Exhibit 10.45
AGREEMENT REGARDING
CHANGE IN CONTROL
THIS AGREEMENT ("Agreement"), is made and entered into as of the 11th day
of March, 2005 (the "Effective Date") by and between Hemispherx Biopharma, Inc.
(the "Company") and Xxxxxx X. Xxxxxxxxx (the "General Counsel")
WITNESSETH THAT:
WHEREAS, the Company considers it essential to the best interests of
its shareholders to xxxxxx the continuous engagement of key management
personnel, and the Board of Directors of the Company (the "Board") recognizes
that, as is the case with many publicly held corporations, a change in control
might occur and that such possibility, and the uncertainty and questions which
it may raise among management, may result in the departure or distraction of
management personnel to the detriment of the Company and its shareholders; and
WHEREAS, the Board has determined that appropriate steps should be
taken to reinforce and encourage the continued attention and dedication of
members of the Company's management, including the General Counsel, to their
engagement without distraction in the face of potentially disturbing
circumstances arising from the possibility of a change in control of the
Company;
NOW, THEREFORE, to induce the General Counsel to remain engaged by
the Company and in consideration of the premises and mutual covenants set forth
herein, IT IS HEREBY AGREED by and between the parties as follows:
1. AGREEMENT TERM. The initial "Agreement Term" shall begin on the
Effective Date and shall continue through December 31, 2007. As of December 31,
2007, and as of each December 31 thereafter, the Agreement Term shall extend
automatically to the third anniversary thereof unless the Company gives notice
to the General Counsel prior to the date of such extension that the Agreement
Term will not be extended. Notwithstanding the foregoing, if a Change in Control
(as defined in Section 7 below), occurs during the Agreement Term, the Agreement
Term shall continue through and terminate on the second anniversary of the date
on which the Change in Control occurs.
2. ENTITLEMENT TO CHANGE IN CONTROL BENEFITS. The General Counsel
shall be entitled to the Change in Control Benefits described in Section 3
hereof if the General Counsel's engagement by the Company is terminated during
the Agreement Term but after a Change in Control (i) by the Company for any
reason other than Permanent Disability or Cause, (ii) by the General Counsel for
Good Reason or (iii) by the General Counsel for any reason during the 30-day
period commencing on the first date which is six months after the date of the
Change in Control. For purposes of this Agreement:
(a) A termination of the General Counsel's engagement shall be treated as a
termination by reason of "Permanent Disability" only if, due to a mental or
physical disability, the General Counsel is absent from the performance of
services for the Company for a period of at least twelve consecutive months and
fails to return to the performance of services within 30 days after receipt of a
written demand by the Company to do so.
(b) The term "Cause" shall mean the willful engaging by the General Counsel
in illegal conduct or gross misconduct which is demonstrably and materially
injurious to the Company. For purposes of this Agreement, no act, or failure to
act, on the General Counsel's part shall be deemed "willful" unless done, or
omitted to be done, by the General Counsel not in good faith and without
reasonable belief that the General Counsel's action or omission was in the best
interest of the Company. Notwithstanding the foregoing, the General Counsel
shall not be deemed to have been terminated for Cause unless and until the
Company delivers to the General Counsel a copy of a resolution duly adopted by
the affirmative vote of not less than three-quarters of the entire membership of
the Board at a meeting of the Board called and held for such purpose (after
reasonable notice to the General Counsel and an opportunity for the General
Counsel, together with counsel, to be heard before the Board) finding that, in
the good faith opinion of the Board, the General Counsel was guilty of conduct
set forth above and specifying the particulars thereof in detail.
(c) The term "Good Reason" shall mean the occurrence of any of the
following circumstances without the General Counsel's express written consent:
(i) a significant adverse change in
the nature, scope or status of the General
Counsel's position, authorities or services
from those in effect immediately prior to the
Change in Control, including, without
limitation, if the General Counsel was,
immediately prior to the Change in Control, a
General Counsel of a public company, the
General Counsel ceasing to be a General
Counsel of a public company;
(ii) the failure by the Company to
pay the General Counsel any portion of the
General Counsel's current compensation, or to
pay the General Counsel any portion of any
installment of deferred compensation under any
deferred compensation program of the Company,
within seven days of the date such
compensation is due;
(iii) a reduction in the General
Counsel's annual base compensation (or a
material change in the frequency of payment)
as in effect immediately prior to the Change
in Control as the same may be increased from
time to time;
(iv) the failure by the Company to
award the General Counsel an annual bonus in
any year which is at least equal to the annual
bonus awarded to the General Counsel for the
year immediately preceding the year of the
Change in Control;
(v) the failure by the Company to award
the General Counsel equity-based incentive
compensation (such as stock options, shares of
restricted stock, or other equity-based
compensation) on a periodic basis consistent
with the Company's practices with respect to
timing, value and terms prior to the Change in
Control;
(vi) the failure of the Company to
award the General Counsel incentive
compensation of any nature based on attained
milestones when such milestones are attained.
(vii) the failure of the Company to
obtain a satisfactory agreement from any
successor to the Company to assume and agree
to perform this Agreement as contemplated by
Section 14.
For purposes of any determination regarding the existence of Good
Reason, any good faith determination by the General Counsel that Good
Reason exists shall be conclusive.
3. CHANGE IN CONTROL BENEFITS. In the event of a termination of engagement
entitling the General Counsel to benefits in accordance with Section 2, the
General Counsel shall receive the following:
(a) The General Counsel shall be entitled to a lump sum payment in cash no
later than twenty business days after the General Counsel's date of termination
equal to the sum of:
(i) an amount equal to three times
the General Counsel's annual compensation in
effect on the date of the Change in Control
or, or if greater, as in effect immediately
prior to the date of termination; plus
(ii) an amount equal to three times
the General Counsel's bonus award for the year
immediately preceeding the year of the Change
in Control.
The amount payable under this paragraph shall be
inclusive of the amounts, if any, to which the
General Counsel would otherwise be entitled or
by law and shall be in addition to (and not
inclusive of) any amount payable under any
written agreement(s) directly between the
General Counsel and the Company or any of its
subsidiaries.
(b) The Company shall provide the General Counsel with outplacement
services and tax and financial counseling suitable to the General Counsel's
position through the third anniversary of the date of the General Counsel's
termination of engagement, or, if earlier, the date on which the General Counsel
becomes employed by another employer.
4. MITIGATION. The General Counsel shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other engagement
or otherwise. The Company shall not be entitled to set off against the amounts
payable to the General Counsel under this Agreement any amounts owed to the
Company by the General Counsel, any amounts earned by the General Counsel in
other engagement after the General Counsel's termination of engagement with the
Company, or any amounts which might have been earned by the General Counsel in
other engagement had the General Counsel sought such other engagement.
5. MAKE-WHOLE PAYMENTS. If any payment or benefit to which the General
Counsel (or any person on account of the General Counsel) is entitled, whether
under this Agreement or otherwise, in connection with a Change in Control or the
General Counsel's termination of engagement (a "Payment") constitutes a
"parachute payment" within the meaning of section 280G of the Internal Revenue
Code of 1986, as amended (the "Code"), and as a result thereof the General
Counsel is subject to a tax under section 4999 of the Code, or any successor
thereto, (an "Excise Tax"), the Company shall pay to the General Counsel an
additional amount (the "Make-Whole Amount") which is intended to make the
General Counsel whole for such Excise Tax. The Make-Whole Amount shall be equal
to (i) the amount of the Excise Tax, plus (ii) the aggregate amount of any
interest, penalties, fines or additions to any tax which are imposed in
connection with the imposition of such Excise Tax, plus (iii) all income, excise
and other applicable taxes imposed on the General Counsel under the laws of any
Federal, state or local government or taxing authority by reason of the payments
required under clauses (i) and (ii) and this clause (iii).
(a) For purposes of determining the Make-Whole Amount, the General Counsel
shall be deemed to be taxed at the highest marginal rate under all
199:applicable local, state, federal and foreign inc ome tax laws for the year
in which the Make-Whole Amount is paid. The Make-Whole Amount payable with
respect to an Excise Tax shall be paid by the Company coincident with the
Payment with respect to which such Excise Tax relates.
(b) All calculations under this Section 5 shall be made initially by the
Company and the Company shall provide prompt written notice thereof to the
General Counsel to enable the General Counsel to timely file all applicable
tax returns. Upon request of the General Counsel, the Company shall provide
the General Counsel with sufficient tax and compensation data to enable the
General Counsel or the General Counsel's tax advisor to independently make
the calculations described in subparagraph (a) above and the Company shall
reimburse the General Counsel for reasonable fees and expenses incurred for
any such verification.
(c) If the General Counsel gives written notice to the Company of any objection
to the results of the Company's calculations within 60 days of the General
Counsel's receipt of written notice thereof, the dispute shall be referred
for determination to independent tax counsel selected by the Company and
reasonably acceptable to the General Counsel ("Tax Counsel"). The Company
shall pay all fees and expenses of such Tax Counsel. Pending such
determination by Tax Counsel, the Company shall pay the General Counsel the
Make-Whole Amount as determined by it in good faith. The Company shall pay
the General Counsel any additional amount determined by Tax Counsel to be
due under this Section 5 (together with interest thereon at a rate equal to
120% of the Federal short-term rate determined under section 1274(d) of the
Code) promptly after such determination.
(d) The determination by Tax Counsel shall be conclusive and binding upon all
parties unless the Internal Revenue Service, a court of competent
jurisdiction, or such other duly empowered governmental body or agency (a
"Tax Authority") determines that the General Counsel owes a greater or
lesser amount of Excise Tax with respect to any Payment than the amount
determined by Tax Counsel.
(e) If a Taxing Authority makes a claim against the General Counsel which, if
successful, would require the Company to make a payment under this Section
5, the General Counsel agrees to contest the claim with counsel reasonably
satisfactory to the Company, on request of the Company subject to the
following conditions:
(i) The General Counsel shall notify the Company of
any such claim within 10 days of becoming
aware thereof. In the event that the Company
desires the claim to be contested, it shall
promptly (but in no event more than 30 days
after the notice from the General Counsel or
such shorter time as the Taxing Authority may
specify for responding to such claim) request
the General Counsel to contest the claim. The
General Counsel shall not make any payment of
any tax which is the subject of the claim
before the General Counsel has given the
notice or during the 30-day period thereafter
unless the General Counsel receives written
instructions from the Company to make such
payment together with an advance of funds
sufficient to make the requested payment plus
any amounts payable under this Section 5
determined as if such advance were an Excise
Tax, in which case the General Counsel will
act promptly in accordance with such
instructions.
(ii) If the Company so requests, the General Counsel
will contest the claim by either paying the
tax claimed and suing for a refund in the
appropriate court or contesting the claim in
the United States Tax Court or other
appropriate court, as directed by the Company;
PROVIDED, HOWEVER, that any request by the
Company for the General Counsel to pay the tax
shall be accompanied by an advance from the
Company to the General Counsel of funds
sufficient to make the requested payment plus
any amounts payable under this Section 5
determined as if such advance were an Excise
Tax. If directed by the Company in writing the
General Counsel will take all action necessary
to compromise or settle the claim, but in no
event will the General Counsel compromise or
settle the claim or cease to contest the claim
without the written consent of the Company;
PROVIDED, HOWEVER, that the General Counsel
may take any such action if the General
Counsel waives in writing the General
Counsel's right to a payment under this
Section 5 for any amounts payable in
connection with such claim. The General
Counsel agrees to cooperate in good faith with
the Company in contesting the claim and to
comply with any reasonable request from the
Company concerning the contest of the claim,
including the pursuit of administrative
remedies, the appropriate forum for any
judicial proceedings, and the legal basis for
contesting the claim. Upon request of the
Company, the General Counsel shall take
appropriate appeals of any judgment or
decision that would require the Company make a
payment under this Section 5. Provided that
General Counsel is in compliance with the
provisions this section, the Company shall be
liable for and indemnify the General Counsel
against any loss in connection with, and all
costs and expenses, including attorneys' fees,
which may be incurred as a result of,
contesting the claim, and shall provide to the
General Counsel within 30 days after each
written request therefor by the General
Counsel cash advances or reimbursement for all
such costs and expenses actually incurred or
reasonably expected to be incurred by the
General Counsel as a result of contesting the
claim.
(f) Should a Tax Authority finally determine that an additional Excise Tax
is owed, then the Company shall pay an additional Make-Whole Amount to the
General Counsel in a manner consistent with this Section 5 with respect to any
additional Excise Tax and any assessed interest, fines, or penalties. If any
Excise Tax as calculated by the Company or Tax Counsel, as the case may be, is
finally determined by a Tax Authority to exceed the amount required to be paid
under applicable law, then the General Counsel shall repay such excess to the
Company within 30 days of such determination; provided that such repayment shall
be reduced by the amount of any taxes paid by the General Counsel on such excess
which is not offset by the tax benefit attributable to the repayment.
6. TERMINATION DURING POTENTIAL CHANGE IN CONTROL. If a Potential Change in
Control (as defined in Section 8) occurs during the Agreement Term, and the
Company terminates the General Counsel's engagement for reasons other than
Permanent Disability or Cause during such Potential Change in Control, the
General Counsel shall be entitled to receive the benefits that the General
Counsel would have received under Section 3, such benefits to be calculated
based upon the General Counsel's compensation prior to the actual termination of
engagement but paid within 20 business days of the date of such termination.
7. CHANGE IN CONTROL. For purposes of this Agreement, a "Change in Control"
shall be deemed to have occurred on the earliest of the following dates:
(a) the date any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the securities
beneficially owned by such Person any securities acquired directly from the
Company or its Affiliates) representing 20% or more of the combined voting power
of the Company's then outstanding securities, excluding any Person who becomes
such a Beneficial Owner in connection with a transaction described in clause (i)
of paragraph (c) below; or
(b) the date on which the following individuals cease for any reason to
constitute a majority of the number of directors then serving: individuals who,
on the date hereof, constitute the Board and any new director (other than a
director whose initial assumption of office is in connection with an actual or
threatened election contest, including but not limited to a consent
solicitation, relating to the election of directors of the Company) whose
appointment or election by the Board or nomination for election by the Company's
shareholders was approved or recommended by a vote of at least two-thirds (2/3)
of the directors then still in office who either were directors on the date
hereof or whose appointment, election or nomination for election was previously
so approved or recommended; or
(c) the date on which there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the Company with any other
corporation or other entity, other than (i) a merger or consolidation (A)
immediately following which the individuals who comprise the Board immediately
prior thereto constitute at least a majority of the board of directors of the
Company, the entity surviving such merger or consolidation or, if the Company or
the entity surviving such merger or consolidation is then a subsidiary, the
ultimate parent thereof and (B) which results in the voting securities of the
Company outstanding immediately prior to such merger or consolidation continuing
to represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof), in combination with
the ownership of any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any subsidiary of the Company, at least
50% of the combined voting power of the securities of the Company or such
surviving entity or any parent thereof outstanding immediately after such merger
or consolidation, or (ii) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no Person is
or becomes the Beneficial Owner, directly or indirectly, of securities of the
Company (not including in the securities Beneficially Owned by such Person any
securities acquired directly from the Company or its Affiliates) representing
20% or more of the combined voting power of the Company's then outstanding
securities; or
(d) the date on which the shareholders of the Company approve a plan of
complete liquidation or dissolution of the Company or there is consummated an
agreement for the sale or disposition by the Company of all or substantially all
of the Company's assets, other than a sale or disposition by the Company of all
or substantially all of the Company's assets to an entity, at least 50% of the
combined voting power of the voting securities of which are owned by
shareholders of the Company, in combination with the ownership of any trustee or
other fiduciary holding securities under an employee benefit plan of the Company
or any subsidiary of the Company, in substantially the same proportions as their
ownership of the Company immediately prior to such sale. Notwithstanding the
foregoing, a "Change in Control" shall not be deemed to have occurred by virtue
of the consummation of any transaction or series of integrated transactions
immediately following which the record holders of the common stock of the
Company immediately prior to such transaction or series of transactions continue
to have substantially the same proportionate ownership in an entity which owns
all or substantially all of the assets of the Company immediately following such
transaction or series of transactions.
For purposes of this Agreement: "Affiliate" shall have the meaning set forth in
Rule 12b-2 promulgated under Section 12 of the Exchange Act; "Beneficial Owner"
shall have the meaning set forth in Rule 13d-3 under the Exchange Act; "Exchange
Act" shall mean the Securities Exchange Act of 1934, as amended from time to
time; and "Person" shall have the meaning given in Section 3(a)(9) of the
Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except
that such term shall not include (i) the Company or any of its subsidiaries,
(ii) a trustee or other fiduciary holding securities under an employee benefit
plan of the Company or any of its Affiliates, (iii) an underwriter temporarily
holding securities pursuant to an offering of such securities, or (iv) a
corporation owned, directly or indirectly, by the shareholders of the Company in
substantially the same proportions as their ownership of stock of the Company.
8. POTENTIAL CHANGE IN CONTROL. A "Potential Change in Control" shall exist
during any period in which the circumstances described in paragraphs (a), (b),
(c) or (d), below, exist (provided, however, that a Potential Change in Control
shall cease to exist not later than the occurrence of a Change in Control):
(a) The Company enters into an agreement, the consummation of which would
result in the occurrence of a Change in Control, provided that a Potential
Change in Control described in this paragraph (a) shall cease to exist upon
the expiration or other termination of all such agreements;
(b) Any Person (without regard to the exclusions set forth in subsections (i)
through (iv) of such definition) publicly announces an intention to take or
to consider taking actions the consummation of which would constitute a
Change in Control; provided that a Potential Change in Control described in
this paragraph (b) shall cease to exist upon the withdrawal of such
intention, or upon a determination by the Board that there is no reasonable
chance that such actions would be consummated;
(c) Any Person becomes the Beneficial Owner, directly or indirectly, of
securities of the Company representing 10% or more of either the then
outstanding shares of common stock of the Company or the combined voting
power of the Company's then outstanding securities (not including in the
securities beneficially owned by such Person any securities acquired
directly from the Company or its Affiliates);
(d) The Board adopts a resolution to the effect that, for purposes of this
Agreement, a Potential Change in Control exists; provided that a Potential
Change in Control described in this paragraph (d) shall cease to exist upon
a determination by the Board that the reasons that gave rise to the
resolution providing for the existence of a Potential Change in Control
have expired or no longer exist.
9. NONALIENATION. The interests of the General Counsel under this Agreement
are not subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by creditors of the
General Counsel or the General Counsel's beneficiary.
10. AMENDMENT. This Agreement may be amended or canceled only by mutual
agreement of the parties in writing without the consent of any other person. So
long as the General Counsel lives, no person, other than the parties hereto,
shall have any rights under or interest in this Agreement or the subject matter
hereof.
11. APPLICABLE LAW. The provisions of this Agreement shall be construed in
accordance with the laws of the Commonwealth of Pennsylvania, without regard to
the conflict of law provisions of any state.
12. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement will not affect the validity or enforceability of any other
provision of this Agreement, and this Agreement will be construed as if such
invalid or unenforceable provision were omitted (but only to the extent that
such provision cannot be appropriately reformed or modified).
13. WAIVER OF BREACH. No waiver by any party hereto of a breach of any
provision of this Agreement by any other party, or of compliance with any
condition or provision of this Agreement to be performed by such other party,
will operate or be construed as a waiver of any subsequent breach by such other
party of any similar or dissimilar provisions and conditions at the same or any
prior or subsequent time. The failure of any party hereto to take any action by
reason of such breach will not deprive such party of the right to take action at
any time while such breach continues.
14. SUCCESSORS, ASSUMPTION OF CONTRACT. This Agreement shall be binding
upon and inure to the benefit of the Company and any successor of the Company.
The Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company 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 succession had taken place. This Agreement is
personal to the General Counsel and may not be assigned by the General Counsel
without the written consent of the Company. However, to the extent that rights
or benefits under this Agreement otherwise survive the General Counsel's death,
the General Counsel's heirs and estate shall succeed to such rights and benefits
pursuant to the General Counsel's will or the laws of descent and distribution;
provided that the General Counsel shall have the right at any time and from time
to time, by notice delivered to the Company, to designate or to change the
beneficiary or beneficiaries with respect to such benefits.
15. NOTICES. Notices and all other communications provided for in this
Agreement shall be in writing and shall be delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid
(provided that international mail shall be sent via overnight or two-day
delivery), or sent by facsimile or prepaid overnight courier to the parties at
the addresses set forth below. Such notices, demands, claims and other
communications shall be deemed given:
(a) in the case of delivery by overnight service with guaranteed next day
delivery, the next day or the day designated for delivery;
(b) in the case of certified or registered U.S. mail, five days after deposit
in the U.S. mail; or
(c) in the case of facsimile, the date upon which the transmitting party
received confirmation of receipt by facsimile, telephone or otherwise;
provided, however, that in no event shall any such communications be deemed to
be given later than the date they are actually received. Communications that are
to be delivered by the U.S. mail or by overnight service or two-day delivery
service are to be delivered to the addresses set forth below:
to the Company:
Hemispherx Biopharma, Inc.
One Penn Center
0000 XXX Xxxx.
Xxxxxxxxxxxx, XX 00000
with a copy (which shall not constitute notice) to:
Chief Financial Officer
Hemispherx Biopharma, Inc.
One Penn Center
0000 XXX Xxxx.
Xxxxxxxxxxxx, XX 00000
or to the General Counsel:
Name: Xxxxxx X. Xxxxxxxxx
Address: 0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxx Zip: Xxxxxxxx Xxxxx, XX 00000
Each party, by written notice furnished to the other party, may modify the
applicable delivery address, except that notice of change of address shall be
effective only upon receipt.
16. LEGAL AND ENFORCEMENT COSTS. The provisions of this Section 16 shall
apply if it becomes necessary or desirable for the General Counsel to retain
legal counsel or incur other costs and expenses in connection with enforcing any
and all rights under this Agreement or any other compensation plan maintained by
the Company;
(a) The General Counsel shall be entitled to recover from the Company
reasonable attorneys' fees, costs and expenses incurred in connection with
such enforcement or defense.
(b) Payments required under this Section 16 shall be made by the Company to the
General Counsel (or directly to the General Counsel's attorney) promptly
following submission to the Company of appropriate documentation evidencing
the incurrence of such attorneys' fees, costs, and expenses.
(c) The General Counsel shall be entitled to select legal counsel; provided,
however, that such right of selection shall not affect the requirement that
any costs and expenses reimbursable under this Section 16 be reasonable.
(d) The General Counsel's rights to payments under this Section 16 shall
not be affected by the final outcome of any dispute with the Company.
17. SURVIVAL OF AGREEMENT. Except as otherwise expressly provided in this
Agreement, the rights and obligations of the parties to this Agreement shall
survive the termination of the General Counsel's engagement with the Company.
18. ENTIRE AGREEMENT. Except as otherwise provided herein, this Agreement
constitutes the entire agreement between the parties concerning the subject
matter hereof and supersedes all prior or contemporaneous agreements, between
the parties relating to the subject matter hereof; provided, however, that
nothing in this Agreement shall be construed to limit any policy or agreement
that is otherwise applicable relating to confidentiality, rights to inventions,
copyrightable material, business and/or technical information, trade secrets,
solicitation of employees, interference with relationships with other
businesses, competition, and other similar policies or agreement for the
protection of the business and operations of the Company and the subsidiaries.
19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, any one of which shall be deemed the original without reference to
the others.
IN WITNESS THEREOF, the General Counsel has hereunto set his hand, and the
Company has caused these presents to be executed in its name and on its behalf,
and its corporate seal to be hereunto affixed on this 11th day of March, 2005,
all as of the Effective Date.
/s/ Xxxxxx X. Xxxxxxxxx
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General Counsel
HEMISPHERX BIOPHARMA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Its: CEO
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ATTEST:
(SEAL)
