TRINITY MEDICAL GROUP USA, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of this 2nd day of February, 2001 by and between
Xxxxx X. Xxxxxxx, residing at 000 Xxxxxxxx Xxxx Xxx, Xxx Xxxxxx, XX 00000
("Executive"), and TRINITY MEDICAL GROUP USA, INC., a Florida corporation, with
offices at 00000 Xxxxx Xxxxxx Xxxxx 000, Xxxxxx Xxxxx Xxxxxxxxx, XX 00000 and an
executive office at 00 Xxxxxx Xxxxxx, Xxxxx 000, XxxXxxxxx, XX 00000. (the
"Company"), for the purpose of setting forth the terms and conditions of
Executive's employment by the Company and to protect the Company's knowledge,
expertise, customer relationships and the confidential information the Company
has developed regarding clients, customers, shareholders, option holders,
employees, products, business operations and services. As of the Effective Date,
this Agreement supersedes any prior understandings or agreements between
Executive and the Company or any of the Company's subsidiaries or affiliates.
The Board desires to provide for the continued employment of Executive and
to make certain changes in Executive's employment arrangements with the Company
which the Board has determined will reinforce and encourage the continued
attention and dedication to the Company of Executive as a member of the
Company's management, in the best interest of the Company and its shareholders.
Executive is willing to commit himself to continue to serve the Company, on the
terms and conditions herein provided, although this Agreement may be amended at
any time by written agreement among the parties.
In order to effect the foregoing, the Company and Executive wish to enter
into an employment agreement on the terms and conditions set forth below. In
consideration of the premises and the respective covenants and agreements of the
parties herein contained, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. TIME AND EFFORTS
1.1 Executive shall be employed as the Company's Chief Executive Officer
and shall devote his full time attention to the duties and responsibilities of
Chief Executive Officer in furtherance of the Company's business. Subject to
consultation with, and the directions of, the Executive Committee (when such
committee is formed) or the Chairman of the Board, as the case may be, Executive
shall have full responsibility for, and authority over, all Operational
Staffing, marketing strategies, and investment. Executive shall have the ability
to appoint and delegate responsibilities in personnel staffing, media and public
relations, research and development, and intercompany relations.
1.2 In the performance of all of his responsibilities hereunder, Executive
shall be subject to all of the Company's policies, rules, and regulations
applicable to its officers and employees generally and its Chief Executive
Officer specifically. Executive shall report to the Board of Directors and/or
directly to the Chairman of the Board if so determined by resolution of the
Board of Directors.
1.3 Executive shall be a member of the Company's Executive Committee, if
and when such committee is formed, during the Term of this Agreement (as defined
in Section 2 below).
1.4 Without the prior express authorization of the Board, Executive shall
not, directly or indirectly, during the Term of this Agreement engage in any
activity competitive with or adverse to the Company's business, whether alone,
as a partner or independent contractor, or as an officer,
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director, or employee of any other corporation. This Agreement shall not be
interpreted to prohibit Executive from making passive personal investments,
conducting private business affairs, or engaging in educational or charitable
activities, if those activities do not materially interfere with the services
required hereunder. Subject to the reasonable prior approval of the Board,
Executive may act as a director of any profit or non-profit corporation or other
business entity, if such activity is not inconsistent with the business of the
Company.
1.5 In order to induce the Company to enter into this Agreement, Executive
represents and warrants to the Company that (i) Executive is not a party or
subject to any employment agreement or arrangement with any other person, firm,
company, corporation or other business entity; and (ii) Executive is subject to
no restraint, limitation or restriction by virtue of any agreement or
arrangement, or by virtue of any law or rule of law or otherwise which would
impair Executive's right or ability to enter the employ of the Company or to
perform fully his duties and obligations pursuant to this Agreement.
1.6 Without first obtaining the written permission of the Board in each
instance, Executive will not authorize or permit the Company to engage the
services, of, or engage in any business activity with, or provide any financial
or other benefit to, any affiliate of Executive. The phrase "affiliate of
Executive" as used in this Agreement shall mean and include Executive's family
by blood or marriage (including, without limitation, parents, spouse, siblings,
children and in-laws), and any business or business entity which is directly or
indirectly owned or controlled by Executive or any member of Executive's family
or in which Executive or any member of Executive's family has any direct or
indirect financial interest whatsoever.
2. TERM
The initial Term of this Agreement is from February 2, 2001(The "Effective
Date") until February 1, 2002; however on each anniversary of the Effective
Date, this Agreement shall be automatically renewed for a new one-year Term from
such anniversary date unless the Company notifies Executive in writing 90 days
prior to the anniversary of the Effective Date that the Company will not be
renewing this Agreement on the next anniversary of the Effective Date, or unless
sooner terminated pursuant to Section 3. References hereinafter to the "Term" of
this Agreement shall refer to both the initial term and any extended term of
Executive's employment hereunder.
3. TERMINATION
This Agreement shall be terminated upon the happening of any of the
following events:
3.1 Upon the death of Executive.
3.2 Whenever the Company and Executive shall mutually agree to
termination.
3.3 At the option of the Company, upon written notice by the Company to
Executive, for Cause. "Cause" shall exist for such termination if Executive (i)
pleads or is found guilty of a felony involving an act of dishonesty or moral
turpitude by a court of competent jurisdiction; (ii) has engaged in serious
misconduct; (iii) has made any material misrepresentation or omission to the
Company under Section 1.5 hereof; (iv) has committed an unexcused material
breach of his duty in the course of Executive's employment; (v) has been guilty
of habitual neglect of his duties; (vi) has usurped a corporate opportunity, is
guilty of fraudulent embezzlement of property or funds of the Company, or
committed any act of fraud or intentional misrepresentation moral
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turpitude, dishonesty or other misconduct that would constitute a felony; (vii)
has committed a material, unexcused breach of this Agreement, (viii) found to
have misrepresented any representations in qualifications and work history, or
(ix) demonstrated, by regulatory agency or independent counsel notice, a lack of
competency in primary job responsibilities.
3.4 The Company may terminate Executive's employment under this Agreement
at any time without Cause, subject to provisions for payment of compensation as
specified under Section 6.5 of this Agreement.
3.5 At the option of Executive, upon 90 days written notice by Executive to
the Company.
3.6 If as a result of Executive's incapacity due to physical or mental
illness, Executive shall have been absent from his duties hereunder on a
full-time basis for the entire period of one month, and within 30 days after
written notice of termination is given (which may occur before or after the end
of such three-month period) shall not have returned to the performance of his
duties hereunder on a full-time basis, the Company may terminate Executive's
employment hereunder.
3.7 Upon the expiration of the Term of this Agreement, or any extension or
renewal thereof.
4. COMPANY'S AUTHORITY
Executive agrees to observe and comply with the reasonable rules and
regulations of Company as adopted by the Board of Directors of the Company or
committee of the Board of Directors respecting performance of Executive's duties
and to carry out and perform orders, directions, and policies of Company as they
may be, from time-to-time, stated to Executive either verbally or in writing.
5. VACATION
During each calendar year of the Term of this Agreement, Executive shall be
entitled four weeks of paid vacation, earned ratably over the Term of each
calendar year during the Term of this Agreement. Executive shall be entitled to
receive payment for accrued vacation not taken during each calendar year during
the Term of this Agreement or may accrue such vacation for use in a subsequent
calendar year; however Executive shall be subject to a maximum of six weeks of
accrued vacation.
6. CURRENT COMPENSATION
6.1 ANNUAL SALARY. For all services rendered by Executive under this
Agreement, the Company shall pay or cause to be paid to Executive, and Executive
shall accept the annual Salary and Incentive Compensation, if any, all in
accordance with the subject to the terms of this Agreement. For purposes of this
Agreement, the term "Compensation" shall mean the Annual Salary and Incentive
Compensation, if any. Executive shall be entitled to receive as current
compensation an annual salary in an amount of not less than $300,000
(hereinafter referred to as the "Annual Salary"). References in this Agreement
to "annual" or "per annum" or "Annual" and similar phrases shall mean the
twelve-month period commencing on February 2nd of each year during the Term of
this Agreement unless otherwise indicated.
6.2 INCENTIVE COMPENSATION. In addition, Executive shall be entitled to
annual Incentive Compensation as dictated by the Compensation Committee of the
Board of Directors, when such committee is formed.
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6.3 401(K) PLAN. Executive shall be entitled to participate in the
Company's 401(k) or other similar retirement benefit plan or Executive Deferral
Plan when such plan is created.
6.4 PAYMENTS OF CURRENT COMPENSATION. The payment of Executive's Annual
Salary shall be made in semi-monthly installments on the then prevailing paydays
of the Company. Any payment for Incentive Compensation will be made as dictated
by the Compensation Committee of the Board of Directors, when such committee is
formed, and payment will be made in one lump sum concurrently with payments made
to others in senior management. All payments are subject to the customary
withholding tax and other employment taxes as required with respect to
compensation paid to an employee.
6.5 PAYMENT OF COMPENSATION ON TERMINATION.
6.5.1 Upon termination of Executive's employment by the Company prior to
the expiration of this Agreement, if such termination is pursuant to Section
3.1, 3.2, 3.5, 3.6, or 3.7 hereof, Executive shall be entitled to any Annual
Salary and vacation accrued but unpaid through the date of termination of
employment, payable on the date of termination.
6.5.2 Upon termination of Executive's employment prior to the expiration of
this Agreement, if such termination is pursuant to Section 3.4 hereof, Executive
shall be entitled to any Annual Salary and vacation accrued but unpaid through
the date of termination of employment, payable on the date of termination, and
payments of Annual Salary for the number of months remaining in the Term of this
Agreement prior to such termination, payable in semi-monthly installments on the
then prevailing pay days of the Company to the estate of Executive for such
number of months. Executive shall have no obligation to mitigate his damages.
7. DETERMINATION OF DISABILITY; PAYMENT OF DISABILITY INSURANCE PREMIUMS
7.1 In the event Executive's disability, as defined in Section 3.6, is in
question, and after written request by the Company, Executive refuses to be
examined by his regularly attending physician or if the regularly attending
physician fails to submit a report within 30 days after the examination has been
requested by the Company, the determination of disability shall be made by the
Company.
8. MISCELLANEOUS BENEFITS
8.1 MEDICAL INSURANCE. Executive and his family shall be entitled to
participate in any medical, dental, vision, life, long-term disability, other
insurance or employee benefit program instituted or maintained by the Company
for the benefit of its executive employees. If no such insurance or employee
benefit program exists, the Company shall pay the future premiums related to
Executive's current insurance policies that will carryover under COBRA from
Executive's current employer.
8.2 PAYMENT OF BENEFITS ON TERMINATION OF EMPLOYMENT WITHOUT CAUSE. If
Executive's employment with the Company is terminated without cause, the Company
agrees that Executive shall be entitled to continued compensation as if
Executive were still
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actively employed by the Company, for the remainder of the Term of this
Agreement. If applicable law or the terms and conditions of such plans do not
permit Executive to be covered with respect to any benefit under this Agreement
as if Executive were still actively employed by the Company, the Company agrees
to pay Executive an amount equal to what the Company would have paid to maintain
such benefits if Executive were still employed by the Company for the remainder
of the Term of this Agreement.
8.3 BUSINESS EXPENSES. Executive shall be reimbursed for all reasonable
expenses incurred by Executive in connection with Executive's attendance of
business meetings and promotion of Company business upon presentation by
Executive to the Company of an expense report and adequate records or other
documentation substantiating the expenditures, not less frequently than monthly.
Any such amounts disallowed as a business expense for federal or state income
tax purposes shall be deemed additional salary to Executive. The fact that the
Company may not reimburse Executive for an expense is not an indication that the
Company determined that the expense was not incurred on its behalf or in
connection with the Company's business.
8.4 LIFE INSURANCE. During the Term of this Agreement, the Company shall
pay for and maintain on a continuous basis, life insurance in the amount of
$500,000 on the life of Executive naming Executive's spouse or estate as
beneficiary.
8.5 ADDITIONAL BENEFITS. Executive shall be entitled to participate in all
programs, rights and benefits for which executive is otherwise entitled to any
bonus plan, incentive plan, participation plan or extra compensation plan,
pension plan, profit sharing plan, life, medical, dental, disability or other
insurance plan or policy or other plan or benefit the Company may provide for
senior executives or for employees of the Company generally from time to time in
effect during the term of this Agreement. For the avoidance of doubt, the rights
granted or afforded to Executive under any such plans shall be not less than the
most favorable rights and highest amounts granted to employees of similar or
lower position with the Company and on terms at least as favorable.
9. RESTRICTIVE COVENANTS
9.1 CONFIDENTIAL INFORMATION. Executive acknowledges that in his employment
hereunder he occupies a position of trust and confidence. During the Term, and
thereafter in accordance with the provisions of this Agreement, Executive shall
not, except as may be required to perform his duties hereunder as required by
applicable law, and except for information which is or becomes publicly
available other than as a result of a breach by Executive of the provisions
hereof, disclose to others or use, whether directly or indirectly, any
Confidential Information. Confidential Information" shall mean information about
the Company, its subsidiaries and affiliates, and their respective suppliers,
clients and customers that is not disclosed by the Company for financial
reporting purposes and that was learned by Executive in the course of his
employment hereunder, including (without limitation) proprietary knowledge,
trade secrets, market research, data, formulae, information and supplier, client
and customer lists and all papers, resumes, and records (including computer
records) of the documents containing such Confidential Information. Executive
agrees to deliver or return to the Company, at the Company's request at any time
or upon termination or expiration of his employment, or as soon thereafter as
possible, all documents, computer tapes and disks, records, lists, data,
drawings, prints, notes and written information (and all copies thereof)
furnished by the Company or any of its subsidiaries affiliates or prepared by
Executive during the Term of his employment by the Company. The obligations
hereof shall not apply to any information which is or becomes public or in the
public domain by action of the Company or through no fault of Executive.
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9.2 BUSINESS DIVERSION. During the term and for 30 months thereafter,
Executive shall not, directly or indirectly, influence or attempt to influence
customers or suppliers of the Company or any of its subsidiaries or affiliates
to divert their business to any competitor of the Company.
9.3 NON-SOLICITATION. Executive recognizes that he will possess
confidential information about other employees of the Company and its
subsidiaries and affiliates relating to, among other things, their education,
experience, skills, abilities, compensation and benefits, and interpersonal
relationships with suppliers and customers of the Company. Executive recognizes
that the information he will possess about these other employees is not
generally known, is of substantial value to the Company, and will be acquired by
him because of his business position with the Company. Executive agrees that,
during the Term and for 12 months thereafter, he will not, directly or
indirectly, solicit or recruit any employee of the Company, its subsidiaries or
affiliates for the purpose of being employed by him or by any other person on
whose behalf he is acting as an agent, representative or employee and that he
will not convey any such confidential information or trade secrets about other
employees of the Company, its subsidiaries or affiliates to any other person.
9.4 If Executive breaches, or threatens to commit a breach of, any of the
provisions of Section 9 (the "Restrictive Covenants"), the Company and its
subsidiaries shall have the right to the following:
9.4.1 SPECIFIC PERFORMANCE. The right and remedy to have the
Restrictive Covenants specifically enforced by any court of competent
jurisdiction, it being agreed that any breach or threatened breach of the
Restrictive Covenants would cause irreparable injury to the Company or its
subsidiaries and that money damages would not provide an adequate remedy to the
Company or its subsidiaries.
9.4.2 ACCOUNTING. The right and remedy to require Executive to account
for and pay over to the Company or its subsidiaries, as the case may be, all
compensation, profits, monies, accruals, increments or other benefits derived or
received by Executive as a result of any transaction constituting a breach of
the Restrictive Covenants.
9.4.3 SEVERABILITY OF RESTRICTIVE COVENANTS. Executive acknowledges
and agrees that the Restrictive Covenants are reasonable and valid in geographic
and temporal scope and in all other respects. If any court determines at any of
the Restrictive Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the Restrictive Covenants shall not thereby be affected and shall
be given full effect without regard to the invalid provisions.
9.4.4 BLUE PENCILING. If any court determines that any of the
Restrictive Covenants, or any part thereof, is unenforceable because of the
duration or geographic scope or such provision, such court shall have the power
to reduce the duration or scope of such provision, as the case may be, and, in
its reduced form, such provision shall not be enforceable.
9.4.5 ENFORCEABILITY OF JURISDICTIONS. The obligations in this Section
9 shall survive the termination of Executive's employment or expiration of this
Agreement and shall be fully enforceable thereafter. Executive intends to and
hereby confers jurisdiction to enforce the Restrictive Covenants upon the courts
of any jurisdiction within the geographic scope of such Restrictive Covenants.
If the courts of any one or more of such jurisdictions hold the Restrictive
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Covenants unenforceable by reason of the breadth of such scope or otherwise, it
is the intention of Executive that such determination not bar or in any way
affect the right of the Company or its subsidiaries to the relief provided above
in the courts of any other jurisdiction within the geographic scope of such
Restrictive Covenants, as to breaches of such Restrictive Covenants in such
other respective jurisdictions, such Restrictive Covenants as they relate to
each jurisdiction being, for this purpose, severable into diverse and
independent Restrictive Covenants.
10. DISPUTE RESOLUTION
The parties agree that any dispute that may arise in connection with,
arising out of or relating to this Agreement, or any dispute that relates in any
way, in whole or in part, to Executive's employment with the Company, the
termination of that employment, or any other dispute by and among the parties or
their successors, assigns or affiliates, shall be submitted to binding
arbitration in Orange County, California according to the Employment Dispute
Resolution Rules and Procedures of the American Arbitration Association. This
arbitration obligation extends to any and all claims that may arise by and
between the parties or their successors, assigns or affiliates, and expressly
extends to, without limitation, claims or cause of action for wrongful
termination, impairment of ability to compete in the open labor market, breach
or an express or implied contract, breach of the covenant of good faith and fair
dealing, breach of fiduciary duty, fraud, misrepresentation, defamation,
slander, infliction of emotional distress, disability, loss of future earnings,
and claims under the applicable state constitution, the United States
Constitution, and applicable state fair employment laws, federal equal
employment opportunity laws, and federal and state labor statutes and
regulations, including, but not limited to, the Civil Rights Act of 1964, as
amended, the Labor-Management Relations Act, as amended, the Worker Retraining
and Notification Act of 1988, the Americans With Disabilities Act of 1990, the
Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security
Act of 1974, as amended, the Age Discrimination in Employment Act of 1967, as
amended, and the California Fair Employment and Housing Act, as amended.
11. ASSIGNMENT
This Agreement is a personal contract, and the rights, interests and
obligations of Executive hereunder may not be sold, transferred, assigned,
pledged or hypothecated except as otherwise expressly permitted by the
provisions of this Agreement. Executive shall not under any circumstances have
any option or right to require payment hereunder otherwise than in accordance
with the terms hereof. Except as otherwise expressly provided herein, Executive
shall not have any power of anticipation, alienation or assignment of payments
contemplated hereunder, and all rights and benefits of Executive shall be for
the sole personal benefit of Executive, and no other person shall acquire any
right, title or interest hereunder by reason of any sale, assignment, transfer,
claim or judgment or bankruptcy proceedings against Executive; provided,
however, that in the event of Executive's death, Executive's estate, legal
representatives or beneficiaries (as the case may be) shall have the right to
receive all of the benefits that accrued to Executive pursuant to, and in
accordance with, the terms of this Agreement.
12. SUCCESSOR
This Agreement may be assigned by the Company to any successor interest to
its business as per conditions set forth in this section. This Agreement shall
bind and inure to the benefit of the Company's successors and assigns as well.
In the event The Company ownership substantially
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changes, as defined by ownership of more than 50% plus one share of common stock
exchanged. Executive must be compensated an additional one year of salary in one
payment due at the close of the stock transaction or Board assignment wherein
transfer of control, and thus, succession, has occurred, or as amended to this
agreement that term of this contract is extended for an additional one year.
13. NOTICES
All notices, requests and demands hereunder shall be in writing and
delivered by hand, by mail, or by telegram, and shall be deemed given if by hand
delivery, upon such delivery, and if by mail, 48 hours after deposit in the
United States mail, first class, registered or certified mail, postage prepaid
and properly addressed to the party at the address set forth at the beginning of
this Agreement. Any party may change its address for purposes of this paragraph
by giving the other party written notice of the new address in the manner set
forth above.
14. INVALID PROVISIONS
Invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions hereof, and this Agreement shall
be construed in all respects as if such invalid or unenforceable provision were
omitted.
15. AMENDMENT, MODIFICATION OR REVOCATION
This Agreement may be amended, modified or revoked in whole or in part, but
only by a written instrument which specifically refers to this Agreement and
expressly states that it constitutes an amendment, modification or revocation
hereof, as the case may be, and only if such written instrument has been signed
by each of the parties to this Agreement.
16. HEADINGS
The headings in this Agreement are inserted for convenience only and are
not to be considered in construction of the provisions hereof.
17. ENTIRE AGREEMENT
This Agreement contains the entire understanding among the parties and
supersedes any prior written or verbal agreements between them respecting the
subject matter hereof, including, without limitation, any prior verbal or
written employment agreement between Executive and the Company. Upon the
effectiveness hereof, any such prior verbal or written agreements shall
terminate.
No representations or warranties of any kind or nature relating to the
Company or its affiliates or their respective businesses, assets, liabilities,
operations, future plans or prospects have been made by or on behalf of the
Company to Executive; nor have any representations or warranties of any kind or
nature been made by Executive to the Company, except as expressly set forth in
this Agreement.
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18. ATTORNEYS' FEES
If any legal action is necessary to enforce the terms and conditions of
this Agreement, the prevailing party in such action shall be entitled to recover
all costs of suit and reasonable attorneys' fees as determined by the
arbitrator.
19. FURTHER ASSURANCES
The parties shall execute such documents and take such other action as is
necessary or appropriate to effectuate the provisions of this Agreement.
20. CONTROLLING LAW
This Agreement shall be governed by the laws of the State of California.
21. WAIVER
A waiver by either party of any of the terms and conditions hereof shall
not be construed as a general waiver by such party, and such party shall be free
to reinstate such part or clause, with or without notice to the other party.
22. INDEMNIFICATION
To the fullest extent permitted by law and the Company's Certificate of
Incorporation and Bylaws, the Company shall indemnify Executive for all amounts
(including, without limitation, judgments, fines, settlement payments, losses,
damages, costs and expenses, including reasonable attorneys fees, incurred or
paid by Executive in connection with any action, proceeding, suit or
investigation arising out of or relating to the performance by Executive of
services for, or acting as, an officer or employee of the Company or any
subsidiary thereof. The Company agrees to use its best efforts to maintain
directors' and officers' liability insurance.
23. PERIODIC REVIEWS
During January of each year during the term hereof, the Board of Directors
of the Company shall review Executive's Annual Salary, bonus, stock options, and
additional benefits then being provided to Executive. Following each such
review, the Company may in its discretion increase the Annual Salary, bonus,
stock options, and benefits; however, the Company shall not decrease such items
during the period Executive serves as an employee of the Company. Prior to
February 28th of each year during the term hereof, the Board of Directors of the
Company shall communicate in writing the results of such review to Executive.
24. Voluntary deferment of compensation. In the event employee voluntarily
defers his salary at the request of the Board of Directors or the Chief
Financial Officer, the Company shall apply interest to the deferred amount at an
annualized of prime plus 2%. The deferred salary plus interest would be paid to
employee no longer than 3 months after the scheduled pay date.
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THE COMPANY: EXECUTIVE:
TRINITY MEDICAL GROUP USA, INC.
By: /s/ Xx. Xxxx Xxxxxxxxxxxxxx /s/ Xx. Xxxxx Xxxxxxx
---------------------------- ---------------------------
Xx. Xxxx Xxxxxxxxxxxxxx Xx. Xxxxx Xxxxxxx
/s/ Inthanom Churdboonchart
------------------------------
Inthanom Churdboonchart
/s/ Xxxxxxxxx Xxxxxxx
-------------------------------
Xxxxxxxxx Xxxxxxx
Secretary of Corporation
