EXHIBIT 10.11
EMPLOYMENT AGREEMENT BETWEEN FIRST SECURITY BANCORP, INC. AND R. XXXXXXX
XXXXXXXXXX
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into this
1st day of December, 2003 by and between the FIRST SECURITY BANCORP, INC., a
Kentucky corporation headquartered in Lexington, Kentucky ("Holding Company"),
FIRST SECURITY BANK OF LEXINGTON, a Kentucky corporation authorized to transact
a banking business in Kentucky and headquartered in Lexington, Kentucky
("Bank"), and R. XXXXXXX XXXXXXXXXX ("Executive").
WHEREAS, Holding Company is the holding company of Bank; and
WHEREAS, Executive and Bank and Holding Company desire to enter into this
Agreement to set out the terms under which Executive is being employed as the
President and Chief Executive Officer of Bank and Holding Company.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and conditions contained herein, and intending to be legally bound,
the parties hereby agree as follows:
1. EMPLOYMENT. Bank hereby employs Executive to serve as President and
Chief Executive Officer of Bank and Holding Company, and Executive accepts such
employment and agrees to devote his full time, attention and best efforts to the
business and affairs of Bank and Holding Company and to perform his duties
faithfully and in a manner consistent with and in furtherance of the best
interests of Bank and Holding Company. Executive's duties shall include the
management and supervision of Bank's operations and such other duties as may be
reasonably determined and assigned to Executive by the Board of Directors of
Bank from time to time.
2. TERM OF EMPLOYMENT. This Agreement shall be effective for a period
commencing as of December l, 2003, through and including November 30, 2006,
subject to termination as hereinafter provided. On December 1, 2004, and each
December 1 thereafter, this Agreement shall automatically be extended for
successive one (1) year terms unless Bank gives to Executive a written notice of
intent to cancel this Agreement at least sixty (60) calendar days before
December 1 of any year.
3. COMPENSATION, AND BENEFITS.
A. During the term of this Agreement, Bank shall pay Executive as
compensation for his services hereunder a per annum salary of $150,000, or at
such higher salary as may be established annually by the Board of Directors of
Bank each year (provided the annual salary fixed by the Board of Directors shall
not be less than the salary paid for the immediately preceding year) (the
"Salary"). The Salary shall be payable in accordance with the regular payroll
practices of the Bank.
B. In addition, Bank will purchase and maintain life insurance
insuring the life of Executive, the proceeds of which will be split between Bank
and Executive's designated beneficiary in the event of Executive's death. The
proceeds under that insurance policy are intended (i) to provide death benefits
to Bank in an amount sufficient to cover the premium costs and expenses incurred
by Bank to maintain that insurance policy and the after-tax cost to Bank of the
benefits paid or payable to Executive (or his beneficiary or estate)
(collectively, the "cost recovery amount") and (ii) to provide death benefits of
$500,000, a portion of which is payable to Bank and the remainder of which is
payable to Executive's designated beneficiary by endorsement to the policy. The
portion of the death benefits payable to Executive's designated beneficiary is
$250,000 as of the date of this Agreement. The portion of the keyman death
benefits payable to Bank is $250,000 as of the date of this Agreement. Bank is
the owner of such insurance policy, and agrees to continue such insurance
coverage in effect during the term of this Agreement.
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C. In addition, during the term of this Agreement, Bank shall cause
Executive to participate or to be furnished the opportunity to participate in
employee benefit or welfare plans in effect, including any group health
insurance benefits, disability insurance benefits, life insurance benefits, 401
(k) plans, and other fringe benefits, in the same manner and on the same basis
as shall be furnished to other executive management personnel of Bank generally,
subject to the terms and conditions of the plans under which the benefits are
provided. Bank reserves the right to modify or terminate any such plans or
benefits or change the terms of eligibility at any time. In the event Executive
is not immediately eligible to participate in the 401 (k) plan, the Bank will
pay directly to him (or to an XXX he establishes) the amount that would be paid
to his 401 (k) account if he were participating.
D. In 2003, Executive shall be entitled to five days of paid vacation.
Thereafter, Executive shall be entitled to three weeks of paid vacation per
year. The scheduling of such vacation shall be first approved by Bank. It is
understood and agreed that it may not be possible for such vacation to be taken
all at once, and Executive agrees that he may be required to take such vacation
intermittently.
E. Executive shall be entitled to a car allowance of $500 per month,
and an allowance for monthly dues for the Lexington Country Club.
F. Upon termination of this Agreement, other than termination for
cause, Bank shall pay to Executive any severance benefits to which Executive may
be entitled pursuant to Section 8.
G. Executive will not be entitled to additional compensation for
service as a director of Bank or Holding Company or any of their affiliates.
H. Bank shall be authorized to deduct and withhold from Executive's
compensation (including any severance benefits) such sums as are required by law
to be deducted and withheld.
I. Bank shall review Executive's performance on an annual basis.
Contingent upon satisfactory performance, Executive shall be eligible for annual
salary increases, bonuses, and/or additional stock options as approved by the
Board of Directors of Bank at its discretion. While the Bank does not have in
place a formal executive incentive compensation plan, it has represented to
Executive that if the annual budget of Bank is achieved, the Executive will
receive a bonus consistent with previous Presidents of the Bank and the amount
of the bonus will be based upon the extent to which the budget has been
exceeded. It is the intention of Bank to put into place a formal executive
incentive compensation plan.
J. Bank has agreed to compensate Executive for any loss suffered by
Executive if he is unable to sell his current residence at 0000 Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx ("residence") at a price less than its fair market
value. For purposes of determining the residence's fair market value, both Bank
and Executive shall obtain from a qualified real estate appraiser a written
appraisal of the residence no later than January 30, 2004. Those appraisals
shall be exchanged and the average between the two shall be the fair market
value of the residence for purposes of this Agreement. (Provided, however, if
either party determines that there has been a material change in the value of
the residence after the initial appraisals, it or he may commission the
appraiser originally selected by that party to do a new appraisal to be provided
to the other party no later than April 1, 2004, and, at that point in time, the
party receiving that appraisal may choose to have the appraiser he or it
originally selected do a new appraisal within fourteen (14) days. The average
between the two new appraisals shall be its fair market value if this option is
selected). In the event Executive does not have an executed Contract of Sale of
the residence by April 1, 2004, and the residence is sold thereafter, Bank shall
pay to Executive the difference between the fair market value and the gross sale
price of the residence. That payment shall be made within five (5) business days
from the closing of the residence's sale.
K. Beginning December 1, 2003, and extending through April 30, 2004,
Bank shall pay on Executive's behalf his costs of housing in Lexington,
Kentucky, provided that he has not received the proceeds from the sale of the
residence. This housing allowance shall be paid directly to the party from whom
Executive leases the housing unit, or if Executive has purchased a residence to
the first mortgage holder. In no event shall Bank's obligation exceed $1,400 per
month, nor shall Bank's obligation to pay the housing allowance extend for a
period longer than five (5) months or Executive sells his residence, whichever
first occurs.
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L. Executive is currently employed by Bank One, N. A. In order to
prevent Executive from being exposed to any potential loss of benefits from, or
claims for reimbursement by, Bank One, N.A., Bank will not employ, or solicit
for employment, any of Bank One N.A.'s employees prior to January 1, 2005.
4. SIGNING BONUS. On the first day this Agreement is effective, Bank shall
pay Executive a cash bonus equal to $50,000. Bank shall also pay Executive's
reasonable moving expenses from Louisville, Kentucky to Lexington, Kentucky.
Bank's payments shall be made directly to the provider of the moving services.
Executive shall obtain an estimate for the cost of the moving expenses and shall
submit it to Bank before committing the Bank to pay those expenses.
5. STOCK COMPENSATION. On the date this Agreement is effective, Executive
is granted non-qualified stock options to purchase up to 20,000 shares of common
stock of Holding Company at a purchase price of $14.00 per share under the First
Security Bancorp, Inc. Stock Award Plan (the "Stock Award Plan), subject to the
following terms and conditions and the terms and conditions set forth in the
Stock Award Plan:
A. Vesting and Term.
(1) The option to purchase shares shall vest in five installments
as follows:
o the first installment of 4,000 shares shall vest on
September 15, 2004, provided Executive is employed with
Bank and Holding Company on that date;
o an additional 4,000 shares shall vest on September 15,
2005, provided Executive is employed with Bank and Holding
Company on that date;
o an additional 4,000 shares shall vest on September 15,
2006, provided Executive is employed with Bank and Holding
Company on that date;
o an additional 4,000 shares shall vest on September 15,
2007, provided Executive is employed with Bank and Holding
Company on that date; and
o the remaining 4, 000 shares shall vest on September 15,
2008, provided Executive is employed with Bank and Holding
Company on that date.
If this Agreement is terminated, this options shall lapse, and
terminate, with respect to any shares to the extent the right
and option to purchase those shares has not vested in
accordance with the above provisions as of the date the
Agreement is terminated. The option cannot be exercised before
vesting, and no installment shall be exercisable more than ten
years after the date it has vested. Notwithstanding any other
provision of this Agreement, in the event Executive's
employment is terminated by Bank without cause, or Bank gives
notice that the Agreement will not be renewed, all of
Executive's remaining options will vest and may be exercised
within 30 days after the last date of his employment by Bank.
(2) This option shall expire on the earliest of the following
events: [i] the expiration of ten years from the date on which
such option was granted; [ii] the expiration of three months
from the date of termination of this Agreement pursuant to
Section 6.A. or 6.D.; [iii] the expiration of six months
following the issuance of letters testamentary or letters of
administration to the executor or administrator of Executive,
if Executive's death occurs and this Agreement terminates
pursuant to Section 7 or if Executive's death occurs during
the three-month period following the termination of this
Agreement pursuant to Section 6.A or 6,D., but in no event
later than one year after Executive's death; [iv] the
termination of this Agreement pursuant to Section 6.B. or 6.D;
or [v] Executive's breach of the nondisclosure or noncompete
provisions of Sections 9 or10.
6. TERMINATION. This Agreement will automatically terminate as of the close
of business on the last day of the term of this Agreement, as may be extended,
or upon the Executive's death pursuant to Section 7. In addition, this Agreement
may be terminated by Bank or Executive as follows:
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A. TERMINATION BY BANK. Bank, by action of its Board of Directors, may
terminate this Agreement, and Executive's employment hereunder, at any time.
If this Agreement and Executive's employment hereunder, is terminated pursuant
to this Section 6. A., Executive shall be entitled to severance pay under
Section 8.A., in accordance with Section 8, subject to compliance with the
continuing covenants under Sections 9 and 10.
B. TERMINATION BY BANK FOR CAUSE. Bank, by action of its Board of
Directors, may terminate this Agreement, and Executive's employment hereunder,
at any time for cause. As used in this Agreement, "cause" means the occurrence
of one or more of the following events:
(1) Executive's conviction for a felony or of any crime
involving moral turpitude;
(2) Executive's engaging in any illegal conduct or willful
misconduct in the performance of his employment duties for
the Bank;
(3) Executive's engaging in fraudulent or dishonest conduct in
his dealings with, or on behalf of, the Bank;
(4) Executive's failure or refusal to follow the lawful
instructions of the Directors of the Bank, if such failure
or refusal continues for a period of five (5) calendar days
after the Bank delivers to Executive a written notice
stating the instructions which Executive has failed or
refused to follow;
(5) Executive's intentional violation of any applicable banking
law or regulation in the performance of Executive's
employment duties for the Bank or willful violation of the
cease-and-desist order applicable to Executive or Bank;
(6) The issuance of a directive by the Kentucky Department of
Financial Institutions or any federal authority requiring
Bank to dismiss Executive from office or removing Executive
as executive officer and/or director of the Bank; or
(7) A civil action is initiated against the Bank as a result of
an improper act by Executive that is inconsistent with his
duties and responsibilities.
If this Agreement, and Executive's employment hereunder, is
terminated pursuant to this Section 6.B., Executive shall not be entitled to
severance-pay under Section 8.
C. TERMINATION BY EXECUTIVE. At any time during the term of this
Agreement, Executive may terminate this Agreement and his employment with Bank
upon 90 days prior written notice.
If this Agreement, and Executive's employment hereunder, is-terminated pursuant
to this Section 6.C., Executive shall not be entitled to severance pay under
Section 8.
D. TERMINATION BY EXECUTIVE AT OR AFTER CHANGE OF CONTROL. Executive
may terminate this Agreement if at the time of or after a Change of Control, (i)
Bank and Holding Company materially breach their obligations under this
Agreement or, without Executive's consent, alter the duties, authority, or
responsibilities of Executive to such an extent that Executive no longer has the
duties, authority, or responsibilities customarily attendant to the position of
President and Chief Executive Officer of Bank and Holding Company, and (ii) Bank
and Holding Company fail to remedy the same within thirty (30) days after the
date Executive delivers written notice to Bank, to the attention of its board of
directors, describing the material breach or alteration in reasonable detail.
Termination pursuant to this Section 6.D. will be effective as of the close of
business on the last day of such thirty (30) day period unless, prior to such
time, Bank and Holding Company have remedied the material breach or alteration
of Executive's duties, authority; and/or responsibilities.
If this Agreement, and Executive's employment hereunder, is terminated pursuant
to this Section 6.D. at the time of or after a Change of Control, Executive
shall be entitled to (1) severance pay under Section 8.B., in accordance with
Section 8, subject to compliance with the continuing covenants under Sections 9
and 10.
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For purposes of this Section 6.D., "Change in Control" means:
[1] any share, exchange or merger or consolidation of Bank if, as a result
of the transactions contemplated by such plan agreement of exchange, merger or
consolidation, Holding Company will not own 100% of the shares of voting stock
of the surviving or acquiring entity outstanding immediately following the
effective date of such transactions;
[2] any share exchange or merger Holding Company if either [a] Holding
Company will not be the surviving or acquiring corporation, or [b] as a result
of the transactions contemplated by such plan or agreement of exchange or merger
the persons who are shareholders of Holding Company, immediately prior to the
effective date of such transactions, will not own, in substantially the same
proportions, at least a majority of the shares of voting stock of Holding
Company outstanding immediately following the effective date of such
transactions;
[3] any sale, lease, exchange, transfer other disposition of all or any
substantial part of the assets of Holding Company or a subsidiary of Holding
Company (including Bank) followed by a liquidation of Holding Company;
[4] the Board or the shareholders of Holding Company or Bank approve,
adopt, agree to recommend, or accept any agreement, contract, offer or other
arrangement providing for, or any series of transactions resulting in, any of
the transactions described in [1], [2], or [3]; or
[5] a change in the membership of the "board" of directors of either Bank
or Holding Company such that a majority of the members of such board of
directors are not Continuing Directors, where the term "Continuing Director"
means any person serving on the board of directors as of the date of this
Agreement and any successor to such Continuing Director who was recommended or
elected by a majority of the Continuing Directors at a meeting at which a quorum
consisting of a majority of the Continuing Directors is present.
7. EXECUTIVE'S DEATH OR PERMANENT DISABILITY. If Executive dies or becomes
permanently disabled during the term of this Agreement; this Agreement and the
obligations of Bank hereunder shall terminate. "Permanent disability" as used
herein, shall mean when Executive is deemed disabled in accordance with the
long-term disability insurance policy of the Bank in effect at the time of the
illness or injury causing the disability and Executive has begun to receive full
benefits from that disability policy. If this Agreement, and Executive's
employment hereunder, is terminated pursuant to this Section 7, Executive shall
not be entitled to any severance pay or benefits.
8. SEVERANCE PAY. In consideration of the continuing covenants and
obligations of Executive under Sections 9 and 10, Executive shall be entitled to
severance pay as follows upon termination of this Agreement:
A. If this Agreement is terminated in accordance with the provisions
of Section 6.A., Bank shall continue to pay to Executive the Salary he was
earning immediately prior to the termination of the Agreement, for a period of
nine (9) months. Such severance benefits shall be payable in accordance with
Bank's regular payroll practices as a continuation of Executive's Salary for the
applicable period.
In addition, for a period of nine (9) months or until Executive obtains other
employment, whichever is earlier, Bank shall pay the COBRA premium for
Executive's continued coverage under those group health, life, and disability
plans under which he was covered at the time this Agreement terminated and for
which he timely elect to receive COBRA continuation coverage. Executive shall
continue to pay his co-payment then in effect for coverage under those plans.
Bank shall also continue to pay Executive's car allowance and country club
allowance described in Section 3.E. for a period of nine (9) months or until
Executive obtains other employment, whichever is earlier.
B. If this Agreement is terminated pursuant to Section 6.D. at the
time of or after a Change of Control (as defined therein), Bank shall continue
to pay to Executive the Salary he was earning immediately prior to the
termination of the Agreement, through and including November 30, 2006, or
through the end of the extended term of this Agreement, whichever occurs later.
Such severance benefits shall be payable in accordance with Bank's regular
payroll practices, as a continuation of Executive's salary for the applicable
period.
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In addition, for a period of six months or until Executive obtains other
employment, whichever is earlier, Bank shall pay the COBRA premium for
Executive's continued coverage under those group health, life, and disability
plans under which he was covered at the time this Agreement terminated and for
which he timely elects to receive COBRA continuation coverage. Executive shall
continue to pay his co-payment then in effect for coverage under those plans.
Bank shall also continue to pay Executive's car allowance and country club
allowance described in Section 3.E. for a period of six months or until
Executive obtains other employment, whichever is earlier.
C. If this Agreement is terminated and Executive's employment with
Bank is terminated for any reason, Bank shall have no obligation to continue
payment of any insurance premiums under the insurance policy described in
Section 3 B. Within fifteen (15) days of the date of termination, Executive may,
by delivery of written notice to Bank, elect to pay all premiums and costs
thereafter due under such policy, in which case Bank will continue to own, and
Executive shall pay all premiums and costs required to keep in force, such
insurance in an amount sufficient to provide death benefits to Bank equal to the
expected cost recovery amount (as determined in good faith by Bank) and death
benefits to Executive's designated beneficiary in an amount equal to $500,000.
In that event, Bank, as owner of the insurance policy, shall continue in effect
the endorsement of death benefits payable under such policy to the beneficiary
designated by Executive (above the cost recovery amount).
D. Bank may condition any payment of severance or other benefits under
this Section 8 on the receipt of a written release; in form and substance
reasonably satisfactory to Bank, pursuant to which Executive releases Bank and
its affiliates, from any claims Executive might have against Bank arising out of
Executive's employment with Bank except for accrued compensation under this
Agreement, amounts payable under this Section 8 and any accrued indemnification
rights Executive might have under Bank's charter or bylaws. In any case,
Executive's rights to severance or other benefits under this Section 8 are
conditioned on Executive's compliance with his obligations under Sections 9 and
10.
E. It is the intention of the parties that none of the payments to
which Executive is entitled under this Agreement will constitute a "golden
parachute payment" within the meaning of 12 U.S.C. Section 1828(k)(3) or
implementing regulations of the OCC or FDIC, the payment of which is prohibited.
Any payments made by Bank or Holding Company to or for the benefit of Executive
pursuant to this Agreement, or otherwise, are subject to and conditioned upon
their compliance with 12 U.S.C. Section 1828(k) and any regulations promulgated
thereunder.
9. NON-COMPETE. Executive acknowledges the services Executive is to render
are of a special and unusual character with a unique value to Bank, the loss of
which cannot adequately be compensated by damages in an action at law. In view
of the unique value to Bank of Executive's services and as a material inducement
to Bank to enter into this Agreement and to pay to Executive the compensation
provided for herein Executive covenants and agrees that during the employment of
Executive hereunder and thereafter during the Non-compete Term, as defined
below, Executive shall not, as a proprietor, shareholder, officer, director,
partner, employee, principal, agent, consultant, advisor, organizer, or in any
other capacity, for his own benefit or for or with any other person, firm or
corporation whatsoever (other than Bank or an affiliate of Bank), directly or
indirectly, work for, make a substantial investment, in or in any manner assist
any financial institution located or being organized to conduct business in
Bank's Market Area, as defined below, nor shall Executive, directly or indirect,
solicit customers or business in Bank's Market Area on behalf of any financial
institution, regardless of where such financial institution is located. As used
in this Section 9:
A. The term "Non-compete Term" means the period following the date
Executive's employment under this Agreement is terminated and during which
Executive is receiving a salary or severance benefits under Section 8.B. and
B. The term "Bank's Market Area" means any county in which Bank has an
office and any county contiguous thereto; provided the term shall not include
any county in which Bank first opens an office after the termination of this
Agreement.
Executive acknowledges that there is not adequate remedy at law in favor of Bank
for breach of this Agreement by Executive and that Bank, in addition all other
rights that may be available, shall have the right of specific performance in
the event of breach, or of injunction in the event of any threatened breach.
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10. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Executive shall not at any
time or in any manner, directly or indirectly, use or disclose to any party any
confidential information or proprietary data of Bank,, or any of its affiliates
learned or obtained by executive while an employee of Bank, except (1) as
required by judicial or administrative process; (2) after the confidential
information has become generally available to the public through no breach of
this agreement by Executive; or (3) with the prior written consent of Bank. In
the event Executive violates this Section, and such violation is detrimental to
Bank, Bank shall be entitled to pursue all remedies at law or in equity in any
action or proceeding to enforce this Section. For purposes of this agreement,
"confidential information" means material information of Bank, or it affiliates,
disclosed to or known by Executive as a consequence of Executive's employment
with Bank and not generally known in the financial services industry, that
directly relates to Bank's business and that is detrimental to the Bank.
11. REASONABLENESS OF RESTRICTION. Executive has carefully read and
considered the provision of Section 9 and 10, and, having done so, agrees that
the restriction set forth in this section, including, but to limited to, the
time period of restriction, are fair and reasonable and are reasonably required
for the protection of Bank's interests. In the event that, notwithstanding the
foregoing, any of the provisions of Section 9 and 10 shall be held in be invalid
or unenforceable, the remaining provision shall nevertheless continue to be
valid and enforceable as though the invalid or unenforceable parts had not been
included therein. In the event that any provision of Section 9 and 10 relating
to the time period, the geographical restrictions and/or related aspects shall
be declared by a court of competent jurisdiction to exceed the maximum
restrictiveness the court deems reasonable and enforceable by the court shall be
the maximum restriction in such regard and the restriction shall remain
enforceable to the fullest extent deemed reasonable by the court.
12. NOTICES. Any notice to be given hereunder by either party shall be in
writing and delivered personally or sent by certified mail, postage prepaid,
return receipt requested, addressed as follows:
If to Bank: First Security Bank of Lexington
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chairman of the Board
If to Executive: R. Xxxxxxx Xxxxxxxxxx
0000 Xxxx Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Executive shall notify Bank of his change of address when he moves to Lexington,
Kentucky.
13. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of Bank and the successors and assigns of Bank (whether by
merger, acquisition, or consolidation). This Agreement may not be assigned by
Executive.
14. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties thereto with respect to the subject matter hereof and may not be amended
or modified or supplemented except in writing signed by the parties hereto.
15. WAIVER; SUBSEQUENT BREACH. The failure of either Bank or Executive to
enforce any provision of this Agreement shall not be construed as a waiver of
such provision or the right thereafter to enforce the same, and no waiver of any
breach shall be construed as an agreement to waive any subsequent breach of the
same or any other provision.
16. GOVERNING LAW. This Agreement shall be construed in accordance with and
governed by the laws of the Commonwealth of Kentucky.
17. SECTION HEADINGS. The section headings contained herein are inserted
for convenience of reference only and shall not control or affect the meaning or
construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
FIRST SECURITY BANCORP, INC.
/s/ Xxx Xxxxxxxx
-----------------------------------
BY: Xxx Xxxxxxxx
TITLE: Chairman of the Board
FIRST SECURITY BANK OF LEXINGTON, INC.
/s/ Xxx Xxxxxxxx
-----------------------------------
BY: Xxx Xxxxxxxx
TITLE: Chairman of the Board
/s/ R. Xxxxxxx Xxxxxxxxxx
-----------------------------------
BY: R. XXXXXXX XXXXXXXXXX
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