EXHIBIT 10.1
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT made as of April 29, 1997, between UC Television
Network Corp., a Delaware corporation (the "Company"), UC Holdings, L.L.C., a
Delaware limited liability company ("Holdings") and Xxxxx Xxxxx ("Executive").
In consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment. The Company shall employ Executive, and Executive accepts
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employment with the Company, upon the terms and conditions set forth in this
Agreement for the period beginning on the date hereof and ending as provided in
paragraph 5 hereof (the "Employment Period").
2. Position and Duties.
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(a) During the Employment Period, Executive shall serve as the
Chairman of the Board of Directors and Chief Executive Officer of the Company
and shall have the normal duties, responsibilities and authority of the Chairman
of the Board of Directors and Chief Executive Officer, subject to the direction
of the Company's board of directors (the "Board"). In connection with such
duties, Executive shall maintain an office in Atlanta, Georgia and shall be
reimbursed by the Company for all reasonable expenses incurred in maintaining
such office. Executive shall not be required by the Company to re-locate his
principal office to any location outside of the metropolitan Atlanta, Georgia
area during the Employment Period.
(b) Executive shall report to the Board, and Executive shall devote
his full business time, attention and skills to the business and affairs of the
Company, except as otherwise approved by the Board. Notwithstanding the
foregoing, nothing in this Agreement shall restrict Executive from (i) owning
and operating WFXP-TV in Erie, Pennsylvania and (ii) managing his personal
portfolio of investments so long as such activities do not materially interfere
or compete with the Company's business as presently constituted or as conducted
during the Employment Period. If Executive wishes to undertake additional
business ventures which may detract from his time at the Company, Executive
shall obtain the consent of Avy Xxxxx, who is a member of the Compensation
Committee to the Board.
3. Reimbursement of Investment Expenses. The Company shall reimburse
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Executive for all reasonable expenses incurred by Executive and not previously
reimbursed prior to the date of this Agreement in connection with Holdings
investment in the Company up to a maximum amount for such expenses of $50,000.
Such reimbursement shall be payable by the Company to Executive in cash within
ten (10) days after of the date of this Agreement.
4. Base Salary and Benefits.
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(a) During the Employment Period, Executive's base salary shall be
Three Hundred Thousand and No/100 Dollars ($300,000.00) per annum or such higher
rate as the Board may designate from time to time (the "Base Salary"), which
salary shall be payable semi-
monthly in regular installments in accordance with the Company's general payroll
practices. The Base Salary shall be increased on an annual basis by at least
ten percent (10%) over the Base Salary paid to Executive during the previous
year of the Employment Period, to be increased on each anniversary date of this
Agreement.
(b) The Company shall reimburse Executive for all reasonable expenses
incurred by him in the course of performing his duties under this Agreement
which are consistent with the Company's policies in effect from time to time
with respect to travel, entertainment and other business expenses, subject to
the Company's requirements with respect to reporting and documentation of such
expenses. Company shall also pay the rent with respect to 0000 Xxxx Xxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 and the reasonable operating expenses
of such office (including the salary a reasonable staff at such office). In
addition, during the Employment Period, the Company shall provide Executive with
an automobile allowance of Seven Hundred Fifty and No/100 Dollars ($750.00) per
month for the monthly payments, maintenance and operating expenses for any
automobile used by Executive.
(c) In addition to the Base Salary, Executive shall receive an annual
bonus in an amount to be determined by the Board of Directors of the Company,
based upon the reconsideration of the Compensation Committee.
(d) In addition to the Base Salary and any Bonus payable to Executive
pursuant to this paragraph 4, Executive shall be entitled to participate in all
employee benefit plans and programs of the Company for which senior executive
officers of the Company are eligible, including, to the extent available or
established by the Company, any:
(i) family health insurance, disability insurance, and dental
insurance coverage;
(ii) 401(k), retirement or similar benefit plans; and
(iii) stock option plans of the Company; and
(iv) Executive shall be entitled to such sick leave and vacation
as he believes appropriate given his responsibilities and duties.
5. Term.
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(a) The Employment Period shall commence on the date hereof and end on
the fourth anniversary of the date of this Agreement (the "Expiration Date");
provided, however, that the Employment Period shall be automatically extended
for one year on the Expiration Date and at the end of each subsequent year of
the Executive's employment (an "Extension Period"; any such Extension Periods
shall be included in the definition of Employment Period) unless at least six
(6) months prior to the Expiration Date or the end of the then current Extension
Period, either the Company or the Executive shall give written notice to the
other that this Agreement shall not be so extended; and provided further that
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(i) the Employment Period shall terminate prior to such date upon Executive's
permanent disability or incapacity (determined as set forth below), resignation
or death and (ii) the Employment Period may be terminated by the Company
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at any time prior to such date for Cause (as defined below) or without Cause.
Permanent Disability or incapacity shall occur if Executive misses sixty (60)
consecutive days of work and it is determined by an independent physician that
such disability or incapacity is permanent.
(b) If the Employment Period is terminated due to the Executive's
death, disability or incapacity, Executive shall be entitled to receive an
aggregate amount equal to twice his Base Salary. This amount shall be payable
by the Company in equal monthly installments over a period of two years
following termination of the Employment Period.
(c) If the Employment Period is terminated by the Company without
Cause, Executive shall be entitled to receive an aggregate amount equal to the
lesser of (i) four times his Base Salary and Performance Bonus (regardless of
the Company's performance), or (ii) his Base Salary and Performance Bonus
(regardless of the Company's performance) payable for the remainder of the
Employment Period. This amount shall be payable by the Company in equal monthly
installments over a period which is the lesser of (y) four years following
termination of the Employment Period or (z) the remainder of the Employment
Period, so long as Executive has not breached any of the provisions of
Paragraphs 9, 10 or 11 hereof.
(d) If the Employment Period is terminated by the Company for Cause,
upon the Executive's resignation or upon the expiration of the Employment Period
after either party has given notice of non-extension pursuant to Paragraph 5(a),
Executive shall be entitled to receive his Base Salary through the date of
termination and shall not be entitled to any other amounts hereunder.
(e) All of Executive's rights to fringe benefits hereunder (if any)
accruing at any time prior to or after the termination of the Employment Period
shall cease upon such termination; provided, however, that if Executive is
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terminated by the Company without Cause, the Company shall use its best efforts
to maintain such health insurance policies as are then in place with respect to
the Executive; provided that such insurance policies can be maintained at a
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reasonable cost to the Company; and provided further, that the Company shall
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only maintain such insurance policies until the earlier of (y) the end of the
period for which Executive is receiving severance payments pursuant to paragraph
5 hereof and (z) the date Executive accepts other employment and is covered
under such employer's health plan. If the Employment Period is terminated due
to the Executive's death or disability, the Company shall pay Executive,
pursuant to the terms and conditions of paragraph 3(b) of this Agreement, such
Performance Bonuses as are then due and payable.
(f) For purposes of this Agreement, "Cause" shall mean (i) the
conviction of a felony or a crime involving moral turpitude or the conviction of
any other act involving dishonesty, disloyalty or fraud with respect to the
Company or Holdings, (ii) gross negligence or willful misconduct with respect to
the Company, or (iii) any other material breach of this Agreement; or (iv) the
repeated failure to perform Executive's duties as directed by the Board;
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provided, however, that with respect to clause (iii) or (iv) above, if such
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failure or breach is capable of cure, such failure or breach, as the case may
be, shall not be deemed to constitute Cause unless such failure or breach
remains uncured after the expiration of 15 days after notice thereof to
Executive.
6. Vesting of Executive Securities.
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(a) All of the Investor Units will be fully vested as of the date of
purchase and shall not be subject to repurchase except as set forth in the LLC
Agreement. Except as otherwise provided in paragraph 6(b) below, the Management
Units will become vested, if, as of each such date, Executive is employed by the
Company, in equal proportions on the two anniversary dates following the date of
this Agreement (50% each anniversary date).
(b) If the Termination Date (as defined below) occurs prior to the
date when all Management Units shall become fully vested as provided in
paragraph 6(a) above, the cumulative percentage of the Management Units that
will become vested will be determined on a pro rata basis according to the
number of days elapsed since the prior anniversary date. Upon a Sale of the
Company or a Sale of Holdings, all of the Management Units, which have not yet
become vested shall become vested at the time of such event. All of the
Management Units which have become vested pursuant to this paragraph 6 are
referred to herein as "Vested Executive Securities", and all Unvested Management
Units are referred to herein as "Unvested Executive Securities."
7. Repurchase Option.
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(a) General Repurchase Option. Upon the occurrence of the Termination
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Date the Unvested Executive Securities (whether held by Executive or one or more
of Executive's Permitted Transferees) shall be subject to repurchase by Holdings
pursuant to the terms and conditions set forth in this paragraph 7 (the
"Repurchase Option"). The date on which Executive ceases to be employed by the
Company for any reason, other than termination without cause, is referred to
herein as the "Termination Date."
(b) Termination For Other Than Cause. Notwithstanding anything herein
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to the contrary, if Executive is terminated without Cause he shall be entitled
to retain all Vested and Unvested Executive Securities and there shall be no
right of repurchase.
(c) Purchase Price. Subject to paragraph 7(g) below, the purchase
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price for the Unvested Executive Securities on the Termination Date will be the
Executive's Original Cost; provided, however, that if Executive ceases to be an
employee of the Company for any reason other than due to his termination for
Cause or his resignation prior to the fourth anniversary of the date hereof
(excluding termination without Cause in which case there is no repurchase
option), then the Purchase Price for the Executive Securities shall be the Fair
Market Value for such Executive Securities, as of the date of termination.
(d) Repurchase Option. Holdings may elect to purchase all of the
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Unvested Executive Securities by delivering written notice (the "Holdings
Repurchase Notice") to the holder or holders of the Unvested Executive
Securities within 90 days after the Termination Date. The Repurchase Notice will
set forth the number of Unvested Executive Securities to be
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acquired from each holder, the aggregate consideration to be paid for such
Unvested Executive Securities and the time and place for the closing of the
transaction. The number of Unvested Executive Securities to be repurchased by
Holdings shall first be satisfied to the extent possible from the Unvested
Executive Securities held by Executive at the time of delivery of the Repurchase
Notice. If the number of Unvested Executive Securities then held by Executive
is less than the total number of Unvested Executive Securities Holdings has
elected to purchase, Holdings shall purchase the remaining Unvested Executive
Securities elected to be purchased from the other holder(s) of Unvested
Executive Securities under this paragraph 7, pro rata according to the number of
Unvested Executive Securities held by such other holder(s), respectively, at the
time of delivery of the Repurchase Notice (determined as nearly as practicable
to the nearest unit or other applicable denomination).
(e) Closing. Subject to paragraph 7(f) below, the closing of the
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purchase of the Unvested Executive Securities pursuant to the Repurchase Option
shall take place on the date designated by Holdings in the Repurchase Notice,
which date shall not be more than 60 days nor less than five days after the
later of (i) the delivery of such notice(s) or (ii) the Fair Market Valuation
Date. Payment for the Unvested Executive Securities to be purchased pursuant to
the Repurchase Option shall be made by Holdings in four (4) equal installments,
the first installment payable on the closing of such purchase, the second
payable four (4) months after the closing, the third payable eight (8) months
after the closing and the fourth payable twelve (12) months after the closing,
each such payment made by check or wire transfer of funds, at the option of
Holdings. Notwithstanding anything to the contrary contained in this Agreement,
Holdings may withdraw their Repurchase Notice at any time prior to the closing
of a purchase of the Unvested Executive Securities pursuant to the Repurchase
Option.
(f) Termination of Repurchase Option. The right of Holdings to
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repurchase Unvested Executive Securities pursuant to this paragraph 7 shall
terminate upon the first to occur of (i) the Sale of Holdings, or (ii) the Sale
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of the Company. The Repurchase Option set forth in this paragraph 7 will
continue with respect to the Unvested Executive Securities following any
transfer thereof other than a transfer to Holdings.
(g) Repurchase Restrictions. Notwithstanding anything to the contrary
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contained in this Agreement, all repurchases of Unvested Executive Securities
by Holdings shall be subject to applicable restrictions contained in the General
Corporate Law of the State of Delaware. If any such restrictions prohibit the
repurchase of the Unvested Executive Securities hereunder which Holdings is
otherwise entitled or required to make, Holdings may make such repurchases as
soon as it is permitted to do so under such restrictions.
(h) Section 38B Election. Within 30 days after Executive purchases
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any Executive Securities from Holdings, Executive may make an effective election
with the Internal Revenue Service under Section 83(b) of the Internal Revenue
Code and the regulations promulgated thereunder.
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8. Definitions.
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"Executive Securities" mean: (i) any Investor Units acquired by
Executive, (ii) any Management Units acquired by Executive, and (iii) any equity
or debt securities issued or issuable directly or indirectly with respect to the
Executive Securities referred to in clauses (i) and (ii), above by any of a
conversion, split, distribution or dividend or in connection with a combination
of securities, recapitalization, merger, consolidation or other reorganization.
Executive Securities shall continue to be Executive Securities in the hands of
any holder thereof (other than Holdings or any of its members).
"Fair Market Valuation Date" with respect to any Executive Securities
means the date on which its Fair Market Value is finally determined pursuant to
the definition of "Fair Market Value."
"Fair Market Value" of the Executive Securities means the Fair Market
Value as shall be determined jointly in good faith by Holdings and Executive;
provided that if Holdings and Executive cannot so agree, then such value shall
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be determined by an independent investment banking firm of national or regional
reputation utilizing valuation techniques then commonly used for the valuation
of such investment interests, which investment banking firm will be jointly
selected by Holdings and Executive in good faith, or if such parties cannot
agree on an investment banking firm, then such value shall be determined by an
investment banking firm selected by lot from a group of six firms possessing the
above described qualifications (three of whom shall be selected by Holdings and
three of whom shall be selected by Executive) from which one firm designated as
objectionable by each of Holdings and Executive has been eliminated (in either
case, the investment banking firm's determination shall be conclusive). The
expenses of any such appraisal shall be borne equally by the Holdings and
Executive. In determining the Fair Market Value of Executive Securities to be
purchased pursuant to the exercise of the Repurchase Option, the parties or the
investment bank, as the case may be, shall use the average of the thirty (30)
day trading price of Common Stock of the Company. There shall be no discount in
value to reflect minority interest, and it shall be assumed for purposes of such
determination that there are no restrictions on transfer of any Executive
Securities, that a willing buyer exists for purchase of the same and that the
Executive is under no compulsion to sell any Executive Securities. References
in this definition to Executive shall mean Executive's personal representative
if he is deceased or incapacitated.
"Investor Units" shall have the meaning ascribed to it in the LLC
Agreement.
"LLC Agreement" shall mean the Limited Liability Company Agreement of
U-C Holdings, L.L.C. dated April 25, 1997.
"Management Units" shall have the meaning ascribed to it in the LLC
Agreement.
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"Original Cost" of the Executive Securities will be the price per such
security paid by Executive pursuant to this Agreement or otherwise (in each
case, as proportionately
adjusted for all subsequent security splits, security dividends, security
distributions and other recapitalizations affecting the Executive Securities).
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
9. Confidential Information. The Executive acknowledges that the
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information, observations and data obtained by him while employed by the Company
concerning the business or affairs of the Company ("Confidential Information")
are the property of the Company. Therefore, Executive agrees that, except in
the performance of duties for the Company, he shall not disclose to any
unauthorized person or use for his own account any Confidential Information
without prior written consent of the Board, except (i) to the extent that the
aforementioned matters become generally known to and available for use by the
public other than as a result of Executive's acts or omissions to act, (ii) as
necessary to comply with compulsory legal process, provided that Executive shall
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provide prior notice to the Company regarding such disclosure and the Company,
as applicable, shall have the right to contest such disclosure, (iii) as
necessary to counsel and other professional advisors retained by the Executive,
subject to the attorney/client privilege or a valid and binding non-disclosure
agreement between Executive and such professional and (iv) disclosures of
information obtained from a third party free of restrictions or disclosure of
information in Executive's possession prior to the date hereof which was
obtained from a source other than the Company or its predecessors. Executive
shall deliver to the Company at the termination of the Employment Period, all
memoranda, notes, plans, records, reports, computer tapes and software and other
documents and data (and copies thereof) relating to Confidential Information,
Work Product or the business of the Company which he may then possess or have
under his control.
10. Inventions and Patents. Executive agrees that all ideas, concepts,
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marketing strategies, management techniques, product development, methods,
designs, analyses, drawings, reports, and all similar or related information
which relates to the Company's actual or anticipated business, research and
development or existing or future products or services and which are conceived,
developed or made by Executive while employed by the Company ("Work Product")
belong to the Company. Executive will promptly disclose such Work Product to
the Board and perform all actions reasonably requested by the Board (whether
during or after the Employment Period) to establish and confirm such ownership
(including, without limitation, assignments, consents, powers of attorney and
other instruments).
11. Non-Compete, Non-Solicitation.
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(a) Executive acknowledges that in the course of his employment with
the Company he will become familiar with the Company's trade secrets and with
other confidential information concerning the Company and that his services will
be of special, unique and extraordinary value to the Company. Therefore,
Executive agrees that, during the Employment Period, during any period in which
he is receiving payments pursuant to paragraph 5 or for which he has received a
lump sum payment pursuant to this Agreement or any subsequent agreement, and, if
terminated for Cause or by Executive's resignation before the Expiration Date,
for two years after such termination (the "Non-Compete Period"), he shall not
directly or indirectly own, manage, control, participate in, consult with,
render services for, or in any manner engage in any
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business competing with the businesses of the Company as such businesses exist
or are in process on the date of the termination of Executive's employment,
within any geographical area in which the Company engages or plans to engage in
such businesses, including without limitation, hold a significant management
position with any information or entertainment network which markets to colleges
or universities or any direct broadcast satellite operator serving markets where
the Company operates (including markets in which, during the Employment Period,
the Company has executed or was in the process of negotiating a written
agreement to acquire such an operator). Notwithstanding the foregoing, nothing
herein shall prohibit Executive from (i) continuing his ownership, management
and/or control of any business in which and to the extent which he held such
interests prior to the Non-Compete Period, or (ii) being a passive owner of not
more than 5% of the outstanding stock of any class of a company which is
publicly traded, so long as Executive has no active participation in the
management or the business of such company.
(b) During the Employment Period and for eighteen months thereafter,
Executive shall not directly or indirectly through another entity (i) solicit,
encourage, interview, entice, discuss with or induce or attempt to induce any
employee of the Company to leave the employ of the Company, or in any way
interfere with the relationship between the Company and any employee thereof,
(ii) hire any person who was an employee of the Company at any time during the
Employment Period or (iii) induce or attempt to induce or attempt to induce any
customer, supplier, licensee or other business relation of the Company to cease
doing business with the Company, or in any way interfere with the relationship
between any such customer, supplier, licensee or business relation and the
Company.
12. Enforcement. If, at the time of enforcement of paragraphs 9, 10 or 11
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of this Agreement, a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parities hereto agree that
the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope and area.
Because Executive's services are unique and because Executive has access to
Confidential Information and Work Product, the parties hereto agree that money
damages would be an inadequate remedy for any breach of this Agreement.
Therefore, in the event a breach or threatened breach of this Agreement, the
Company or its successors or assigns may, in addition to other rights and
remedies existing in their favor, apply to any court of competent jurisdiction
for specific performance and/or injunctive or other relief in order to enforce,
or prevent any violations of, the provision hereof (without posting a bond or
other security).
13. Executive Representations. Executive hereby represents and warrants
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to the Company that (i) the execution, delivery and performance of this
Agreement by Executive does not and will not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (ii) Executive is
not a party to or bound by any employment agreement, non-compete agreement or
confidentiality agreement with any other person or entity, which would prohibit
his performance under this Agreement and (iii) upon the execution and delivery
of this Agreement by the Company, this Agreement shall be valid and binding
obligation of Executive, enforceable in accordance with its terms.
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14. Survival. Paragraphs 9, 10, 11, 12 and 13 shall survive and continue
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in full force in accordance with their terms notwithstanding any termination of
the Employment Period.
15. Notices. Any notice provided for in this Agreement shall be in
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writing and shall be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by telecopy or reputable
overnight courier service (charges prepaid) to the recipient at the address or
telecopy number below indicated:
Notices to Holdings:
U-C Holdings, L.L.C.
c/o Xxxxxx Xxxxx & Partners, L.P.
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: 312) 42202424
Attention: Avy X. Xxxxx
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.:(000) 000-0000
Attention: Xxxxxxxx Xxxxxx, Esq.
Notices to Executive:
Xxxxx Xxxxx
0000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telecopy No.: (000) 000-0000
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Notices to Company:
UC Television Network Corp.
000 Xxxxx Xxxxxx, Xxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx Xxxxx
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.:(000) 000-0000
Attention: Xxxxxxxx Xxxxxx, Esq.
or such other address or telecopy number or to the attention of such other
person as the recipient party shall have specified by prior written notice to
the sending party. any notice under this Agreement will be deemed to have been
given when so delivered or sent or, if mailed, five days after deposit in the
U.S. mail.
16. Severability. Whenever possible, each provision of this agreement will
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be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
17. Complete Agreement. This Agreement and those documents expressly
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referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
18. Counterparts. This Agreement may be executed in separate
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counterparts, each of which to be an original and all of which taken together
constitute one and the same agreement.
19. Successors and Assigns. This Agreement is intended to bind and inure
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to the benefit of and be enforceable by all parties and their respective heirs,
successors and assigns, except that Executive may not assign his rights or
delegate his obligations hereunder without the prior written consent of the
Company.
20. Choice of Law. This Agreement will be governed by the internal law,
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and not the laws of conflicts, of the State of Georgia.
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21. Amendment and Waiver. The provisions of this Agreement may be amended
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or waived with the prior written consent of the Company and Executive, and no
course of conduct or failure or delay in enforcing the provisions of this
Agreement shall affect the validity binding effect or enforceability of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
UC TELEVISION NETWORK CORP.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx,
Chairman of the Board and
Chief Executive Officer
U-C HOLDINGS, L.L.C.
By: XXXXXX XXXXX & PARTNERS, L.P.
Its: Managing Member
By: Xxxxxx Xxxxx & Partners, L.L.C.
Its: General Partner
By: /s/ Avy X. Xxxxx
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Avy X. Xxxxx
Its: Manager
/s/ Xxxxx Xxxxx
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XXXXX XXXXX
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