AGREEMENT
AGREEMENT, dated this 1st day of March 1997, between Progress Financial
Corporation (the "Corporation"), a Delaware-chartered corporation, Progress Bank
(the "Bank"), a Federally chartered savings bank and a wholly-owned subsidiary
of the Corporation, and W. Xxxx Xxxxxx (the "Executive").
WITNESSETH
WHEREAS, the Executive is presently an officer of the Corporation and the
Bank (together the "Employers");
WHEREAS, the Employers desire to be ensured of the Executive's continued
active participation in the business of the Employers; and
WHEREAS, in order to induce the Executive to remain in the employ of the
Employers and in consideration of the Executive agreeing to remain in the employ
of the Employers, the parties desire to specify the employment terms and the
severance benefits which shall be due the Executive in the event that his
employment with the Employers is terminated under specified circumstances;
NOW THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereby agree as follows:
1. Definitions. The following words and terms shall have the meanings set
forth below for the purposes of this Agreement:
(a) Average Annual Compensation. The Executive's "Average Annual
Compensation" for purposes of this Agreement shall be deemed to mean the average
level of compensation paid to the Executive by the Employers or any subsidiary
thereof during the most recent five taxable years preceding the Date of
Termination, including Base Salary and benefits and bonuses under any employee
benefit plans of the Employers.
(b) Base Salary. "Base Salary" shall have the meaning set forth in Section
3(a) hereof.
(c) Cause. Termination of the Executive's employment for "Cause" shall mean
termination because of personal dishonesty, incompetence, willful misconduct,
breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties, willful violation of any law, rule or regulation (other
than traffic violations or similar offenses) or final cease-and-desist order or
material breach of any provision of this Agreement. For purposes of this
paragraph, no act or failure to act on the Executive's part shall be considered
"willful" unless done, or omitted to be done, by the Executive not in good faith
and without reasonable belief that the Executive's action or omission was in the
best interest of the Employers.
(d) Change in Control of the Corporation. "Change in Control of the
Corporation"
shall mean a change in control of a nature that would be required to be reported
in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended ("Exchange Act"), or any successor
thereto, whether or not any security of the Corporation is registered under the
Exchange Act; provided that, without limitation, such a change in control shall
be deemed to have occurred if (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Corporation representing 25% or more of the combined voting
power of the Corporation's then outstanding securities; or (ii) during any
period of two consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of the Corporation cease for any reason to
constitute at least a majority thereof unless the election, or the nomination
for election by stockholders, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were directors at the
beginning of the period.
(e) Code. "Code" shall mean the Internal Revenue Code of 1986, as amended.
(f) Date of Termination. "Date of Termination" shall mean (i) if the
Executive's employment is terminated by the Employers for Cause or for
Disability, the date specified in the Notice of Termination, and (ii) if the
Executive's employment is terminated for any other reason, the date on which a
Notice of Termination is given or as specified in such Notice.
(g) Disability. Termination by the Employers of the Executive's employment
based on "Disability" shall mean termination because of death or because of any
physical or mental impairment which qualifies the Executive for disability
benefits under the applicable long-term disability plan maintained by the
Employers or, if no such plan applies, which would qualify the Executive for
disability benefits under the Federal Social Security System.
(h) IRS. "IRS" shall mean the Internal Revenue Service.
(i) Notice of Termination. Any purported termination of the Executive's
employment by the Employers for any reason, including without limitation for
Cause, Disability or Retirement, or by the Executive for any reason, shall be
communicated by written "Notice of Termination" to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a dated notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive's employment under the
provision so indicated, (iii) specifies a Date of Termination, which shall be
not less than thirty (30) nor more than ninety (90) days after such Notice of
Termination is given, except in the case of the Employers' termination of the
Executive's employment for Cause, and (iv) is given in the manner specified in
Section 10 hereof.
(j) Retirement. "Retirement" shall mean voluntary termination by the
Executive in accordance with the Employers' retirement policies, including early
retirement, generally applicable to the Employers' salaried employees.
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2. Term of Employment.
(a) The Employers hereby employ the Executive as President and Chief
Executive Officer of the Corporation and the Bank, and the Executive hereby
accepts said employment and agrees to render such services to the Employers on
the terms and conditions set forth in this Agreement. Unless extended as
provided in this Section 2, the term of employment under this Agreement shall be
for three years, commencing on the date of this Agreement. Prior to the first
annual anniversary of the date of this Agreement and each annual anniversary
thereafter, the Boards of Directors of the Employers shall consider, review
(with appropriate corporate documentation thereof, and after taking into account
all relevant factors, including the Executive's performance) and, if
appropriate, explicitly approve a one-year extension of the remaining term of
this Agreement. The term of this Agreement shall continue to extend each year if
the Boards of Directors so approve such extension unless the Executive gives
written notice to the Employers of the Executive's election not to extend the
term, with such notice to be given not less than ninety (90) days prior to any
such anniversary date. If the Executive gives timely notice that the term will
not be extended as of any annual anniversary date, or if the Employers fail to
give written notice of their election to extend as of any annual anniversary
date, then this Agreement shall terminate at the conclusion of its remaining
term. References herein to the term of this Agreement shall refer both to the
initial term and successive terms.
(b) During the term of this Agreement, the Executive shall perform such
executive services for the Employers as may be consistent with his titles and
from time to time assigned to him by the Employers' Boards of Directors.
3. Compensation and Benefits.
(a) The Employers shall compensate and pay Executive for his services
during the term of this Agreement at a minimum base salary of $280,000 per year
commencing March 1, 1997, $320,000 per year commencing March 1, 1998 and
$350,000 per year commencing March 1, 1999 ("Base Salary"), which may be
increased from time to time in such amounts as may be determined by the Boards
of Directors of the Employers and may not be decreased without the Executive's
express written consent. In addition to his Base Salary, the Executive shall be
entitled to receive during the term of this Agreement such bonus payments as may
be determined by the Boards of Directors of the Employers. In that regard, for
the term of the Agreement, the Executive shall be entitled to participate in a
bonus plan whereby he would be potentially entitled to receive a bonus
potentially equal to a maximum of 45% of his Base Salary, subject to the
accomplishment of certain goals established or to be established by the Boards
of Directors of the Employers. In the event that it is determined by the Boards
of Directors of the Employers that, with respect to any particular fiscal year
during the term of the Agreement, the Executive is expending in excess of 10% of
his time on matters primarily related to the business of the Corporation, the
Corporation and the Bank will pay their respective pro rata portion of the
Executive's compensation with respect to such fiscal year; otherwise, the Bank
shall pay all of the Executive's compensation.
(b) During the term of this Agreement, the Executive shall be entitled to
participate in
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and receive the benefits of any pension or other retirement benefit plan, profit
sharing, stock option, employee stock ownership, or other plans, benefits and
privileges given to employees and executives of the Employers, to the extent
commensurate with his then duties and responsibilities, as fixed by the Boards
of Directors of the Employers, except that the bonus arrangement set forth in
Section 3(a) hereof shall be provided to the Executive in lieu of any other
bonus plan or arrangement given to other employees and executives of the
Employers. The Employers shall not make any changes in such plans, benefits or
privileges which would adversely affect the Executive's rights or benefits
thereunder, unless such change occurs pursuant to a program applicable to all
executive officers of the Employers and does not result in a proportionately
greater adverse change in the rights of or benefits to the Executive as compared
with any other executive officer of the Employers. 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 salary payable to the Executive
pursuant to Section 3(a) hereof.
(c) During the term of this Agreement, the Executive shall be entitled to
an annual expense allowance (exclusive of standard health benefits available to
employees) not to exceed 10.0% of his Base Salary.
(d) During the term of this Agreement, the Executive shall be entitled to
four (4) weeks of paid annual vacation in accordance with the policies as
established from time to time by the Boards of Directors of the Employers. The
Executive shall be entitled to receive any additional compensation from the
Employers for failure to take a vacation and shall be able to accumulate unused
vacation time from one year to the next.
4. Expenses. The Employers shall reimburse the Executive or otherwise
provide for or pay for all reasonable expenses incurred by the Executive in
furtherance of, or in connection with the business of the Employers, including,
but not by way of limitation, automobile (including costs of leasing, insurance,
repairs, maintenance, and licensing) and traveling expenses, and all reasonable
entertainment expenses (whether incurred at the Executive's residence, while
traveling or otherwise), subject to such reasonable documentation and other
limitations as may be established by the Boards of Directors of the Employers.
If such expenses are paid in the first instance by the Executive, the Employers
shall reimburse the Executive therefor.
5. Termination.
(a) The Employers shall have the right, at any time upon prior Notice of
Termination, to terminate the Executive's employment hereunder for any reason,
including without limitation termination for Cause, Disability or Retirement,
and the Executive shall have the right, upon prior Notice of Termination, to
terminate his employment hereunder for any reason.
(b) In the event that (i) the Executive's employment is terminated by the
Employers for Cause or Retirement or Disability, or (ii) the Executive
terminates his employment hereunder other than in connection with a Change in
Control of the Corporation, the Executive shall have no right pursuant to this
Agreement to compensation or other benefits for any period after the applicable
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Date of Termination except as otherwise provided herein.
(c) In the event that (i) the Executive's employment is terminated by the
Employers for other than Cause, Retirement or Disability or (ii) such employment
is terminated by the Executive (a) due to a material breach of this Agreement by
the Employers, which breach has not been cured within fifteen (15) days after a
written notice of non-compliance has been given by the Executive to the
Employers, or (b) at the time of or in connection with a Change in Control of
the Corporation, then the Employers or their successors shall, subject to the
provisions of Sections 5(f) and 6 hereof, if applicable, and regardless of
whether or not the Executive is subsequently re-hired by the Employers or their
successors,
(A) pay to the Executive a cash severance amount equal to 2.99 times
the Executive's Average Annual Compensation, with such amount to be paid at
the Executive's election in either a lump sum within five business days of
the Date of Termination or in thirty-six (36) equal monthly installments
beginning with the first business day of the month following the Date of
Termination, and
(B) maintain and provide for a period ending at the earlier of (i) the
expiration of the remaining term of employment pursuant hereto prior to the
Notice of Termination or (ii) the date of the Executive's full-time
employment by another employer (provided that the Executive is entitled
under the terms of such employment to benefits substantially similar to
those described in this subparagraph (B)), at no cost to the Executive, the
Executive's continued participation in all group insurance, life insurance,
health and accident, disability and other employee benefit plans, programs
and arrangements in which the Executive was entitled to participate
immediately prior to the Date of Termination (other than stock option and
restricted stock plans of the Employers), provided that in the event that
the Executive's participation in any plan, program or arrangement as
provided in this subparagraph (B) is barred, or during such period any such
plan, program or arrangement is discontinued or the benefits thereunder are
materially reduced, the Employers shall arrange to provide the Executive
with benefits substantially similar to those which the Executive was
entitled to receive under such plans, programs and arrangements immediately
prior to the Date of Termination.
(d) If a Change in Control of the Corporation occurs and the Executive's
employment is not terminated at the time of or in connection with such Change in
Control, but the Executive's employment is terminated subsequent to the Change
in Control of the Corporation by either the Executive or the Employers (or their
successors) for any reason other than Cause, Retirement or Disability, then the
Employers or their successors shall, subject to the provisions of Sections 5(f)
and 6 hereof, pay to the Executive the cash severance amount set forth in
Section 5(c)(A) hereof and provide the benefits set forth in Section 5(c)(B)
hereof on a pro rata basis as set forth below. The amount of the cash severance
set forth in Section 5(c)(A) hereof and the time period set forth in Section
5(c)(B) hereof shall each be reduced by a fraction, the numerator of which is
the number of days the Executive was employed by the Employers or their
successors subsequent to the date of the Change in Control of the Corporation,
and the denominator of which is the total number of days
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remaining in the Executive's term of employment as of the date of the Change in
Control of the Corporation.
(e) In the event of the failure by the Employers to elect or to re-elect or
to appoint or to re-appoint the Executive to the offices of President and Chief
Executive Officer of the Corporation and the Bank or a material change made by
the Employers in the Executive's functions, duties or responsibilities as
President and Chief Executive Officer of the Corporation and President and Chief
Executive Officer of the Bank without the Executive's express written consent,
the Executive shall be entitled to terminate his employment hereunder and shall
be entitled, subject to the provisions of Sections 5(f) and 6 hereof, to the
payments and benefits provided for in Section 5(c)(A) and (B).
(f) Notwithstanding any other provision continued herein, in no event shall
the aggregate present value of the cash severance and benefits to be provided
under Sections 5(c), 5(d) or 5(e) exceed $1,000,000. The aggregate present value
of the cash severance and benefits shall be determined as of the Date of
Termination, and future payments shall be discounted using a rate equal to 120%
of the applicable federal rate provided for in Section 1274(d) of the Code and
the regulations thereunder, compounded semi-annually.
6. Limitation of Benefits under Certain Circumstances. If the payments and
benefits pursuant to Section 5 hereof, either alone or together with other
payments and benefits which the Executive has the right to receive from the
Employers, would constitute a "parachute payment" under Section 280G of the
Code, the payments and benefits pursuant to Section 5 hereof shall be reduced,
in the manner determined by the Executive, by the amount, if any, which is the
minimum necessary to result in no portion of the payments and benefits under
Section 5 being non-deductible to either of the Employers pursuant to Section
280G of the Code and subject to the excise tax imposed under Section 4999 of the
Code. The determination of any reduction in the payments and benefits to be made
pursuant to Section 5 shall be based upon the opinion of independent tax counsel
selected by the Employers' independent public accountants and paid by the
Employers. Such counsel shall be reasonably acceptable to the Employers and the
Executive; shall promptly prepare the foregoing opinion, but in no event later
than thirty (30) days from the Date of Termination; and may use such actuaries
as such counsel deems necessary or advisable for the purpose. In the event that
the Employers and/or the Executive do not agree with the opinion of such
counsel, (i) the Employers shall pay to the Executive the maximum amount of
payments and benefits pursuant to Section 5, as selected by the Executive, which
such opinion indicates that there is a high probability do not result in any of
such payments and benefits being non-deductible to the Employers and subject to
the imposition of the excise tax imposed under Section 4999 of the Code and (ii)
the Employers may request, and the Executive shall have the right to demand that
the Employers request, a ruling from the IRS as to whether the disputed payments
and benefits pursuant to Section 5 hereof have such consequences. Any such
request for a ruling from the IRS shall be promptly prepared and filed by the
Employers, but in no event later than thirty (30) days from the date of the
opinion of counsel referred to above, and shall be subject to the Executive's
approval prior to filing, which shall not be unreasonably withheld. The
Employers and the Executive agree to be bound by any ruling received from the
IRS and to make appropriate
6
payments to each other to reflect any such rulings, together with interest at
the applicable federal rate provided for in Section 7872(f)(2) of the Code.
Nothing contained herein shall result in a reduction of any payments or benefits
to which the Executive may be entitled upon termination of employment under any
circumstances other than as specified in this Section 6, or a reduction in the
payments and benefits specified in Section 5 below zero.
7. Mitigation; Exclusivity of Benefits.
(a) Except as set forth in Section 5(c)(B) hereto, the Executive shall not
be required to mitigate the amount of any benefits hereunder by seeking other
employment or otherwise, nor shall the amount of any such benefits be reduced by
any compensation earned by the Executive as a result of employment by another
employer after the Date of Termination or otherwise.
(b) The specific arrangements referred to herein are not intended to
exclude any other benefits which may be available to the Executive upon a
termination of employment with the Employers pursuant to employee benefit plans
of the Employers or otherwise.
8. Withholding. All payments required to be made by the Employers hereunder
to the Executive shall be subject to the withholding of such amounts, if any,
relating to tax and other payroll deductions as the Employers may reasonably
determine should be withheld pursuant to any applicable law or regulation.
9. Assignability. The Employers may assign this Agreement and its rights
and obligations hereunder in whole, but not in part, to any corporation, bank or
other entity with or into which the Employers may hereafter merge or consolidate
or to which the Employers may transfer all or substantially all of its assets,
if in any such case said corporation, bank or other entity shall by operation of
law or expressly in writing assume all obligations of the Employers hereunder as
fully as if it had been originally made a party hereto, but may not otherwise
assign this Agreement or its rights and obligations hereunder. The Executive may
not assign or transfer this Agreement or any rights or obligations hereunder.
10. Notice. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Employers: Progress Financial Corporation
Progress Bank
0 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxxxx 00000
To the Executive: W. Xxxx Xxxxxx
000 Xxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
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11. Amendment; Waiver. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and such officer or officers as may be
specifically designated by the Boards of Directors of the Employers to sign on
their behalf. No waiver by any party hereto at any time of any breach by any
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.
12. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United States
where applicable and otherwise by the substantive laws of the Commonwealth of
Pennsylvania.
13. Nature of Obligations. Nothing contained herein shall create or require
the Employers to create a trust of any kind to fund any benefits which may be
payable hereunder, and to the extent that the Executive acquires a right to
receive benefits from the Employers hereunder, such right shall be no greater
than the right of any unsecured general creditor of the Employers.
14. Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
16. 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.
17. Regulatory Actions. The following provisions shall be applicable
to the parties to the extent that they are required to be included in
employment agreements between a savings association and its employees
pursuant to Section 563.39(b) of the Regulations Applicable to all Savings
Associations, 12 C.F.R. s.563.39(b), or any successor thereto, and shall
be controlling in the event of a conflict with any other provision of this
Agreement, including without limitation Section 5 hereof.
(a) If the Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the Employers' affairs pursuant to notice
served under Section 8(e)(3) or Section 8(g)(1) of the Federal Deposit Insurance
Act ("FDIA")(12 U.S.C. ss.1818(e)(3) and 1818(g)(1)), the Employers' obligations
under this Agreement shall be suspended as of the date of service, unless stayed
by appropriate proceedings. If the charges in the notice are dismissed, the
Employers may, in their discretion: (i) pay the Executive all or part of the
compensation withheld while its obligations under this Agreement were suspended,
and (ii) reinstate (in whole or in part) any of its obligations which were
suspended.
(b) If the Executive is removed from office and/or permanently prohibited
from participating in the conduct of the Employers' affairs by an order issued
under Section 8(e)(4) or
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Section 8(g)(1) of the FDIA (12 U.S.C. ss.1818(e)(4) and (g)(1)), all
obligations of the Employers under this Agreement shall terminate as of the
effective date of the order, but vested rights of the Executive and the
Employers as of the date of termination shall not be affected.
(c) If the Bank is in default, as defined in Section 3(x)(1) of the FDIA (12
U.S.C. s.1813(x)(1)), all obligations under this Agreement shall terminate as of
the date of default, but vested rights of the Executive and the Employers as of
the date of termination shall not be affected.
(d) All obligations under this Agreement shall be terminated pursuant to 12
C.F.R. s.563.39(b)(5) (except to the extent that it is determined that
continuation of the Agreement for the continued operation of the Employers is
necessary): (i) by the Director of the Office of Thrift Supervision ("OTS"), or
his/her designee, at the time the Federal Deposit Insurance Corporation ("FDIC")
or the Resolution Trust Corporation enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in Section
13(c) of the FDIA (12 U.S.C. s.1823(c)); or (ii) by the Director of the OTS, or
his/her designee, at the time the Director or his/her designee approves a
supervisory merger to resolve problems related to operation of the Bank or when
the Bank is determined by the Director of the OTS to be in an unsafe or unsound
condition, but vested rights of the Executive and the Employers as of the date
of termination shall not be affected.
18. Regulatory Prohibition. Notwithstanding any other provision of this
Agreement to the contrary, any payments made to the Executive pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with Section 18(k) of the FDIA (12 U.S.C. s.1828(k)) and any regulations
promulgated thereunder.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
Attest: PROGRESS FINANCIAL CORPORATION
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxxxx X. Xxxxx
--------------------- ---------------------------
Xxxxxxxxx X. Xxxxx
Senior Vice President and
Chief Financial Officer
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
Director
Attest: PROGRESS BANK
9
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxxxx X. Xxxxx
--------------------- ---------------------------
Xxxxxxxxx X. Xxxxx
Senior Vice President and
Chief Financial Officer
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
Director
Attest: W. XXXX XXXXXX
/s/ Xxxxx X. Xxxxxx By: /s/ W. Xxxx Xxxxxx
--------------------- ---------------------------
W. Xxxx Xxxxxx,Individually
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Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto being duly authorized.
Progress Financial Corporation
--------------- BY:---------------------------------------
Date W. Xxxx Xxxxxx, Chairman, President and
Chief Executive Officer
Pursuant to the Requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed below by the following
persons on behalf of the Registrant and in the capacities and on the dates
indicated.
----------------------------------- ------------
W. Xxxx Xxxxxx, Chairman, President Date
and Chief Executive Officer
----------------------------------- ------------
Xxxx X. Xxxxx Xxxxxx, Director Date
----------------------------------- ------------
Xxxxxxx X. Xxxxxxx, Xx., Director Date
----------------------------------- ------------
Xxxxxx X. X. Xxxxxxx, Director Date
----------------------------------- ------------
H. Xxxxx Xxxxxx, Director Date
----------------------------------- ------------
Xxxxxx X. Xxxxxxx, Director Date
----------------------------------- ------------
Xxxx X. XxXxxx, Director Date
----------------------------------- ------------
A. Xxxx Xxx, III, Director Date
----------------------------------- ------------
Xxxxxxx X. Xxxxxxx, Director Date
----------------------------------- ------------
Xxxxx X. Xxxxx, Director Date
----------------------------------- ------------
Xxxxxxx X. Xxxxxxxx, Director Date
----------------------------------- ------------
Xxxxxxxxx X. Xxxxx, Xx. Vice President Date
and Chief Financial Officer
