AGREEMENT OF SETTLEMENT AND RELEASE
AGREEMENT OF SETTLEMENT AND RELEASE dated this 29th day of February,
2000 by and among (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ WMI Trust, Winthrop Holdings Limited
Partnership, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Birthday Trust, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ WMI Trust
and ▇▇▇▇▇▇▇ ▇▇▇▇ (collectively, the "Winthrop Parties") and (ii) Central
Coal & Coke Corporation (the "Company"), ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇
(collectively, the "Central Parties").
W I T N E S S E T H
WHEREAS, the 1999 annual meeting of stockholders of the Company (the
"Annual Meeting") was held on April 21, 1999; and
WHEREAS, following the Annual Meeting, the Winthrop Parties initiated
a lawsuit against the Central Parties in the Court of Chancery of the
State of Delaware, styled Winthrop, et al. v. Central Coal & Coke Corp.,
et al., Civil Action No. 17162 (the "Action") challenging the results of
the election of directors at the Annual Meeting; and
WHEREAS, since the Annual Meeting, the Winthrop Parties and the
Central Parties have been involved in a number of disputes and
disagreements regarding the governance, management and operations of the
Company; and
WHEREAS, the Winthrop Parties and the Central Parties wish to resolve
their disputes without resort to continued litigation or further
litigation;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the undersigned
parties to this Agreement of Settlement and Release (the "Agreement") do
hereby agree and undertake to settle all of their disputes as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.1 Purchase and Sale of Shares. Upon and subject to the terms and
conditions hereinafter set forth, the Winthrop Parties shall sell, assign,
transfer and deliver to the Company 97,231 shares of common stock, par
value $1.00 per share, of the Company (the "Shares") and the Company shall
purchase and acquire all of the Winthrop Parties' right, title and
interest in and to the Shares. The aggregate purchase price of the Shares
shall be $3,257,238.50 (the "Purchase Price").
1.2 Items Delivered. The Winthrop Parties shall cause the record
owner(s) of the Shares to transfer ownership of the Shares to the Company.
Upon transfer of the Shares to the Company, the Company shall deliver
payment of the Purchase Price in immediately available funds by wire
transfer to the attorney trust account of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP.
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ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1 Representations and Warranties of the Winthrop Parties. The
Winthrop Parties represent and warrant that (i) they are the sole
beneficial owners of the Shares, free and clear of all liens, claims,
encumbrances, restrictions on transfer or rights of third parties of any
nature whatsoever ("Liens"), (ii) neither they or any of their affiliates
or associates (as those terms are defined in Section 4.1 of this
Agreement) have any right, title or interest in or to any shares of or
options or warrants to acquire shares of common stock, par value $1.00 per
share, of the Company or any other securities of the Company other than
the 97,231 Shares described in Section 1.1 of this Agreement, (iii) they
have the unrestricted right to sell, assign and transfer the Shares as
contemplated herein, (iv) the performance by the Winthrop Parties of their
obligations hereunder will vest in the Company title to the Shares, free
and clear of all Liens, (v) they have all requisite power and authority to
execute, deliver and perform this Agreement and to sell, assign and
transfer the Shares, (vi) this Agreement constitutes a valid and binding
obligation of the Winthrop Parties, enforceable in accordance with its
terms and (vii) no consent, approval, waiver, authorization or filing is
necessary for the execution, delivery and performance by the Winthrop
Parties of this Agreement. Notwithstanding any provision of this
Agreement to the contrary, in the event that, whether prior to or
subsequent to the Closing, any Lien relating to the Shares shall be
discovered by any party hereto, such party shall immediately give notice
thereof to the Winthrop Parties and the Winthrop Parties shall, at their
sole cost and expense, remove or cause to be removed such Lien.
2.2 Representations and Warranties of the Central Parties. The
Central Parties represent and warrant that (i) they have all requisite
power and authority to execute, deliver and perform this Agreement, (ii)
this Agreement constitutes a valid and binding obligation of the Central
Parties, enforceable in accordance with its terms, and (iii) no consent,
approval, waiver, authorization or filing is necessary for the execution,
delivery and performance by the Central Parties of this Agreement.
2.3 Indemnification of the Winthrop Parties. The Company shall
defend and promptly indemnify and save the Winthrop Parties harmless from,
against, for and in respect of, and shall promptly pay upon submission of
statements therefor, any and all damages, losses, obligations,
liabilities, claims, encumbrances, deficiencies, costs and expenses,
including, without limitation, attorneys' fees and other costs and
expenses incident to any action, investigation, claim or proceeding (all
hereinafter collectively referred to as "Losses") suffered, sustained,
incurred or required to be paid by the Winthrop Parties, or any of them,
by reason of or relating to any breach or failure of observance or
performance of any representation, warranty covenant, agreement or
commitment hereunder or relating hereto made by any of the Central
Parties.
2.4 Indemnification of the Central Parties. The Winthrop Parties
shall, severally but not jointly, defend and promptly indemnify and save
the Central Parties harmless from, against, for and in respect of and
shall promptly pay upon submission of statements therefor, any and all
Losses suffered, sustained, incurred or required to be paid by the Central
Parties by reason of any breach or failure of observance or performance of
any representation, warranty, covenant, agreement or commitment hereunder
or relating hereto made by any of the Winthrop Parties.
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ARTICLE III
MUTUAL GENERAL RELEASES
3.1 Release by the Winthrop Parties. The Winthrop Parties agree
and covenant, on behalf of themselves and their respective heirs, estates,
officers, directors, partners, trustees, beneficiaries, successors,
predecessors, subsidiaries, principals and affiliates (the "Winthrop
Releasors"), to remise, release and forever discharge, and covenant not to
▇▇▇ or take any steps to further any existing litigation against, the
Central Parties and their respective heirs, estates, successors,
affiliates, subsidiaries, officers, directors, partners, trustees,
beneficiaries, employees, agents, representatives, attorneys and any other
advisors or consultants to Central Parties (collectively, the "Central
Releasees"), and each of them, from and in respect of any and all claims
and causes of action, whether based on any federal, state or foreign law
or right of action, direct, indirect or representative in nature, foreseen
or unforeseen, matured or unmatured, known or unknown, which any of, or
all, the Winthrop Releasors have, had or may have against the Central
Releasees, or any of them, of any kind, nature or type whatsoever, up to
the date of this Agreement, except that the Winthrop Releasors do not
release the Central Releasees from any claims they may have related to or
connected in any way with the performance or enforcement of the terms of
this Agreement.
3.2 Release by the Central Parties. The Central Parties agree and
covenant, on behalf of themselves and their respective heirs, estates,
officers, directors, partners, trustees, beneficiaries, successors,
predecessors, subsidiaries, principals and affiliates (the "Central
Releasors"), to remise, release and forever discharge, and covenant not to
▇▇▇ or take any steps to further any existing litigation against, the
Winthrop Parties and their respective heirs, estates, successors,
affiliates, subsidiaries, officers, directors, partners, trustees,
beneficiaries, employees, agents, representatives, attorneys and any other
advisors or consultants to the Winthrop Parties (collectively, the
"Winthrop Releasees"), and each of them, from and in respect of any and
all claims and causes of action, whether based on any federal, state or
foreign law or right of action, direct, indirect or representative in
nature, foreseen or unforeseen, matured or unmatured, known or unknown,
which any of, or all, the Central Releasors have, had or may have against
the Winthrop Releasees, or any of them, of any kind, nature or type
whatsoever, up to the date of this Agreement, except that the Central
Releasors do not release the Winthrop Releasees from any claims they may
have related to or connected in any way with the performance or
enforcement of the terms of this Agreement.
3.3 Releases Binding, Unconditional and Final. The parties hereby
acknowledge and agree that the releases and covenants provided for herein
shall be binding, unconditional and final upon full execution of this
Agreement.
3.4 Undiscovered Facts. The parties acknowledge that they may
hereafter discover facts in addition to or different from those which they
now know or believe to be true with respect to the subject matters of the
releases and covenants contained herein, but that it is their intention
that such facts shall have no effect on such releases or covenants; in
furtherance of such intention, they acknowledge that the releases and
covenants contained herein shall be and remain in effect notwithstanding
the subsequent discovery or existence of any such additional or different
facts. Moreover, the parties acknowledge that they have considered the
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possibility that they may not now fully know the number and magnitude of
all claims which they have released hereby but agree nonetheless to assume
that risk and desire to release such unknown claims.
3.5 The Action. The Winthrop Parties agree not to pursue any other
rights or remedies in, through or with respect to the Action, including
but not limited to appealing any aspect of the judgment in the Action.
ARTICLE IV
STANDSTILL
4.1 From and after the date of this Agreement, the Winthrop Parties
and their respective agents, representatives, affiliates, associates and
all other persons acting in concert with or under the control or direction
of any of the Winthrop Parties shall not, directly or indirectly: (a)
acquire, enter into any option to acquire, offer to acquire, agree to
acquire, become the record, legal or beneficial owner of or obtain any
rights in respect to any securities of the Company, by purchase,
conversion, exchange or exercise of Company securities pursuant to their
terms, or take any action in furtherance thereof; or (b) participate in
any proxy solicitation or become a member of any "group," within the
meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 (the
"Exchange Act") or the rules and regulations of the Securities and
Exchange Commission promulgated thereunder, with respect to the Company or
any Company securities. As used herein, the terms "affiliate" and
"associate" shall have the meanings given such terms in Rule 12b-2 of the
Exchange Act, and the term "person" shall mean any individual,
partnership, corporation, group (as defined above), syndicate, trust or
any other association or entity.
ARTICLE V
NONDISPARAGEMENT; LITIGATION; CONFIDENTIALITY
5.1 Nondisparagement; Litigation. The Winthrop Parties agree and
covenant, on behalf of themselves and their respective heirs, estates,
officers, directors, partners, trustees, beneficiaries, successors,
predecessors, subsidiaries, principals and affiliates not to directly or
indirectly disparage, criticize, or make any negative public or private
comments about any of the Central Parties or any of their respective
heirs, estates, successors, affiliates, subsidiaries, officers, directors,
partners, trustees, beneficiaries, employees, agents, representatives,
attorneys and any other advisors or consultants to Central Parties to any
person or entity or to assist any person or entity to initiate or pursue,
directly or indirectly, any litigation, arbitration, suit, claim, or
complaint against the Central Parties or any of their respective heirs,
estates, successors, affiliates, subsidiaries, officers, directors,
partners, trustees, beneficiaries, employees, agents, representatives,
attorneys and any other advisors or consultants to Central Parties
relating to any matter whatsoever, excluding, however, any litigation,
arbitration, suit, claim, or complaint filed in connection with a breach
of this Agreement. The Central Parties agree and covenant, on behalf of
themselves and their respective heirs, estates, officers, directors,
partners, trustees, beneficiaries, successors, predecessors, subsidiaries,
principals and affiliates not to directly or indirectly disparage,
criticize, or make any negative public or private comments about the
Winthrop Parties or any of their respective heirs, estates, successors,
affiliates, subsidiaries, officers, directors, partners, trustees,
beneficiaries, employees, agents, representatives, attorneys and any other
advisors or consultants to the Winthrop Parties or assist any person or
entity to initiate or pursue, directly or indirectly, any litigation,
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arbitration, suit, claim or complaint against the Winthrop Parties or any
of their respective heirs, estates, successors, affiliates, subsidiaries,
officers, directors, partners, trustees, beneficiaries, employees, agents,
representatives, attorneys and any other advisors or consultants to the
Winthrop Parties relating to any matters whatsoever, excluding, however,
any litigation, arbitration, suit, claim, or complaint filed in connection
with a breach of this Agreement.
5.2 Confidentiality. The parties to this Agreement shall maintain
the confidentiality of this Agreement and the terms hereof, except to the
extent necessary to comply in good faith with applicable securities laws
or regulations.
5.3 Notwithstanding Sections 5.1 and 5.2 of this Agreement, nothing
contained herein shall limit the ability of any party to this Agreement to
provide documents or information responsive to legal process or legal
proceedings, or requests from any government or regulatory agency or
authority in connection with any formal or informal inquiry, investigation
or proceeding (a "Request"). If any party to this Agreement receives such
a Request, it shall (i) give prompt actual written notice, by hand or
facsimile transmission, and in no event later than forty-eight hours of
receipt of such Request, to all other parties to this Agreement and (ii)
shall use its best efforts to maintain the confidentiality of such
documents or information.
ARTICLE VI
MISCELLANEOUS
6.1 No Concession of Liability. This Agreement shall not in any
event be construed or deemed a concession on the part of any of the
undersigned to the truth of any allegations, claims, or defenses made by
any of the parties in the Action or otherwise, or of any liability or
wrongdoing of any of the parties.
6.2 Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof. The
representations, warranties, covenants and agreements set forth in this
Agreement constitute all the representations, warranties, covenants and
agreements of the parties hereto and upon which the parties have relied
and except as may be specifically provided herein, no change,
modification, amendment, addition or termination of this Agreement or any
part thereof shall be valid unless in writing and signed by or on behalf
of the party to be charged therewith.
6.3 Fees and Expenses of Transaction. The parties hereto shall
each bear his, her or its own expenses in connection with this
transaction.
6.4 Waivers. No waiver of the provisions hereof shall be effective
unless in writing and signed by the party to be charged with such waiver.
No waiver shall be deemed a continuing waiver or waiver in respect of any
subsequent breach or default, either of similar or different nature,
unless expressly so stated in writing.
6.5 Governing Law. This Agreement shall be governed, interpreted
and construed in accordance with the laws of the State of Delaware
applicable to contracts to be performed entirely within that State.
Should any clause, section or part of this Agreement be held or declared
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to be void or illegal for any reason, all other clauses, sections or parts
of this Agreement which can be effected without such illegal clause,
section or part shall nevertheless continue in full force and effect.
6.6 Jurisdiction and Venue. Each party hereto hereby agrees that
any proceeding relating to this Agreement shall be brought in a state
court of Delaware. Each party hereto hereby consents to personal
jurisdiction in any such action brought in any such Delaware court,
consents to service of process by registered mail made upon such party
and/or such party's agent and waives any objection to venue in any such
Delaware court and a claim that any such Delaware court is an inconvenient
forum.
6.7 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns or heirs and personal representatives.
6.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
6.9 Survival of Representations. All of the representations,
warranties, covenants, releases and indemnities of the parties set forth
in this Agreement will survive the transfer of the Shares to the Company.
6.10 No Third Party Rights. The representations, warranties and
agreements of the parties contained herein are intended solely for the
benefit of the party to whom such representations, warranties or
agreements are made, shall confer no rights hereunder, whether legal or
equitable, in any other person or entity, and no other person or entity
shall be entitled to rely thereon.
6.11 Construction. This Agreement shall not be more strictly
construed against one party than against any other merely because it was
prepared by counsel for that party, it being recognized that, because of
the arm's length negotiations, all parties have materially and
substantially contributed to the preparation, review and final terms of
this Agreement.
6.12 Indemnification of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. If ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is
made a party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding") by reason of the fact that he was a
director or officer of the Company or was serving at the request of the
Company as a director, officer, employee or agent of any other corporation
or of a partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, he shall be indemnified
and held harmless by the Company to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter be
amended, (but, in the case of any such amendment, only to the extent that
such amendment permits the Company to provide broader indemnification
rights than said Law permitted the Company to provide prior to such
amendment) against all expenses, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid
or to be paid in settlement) reasonably incurred or suffered by such
person in connection therewith; provided, however, that the Company shall
indemnify ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in connection with a Proceeding (or part
thereof) initiated by him only if Proceeding (or part thereof) was
authorized by the Board of Directors of the Company. Such right shall be
a contract right and shall include the right to be paid by the Company
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expenses incurred in defending any such Proceeding in advance of its final
disposition; provided, however, that, the payment of such expense incurred
by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in advance of the final disposition of such
Proceeding, shall be made only upon delivery to the Company of an
undertaking, by or on behalf of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to repay all amounts so
advanced if it should be determined ultimately that he is not entitled to
be indemnified.
6.13 Withdrawal of Stockholder Proposal. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall
withdraw the proposal which he has requested the Company, by letter dated
November 23, 1999, to include in its proxy materials for the 2000 annual
meeting of stockholders of the Company. None of the Winthrop Parties
shall propose, initiate, facilitate or encourage any stockholder proposals
with respect to the Company.
6.14 Specific Performance; Injunctive Relief. The parties to this
Agreement agree that solely a remedy at law for breach of this Agreement
is inadequate and that any party by whom this Agreement is enforceable
shall be entitled to institute and prosecute proceedings, either at law or
in equity, to seek specific performance of the terms and conditions of
this Agreement, to obtain injunctive relief or to obtain any other
appropriate relief or remedy. Such remedies shall, however, be cumulative
and not exclusive and shall be in addition to any other remedies which a
party may have under this Agreement or at law.
6.15 Notices. Unless otherwise provided by the terms of this
Agreement, any and all notices or other communications or deliveries
required or permitted to be given or made pursuant to any of the
provisions of this Agreement shall be deemed to have been duly given or
made for all purposes if sent by certified or registered mail, return
receipt requested and postage prepaid, or delivered in person to the
parties at the following addresses: (i) on behalf of the Winthrop
Parties, ▇▇. ▇▇▇▇▇▇▇ Winthrop, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ and (ii) on behalf of the Central Parties, Central Coal & Coke
Corporation, Attn: Secretary, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as any party may specify by
notice given to other parties in accordance with this Section. The date
of giving of any such notice shall be (a) in the case of hand delivery,
when actually delivered to the addressee and (b) in the case of registered
or certified mail, three (3) days after mailing. Copies of all notices
shall be sent to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇., Esquire, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the 29th day of February, 2000.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ Phoebe ▇▇▇▇ ▇▇▇▇▇▇▇▇
_______________________________________
PHOEBE ▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ WMI TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Trustee
WINTHROP HOLDINGS LIMITED
PARTNERSHIP
By: Woodwin Management, Inc.
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ BIRTHDAY TRUST
By: /s/ Phoebe ▇▇▇▇ ▇▇▇▇▇▇▇▇
__________________________________
PHOEBE ▇▇▇▇ ▇▇▇▇▇▇▇▇
Trustee
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ WMI TRUST
By: /s/ Phoebe ▇▇▇▇ ▇▇▇▇▇▇▇▇
__________________________________
PHOEBE ▇▇▇▇ ▇▇▇▇▇▇▇▇
Trustee
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
_____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇
CENTRAL COAL & COKE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
_______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
_______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
_______________________________________
▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
_______________________________________
▇▇▇▇▇ ▇▇▇▇▇▇