EXHIBIT 10.9
NOTE, PREFERRED STOCK AND WARRANT
PURCHASE AGREEMENT
between
CELL PATHWAYS, INC.
and
THE XXXXXXX XXXXX GROUP, L.P.
NOTE, PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
Note, Preferred Stock and Warrant Purchase Agreement (the "Agreement"),
dated as of December 13, 1996, between Cell Pathways, Inc. (the "Corporation"),
a Delaware corporation and The Xxxxxxx Sachs Group, L.P., a Delaware limited
partnership (the "Investor").
Witnesseth:
Whereas, upon the terms and conditions of this Agreement, the Corporation
wishes to sell to the Investor, and the Investor wishes to purchase from the
Corporation, 675,680 shares of a new series of preferred stock to be designated
by the Corporation after the date hereof, Series F Convertible Preferred Stock,
par value $.01 per share, of the Corporation (the "Series F Preferred Stock")
and warrants, substantially in the form of Exhibit A hereto, to purchase 33,784
shares of Series F Preferred Stock from the Corporation (the "Warrants") for an
aggregate purchase price of $2,500,016 (the "Purchase Price").
Whereas, the sale of Series F Preferred Stock and Warrants to the Investor
pursuant to this Agreement will be made as part of a private placement of Series
F Preferred Stock by the Corporation in compliance with the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder (the
"Securities Act") (the "Series F Offering") which is intended by the Corporation
to raise $10,000,000 or more.
Whereas, the terms of the Series F Preferred Stock are as set forth in the
form of the Fifth Amended and Restated Certificate of Incorporation of the
Corporation, attached hereto as Exhibit B, which form has been approved by the
Investor and by the Board of Directors of the Corporation and is currently being
submitted to the stockholders of the Corporation for their approval (the
"Charter").
Whereas, the form of the Third Amended and Restated Stockholders Agreement,
attached hereto as Exhibit C, which form has been approved by the Investor and
by the Board of Directors of the Corporation and is currently being submitted to
the stockholders for their approval (the "Amended Stockholders' Agreement") sets
forth certain arrangements between the Corporation, the Investor and the parties
thereto with respect to ownership of capital stock of the Corporation;
Whereas, in order to facilitate the Series F Offering and provide the
Corporation with additional working capital, the Corporation wishes to sell to
the Investor and the Investor wishes to purchase from the Corporation a note,
substantially in the form attached hereto as Exhibit D (the "Note") in the
aggregate principal amount of $1,000,000 and, at the Subsequent Closing (as
defined herein) the aggregate principal amount of the Note together with any
interest accrued thereon will be credited against the purchase price payable by
the Investor at the Subsequent Closing in connection with its purchase of Series
F Preferred Stock and Warrants hereunder.
1.
Accordingly, the parties hereto hereby agree as follows:
Section 1. Purchase and Sale.
1.1 The Initial Closing. At the Initial Closing (as defined in Section
1.3), the Investor shall purchase from the Corporation and the Corporation shall
sell to the Investor the Note in the aggregate principal amount of $1,000,000.
The aggregate purchase price to be paid by the Investor for the Note is
$1,000,000.
1.2 The Subsequent Closing. Subject to the conditions specified in
Section 4, at the Subsequent Closing (as defined in Section 1.3) the Investor
shall purchase and receive from the Corporation and the Corporation shall sell
and deliver to the Investor, 675,680 shares of Series F Preferred Stock and
Warrants to purchase 33,784 shares of Series F Preferred Stock (the shares of
Series F Preferred Stock issuable upon exercise of the Warrants being referred
to as the "Warrant Shares"). The aggregate purchase price to be paid by the
Investor for the Series F Preferred Stock and the Warrants under this Section
1.2 is $2,500,016 (the "Purchase Price"). At the Subsequent Closing, the
outstanding principal amount of the Note together with any interest accrued
thereon shall be applied towards payment of the Purchase Price and the Purchase
Price shall be thereby reduced on a dollar for dollar basis.
1.3 The Closings. (a) The closing of the transactions contemplated by
Section 1.1 (the "Initial Closing") shall take place simultaneously with the
execution and delivery of this Agreement. At the Initial Closing, the
Corporation shall deliver to the Investor the Note registered in the name of the
Investor or its nominee and the Investor shall pay $1,000,000 in immediately
available funds to the Corporation by wire transfer to Cell Pathways, Inc.
account No. 0000000 with the Northern Trust Company at 00 Xxxxx Xx Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, using Bank Routing Number 000000000.
(b) The closing of the transactions contemplated by Section 1.2
shall take place as soon as practicable after the satisfaction or waiver of the
conditions set forth in Section 4 (such date being referred to as the
"Subsequent Closing"; together with the Initial Closing, each a "Closing"). At
the Subsequent Closing, the Corporation shall deliver to the Investor a
certificate or certificates representing the shares of Series F Preferred Stock
and the Warrants purchased by the Investor registered in the name of the
Investor or its nominee. Delivery of such certificates and the Warrants to the
Investor shall be made against, and payment of the Purchase Price shall be
satisfied by, (i) return of the Note and application of the outstanding
principal amount of the Note together with any accrued interest thereon towards
payment of the Purchase Price and (ii) receipt by the Corporation from the
Investor of the remainder of the Purchase Price, which shall be paid by wire
transfer in immediately available funds to Cell Pathways, Inc. account No.
0000000 with the Northern Trust Company at 00 Xxxxx Xx Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, using Bank Routing Number 000000000.
(c) Each Closing shall take place at the offices of Fried, Frank,
Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, XX 00000.
2.
Section 2. Representations and Warranties of the Corporation. The Corporation
hereby represents and warrants to the Investor as of the date hereof and as of
the Subsequent Closing as follows:
2.1 Authorization. (a) The execution and delivery by the Corporation of
the Agreement, the Note and the Warrants (collectively, the "Documents") and the
performance by the Corporation of the Note has been duly authorized by all
requisite corporate action on the part of the Corporation (including any
required stockholder approval). At the Subsequent Closing, the performance by
the Corporation of the Agreement and the Warrants will have been duly authorized
by all requisite corporate action on the part of the Corporation (including any
required stockholder approval). Each of the Agreement and the Note constitutes,
and the Warrants when executed will constitute, a legal, valid and binding
obligation of the Corporation, enforceable against the Corporation, in
accordance with its terms, except to the extent that enforceability may be
limited by bankruptcy, insolvency or other similar laws affecting creditors'
rights generally.
(b) The authorization, issuance, sale and delivery of the Note has
been duly authorized by all requisite corporate action on the part of the
Corporation. As of the Subsequent Closing, the authorization, issuance, sale and
delivery of Series F Preferred Stock and Warrants pursuant to this Agreement
and the authorization, reservation, issuance, sale and delivery of the Warrant
Shares and the shares of common stock, par value $.01 per share, of the
Corporation ("Common Stock") issuable upon conversion of any share of Series F
Preferred Stock purchased by the Investor hereunder (including any Warrant
Share) (such shares of Common Stock being referred to collectively as the
"Conversion Shares") have been duly authorized by all requisite corporate action
on the part of the Corporation (including any required stockholder approval).
Each share of Series F Preferred Stock issued pursuant to this Agreement
(including upon exercise of a Warrant) and each share of Common Stock issued
upon conversion of any share of Series F Preferred Stock (including upon
conversion of any Warrant Share) will, when issued and assuming payment of the
Purchase Price by the Investor in respect thereof, be validly issued and
outstanding, fully paid and nonassessable and will have been issued in
compliance with the Securities Act and applicable state securities and blue sky
laws.
2.2 Capitalization. The authorized capitalization of the Corporation on
the date hereof is as stated in the Corporation's Fourth Amended and Restated
Certificate of Incorporation in effect on the date hereof and, as of the
Subsequent Closing, will be as stated in the Charter.
(a) Preferred Stock. 872,400 shares designated as Series A
Convertible Preferred Stock are issued and outstanding; 848,100 shares
designated Series B Convertible Preferred Stock are issued and outstanding;
700,000 shares designated Series C Convertible Preferred Stock are issued and
outstanding; 616,807.5 designated Series D Convertible Preferred Stock are
issued and outstanding; 2,969,704 shares designated Series E Convertible
Preferred Stock are issued and outstanding and 61,250 shares of Redeemable
Preferred Stock are issued and outstanding. Except as set forth on Schedule 2.2,
the terms, designations, powers, preferences and relative, participating,
optional and other special rights, and the qualifications, limitations and
restrictions, of each series of Preferred Stock of the Corporation are stated in
the
3.
Fourth Amended Certificate of Incorporation of the Corporation, the Charter,
the Stockholders' Agreement (as defined in Section 4), and the Documents, copies
of which have previously been furnished to the Investor.
(b) Common Stock. 2,718,845 shares of Common Stock are issued and
outstanding.
(d) Due Authorization, etc. All of the issued and outstanding shares
of capital stock of the Corporation have been duly authorized, are validly
issued, fully paid and nonassessable and have been issued in compliance with the
Securities Act and all applicable state securities or "blue sky" laws.
(e) No Options, etc. Except for issuance of shares of Series F
Preferred Stock in connection with the Series F Offering, the outstanding shares
of Preferred Stock, options to purchase 476,000 shares of Common Stock pursuant
to the Corporation's stock option plan and warrants to purchase 235,161 shares
of Series E Convertible Preferred Stock, there are no outstanding or authorized
warrants, options, agreements, convertible securities or other commitments
pursuant to which the Corporation is or may become obligated to issue any shares
of the capital stock or other securities of the Corporation.
(f) Restrictions. Except as set forth on Schedule 2.2(f) or as
contemplated by the Documents, the Charter and the Stockholders' Agreement,
there are, and immediately after each Closing there will be, no agreement,
restriction or encumbrance (such as a preemptive or similar right, right of
first refusal, right of first offer, proxy, voting agreement, voting trust,
registration rights agreement, stockholders' agreement, etc., whether or not the
Company is a party thereto) with respect to the purchase, sale or voting of any
shares of capital stock or other securities of the Corporation pursuant to any
provision of law, the Certificate of Incorporation or By-Laws of the
Corporation, any agreement or otherwise.
2.3 Reservation of Shares. At the Subsequent Closing, the Corporation will
have reserved a sufficient number of shares of (i) Series F Preferred Stock
issuable upon conversion of the Warrants, and (ii) Common Stock for issuance to
the Investor upon the conversion of the Series F Preferred Stock issued to the
Investor in accordance with this Agreement and upon conversion of the Warrant
Shares.
2.4 Financial Statements; Undisclosed Liabilities. The Corporation has
furnished to the Investor audited statements of operations, stockholders' equity
and cash flows of the Corporation for the fiscal year ended December 31, 1995,
and the audited balance sheet of the Corporation as of December 31, 1995, and
the unaudited statements of operations, stockholders' equity and cash flows of
the Corporation for the nine months ended September 30, 1996 and the unaudited
balance sheet of the Corporation as of September 30, 1996 (the "September 30
Financial Statements") (all such financial statements collectively, the
"Financial Statements"). Except as described in the notes thereto, the Financial
Statements were prepared in all material respects in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods covered thereby, present fairly and accurately in all material respects
the financial condition of the Corporation and the results of operations of the
4.
Corporation for the respective periods covered, and are consistent with the
books and records of the Corporation. The Corporation does not have any
liabilities or obligations (whether accrued, absolute, contingent, unliquidated
or otherwise, whether due or to become due) other than liabilities or
obligations reserved against or otherwise disclosed in the September 30
Financial Statements, except those incurred since September 30, 1996 in the
ordinary course of business consistent (in amount and kind) with past practice
(none of which is a liability resulting from breach of contract, breach of
warranty, tort, infringement, claim or lawsuit).
2.5 No Conflict. The execution, delivery and performance by the
Corporation of the Documents, the consummation by the Corporation of the
transactions contemplated hereby and thereby, the issuance, sale and delivery by
the Corporation of the Note, the Series F Preferred Stock, the Warrants, Warrant
Shares and the Conversion Shares will not (a) violate any provision of law,
statute, rule or regulation, or any ruling, writ, injunction, order, judgment or
decree of any court, administrative agency or other governmental body applicable
to the Corporation, or any of its properties or assets, (b) conflict with or
result in any breach of any of the terms, conditions or provisions of, or
constitute (with due notice or lapse of time, or both) a default (or give rise
to any right of termination, cancellation or acceleration) under, or result in
the creation of any encumbrance upon any of the properties or assets under, any
contract to which the Corporation is a party or its assets are bound, (c)
require the prior consent or approval of or by, or notification of or filing
with, any person (governmental or private) or (d) violate the Certificate of
Incorporation or the By-Laws of the Corporation.
2.6 Intellectual Property Rights. (a) The Corporation owns or has the
right to use or license all of the Intellectual Property (as defined below)
necessary for the operation of the business of the Corporation as currently
conducted and as proposed to be conducted. Each item of Intellectual Property
owned or used by the Corporation immediately prior to the Initial Closing
hereunder will be owned or available for use by the Corporation on identical
terms and conditions immediately subsequent to any Closing hereunder.
(b) Except as set forth on Schedule 2.6(b) hereto, to the best
knowledge of the Corporation, the Corporation has not interfered with, infringed
upon or misappropriated any Intellectual Property rights of third parties, and
the Corporation has never received any charge, complaint, claim, demand or
notice alleging an such interference, infringement or misappropriation. The
Corporation has no knowledge that the Corporation will interfere with, infringe
upon or misappropriate any Intellectual Property rights of third parties as a
result of the operation of the business after the closing. To the best knowledge
of the Corporation, no third party has interfered with, infringed upon or
misappropriated any Intellectual Property rights of the Corporation.
(c) To the best knowledge of the Corporation, Schedule 2.6(c) hereto
identifies United States patent and patent applications, registered and
unregistered trademarks, service marks and trade names and registered and
unregistered copyrights of the Corporation.
(d) Except as disclosed on Schedule 2.6(d), to the best knowledge of
the Corporation, no Intellectual Property owned by or licensed to the
Corporation is invalid or
5.
unenforceable, is subject to any encumbrance or other restriction or is subject
to any pending or threatened claim, charge, action, suit, or proceeding
challenging the validity, enforceability or the ownership rights thereto.
(e) To the best knowledge of the Corporation, no proprietary
information, the confidentiality of which is material to the business of the
Corporation, has been disclosed to any third party other than pursuant to a
nondisclosure agreement or other than to the Corporation's representatives.
"Intellectual Property" means (a) all inventions and discoveries
(whether patentable or unpatentable and whether or not reduced to practice), all
improvements thereto, and all patents, patent applications and patent
disclosures, together with all reissuances, continuations, continuations-in-
part, revisions, extensions and reexaminations thereof, (b) all trademarks,
service marks, and trade names thereof and including all goodwill associated
therewith, and all applications, registrations and renewals in connection
therewith, (c) all copyrightable works, all copyrights and all applications,
registrations and renewals in connection therewith, (d) all know-how, trade
secrets and confidential business information, whether patentable or
unpatentable and whether or not reduced to practice (including ideas, research
and development, know-how, formulas, compositions, manufacturing and production
process and techniques, technical data, designs, drawings, specifications,
customer and supplier lists, pricing and cost information and business and
marketing plans and proposals), (e) all computer software (including data and
related documentation), (f) all other proprietary rights, (g) all copies and
tangible embodiments thereof (in whatever form or medium) and (h) all licenses
and agreements in connection therewith.
2.7 Disclosure. Neither this Agreement nor any certificate, instrument or
written statement furnished or made to the Investor by or on behalf of the
Corporation in connection with this Agreement, including any offering memorandum
relating to the Series F Offering, contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
contained herein and therein not misleading. There is no fact which the
Corporation has not disclosed to the Investor or its counsel in writing of which
the Corporation is aware and which is not generally available to the public
which materially and adversely affects or which could reasonably be expected to
materially and adversely affect the business, financial condition, operations,
property or affairs of the Corporation or the ability of the Corporation to
perform its obligations under the Documents.
2.8 Insurance. The Company maintains insurance with reputable insurers
against risks of liability, casualty and fire and other losses and liabilities
customarily obtained to cover comparable businesses and assets in amounts, scope
and coverage which are consistent with prudent industry practice. All such
policies and other instruments are in full force and effect and all premiums
with respect thereto have been paid. To the Company's best knowledge, the
Company has not failed to give any notice or present any claim under any such
insurance policy in due and timely fashion or as required by any of such
insurance policies or has not otherwise, through any act, omission or non-
disclosure, jeopardized or impaired full recovery of any claim under such
policies. There are no claims by the Company under any of such policies to which
6.
any insurance company is denying liability or defending under a reservation of
rights or similar clause. The Company has not received notice of any pending or
threatened termination of any of such policies or any material premium increases
for the current policy period with respect to any of such policies and the
consummation of the transactions contemplated by this Agreement will not result
in any such termination or premium increase.
Section 3. Covenants.
3.1 Series F Offering. As soon as practicable following the Initial
Closing, the Corporation shall use its best efforts to consummate the Series F
Offering including, the timely preparation and delivery to potential investors
of an offering memorandum (the "Offering Memorandum") to be used in connection
with the Series F Offering. The Corporation shall deliver a copy of the Offering
Memoranda to the Investor at the same time that it is first delivered to any
potential investor or earlier. The Offering Memorandum shall not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading. In
no event shall the Corporation sell an amount of securities in the Series F
Offering which will result in the aggregate gross proceeds to be received by the
Corporation in the Series F Offering to exceed $15,000,000, without obtaining
the prior written consent of the Investor.
3.2 No Equity Issuances. Until the Subsequent Closing, the Corporation
shall not issue any equity or debt securities (including any convertible
securities) without the consent of the Investor, other than in connection with
the Series F Offering.
Section 4. Conditions to the Subsequent Closing. The obligation of the Investor
to consummate the transactions to be performed by it in connection with the
Subsequent Closing shall be subject to the satisfaction of the following
conditions:
(a) The Initial Closing shall have occurred.
(b) The Series F Offering shall have commenced and the Company shall
have delivered to the Investor a copy of the Offering Memorandum.
(c) The representations and warranties set forth in Section 2 above
shall be true and correct in all material respects as of the Subsequent Closing.
(d) The Corporation shall have performed and complied with all of its
covenants hereunder in all material respects.
(e) The Amended Stockholders' Agreement shall be duly executed and
delivered by the Corporation, the Investor and the other parties thereto.
(f) The Corporation shall have delivered to the Investor a copy of
the Charter certified by the Secretary of State of Delaware which shall be
substantially in the form attached hereto as Exhibit A.
7.
(g) The Corporation shall have delivered evidence satisfactory to the
Investor that all consents and waivers of its stockholders necessary to
effectuate the transactions contemplated by this Agreement have been obtained.
(h) No event or change shall have occurred which, individually or in
the aggregate, has a material adverse effect on the business, assets, liability,
properties, condition (financial or otherwise), operations or results of
operations of the Corporation.
Section 5. Termination. The obligation of the parties to effect the Subsequent
Closing may be terminated (i) by the mutual written consent of the Corporation
and the Investor or (ii) by the Investor, without liability to such party on
account of such termination (provided the terminating party is not otherwise in
breach and/or default of this Agreement), if the Subsequent Closing shall not
have occurred on or before January 31, 1997.
Section 6. Further Assurances. At any time or from time to time after the date
hereof, the Corporation, on the one hand, and the Investor, on the other hand,
agree to cooperate with each other, and at the request of the other party, to
execute and deliver any further instruments or documents and to take all such
further action as the other party may reasonably request in order to evidence or
effectuate the consummation of the transactions contemplated hereby relating to
the Initial Closing or Subsequent Closing, as applicable, and to otherwise carry
out the intent of the parties hereunder.
Section 7. Successors and Assigns. This Agreement shall bind and inure to the
benefit of the Corporation and the Investor and the respective successors,
assigns, heirs and personal representatives of the Corporation and the Investor.
Section 8. Entire Agreement. This Agreement and the other writings referred to
herein or delivered pursuant hereto which form a part hereof contain the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior and contemporaneous arrangements or understandings with
respect thereto.
Section 9. Notices. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or sent by telecopy, nationally
recognized overnight courier or first class registered or certified mail, return
receipt requested, postage prepaid, addressed to such party at the address set
forth below or such other address as may hereafter be designated in writing by
such party to the other parties:
8.
(i) if to the Corporation, to:
Cell Pathways, Inc.
Xxx Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxxxx, XX 00000
000-000-0000
Attention: Xxxxxx X. Towarnula
With a copy faxed to Xxxxxxx X. Xxxx at 000-000-0000
(ii) if to the Investor, to:
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx Grunovsky
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxx Xxxxx, Esq.
All such notices, requests, consents and other communications shall be deemed to
have been given when received.
Section 10. Amendments. The terms and provisions of this Agreement may be
modified or amended, or any of the provisions hereof waived, temporarily or
permanently, pursuant to the written consent of the Corporation and the
Investor.
Section 11. Transfer Taxes. The Corporation agrees that it will pay, and will
hold the Investor harmless from any and all liability with respect to any
transfer, documentary, stamp or other similar taxes which may be determined to
be payable in connection with the execution and delivery and performance of
this Agreement, and that it will similarly pay and hold the Investor harmless
from all taxes in respect of the issuance of the Note, Series F Preferred Stock,
the Warrants, the Warrant Shares and the Conversion Shares to the Investor.
Section 12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
Section 13. Nouns and Pronouns. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of names and pronouns shall include the plural and vice
versa.
9.
Section 14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to the
principles of conflicts of law. Each of the parties hereto hereby irrevocably
and unconditionally consents to submit to the exclusive jurisdiction of the
courts of the State of New York and of the United States of America, in each
case located in the County of New York, for any action, proceeding or
investigation in any court or before any governmental authority ("Litigation")
arising out of or relating to this Agreement and the transactions contemplated
hereby (and agrees not to commence any Litigation relating thereto except in
such courts), and further agrees that service of any process, summons, notice or
document by U.S. registered mail to its respective address set forth in this
Agreement shall be effective service of process for any Litigation brought
against it in any such court. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any Litigation
arising out of this Agreement or the transactions contemplated hereby in the
courts of the State of New York or the United States of America, in each case
located in the County of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such Litigation brought in any such court has been brought in an
inconvenient forum.
Section 15. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid, but if any
provision of this Agreement is held to be invalid or unenforceable in any
respect, such invalidity or unenforceability shall not render invalid or
unenforceable any other provision of this Agreement.
Section 16. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
10.
IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as
of the date first above written.
CELL PATHWAYS, INC.
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X.Xxxx
Title: Vice President
THE XXXXXXX XXXXX GROUP, L.P.
By: THE XXXXXXX SACHS CORPORATION
/s/ J. Xxxxx Xxxxxx
----------------------------
J. Xxxxx Xxxxxx
Executive Vice President
11.
