EXHIBIT 10.1
April __, 1998
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇:
Omega Protein Corporation (the "Company") has determined that it is in the
best interests of the Company and its shareholders to assure that the Company
will have your continued dedication, and to provide you (the "Executive") with
compensation and benefits arrangements which are competitive with those of other
corporations and which ensure that your compensation and benefits expectations
will be satisfied. Therefore, in order to accomplish these objectives, the
Company does hereby enter into this agreement (this "Agreement"), which shall
supersede any other employment agreements between you and the Company.
In order to induce you to remain in the employ of the Company, it is agreed
as follows:
1. Employment. The Company hereby employs the Executive, and the Executive
hereby accepts such employment, all upon the terms and conditions set forth
herein.
2. Term. Subject to the terms and conditions set forth herein, the
Executive shall be employed for a continually renewing term of three (3) years
commencing on the date hereof and renewing each day thereafter for an additional
day without any further action by either the Company or the Executive, it being
the intention of the parties that there shall be continuously a remaining term
of three (3) years' duration of the Executive's Employment until an event has
occurred as described in, or one of the parties shall have made an appropriate
election pursuant to, the provisions of Section 5.
3. Duties and Responsibilities.
A. Capacity. The Executive shall serve in the capacity of President
and Chief Executive Officer of the Company and its successors.
The Executive's duties under this Agreement shall consist of such
general management activities as are consistent with the
responsibilities of said office and such other activities as may
hereafter be assigned to
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Page 2
him by the Chairman of the Board of Directors of the Company,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇. All such duties shall be performed in accordance
with any written or oral direction from time to time furnished to
the Executive by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and the Executive shall report
solely to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
B. Full-Time Duties. The Executive shall devote his full business
time, attention and energies to the business of the Company and
shall not be engaged in any other business activity, whether or
not pursued for gain, profit or other pecuniary advantage, which
would impair his ability to fulfill his duties to the Company
under this Agreement, without the prior written consent of the
Company. The Executive shall be allowed, to the extent such
activities do not substantially interfere with the performance by
the Executive of his duties and responsibilities hereunder, to
(a) manage the Executive's personal affairs, and (b) (i) serve on
boards or committees of civic or charitable organizations or
trade associations, and (ii) serve on the board of directors of
any corporation; provided, however, that the Executive shall
advise the Company in writing of any such corporate directorship
under clause (b)(ii) and, if requested by the Company, the
Executive shall first demonstrate, to the reasonable satisfaction
of the Company, that any such directorship does not detract from
the Executive's performance of his duties and responsibilities
under this Agreement. Nothing contained in this paragraph B shall
prevent the Executive from passively investing his assets in such
a form or manner as will not conflict with the terms of this
Agreement and will not require services on the part of the
Executive in the operation of the business of the companies or
other enterprises in which such investments are made.
C. Standard of Performance. The Executive will perform his duties
under this Agreement with fidelity and loyalty, to the best of
his ability, experience and talent and in a manner consistent
with his fiduciary responsibilities.
D. Location. The Executive's primary place of employment shall be
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Executive shall not be required to relocate more than 35 miles
from ▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
without his consent.
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Page 3
4. Compensation.
A. Base Salary. The Company shall pay the Executive a salary (the
"Base Salary") of $230,000 per annum, prorated for partial years
of employment. The Base Salary shall be payable in accordance
with the general payroll practices of the Company in effect from
time to time. The Company shall review the Base Salary then being
paid to the Executive at such times as the Company regularly
reviews the compensation paid to employees generally (but no less
frequently than once each fiscal year). Upon completion of such
review, the Company in its sole discretion may increase, decrease
or maintain the Executive's then current Base Salary, provided,
however, that the Company may decrease the Executive's then
current Base Salary only with the prior written consent of the
Executive.
B. Benefits.
(1) Generally. The Executive shall be entitled to participate,
in accordance with the Company's regular practices with
respect to its similarly situated executives, in the
Company's pension, profit-sharing, bonus, disability,
accident, medical, life insurance, hospitalization plans and
any other employee benefit program maintained by the Company
for its similarly situated executives. The Company will have
the right to amend or terminate any such benefit plans it
may choose to establish.
(2) Reimbursements. The Executive shall be entitled to
reimbursement from the Company for reasonable out-of-pocket
expenses incurred by him in the course of the performance of
his duties hereunder, upon the submission of appropriate
documentation.
(3) Vacations and Other Absences. The Executive shall be
entitled to such vacation, holidays and, subject to the
provisions of Section 5, other paid or unpaid leaves of
absence as are consistent with the Company's normal policies
or as are otherwise approved by the Company.
(4) Bonus. The Executive shall be entitled to receive, on
December 1, 1998, a cash bonus equal to 1.5% of the
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amount by which the earnings of the Company, before
interest, taxes, depreciation and amortization, as
determined under generally accepted accounting principles
("EBITDA"), for the fiscal year ended September 30, 1998
exceeds the Company's EBITDA for fiscal year 1997.
C. Payments. All payments to the Executive provided for under
this Agreement shall be paid in cash from the general funds
of the Company, and no special or separate funds shall be
established and no other segregation of assets shall be made
to assure payment. The Executive shall have no right, title
or interest whatsoever in or to any investments which the
Company may make to aid it in meeting its obligations
hereunder. Nothing contained in this Agreement, and no
action taken pursuant to the provisions hereof, shall
create, or be construed to create, a trust of any kind or
any fiduciary responsibility of the Company to the Executive
or any other person. To the extent that any person acquires
a right to receive payments from the Company hereunder, such
right shall be no greater than the right of an unsecured
creditor of the Company.
5. Termination.
A. Termination by the Company. At the Company's election, this
Agreement may be terminated by the Company in any of the
following circumstances:
(1) If the Company shall have "Cause" (as hereinafter defined);
(2) If the Executive shall die; or
(3) If the Executive shall be unable, with reasonable
accommodation, to perform his duties hereunder owing to
illness or incapacity for a total of 120 days during any
360-day period;
The termination of the Executive's employment pursuant to this
Section 5.A. shall be effective (i) in the case of a termination
pursuant to paragraph (1) above, as of the date specified in
Section 5.B., (ii) in the case of a termination pursuant to
paragraph (2) above, at death, or (iii) in the case of a
termination pursuant to paragraph (3) above, upon the expiration
of 30 days'
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written notice from the Company to the Executive. Upon any
termination of the Executive's employment pursuant to paragraph
(1), (2) or (3) above, the Company shall have no further
liability or obligation under or in connection with this
Agreement, except to pay the portion of the Executive's Base
Salary and other benefits earned or accrued at the date of
termination. If the Executive is otherwise eligible for benefits
under any long-term disability plan sponsored by the Company,
then a termination solely pursuant to paragraph (3) above shall
not affect the Executive's entitlement to such benefits. In the
event that the Executive's employment with the Company is
terminated by the Company for any reason other than for Cause,
death or disability (as defined in paragraph (3) above), the
Company shall have no further liability or obligation under or in
connection with this Agreement except to pay the Executive the
"Severance Payment" (as defined below) in eighteen (18) equal
monthly installments, the first such installment payable within
10 days after the date of termination and the remaining
installments payable monthly thereafter. For purposes of this
Agreement, "Severance Payment" shall mean an amount equal to 2.99
times the Executive's "base amount" within the meaning of
Sections 280G(b)(3) and 280G(d) of the Internal Revenue Code of
1986, as amended (the "Code"), and any applicable temporary or
final regulations promulgated thereunder, or its equivalent as
provided in any successor statute or regulation. If Code Section
280G (and any successor provisions thereto) shall be repealed or
otherwise be inapplicable, then the Severance Payment shall be
equal to 2.99 times the Executive's then current Base Salary.
Should any of the payments, singly, in any combination or in the
aggregate, that are provided for hereunder to be paid to or for
the benefit of the Executive be determined or alleged to be
subject to an excise or similar purpose tax pursuant to Section
4999 of the Code, or any successor or other comparable federal,
state or local tax law by reason of being a "parachute payment"
(within the meaning of Section 280G of the Code), the Company
shall pay to the Executive such additional compensation as is
necessary (after taking into account all federal, state and local
taxes payable by the Executive as a result of the receipt of such
additional compensation) to place the Executive in the same
after-tax position (including federal, state and local taxes) he
would have been in had no such excise or similar purpose tax (or
interest or penalties thereon) been paid or incurred. Without
limiting the obligation of the Company hereunder, the
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Executive agrees to negotiate with the Company in good faith with
respect to procedures reasonably requested by the Company which
would afford the Company the ability to contest the imposition of
such excise or similar purpose tax. The termination of the
Executive's employment by the Company other than for Cause shall
be effective as of the date specified in this Section 5.A.
B. Cause. "Cause" means (i) the Executive's final conviction of a
felony crime that enriched the Executive at the expense of the
Company; or (ii) the Executive's deliberate and intentional
continuing failure to substantially perform his duties and
responsibilities hereunder (except by reason of the Executive's
incapacity due to physical or mental illness or injury) for a
period of forty-five (45) days after the "Required Board
Majority" (as defined below) has delivered to the Executive a
written demand for substantial performance hereunder which
specifically identifies the bases for the Required Board
Majority's determination that the Executive has not substantially
performed his duties and responsibilities hereunder (such period
being the "Grace Period"); provided, that for purposes of this
clause (ii), the Company shall not have Cause to terminate the
Executive's Employment unless (a) at a meeting of the Board
called and held following the Grace Period in the city in which
the Company's principal executive offices are located of which
the Executive was given not less than ten (10) days' prior
written notice and at which the Executive was afforded the
opportunity to be represented by counsel, appear and be heard,
the Required Board Majority shall adopt a written resolution
which (1) sets forth the Required Board Majority's determination
that the failure of the Employee to substantially perform his
duties and responsibilities hereunder has (except by reason of
his incapacity due to physical or mental illness or injury)
continued past the Grace Period and (2) specifically identifies
the bases for that determination and (b) the Company, at the
written direction of the Required Board Majority, shall deliver
to the Executive a notice of termination for Cause to which a
copy of that resolution, certified as being true and correct by
the secretary or any assistant secretary of the Company, is
attached. No act or failure to act on the part of the Executive
shall be considered "deliberate and intentional" unless it is
taken or omitted to be taken by the Executive in bad faith or
without a reasonable belief that the Executive's act or omission
was in the best interests of the Company. "Required Board
Majority" means at any
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Page 7
time a majority of the members of the Board of Directors of the
Company at that time which includes at least a majority of the
outside directors at that time. Termination of the Executive's
employment by the Company for Cause shall be effective on the
date of the notice of termination for Cause is delivered to the
Executive.
C. Termination by the Executive. In the event that the Executive
terminates employment hereunder for "Good Reason" (as defined in
Section 5.D), the Company shall have no further liability or
obligation under or in connection with this Agreement, except to
pay the Executive the Severance Payment in eighteen (18) equal
monthly installments, the first such installment payable within
ten (10) days after the date of termination and the remaining
installments payable monthly thereafter. The termination of the
Executive's employment for "Good Reason" shall be effective as of
the date specified in Section 5.D. In the event that the
Executive voluntarily terminates employment hereunder for other
than "Good Reason" (as defined in Section 5.D), the Company shall
have no further liability or obligation under or in connection
with this Agreement. Upon any termination or expiration of the
Executive's employment hereunder, the Executive shall have no
further liability or obligation under or in connection with this
Agreement; provided, however, that the Executive shall continue
to be subject to the provisions of Sections 6 and 7 hereof (it
being understood and agreed that such provisions shall survive
any termination or expiration of the Executive's employment
hereunder). Upon any voluntary termination by the Executive, for
any reason other than Good Reason, or expiration of Executive's
employment hereunder, the Company shall have no further liability
under or in connection with this Agreement, except to pay the
portion of the Executive's Base Salary earned or accrued at the
date of termination.
D. Good Reason. The Executive's employment hereunder shall be deemed
to have been terminated for "Good Reason" if such termination of
employment occurs within one year following either (i) a
diminution in the compensation (without the consent of the
Executive), or a material diminution of the responsibilities of
the Executive, (ii) ▇▇▇▇▇▇ Corporation (the "Parent") or any
subsidiary of the Parent merging with or into or consolidating
with another corporation and as a result thereof less than 50% of
the outstanding
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voting securities of the Parent (or if the outstanding voting
securities of the Parent are converted into or exchanged for
voting securities of some other corporation, less than 50% of the
outstanding voting securities of such other corporation ) are
then owned in the aggregate by the stockholders of the Parent
immediately prior to such merger or consolidation; (iii) the
Executive being required to relocate more than 35 miles from ▇▇▇▇
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consent, (iv) any "person," within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), other than any employee or Subsidiary of the
Parent, any employee benefit plan (or related trust) applicable
to the Parent or any of its Subsidiaries or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or
any corporation, person, partnership, trust or other entity
controlled, directly or indirectly, by him becoming the
beneficial owner (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of securities of the Company representing
20% or more of the combined voting power of the Company's then
outstanding voting securities; or (v) the Company failing to
comply with any material provision of this Agreement. Termination
of employment for Good Reason shall be deemed to be effective
upon 10 days' written notice of termination from the Executive or
the Company, as the case may be; provided, however, that no
termination by the Executive based on a diminution in duties and
responsibilities shall occur until the Executive has first
notified the Company in writing as to the specific nature of the
diminution in duties or responsibilities and afforded the Company
15 days in which to modify such duties or responsibilities.
6. Confidential Information.
A. Nondisclosure. The Executive hereby acknowledges that it will be
necessary in connection with the performance of services
hereunder to provide or make available to the Executive certain
confidential and proprietary information, including, but not
limited to, business and financial information, technological
information, customer lists and financial information on
customers, intellectual property, trade secrets and other
information relating to the businesses, products, technology,
services, customers, methods or tactics of the Company or its
affiliates (any such confidential or proprietary information
being hereinafter referred to as "Confidential Information"). The
Executive further acknowledges that the Confidential Information
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includes certain protected trade secrets and agrees that any such
trade secrets shall remain the property of the Company or its
affiliates at all times during the term of this Agreement and
following the expiration or termination hereof. The Executive
shall not publish, disseminate, distribute, disclose, sell,
assign, transfer, copy, remove from the Company's premises,
commercially exploit, or otherwise make use of any Confidential
Information to or for the use or benefit of the Executive or any
other person, firm, corporation or entity, except as specifically
authorized in writing by the Company or as required for the due
and proper performance of his duties and obligations under this
Agreement. In addition, the Executive shall employ all necessary
safeguards and precautions in order to ensure that unauthorized
access to the Confidential Information is not afforded to any
person, firm, corporation or entity. Upon any expiration or
termination of this Agreement, or if the Company so requests at
any time, the Executive shall promptly return to the Company all
Confidential Information in the Executive's possession, whether
in writing, on computer disks or other media, without retaining
any copies, extracts or other reproductions thereof.
Notwithstanding the foregoing, nothing contained in this
paragraph A shall prevent the publishing, dissemination,
distribution, disclosure, sale, assignment, transfer, copying,
removal, commercial exploitation or other use by the Executive of
any information which (i) is generally available to the public
(other than through a breach on the part of the Executive of any
of the terms or provisions hereof), (ii) is lawfully obtained by
the Executive from a source other than the Company or its
affiliates, directors, officers, employees, agents or other
representatives (provided, however, that such source is not bound
by a confidentiality agreement with the Company or any of its
affiliates and is not otherwise under an obligation of secrecy or
confidentiality to either of them), or (iii) is required to be
disclosed by judicial or administrative process or, in the
opinion of counsel, by the requirements of applicable law
(provided, however, that the Executive complies fully with the
provisions of paragraph B below).
B. Requests for Disclosure. If the Executive is requested (whether
by oral questions, interrogatory, request for documents,
subpoena, civil investigative demand or other legal process) to
disclose any part of the Confidential Information, the Executive
shall (i) give prompt written notice to his supervisor of the
existence of, and the
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circumstances attendant to, such request, (ii) consult with his
supervisor as to the advisability of taking legally available
steps to resist or narrow any such request or otherwise to
eliminate the need for such disclosure, and (iii) if disclosure
is required, cooperate with his supervisor in obtaining a
protective order or other reliable assurance in form and
substance satisfactory to his supervisor that confidential
treatment will be accorded to such portion of the Confidential
Information as is required to be disclosed.
7. Noncompetition. The Executive hereby expressly covenants and agrees,
which covenants and agreements are of the essence of this contract, that he will
not, directly or indirectly, for himself or on behalf of, or in conjunction
with, any other person, persons, company, partnership or corporation, during the
term of this agreement and for a period of two (2) years immediately following
his voluntary termination of employment hereunder for other than Good Reason or
his termination by the Company for Cause:
i. call upon any customer or customers of the Company solicited or
contacted by the Executive or whose account was serviced by the
Executive, pursuant to his employment hereunder, for the purpose
of soliciting or selling marine protein products within the
territory stated in Paragraph 7.iv;
ii. divulge to any person, persons, company, partnership or
corporation the methods and systems used by the Company in
producing, selling or marketing marine protein products;
iii. induce or attempt to induce, directly or indirectly, any employee
to quit the Company's employ or otherwise in any manner interfere
with or disrupt the Company's relationship with other employees;
or
iv. engage in the marine protein business as an officer, director,
employee, partner, or consultant anywhere within the states of
Texas, Louisiana, Mississippi, Alabama, Florida, Georgia, South
Carolina, North Carolina, Virginia, or Maryland.
8. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by final and binding
arbitration in Houston, Texas, in accordance with the Commercial Arbitration
Rules of the American Arbitration Association ("AAA"). The arbitrator shall be
selected by mutual agreement of the parties, if possible. If the parties fail to
reach agreement upon appointment of an
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arbitrator within 30 days following receipt by one party of the other party's
notice of desire to arbitrate, the arbitrator shall be selected from a panel or
panels of persons submitted by the AAA. The selection process shall be that
which is set forth in the AAA Commercial Arbitration Rules then prevailing,
except that, if the parties fail to select an arbitrator from one or more
panels, AAA shall not have the power to make an appointment but shall continue
to submit additional panels until an arbitrator has been selected. This
agreement to arbitrate shall not preclude the parties from engaging in
voluntary, non-binding settlement efforts including mediation.
9. Notices. All notices and other communications hereunder shall be in
writing and shall be given (and shall be deemed to have been duly given upon
receipt) by Federal Express overnight delivery, to the respective parties at the
following addresses (or at such other address as either party shall have
previously furnished to the other in accordance with the terms of this
Section 9):
If to the Company:
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Chairman of the Board
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If to the Executive:
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10. Amendment; Waiver. The terms and provisions of this Agreement may be
modified or amended only by a written instrument executed by each of the parties
hereto, and compliance with the terms and provisions hereof may be waived only
by a written instrument executed by each party entitled to the benefits thereof.
No failure or delay on the part of any party in exercising any right, power or
privilege granted hereunder shall constitute a waiver thereof, nor shall any
single or partial exercise of any such right, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege granted hereunder.
11. Entire Agreement. This constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
written or oral agreements or understandings between the parties relating
thereto.
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12. Severability. In the event that any term or provision herein is found
to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining terms and provisions hereof shall not be in any
way affected or impaired thereby, and shall be construed as if such invalid,
illegal or unenforceable provision had never been contained therein.
13. Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns
(it being understood and agreed that, except as expressly provided herein,
nothing contained herein is intended to confer upon any other person or entity
any rights, benefits or remedies of any kind or character whatsoever). Neither
party may assign this Agreement without the prior written consent of the other
party; provided, however, that the Company may assign this Agreement to any of
its affiliates or to any successor.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas (except that no effect shall be
given to any conflicts of law principles thereof that would require the
application of the laws of another jurisdiction).
15. Headings. The headings of the sections contained herein are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision hereof.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter which
will then constitute our agreement on the subject.
OMEGA PROTEIN CORPORATION
By:
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Executive Vice President and
Chief Financial Officer
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ACKNOWLEDGED AND AGREED TO:
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