after
taking into account all Federal, state and local income and excise taxes payable
by the Executive as a result of the receipt of such compensation) to place the
Executive in the same after-tax position he would have been in had no such
excise tax (or any interest or penalties thereon) been paid or incurred. The
amount of such payment shall be determined by the independent accounting firm
serving as the Company's outside auditor.
5. Offices. At the reasonable request of the Company, the Executive
agrees to serve without additional compensation as a director of any of the
Company's subsidiaries and in one or more executive offices of any of the
Company's subsidiaries.
6. Termination.
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(a) Termination by the Company. The Executive's employment
hereunder may be terminated, without such termination constituting a breach of
this Agreement, only under the following circumstances:
(i) Death. The Executive's employment hereunder shall terminate
upon his death.
(ii) Disability. If, as a result of the Executive's incapacity
due to physical or mental illness, the Executive shall have been
absent from his duties hereunder on a full-time basis for
one-hundred-eighty (180) days during any period of three-hundred
sixty-five (365) days, the Company may terminate the Executive's
employment hereunder.
(iii) Cause. The Company may terminate the Executive's employment
hereunder for "Cause." For purposes of this Agreement, the
Company shall have "Cause" to terminate the Executive's
employment hereunder upon (x) the Executive's continuous,
intentional refusal to substantially perform his duties hereunder
(other than any such failure resulting from the Executive's
incapacity due to physical or mental illness or a termination of
this Agreement by the Executive for "Good Reason", as defined in
Section 6(c)(iii) hereof), after demand for substantial
performance is delivered by the Company that specifically
identifies the manner in which the Company believes the Executive
has not substantially performed his duties, (y) the engaging by
the Executive in substantial misconduct which is materially
injurious to the Company, monetarily or otherwise, or (z)
material breach by the Executive of any of the material terms or
conditions of this Agreement coupled with failure to correct such
breach within sixty (60) days after notice from the Company
specifying the breach. Notwithstanding the foregoing, the
Executive shall not be deemed to have been terminated for Cause
without (x) thirty (30) days prior notice to the Executive
setting forth the reasons for the Company's intention to
terminate for Cause, (y) an opportunity for the Executive,
together with his counsel, to be heard before the Board, and (z)
delivery to the Executive of a Notice of Termination, as defined
in Section 6(e) hereof, from the Board finding that, in the good
faith opinion of two-thirds of the Board, the Executive was
guilty of conduct set forth above in clause (x), (y) or (z) of
the second sentence of this Section 6(a)(iii), and specifying the
particulars thereof in detail.
(b) Termination by the Company Without Cause. (i) The Board may not
terminate the employment of the Executive without Cause except upon a Change of
Control. Such termination shall be effective by providing the Executive with a
written Notice of Termination.
(ii) For the purposes of this Agreement, a "Change of Control"
shall mean (i) any transaction or series of transactions in which
any Person (as such term is defined in Section 13(d)(3) of the
Exchange Act) or group, other than Xxxxxxx X. Xxxxxxxx and/or
Xxxxx X. Xxxxxx, becomes the direct or indirect beneficial owner
(as such term is defined in Rule 13d-3 promulgated under the
Exchange Act) of more of the then outstanding Common Stock than
that beneficially owned in the aggregate, directly or indirectly
by Xxxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxx, (ii) any transaction
or series of transactions
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in which Xxxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxx together cease
to be the direct or indirect beneficial owners of at least 25% of
the then outstanding Common Stock, (iii) the sale of or
substantially all of the Company's assets, (iv) the liquidation
of the Company, (v) the election of a majority of the members of
the Board of Directors, who were not placed in nomination for
that office by the Board of Directors, or (vi) the combination of
the Company with another company, as a result of which the
shareholders of the Company hold less that 50.01% of the total of
all voting shares outstanding or the Company's directors
constitute less than a majority of the Board of Directors of the
combined entity.
(c) Termination by the Executive.
(i) The Executive may terminate his employment hereunder without
specifying a reason, by providing the Company with a Written
Notice of Termination at least 90 days prior to the effective
date of such termination. At any time thereafter, the Company
shall have the right to relieve the Executive of all rights,
duties and obligations, including replacing the Executive as
Chairman of the Board and Chief Executive Officer of the Company;
provided, however, that all other terms of this Agreement shall
remain in full force and effect until terminated pursuant to
Section 6(e)(iv) hereof. If the Executive terminates his
employment under this Section 6(c) other than for Good Reason (as
deemed below, the Company shall have no further obligation to pay
the Base Salary or declare a Bonus or to provide any other
employee benefits hereunder except for (i) any Base Salary, Bonus
or other benefits that have fully accrued and vested but not been
paid as of the effective date of such termination and (ii) any
expenses as to which the Executive is entitled to reimbursement
pursuant to Section 4(f) hereof.
(ii) The Executive may terminate his employment hereunder for
Good Reason upon giving 48 hours written notice to the Company.
(iii) For purposes of this Agreement, "Good Reason" shall mean
any of the following: (x) the assignment to the Executive of any
duties materially inconsistent with the Executive's status as the
Chief Executive Officer of the Company, or a substantial adverse
alteration in the nature or status of the Executive's
responsibilities from those in effect on the date hereof, which
assignment or alteration has not been cured within thirty (30)
days after notice of such an assignment or alteration has been
given by the Executive to the Company, (y) the failure by the
Company, without the Executive's written consent, to pay to the
Executive any portion of the Executive's compensation within ten
(10) days of the date the Executive gives notice to the Company
of a failure to pay such compensation when it became due, or (z)
a failure by the Company to comply with any other provision of
this Agreement which has not been cured within ten (10) days
after notice of such noncompliance has been given by the
Executive to the Company.
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(d) Any termination of the Executive's employment by the Company or by
the Executive (other than termination pursuant to Section 6(a)(i) hereof) shall
be communicated by written Notice of Termination to the other party hereto in
accordance with Section 12 hereof. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the fact; and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated.
(e) "Date of Termination" shall mean the following: (i) if the
Executive's employment is terminated by his death pursuant to section 6(a)(i)
hereby, the date of his death; (ii) if the Executive's employment is terminated
pursuant to Section 6(a)(ii) hereof, thirty (30) days after the Notice of
Termination is given; (iii) if the Executive's employment is terminated pursuant
to Section 6(a)(iii) hereof, the date specified in the Notice of Termination;
(iv) if the Executive's employment is terminated pursuant to Section 6(b)(i)
hereof, thirty (30) days after the Notice of Termination is given or if
terminated pursuant to Section 6(c)(i) hereof, ninety (90) days after the Notice
of Termination is given provided, however, the Company reserves the right to
remove the Executive as Chairman of the Board and Chief Executive Officer of the
Company at any time after the Executive provides the Notice of Termination
pursuant to Section 6(c)(i)); and (v) if the Executive's employment is
terminated pursuant to Section 6(c)(ii) hereof, 48 hours after the Notice of
Termination is given. Notwithstanding the immediately preceding sentence, if
within thirty (30) days after any Notice of Termination is given the party
receiving such Notice of Termination notifies the other party that a dispute
exists concerning the termination, the Date of Termination shall be the date
finally determined (i) by mutual written agreement of the parties, or (ii) by a
final judgment, order or decree of a court of competent jurisdiction (the time
for appeal therefrom having expired and no appeal having been perfected).
7. Compensation Upon Termination or During Disability.
(a) During any period that the Executive fails to perform his
duties hereunder as a result of incapacity due to physical or mental illness
("Disability Period"), the Executive shall continue to receive his Base Salary
at the rate then in effect for such period until his employment is terminated
pursuant to Section 6(a)(ii) hereof, provided that payments so made to the
Executive shall be reduced by the sum of the amounts, if any, payable to the
Executive at or prior to the time of any such payment under disability benefit
plans of the Company or under the Social Security disability insurance program,
and which amounts were not previously applied to reduce any such payment.
(b) If the Executive's employment is terminated by his death, the
Company shall pay, in accordance with Section 10(b) hereof, any amounts due to
the Executive under Section 4 hereof through the date of his death.
(c) If the Executive's employment shall be terminated by the
Company for Cause, pursuant to section 6(a)(iii) the Company shall pay the
Executive (i) his Base Salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given; (ii) any Bonus declared
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and payable pursuant to Section 4(b) hereof and (iii) any expense reimbursements
due the Executive pursuant to Section 4(f) hereof. Following such payments the
Company shall have no further obligations to the Executive under this Agreement.
(d) If (i) the Company shall terminate the Executive's employment
pursuant to Section 6(b) hereof, (ii) the Executive shall terminate his
employment for Good Reason pursuant to Section 6(c)(ii), then:
(x) the Company shall pay the Executive his Base Salary through
the Date of Termination at the rate in effect at the time Notice
of Termination is given, any previously declared and payable
Bonus for any fiscal year completed prior to the Date of
Termination, and all other unpaid amounts, if any, to which the
Executive is entitled as of the Date of Termination under this
Agreement or any compensation plan or program of the Company, at
the time such payments are due including expense reimbursements
due the Executive pursuant to Section 4(f) hereof and accrued or
fully vested payments pursuant to employee benefit plans
described in Section 4(c) hereof.
(y) in lieu of any further salary payments to the Executive for
periods subsequent to the Date of Termination, the Company shall
pay as damages to the Executive (in a lump sum without discount)
an amount equal to the product of (A) the sum of the Executive's
annual base salary rate in effect as of the Date of Termination
plus the amount of the last Bonus paid or payable to the
Executive, and (B) 1.5; and
(z) The Company shall maintain in full force and effect, for the
continued benefit of the Executive for 1.5 years, each "employee
welfare benefit plan" (as defined in section 3(l) of ERISA) in
which the Executive was entitled to participate immediately prior
to the Date of Termination, provided that the Executive's
continued participation is possible under the general terms and
provisions of such plans. In the event that the Executive's
participation in any such plan is barred, the Company shall
arrange to provide the Executive with benefits substantially
similar to those which the Executive would otherwise have been
entitled to receive under the plan from which his continued
participation is barred.
8. Confidentiality and Noncompetition.
(a) The Executive will not, during or after the Term, disclose to
any entity or person any information (including, but not limited to, information
about customers or about the design, manufacture or marketing of products or
services) which is treated as confidential by the Company and to which the
Executive gains access by reason of his position as an employee or director of
the Company other than information which becomes publicly available through a
source other than the Executive.
(b) While the Executive continues to be an employee of the
Company and, for at least
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the one-year period immediately following his Date of Termination, the Executive
shall not, except as permitted by the Company upon its prior written consent:
(i) enter, directly or indirectly, into the employ of or render or engage in,
directly or indirectly, any services to any person, firm or corporation which is
engaged in distribution of children's products in the United States or any other
geographic areas in which the Company is then selling its products (a
"Competitor"); (ii) become interested, directly or indirectly, in any such
Competitor as an individual, partner, shareholder, creditor, director, officer,
principal, agent, employee, trustee, consultant, advisor or in any other
relationship or capacity, provided, that the ownership of up to five percent
(5%) of any class of the outstanding securities of any publicly traded
corporation, even though such corporation may be a Competitor, shall not he
deemed as constituting an interest in such Competitor which violates clause (ii)
of the immediately preceding sentence; and (iii) employ, solicit, assist in
employing any present or former or future employee, officer or agent of the
Company or any of its subsidiaries.
(c) Any violation by the Executive of Section 8(a) or 8(b) hereof
shall he deemed a violation of a material term of this Agreement under Section
6(a)(iii) hereof, and the Executive's compensation and benefits thereupon shall
be governed by Section 7(c) hereof. Additionally, the Company shall have the
right and remedy to have the provisions of this Section 8 specifically enforced,
including by temporary and/or permanent injunction, without necessity of bond,
it being acknowledged and agreed that any such violation will cause irreparable
injury to the Company and that money damages will not provide an adequate remedy
to the Company.
9. Independence and Severability of Section 8 Provisions. Each of the
rights and remedies enumerated in Section 8 shall be independent of the others
and shall be severally enforceable and all of such rights and remedies shall be
in addition to, and not in lieu of, any other rights and remedies available to
the Company under law or in equity. If any of the covenants contained in Section
8 or if any of the rights or remedies enumerated in Section 8, or any part of
any of them, is hereafter construed to be invalid or unenforceable, the same
shall not affect the remainder of the covenant or covenants or rights or
remedies which shall be given full effect without regard to the invalid
portions. If any of the covenants contained in Section 8 is held to be
unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination shall have
the authority to reduce the duration and/or area of such provision, and in its
reduced form said provision shall then be enforceable.
10. Successors: Binding Agreement.
(a) This Agreement shall be binding upon any successor to the
Company by way of a Change of Control. The Company will require any successor to
control of the Company, by agreement in form and substance reasonably
satisfactory to the Executive, 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 Change of Control had taken place. Failure of
the Company to obtain such assumption and agreement within 30 days following a
Change of Control shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the same
terms as he would be entitled to hereunder if he terminated his employment
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for Good Reason pursuant to section 6(c)(iii) except that for purposes of
implementing the foregoing, the date on which any such Change of Control becomes
effective shall be deemed the Date of Termination. As used in this Agreement,
"Company" shall mean the Company as herein before defined and any successor to
its business and/or assets as aforesaid which executes and delivers the
agreement provided for in this Section 10 or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law.
(b) This Agreement and all rights of the Executive hereunder
shall inure to the benefit of and be enforceable by the Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amounts would still be payable to him hereunder if he had continued to live, all
such amounts unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive's devisee, legatee, or other
designee or, if there be no such designee, to the Executive's estate.
11. Indemnification. The Company shall, to the fullest extent permitted
by law, and its Articles of Incorporation and Bylaws, indemnify and hold
harmless the Executive against any and all claims, including all expenses in
connection with the defense thereof, related to his performance of the duties
specified in Sections 3 and 5 hereof.
12. Notice.
(a) For the purposes of this Agreement, notices, demands and all
other communications provided for in this Agreement shall he in writing and
shall he addressed as follows:
If to the Executive:
Xxxxxxx X. Xxxxxxxx
0000 Xxx Xxxxxxxx Xxxx XX
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Telephone No. (000) 000-0000
If to the Company:
Fulcrum Direct, Inc.
0000 Xxxxxxx Xxx XX
Xxx Xxxxxx, XX 00000
Attention: Company Counsel
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
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(b) Notices and communications given in accordance with the
foregoing shall conclusively be deemed to have been received and to be effective
on the day on which delivered in person, or, if sent by United States certified
or registered mail, postage prepaid, on the fifth business day after the day on
which mailed, provided that a telecopy or cable of identical content has been
sent o the relevant address specified above within two days after the posting
date of such mail. "Business day" shall mean any day not a Saturday, Sunday or a
legal holiday for nongovernment employees in the State of New York.
13. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representation,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of New York without regard
to its conflicts of law principles. To the extent that the obligations under
this Agreement of the parties hereto and their successors, as such obligations
are described herein, may require performance after the termination or
expiration of this Agreement, such obligations shall survive the Term of this
Agreement: and shall be fully enforceable thereafter.
14. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
16. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein, supersedes
all prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer, employee
or representative of any party hereto; and any prior agreement of the parties
hereto or thereto in respect of the subject matter contained herein or therein
is hereby terminated and canceled.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
FULCRUM DIRECT, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: President and Chief Operating Officer
EXECUTIVE
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
WITNESS:
/s/ XXXXXX XXXX
Name:
Date:
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