Farr Company and Subsidiaries
Exhibit 10.46
EMPLOYMENT CONTINUATION AGREEMENT
THIS AGREEMENT is between FARR COMPANY, a Delaware corporation (the
"Company"), and Steven E. Pegg (the "Executive"), dated as of this 15th day of
February, 2000.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is hereby agreed by and between the Company and the
Executive as follows:
1. Operation of Agreement Effective Date. The effective date of this
Agreement shall be the date on which a Change of Control occurs (the "Effective
Date").
2.Definitions. (a) Change of Control. For the purposes of this
Agreement, a "Change of Control" shall be deemed to have occurred if:
(i) any Person (as defined below) has acquired, "beneficial
ownership" (within the meaning of Rule 13d-3, as promulgated under
Section 13(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of securities of the Company representing 50% or more
of the combined Voting Power (as defined below) of the Company's
securities; or
(ii) within any 24 month period, the persons who were directors
of the Company immediately before the beginning of such period (the
"Incumbent Directors") shall cease (for any reason other than death)
to constitute at least a majority of the Board or the board of
directors of any successor to the Company, provided that any director
who was not a director at the beginning of such period shall be deemed
to be an Incumbent Director if such director (A) was elected to the
Board by, or on the recommendation of or with the approval of, at
least two-thirds of the directors who then qualified as Incumbent
Directors either actually or by prior operation of this Section
2(a)(ii) and (B) was not designated by a person who has entered into
an agreement with the Company to effect a Corporate Event, as
described in Section 2(a)(iii); or
(iii) the stockholders of the Company approve a merger,
consolidation, share exchange, division, sale or other disposition of
all or substantially all of the assets of the Company (a "Corporate
Event"), as a result of which the shareholders of the Company
immediately prior to such Corporate Event shall not hold, directly or
indirectly, immediately following such Corporate Event a majority of
the Voting Power of (x) in the case of a merger or consolidation, the
surviving or resulting corporation, (y) in the case of a share
exchange, the acquiring corporation or (z) in the case of a division
or a sale or other disposition of assets, each surviving, resulting or
acquiring corporation which, immediately following the relevant
Corporate Event, holds more than 10% of the consolidated assets of the
Company immediately prior to such Event.
(b) Person Defined. For purposes of this Section 2, "Person" shall
have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act,
as supplemented by Section 13(d)(3) of the Exchange Act; provided, however, that
Person shall not include (i) the Company or any subsidiary of the Company or
(ii) any employee benefit plan sponsored by the Company or any subsidiary of the
Company.
3. Employment Period. Subject to Section 6 of this Agreement, the
Company agrees to continue the Executive in its employ, and the Executive agrees
to remain in the employ of the Company, for the period (the "Employment Period")
commencing on the Effective Date and ending on the second anniversary of the
Effective Date.
4. No Reduction in Position. During the Employment Period, the
Executive's position, authority and responsibilities shall be at least
commensurate with those held, exercised and assigned immediately prior to the
Effective Date. The Executive's services shall be performed at the location
where the Executive was employed immediately preceding the Effective Date, or at
another location within 50 miles of it.
5. Compensation. (a) Base Salary. During the Employment Period, the
Executive shall receive a base salary at a rate at least equal to the base
salary paid to the Executive by the Company immediately prior to the Effective
Date. The Executive's base salary, as it may be increased from time to time,
shall hereafter be referred to as "Base Salary". Neither the Base Salary nor any
increase in Base Salary after the Effective Date shall serve to limit or reduce
any other obligation of the Company hereunder.
(b) Annual Bonus. During the Employment Period, in addition to the
Base Salary, for each fiscal year of the Company ending during the Employment
Period or partial year beginning during the Employment Period, the Executive
shall participate in an annual bonus plan on terms and conditions no less
favorable to the Executive than the annual bonus plan the Executive had
participated in during the fiscal year ended immediately prior to the Effective
Date (the "Annual Bonus").
(c) Benefit Plans. During the Employment Period, the Executive (and,
to the extent applicable, his dependents) shall be entitled to participate in or
be covered under all pension, retirement, deferred compensation, savings,
medical, dental, health, disability, group life, accidental death and travel
accident insurance plans and programs of the Company at a level that is
commensurate with the Executive's participation in such plans immediately prior
to the Effective Date, or, if more favorable to the Executive, at the level made
available to the Executive or other similarly situated officers at any time
thereafter.
(d) Perquisites and Fringe Benefits. During the Employment Period, the
Executive shall be entitled to perquisites and fringe benefits at a level that
is commensurate with the perquisites and fringe benefits available to the
Executive immediately prior to the Effective Date, or, if more favorable to the
Executive, at the level made available from time to time to the Executive or
other similarly situated officers at any time thereafter.
(e) Indemnification. During and after the Employment Period, the
Company shall indemnify the Executive and hold the Executive harmless from and
against any claim, loss or cause of action arising from or out of the
Executive's performance as an officer, director or employee of the Company or
any of its Subsidiaries or in any other capacity, including any fiduciary
capacity, in which the Executive serves at the request of the Company. In no
event shall the protection afforded to the Executive hereunder be less than that
afforded immediately prior to the Effective Date.
6. Termination. (a) Death, Disability or Retirement. Subject to the
provisions of Section 1 hereof, this Agreement shall terminate automatically
upon the Executive's death or termination due to "Disability". For purposes of
this Agreement, Disability shall mean the Executive's inability to perform the
duties of his position, as determined in accordance with the policies and
procedures applicable with respect to the Company's long-term disability plan,
as in effect immediately prior to the Effective Date or its equivalent.
(b) Voluntary Termination. Notwithstanding anything in this Agreement
to the contrary, following a Change of Control the Executive may, upon not less
than 30 days' written notice to the Company, voluntarily terminate employment
for any reason (including early retirement under the terms of any of the
Company's retirement plans as in effect from time to time), provided that any
termination by the Executive pursuant to Section 6(d) on account of Good Reason
(as defined therein) shall not be treated as a voluntary termination under this
Section 6(b).
(c) Cause. The Company may terminate the Executive's employment for
Cause. For purposes of this Agreement, "Cause" means (i) the Executive's
conviction of a felony or the entering by the Executive of a plea of nolo
contendere to a felony charge, (ii) the Executive's gross neglect, willful
malfeasance or willful gross misconduct in connection with his employment
hereunder which has had a significant adverse effect on the business of the
Company and its subsidiaries, unless the Executive reasonably believed in good
faith that such act or nonact was in or not opposed to the best interests of the
Company, or (iii)use of alcohol or drugs to an extent determined by the board of
directors in its sole discretion to be excessive.
(d) Good Reason. Following the occurrence of a Change of Control, the
Executive may terminate his employment for Good Reason. For purposes of this
Agreement, "Good Reason" means the occurrence of any of the following, without
the express written consent of the Executive, after the occurrence of a Change
of Control:
(i) (A) the assignment to the Executive of any duties
inconsistent in any material adverse respect with the Executive's
position, authority or responsibilities as contemplated by Section 4
of this Agreement, or (B) any other material adverse change in such
position, (not including changes in title), authority or
responsibilities;
(ii) any failure by the Company to comply with any of the
provisions of Section 5 of this Agreement, other than an insubstantial
or inadvertent failure remedied by the Company promptly after receipt
of notice thereof given by the Executive;
(iii) the Company's requiring the Executive to be based at any
office or location more than 50 miles from that location at which he
performed his services specified under the provisions of Section 4
immediately prior to the Change of Control;
(iv) any other material breach of this Agreement by the Company;
or
(v) any failure by the Company to obtain the assumption and
agreement to perform this Agreement by a successor as contemplated by
Section 12(b).
(e) Notice of Termination. Any termination by the Company for Cause or
by the Executive for Good Reason shall be communicated by Notice of Termination
to the other party hereto given in accordance with Section 13(e). For purposes
of this Agreement, a "Notice of Termination" means a written notice given within
a reasonable time after the event or action believed to constitute the reason
for giving notice.
(f) Date of Termination. For the purpose of this Agreement, the term
"Date of Termination" means (i) in the case of a termination for which a Notice
of Termination is required, the date of receipt of such Notice of Termination
or, if later, the date specified therein up to 30 days after receipt, as the
case may be, and (ii) in all other cases, the actual date on which the
Executive's employment terminates during the Employment Period.
7. Obligations of the Company upon Termination. (a) Death or
Disability. If the Executive's employment is terminated during the Employment
Period by reason of the Executive's death or Disability, this Agreement shall
terminate without further obligations to the Executive or the Executive's legal
representatives under this Agreement other than those obligations accrued
hereunder at the Date of Termination, and the Company shall pay to the Executive
(or his beneficiary or estate) (i) the Executive's full Base Salary through the
Date of Termination (the "Earned Salary"), (ii) any vested amounts or vested
benefits owing to the Executive under the Company's otherwise applicable
employee benefit plans and programs, including any compensation previously
deferred by the Executive (together with any accrued earnings thereon) and not
yet paid by the Company (the "Accrued Obligations" which in each instance under
this Agreement shall be paid in accordance with the terms of the applicable
plan, program or arrangement), and (iii) any other benefits payable due to the
Executive's death or Disability under the Company's plans, policies or programs
(the "Additional Benefits").
(b) Cause and Voluntary Termination. If, during the Employment Period,
the Executive's employment shall be terminated for Cause or voluntarily
terminated by the Executive during the six month period following the Effective
Date or during the twelve month period following the first anniversary of the
Effective Date (other than on account of Good Reason following a Change of
Control), the Company shall pay the Executive (A) the Earned Salary in cash in a
single lump sum as soon as practicable, but in no event more than 10 days,
following the Date of Termination, and (B) the Accrued Obligations. If, during
the Employment Period, Executive's employment shall be terminated voluntarily by
the Executive during the six month period commencing on the 180th day after the
Effective Date and ending on the first anniversary of the Effective Date,
Executive shall be paid in a lump sum within ten days following his Date of
Termination the following amounts: (A) the Executives Earned Salary, (B) a cash
amount equal to one-half the Severance Amount (defined below); and (C) the
Accrued Obligations.
(i) Continuation of Benefits. For Cause or voluntarily by
Executive in First Six Months. If, during the Employment Period, the
Executive's employment shall be terminated for Cause or voluntarily
terminated by the Executive during the six month period following the
Effective Date or during the twelve month period following the first
anniversary of the Effective Date (other than on account of Good
Reason following a Change of Control), Executive shall participate in
no Benefit Plans (hereinafter defined) following the Date of
Termination.
(ii) Continuation of Benefits. For Voluntary Termination by
Executive after First Six Months and Before Twelve Months. If, during
the Employment Period, Executive's employment shall be terminated
voluntarily by the Executive during the six month period commencing on
the 180th day after the Effective Date and ending on the first
anniversary of the Effective Date, the Executive (and, to the extent
applicable, his dependents) shall be entitled, after the Date of
Termination until the earlier of (1) the first anniversary of the Date
of Termination (the "End Date") and (2) the date the Executive becomes
eligible for comparable benefits under a similar plan, policy or
program of a subsequent employer, to continue participation in all of
the following plans of the Company: medical, dental, health,
disability, group life and accidental death (the "Benefit Plans"). To
the extent any such benefits cannot be provided under the terms of the
applicable plan, policy or program, the Company shall provide a
comparable benefit under another plan or from the Company's general
assets. The Executive's participation in the Benefit Plans will be on
the same terms and conditions that would have applied had the
Executive continued to be employed by the Company through the End
Date.
(c) Termination by the Company other than for Cause and Termination by
the Executive for Good Reason.
(i) Payments. If, during the Employment Period, the Company
terminates the Executive's employment other than for Cause, or
following a Change of Control the Executive terminates his employment
for Good Reason, the Company shall pay to the Executive the following
amounts: (A) the Executive's Earned Salary; (B) a cash amount (the
"Severance Amount") equal to two point one (2.1) times the sum of (x)
the Executive's annual Base Salary and (y) an amount equal to the last
annual bonus earned by the Executive during the full year preceding
the Change of Control; and (C) the Accrued Obligations.
The Earned Salary shall be paid in accordance with the Company's
regular payroll practices. The Severance Amount shall be paid in
fifty-two (52) equal payments at dates concurrent with the Company's
regular payroll cycle commencing with the next payroll cycle following
the Date of Termination.
(ii) Continuation of Benefits. If, during the Employment Period,
the Company terminates the Executive's employment other than for
Cause, or following a Change of Control the Executive terminates his
employment for Good Reason, the Executive (and, to the extent
applicable, his dependents) shall be entitled, after the Date of
Termination until the second anniversary of the Date of Termination
(the "End Date") to continue participation in those Benefit Plans
listed above in Section 7 (b) (ii). To the extent any such benefits
cannot be provided under the terms of the applicable plan, policy or
program, the Company shall provide a comparable benefit under another
plan or from the Company's general assets. The Executive's
participation in the Benefit Plans will be on the same terms and
conditions that would have applied had the Executive continued to be
employed by the Company through the End Date.
(d) Discharge of the Company's Obligations. Except as expressly
provided in the last sentence of this Section 7(d), the amounts payable to the
Executive pursuant to this Section 7 (whether or not reduced pursuant to Section
7(e)) following termination of his employment shall be in full and complete
satisfaction of the Executive's rights under this Agreement and any other claims
he may have in respect of his employment by the Company or any of its
Subsidiaries. Such amounts shall constitute liquidated damages with respect to
any and all such rights and claims and, upon the Executive's receipt of such
amounts, the Company shall be released and discharged from any and all liability
to the Executive in connection with this Agreement or otherwise in connection
with the Executive's employment with the Company and its Subsidiaries. Nothing
in this Section 7(d) shall be construed to release the Company from its
commitment to indemnify the Executive and hold the Executive harmless from and
against any claim, loss or cause of action arising from or out of the
Executive's performance as an officer, director or employee of the Company or
any of its Subsidiaries or in any other capacity, including any fiduciary
capacity, in which the Executive served at the request of the Company to the
maximum extent permitted by applicable law and the Governing Documents.
(e) Limit on Payments by the Company.
(i) Application of Section 7(e). In the event that any amount or
benefit paid or distributed to the Executive pursuant to this
Agreement, taken together with any amounts or benefits otherwise paid
or distributed to the Executive by the Company or any affiliated
company (collectively, the "Covered Payments"), would be an "excess
parachute payment" as defined in Section 280G of the Code and would
thereby subject the Executive to the tax (the "Excise Tax") imposed
under Section 4999 of the Code (or any similar tax that may hereafter
be imposed), the provisions of this Section 7(e) shall apply to
determine the amounts payable to Executive pursuant to this Agreement.
(ii) Calculation of Benefits. Immediately following delivery of
any Notice of Termination, the Company shall notify the Executive of
the aggregate present value of all termination benefits to which he
would be entitled under this Agreement and any other plan, program or
arrangement as of the projected Date of Termination, together with the
projected maximum payments, determined as of such projected Date of
Termination that could be paid without the Executive being subject to
the Excise Tax.
(iii) Imposition of Payment Cap. If the aggregate value of all
compensation payments or benefits to be paid or provided to the
Executive under this Agreement and any other plan, agreement or
arrangement with the Company exceeds the amount which can be paid to
the Executive without the Executive incurring an Excise Tax, then the
amounts payable to the Executive under this Section 7 shall be reduced
(but not below zero) to the maximum amount which may be paid hereunder
without the Executive becoming subject to such an Excise Tax (such
reduced payments to be referred to as the "Payment Cap"). In the event
that the Executive receives reduced payments and benefits hereunder,
the Executive shall have the right to designate which of the payments
and benefits otherwise provided for in this Agreement that he will
receive in connection with the application of the Payment Cap.
(iv) Application of Section 280G. For purposes of determining
whether any of the Covered Payments will be subject to the Excise Tax
and the amount of such Excise Tax,
(A) (x) whether Covered Payments are "parachute
payments" within the meaning of Section 280G of the
Code, and (y) whether there are "parachute payments"
in excess of the "base amount" (as defined under
Section 280G(b)(3) of the Code) shall be determined
in good faith by the Company's independent certified
public accountants appointed prior to the Effective
Date (the "Accountants") or tax counsel selected by
such Accountants, and
(B) the value of any non-cash benefits or any deferred
payment or benefit shall be determined by the
Accountants in accordance with the principles of
Section 280G of the Code.
(v) Adjustments in Respect of the Payment Cap. If the Executive
receives reduced payments and benefits under this Section 7(e)(or this
Section 7(e) is determined not to be applicable to the Executive
because the Accountants conclude that Executive is not subject to any
Excise Tax) and it is established pursuant to a final determination of
a court or an Internal Revenue Service proceeding (a "Final
Determination") that, notwithstanding the good faith of the Executive
and the Company in applying the terms of this Agreement, the aggregate
"parachute payments" within the meaning of Section 280G of the Code
paid to the Executive or for his benefit are in an amount that would
result in the Executive's being subject to an Excise Tax, then any
amounts actually paid to or on behalf of the Executive which are
treated as excess parachute payments shall be deemed for all purposes
to be a loan to the Executive made on the date of receipt of such
excess payments, which the Executive shall have an obligation to repay
to the Company on demand, together with interest on such amount at the
applicable Federal rate (as defined in Section 1274(d) of the Code)
from the date of the payment hereunder to the date of repayment by the
Executive. If the Executive receives reduced payments and benefits by
reason of this Section 7(e) and it is established pursuant to a Final
Determination that the Executive could have received a greater amount
without exceeding the Payment Cap, then the Company shall promptly
thereafter pay the Executive the aggregate additional amount which
could have been paid without exceeding the Payment Cap, together with
interest on such amount at the applicable Federal rate (as defined in
Section 1274(d) of the Code) from the original payment due date to the
date of actual payment by the Company.
8. Non-exclusivity of Rights. Except as expressly provided herein,
nothing in this Agreement shall prevent or limit the Executive's continuing or
future participation in any benefit, bonus, incentive or other plan or program
provided by the Company for which the Executive may qualify, nor shall anything
herein limit or otherwise prejudice such rights as the Executive may have under
any other agreements with the Company, including employment agreements or stock
option agreements. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan or program of the Company or any of
its affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan or program.
9. No Mitigation or Offset. The Executive shall have no obligation to
seek other employment and there shall be no offset against amounts due to
Executive under this Agreement on account of any remuneration attributable to
subsequent employment that he may obtain or on account of other claims. The
Company's obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any
circumstances, including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Company may have against the
Executive or others whether by reason of the subsequent employment of the
Executive or otherwise.
10. Legal Fees and Expenses. If the Executive asserts any claim in any
contest (whether initiated by the Executive or by the Company) as to the
validity, enforceability or interpretation of any provision of this Agreement,
the Company shall pay the Executive's legal expenses (or cause such expenses to
be paid) including, without limitation, his reasonable attorney's fees, on a
quarterly basis, upon presentation of proof of such expenses in a form
acceptable to the Company, provided that the Executive shall reimburse the
Company for such amounts, plus simple interest thereon at the 90-day United
States Treasury Bill rate as in effect from time to time, compounded annually,
if the Executive shall not prevail, in whole or in part, as to any material
issue as to the validity, enforceability or interpretation of any provision of
this Agreement.
11. Confidential Information; Company Property. By and in
consideration of the salary and benefits to be provided by the Company
hereunder, including the severance arrangements set forth herein, the Executive
agrees that: (a) Confidential Information. The Executive shall hold in a
fiduciary capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company or any of its affiliated
companies, and their respective businesses, (i) obtained by the Executive during
his employment by the Company or any of its affiliated companies and (ii) not
otherwise public knowledge (other than by reason of an unauthorized act by the
Executive). After termination of the Executive's employment with the Company,
the Executive shall not, without the prior written consent of the Company,
unless compelled pursuant to an order of a court or other body having
jurisdiction over such matter, communicate or divulge any such information,
knowledge or data to anyone other than the Company and those designated by it.
(b) Company Property. Except as expressly provided herein, promptly
following the Executive's termination of employment, the Executive shall return
to the Company all property of the Company and all copies thereof in the
Executive's possession or under his control, except that the Executive may
retain his personal notes, diaries, Rolodexes, calendars and correspondence.
12. Successors. (a) This Agreement is personal to the Executive and,
without the prior written consent of the Company, shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors. The Company shall require any successor to all
or substantially all of the business and/or assets of the Company, whether
direct or indirect, by purchase, merger, consolidation, acquisition of stock, or
otherwise, by an agreement in form and substance satisfactory to the Executive,
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent as the Company would be required to perform if no such
succession had taken place.
13. Miscellaneous. (a) Applicable Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of
California, applied without reference to principles of conflict of laws.
(b) Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be resolved by binding arbitration. The
arbitration shall be held in the county of Los Angeles, California and except to
the extent inconsistent with this Agreement, shall be conducted in accordance
with the Expedited Employment Arbitration Rules of the American Arbitration
Association (or such other voluntary arbitration rules applicable to employment
contract disputes) in effect at the time of the arbitration, supplemented, as
necessary, by those principles which would be applied by a court of law or
equity. The arbitrator shall be acceptable to both the Company and the
Executive. If the parties cannot agree on an acceptable arbitrator, the dispute
shall be heard by a panel of three arbitrators, one appointed by each of the
parties and the third appointed by the other two arbitrators.
(c) Amendments. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(d) Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the matters referred to herein. No
other agreement relating to the terms of the Executive's employment by the
Company, oral or otherwise, shall be binding between the parties unless it is in
writing and signed by the party against whom enforcement is sought. There are no
promises, representations, inducements or statements between the parties other
than those that are expressly contained herein. The Executive acknowledges that
he is entering into this Agreement of his own free will and accord, and with no
duress, that he has read this Agreement and that he understands it and its legal
consequences.
(e) Notices. All notices and other communications hereunder shall be
in writing and shall be given by hand-delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive: at the home address of the Executive noted
on the records of the Company
If to the Company: FARR COMPANY with a copy to: John D. Hannesson, Esq.
2201 Park Place 18661 Via Palatino
El Segundo, California 90245 Irvine, California 92612
Attn.: Chief Financial Officer
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(f) Tax Withholding. The Company shall withhold from any amounts
payable under this Agreement such Federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
(g) Severability; Reformation. In the event that one or more of the
provisions of this Agreement shall become invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not be affected thereby. In the event that any
of the provisions of any of Section 11(a) are not enforceable in accordance with
its terms, the Executive and the Company agree that such Section shall be
reformed to make such Section enforceable in a manner which provides the Company
the maximum rights permitted at law.
(h) Waiver. Waiver by any party hereto of any breach or default by the
other party of any of the terms of this Agreement shall not operate as a waiver
of any other breach or default, whether similar to or different from the breach
or default waived. No waiver of any provision of this Agreement shall be implied
from any course of dealing between the parties hereto or from any failure by
either party hereto to assert its or his rights hereunder on any occasion or
series of occasions.
(i) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
(j) Captions. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and the
Company has caused this Agreement to be executed in its name on its behalf, and
its corporate seal to be hereunto affixed and attested by its Secretary, all as
of the day and year first above written.
FARR COMPANY
/s/ Steve Pegg /s/ Steve Pegg
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WITNESSED: Steve Pegg By: Steve Pegg
APPROVED:
/s/ R. Batinovich
------------------------------
R. Batinovich
Chairman of Compensation Committee
EXECUTIVE:
/s/ H. Jack Meany /s/ Steven E. Pegg
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WITNESSED: H. Jack Meany Steven E. Pegg