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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) December 28, 1995.
FIRST COMMERCIAL BANCORP, INC.
(Exact name of registrant as specified in its charter)
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Delaware 0-9477 94-2683725
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
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865 Howe Avenue, Suite 310, Sacramento, California 95825
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (916) 641-3288
___________________________________________________
(Former name or former address, if changed since last report.)
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Item 1. Changes in Control of Registrant
As of December 28, 1995, First Banks, Inc., a Missouri bank holding
company ("First Banks"), obtained control of First Commercial Bancorp, Inc.
(the "Company") pursuant to the acquisition of 50,000,000 shares of common
stock of the Company ("Company Common Stock") received in exchange for First
Banks' $5 million stock ownership in First Commercial Bank, the Company's sole
subsidiary (the "Bank"), resulting in First Banks' ownership of 91.45% of the
then outstanding shares of Company Common Stock (the "Acquisition"). The
Acquisition was consummated pursuant to the Amended and Restated Stock Purchase
Agreement (the "Stock Purchase Agreement") dated as of August 7, 1995 by and
among the Company, the Bank, Mr. James F. Dierberg, an individual, and First
Banks.
On June 30, 1995, Mr. Dierberg, who is Chairman, Chief Executive
Officer and President of First Banks, acquired 750,000 shares of nonvoting,
noncumulative preferred stock of the Bank ("Bank Preferred Stock") for $1.5
million. After receiving the necessary regulatory approvals, First Banks
acquired the Bank Preferred Stock from Mr. Dierberg on August 22, 1995 for $1.5
million. Thereafter, First Banks acquired 116,666,666 shares of common stock
of the Bank ("Bank Common Stock") on August 23, 1995 for $3.5 million. As a
result of these transactions, First Banks owned 98.95% of the outstanding Bank
Common Stock and 100% of the outstanding Bank Preferred Stock as of September
30, 1995.
In order to enable the Bank to meet certain capital requirements
pursuant to its regulatory orders, on October 31, 1995, First Banks purchased,
pursuant to the terms of Additional Investment Agreement dated as of October
31, 1995 by and among the Company, the Bank and First Banks, which amends and
supercedes certain sections of the Stock Purchase Agreement (the "Additional
Investment Agreement"), a 12% convertible debenture of the Company (the "First
Debenture") for $1.5 million. The Company contributed all of the proceeds of
the First Debenture to the Bank. The First Debenture matures on October 31,
2000. The principal amount of the First Debenture is convertible at any time at
the option of First Banks into 15,000,000 shares of Company Common Stock at a
conversion rate of $0.10 per share. The terms of the First Debenture with
respect to convertibility and interest payable are identical to those of the
Second Debenture described below.
The Stock Purchase Agreement was submitted for the approval of the
stockholders at a special meeting of the Company's stockholders (the
"Stockholders' Meeting") scheduled for Tuesday, December 5, 1995, which was
adjourned due to the absence of a quorum. The stockholders of the Company
approved the Stock Purchase Agreement, as well as an amendment to the Company's
Certificate of Incorporation to increase the number of shares of Company Common
Stock which the Company has the authority to issue from 15,000,000 to
250,000,000 shares at the adjourned Stockholders' Meeting on Wednesday,
December 27, 1995. In accordance with the terms of the Stock Purchase
Agreement, the Acquisition was consummated upon receipt of stockholder approval
of the Stock Purchase Agreement, resulting in First Banks' ownership and
control of 91.45% of the then outstanding shares of Company Common Stock.
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Pursuant to the Stock Purchase Agreement, First Banks deposited $5
million in an escrow account for the purchase of a convertible debenture of the
Company (the "Second Debenture," and collectively, the First Debenture and the
Second Debenture are referred to herein as the "Debentures") upon receipt of
stockholder approval of the Stock Purchase Agreement. On December 28, 1995,
First Banks purchased the Second Debenture. All but $250,000 of the proceeds
of the Second Debenture have been contributed to the capital of the Bank, with
the remaining $250,000 being retained by the Company for general corporate
purposes. The principal amount of the Second Debenture is convertible at any
time at the option of First Banks into 50,000,000 shares of Common Stock at the
conversion rate of $0.10 per share. The Second Debenture matures on December
28, 2000.
The Debentures bear interest at 12% per year and are secured by all of
the Bank Common Stock held by the Company. Principal and interest on the
Debentures is payable in cash only when, in the sole and absolute discretion of
the Board of Directors of the Company, the Company has sufficient funds to make
such a payment of principal and interest on the Debentures and can make such a
payment in accordance with law and all applicable regulatory requirements. The
principal and any accrued but unpaid interest thereon are convertible into
Company Common Stock at the option of First Banks at any time prior to maturity
at a conversion rate of $0.10 per share. At the maturity of the Debentures,
any remaining principal and unpaid interest thereon must be converted into
shares of Company Common Stock at a conversion rate of $0.10 per share.
The Stock Purchase Agreement also contains provisions designed to give
stockholders of the Company as of the close of business on October 6, 1995 (the
"Record Date") the benefit of any recoveries the Bank may experience upon the
liquidation, sale or other resolution of certain charged-off assets of the Bank
(the "Specified Assets"), after certain adjustments. The Stock Purchase
Agreement contains formulas (the "Measurement Formulas") which take into
account recoveries on assets of the Bank which were charged- off as of June 30,
1995, the cost of capital to the Company and the Bank, a reasonable reserve for
pending or threatened litigation related to the resolution of the Specified
Assets or certain stockholder litigation and other factors, including Company
earnings. The outcome of the Measurement Formulas will be used to determine
whether such rights (the "Appreciation Rights") will entitle the stockholders
to receive cash or shares of Company Common Stock if and as declared by the
Board of Directors. The Stock Purchase Agreement provides that calculations
pursuant to the Measurement Formula will occur and distributions of shares or
cash, if any, may occur as of three dates: June 30, 1996, December 31, 1997 and
October 31, 1998. No Company Common Stock or cash will be distributed if the
outcome of the Measurement Formulas is negative. The Appreciation Rights, if
exercisable, will be exercisable for no additional consideration.
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Pursuant to the terms of the Stock Purchase Agreement, the Company has
the discretion and presently intends to make (i) an offering of rights (the
"Stockholder Rights") to purchase additional shares of Company Common Stock
(the "Rights Offering") to the stockholders of record of the Company as of the
Record Date; (ii) a dividend exchange offer (the "Dividend Exchange Offer") to
stockholders of record of June 15 or September 14, 1992 ("Dividend-Eligible
Stockholders"); and (iii) an offering to the public in the State of California
of Company Common Stock not subscribed for pursuant to the Rights Offering (the
"Public Offering") (collectively, the Rights Offering, the Dividend Exchange
Offer and the Public Offering are referred to herein as the "Offering"). The
Company presently intends to amend its Registration Statement on Form S-1
relating to the Offering, which was filed on May 31, 1995 (the "Registration
Statement") with the Securities and Exchange Commission, to reflect the terms
of the Stock Purchase Agreement and other transactions with First Banks, as
well as to include current financial and other information. If it is
conducted, the Offering is intended to raise a maximum of $5 million of
additional capital, up to $1 million of which may be raised pursuant to the
Public Offering. The Offering price is intended to be the same as the price at
which the Company Common Stock was purchased by First Banks (the "Subscription
Price"). The Company will receive no proceeds from the Dividend Exchange
Offer, other than the forgiveness of its outstanding obligation to pay the
dividend in cash.
As of December 28, 1995, the Company, the Bank and First Banks entered
into a Standby Agreement (the "Standby Agreement") which amends and supercedes
certain sections of the Stock Purchase Agreement. Pursuant to the Standby
Agreement, (i) First Banks purchased an additional 15,000,000 shares of Company
Common Stock at a price of $0.10 per share; (ii) the Company agreed to limit
stockholders' subscription privileges in the Rights Offering in the manner
described in the Registration Statement; and (iii) First Banks committed to
purchase in the Offering as a "Standby Purchaser" (at the Subscription Price
and after the expiration of the Rights Offering and any Public Offering), such
number of shares of Company Common Stock as may be required to raise the Bank's
Tier I capital level to 7.0%, as required by the regulatory orders to which the
Bank is subject. Pursuant to the terms of the Standby Agreement, the Company
contributed all of the proceeds of the sale of the $1.5 million in Company
Common Stock to the Bank to raise the Bank's Tier I capital level to 6.5% by
December 31, 1995.
Assuming the Securities and Exchange Commission declares the
Registration Statement Effective, stockholders of the Company on the Record
Date (the "Rights Holder") will receive rights to purchase a certain number of
shares of Company Common Stock (the "Underlying Shares") at the Subscription
Price for each share of Company Common Stock held on the Record Date (the
"Basic Subscription Privilege"), subject to reduction by the Company under
certain circumstances. Any Rights Holder exercising the Basic Subscription
Privilege in full is entitled to subscribe for additional shares of Company
Common Stock that are not otherwise subscribed for pursuant to the exercise of
the Basic Subscription Privilege (the "Oversubscription Privilege"), subject to
certain restrictions and to proration and reduction by the Company under
certain circumstances. In the Dividend Exchange Offer, the Company is
registering transferable rights (the "Dividend Rights") for distribution to
Dividend-Eligible Stockholders. The Dividend Rights will be exchangeable for
shares of Company Common Stock in discharge of the Company's outstanding
obligation to pay two dividends declared by the Board of Directors in 1992,
which remain unpaid.
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The Company cautions that the securities covered by the Registration
Statement may not be offered by the Company, nor may offers to buy be accepted
by the Company, prior to the time the Registration Statement is declared
effective by the Securities and Exchange Commission, and then only by means of
a prospectus. The Registration Statement has not been declared effective by
the Securities and Exchange Commission and the contents thereof are subject to
material amendment.
The Stock Purchase Agreement gives First Banks the right to nominate
three persons to serve as directors of the Company. The Stock Purchase
Agreement also provides that the Company shall use its reasonable efforts to
cause two of the current directors of the Company to continue to serve as
members of the Board of Directors of the Company at least through June 30,
1996. First Banks nominated and the Company has appointed to the Board of
Directors of the Company, Mr. Dierberg, Mr. Allen H. Blake and Mr. Donald W.
Williams, all of whom have received approval from the Federal Reserve Bank of
St. Louis and the California State Banking Department to serve as directors.
The Board of Directors of the Company has accepted the resignations of Mr.
Michael Denton, Jr., Mr. Fred L. Harris, and Mr. Michael E. Spinetti. As a
result of such appointments and resignations, the Board of Directors of the
Company consists of Mr. Blake, Mr. Dierberg, Mr. Michael P. Morris, Mr. Manuel
Perry, Jr. and Mr. Williams.
In addition, pursuant to the Stock Purchase Agreement and upon First
Banks' purchase of Bank Common Stock as part of the August infusion, the
Company agreed to cause three persons designated by First Banks to be appointed
to the Board of Directors of the Bank. First Banks designated and the Bank has
appointed Mr. Dierberg, Mr. Blake and Mr. Williams. The Board of Directors of
the Bank accepted the resignations of Mr. Denton, Mr. Perry, and Mr. Spinetti.
As a result of such appointments and resignations, the Board of Directors of
the Bank consists of Mr. Blake, Mr. Dierberg, Mr. Harris, Mr. Morris and Mr.
Williams.
First Banks' investments in Company Common Stock and the Debentures
total $13.0 million. First Banks obtained $7.0 million of such funds from
internal sources and borrowed $6.0 million of such funds under a Secured Credit
Agreement dated as of July 14, 1995 (the "Secured Credit Agreement") with
Boatmen's National Bank of St. Louis, St. Louis, Missouri ("Boatmen's"); Harris
Trust and Savings Bank, Chicago, Illinois; American National Bank and Trust
Company of Chicago, Chicago, Illinois; The Frost National Bank, San Antonio,
Texas and Norwest Bank Minnesota, Minneapolis, Minnesota. The Secured Credit
Agreement, entered into with a group of banks not affiliated with First Banks,
provides for a term loan of $40.0 million and a line of credit of up to $50.0
million for acquisitions and other corporate requirements of First Banks. The
Secured Credit Agreement is collateralized by the stock of all of First Banks'
wholly owned subsidiary financial institutions and second tier holding
companies. Pursuant to the terms of the Secured Credit Agreement, the term
loan requires quarterly principal payments of $1.0 million and matures on July
31, 2000 and the revolving line of credit is renewable annually. The Secured
Credit Agreement also provides that funds are borrowed at the corporate lending
rate of Boatmen's, as agent bank, or, at the option of First Banks, at the
London Inter-Bank Offered Rate plus 1.50% for the term of the loan or 1.25% for
the revolving loan, for one, two or three month periods. Information with
respect to First Banks' source of funds to consummate the Stock Purchase
Agreement was provided by First Banks.
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The Company has incorporated by reference herein the Stock Purchase
Agreement which was filed with the Securities and Exchange Commission and
distributed to the stockholders of the Company as an exhibit to the Definitive
Proxy Statement for the Stockholders' Meeting. The Company has incorporated by
reference herein the Additional Investment Agreement which was filed with the
Securities and Exchange Commission as an exhibit to the Company's Form 10-Q/A
for the quarter ended September 30, 1995. The Company has attached the Standby
Agreement as an exhibit to this Form 8-K.
Item 5. Other Events
Recently, the Company has had changes in key personnel. Mr. James E.
Culleton, who acted as Interim President of the Company and the Bank from June
1, 1994 through October 24, 1995, was elected to serve as President and Chief
Operating Officer of the Bank. On October 24, 1995, the Board of Directors of
the Bank elected Donald W. Williams to serve as Chief Executive Officer of the
Bank. The Company has filed the appropriate applications with the Federal
Reserve Bank of St. Louis for Mr. Williams to serve as President and Chief
Executive Officer of the Company.
Ms. Anne H. Long, Executive Vice President and the Chief Financial
Officer of the Company, tendered her resignation and resigned from the Company
effective December 6, 1995. It is intended that First Banks will provide
resources to the Company to support the Company's and the Bank's accounting
functions until a new Chief Financial Officer can be employed. In this regard,
the Board of Directors of the Company and the Bank have appointed Mr. Blake,
the Chief Financial Officer of First Banks, to serve as Interim Chief Financial
Officer of the Company and the Bank.
Mr. Dennis F. Ceklovsky, Executive Vice President and Chief Credit
Officer of the Company and the Bank resigned effective October 31, 1995. To
replace Mr. Ceklovsky, the Board of Directors of the Bank has retained the
services of Mr. Terrance McCarthy to become the Senior Vice President and Chief
Credit Officer of the Bank upon the receipt of the necessary regulatory
approvals. Mr. McCarthy is Senior Vice President and Chief Credit Officer of
First Bank & Trust, Santa Ana, California, a wholly-owned subsidiary of First
Banks. The requisite applications with respect to Mr. McCarthy have been
submitted to the FDIC and State Banking Department. Assisting Mr. McCarthy
will be Mr. Norman Boyer, who will be responsible for administration and
disposition of problem assets. Mr. McCarthy and Mr. Boyer have been working
together in similar positions at Queen City Bank, N.A., Long Beach, California
for the last twelve months. In addition, the Board of Directors of the Bank
has appointed Mr. Gary M. Sanders to become the Senior Vice President in charge
of loan production for the Bank upon the receipt of the necessary regulatory
approvals.
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Effective August 29, 1995, Manuel Barandas, Harry Curry and Earl Nichols
resigned as directors of the Company and the Bank.
On August 29, 1995, the Board of Directors of the Company and the Bank elected
Michael P. Morris to serve as a member of the Board of Directors of the Company
and the Bank.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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Date: January 10, 1996 FIRST COMMERCIAL BANCORP, INC.
/s/ Allen H. Blake
-----------------------------------
Allen H. Blake
Interim Chief Financial Officer
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Exhibit Index
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Exhibit Title Page
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*Exhibit 10(a) Amended and Restated Stock
Purchase Agreement dated
as of August 7, 1995
**Exhibit 10(b) Additional Investment Agreement
dated as of October 31, 1995
Exhibit 10(c) Standby Agreement dated as of
December 28, 1995
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__________________________________
* Filed with the Securities and Exchange Commission as Exhibit B to the
Registrant's Definitive Proxy Statement for the Special Meeting of
Stockholders scheduled for December 5, 1995 and incorporated herein by
reference.
** Filed with the Securities and Exchange Commission as Exhibit 10(a) to
the Registrant's Quarterly Report on Form 10-Q/A for the quarter ended
September 30, 1995 and incorporated herein by reference.
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Exhibit 10(c)
STANDBY AGREEMENT
THIS STANDBY AGREEMENT (the "Agreement") is made and entered into as
of December 28, 1995, by and between FIRST COMMERCIAL BANCORP, INC., a Delaware
corporation (the "Company"), FIRST COMMERCIAL BANK, a California licensed
banking corporation, and FIRST BANKS, INC., a Missouri corporation ("First
Banks").
W I T N E S S E T H
WHEREAS, the parties to this Agreement entered into an Amended and
Restated Stock Purchase Agreement dated August 7, 1995 (the "Stock Purchase
Agreement"), pursuant to which First Banks was given the option under certain
circumstances to make additional investments in the Company or the Bank for the
purpose of increasing the capital levels of the Bank;
WHEREAS, the Bank is not in compliance with the requirements of the
Cease and Desist Order entered into with the Federal Deposit Insurance
Corporation (the "FDIC Order") or the Second Amended Final Order of the
California State Banking Department under California Financial Code Section
1913 (the "State Order");
WHEREAS, the Bank anticipates that it will not meet, on or before
December 31, 1995, the 7.0% tangible capital requirement of the State Order;
WHEREAS, First Banks has agreed to make a capital infusion to the
Company on or before December 31, 1995 in the amount of $1,500,000 and at least
$1,250,000 of such proceeds will be contributed by the Company to the Bank to
increase the Bank's tangible capital ratio;
WHEREAS, the book value of the Company Common Stock was $0.09 on
December 8, 1995;
WHEREAS, the Stock Purchase Agreement provides that First Banks shall
have the option to make a capital contribution to the Company sufficient to
raise the Bank's Tier I capital level to 7.0% as of December 31, 1995, as
required by the State Order, which additional capital contribution shall be
made by the purchase of shares of Company Common Stock (if the Offering is not
proceeding), the proceeds of which will be contributed by the Company to the
Bank;
WHEREAS, First Banks has agreed to purchase, at the conclusion of the
Offering, such number of shares of Company Common Stock as may be necessary to
provide sufficient funds to the Bank to raise the Bank's Tier I capital ratio
to 7%;
WHEREAS, the Company and First Banks have agreed to a limitation on
the Oversubscription Privilege to be provided to the Company's stockholders in
the Offering, as described in the Company's Registration Statement;
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WHEREAS, the parties hereto, with the concurrence of Mr. James F.
Dierberg, a signatory to the Stock Purchase Agreement, wish to amend and
supersede by this Agreement any contradictory provisions of the Stock Purchase
Agreement with respect to the additional capital contributions of First Banks
to the Company or the Bank and the structure of the Oversubscription Privilege
contemplated hereby; and
WHEREAS, unless otherwise defined herein, the capitalized terms used
in this Agreement shall have those meanings assigned to them in the Stock
Purchase Agreement:
NOW, THEREFORE, for and in consideration of the promises contained in
this Agreement, and other good and valuable consideration, the receipt and
sufficiency of all of which is hereby acknowledged, the parties hereto agree as
follows:
1. On or before December 31, 1995, First Banks shall purchase
from the Company, and the Company shall issue to First Banks, 15,000,000 shares
of Company Common Stock (the "Shares"), at a purchase price of $0.10 per Share,
subject to receipt of any necessary regulatory approvals. The certificate(s)
representing the Shares shall contain such legends deemed necessary by counsel
to the Company, including any legends with respect to the affiliate status, if
any, of First Banks and the issuance of the Shares in a private offering. The
Company shall immediately contribute to the Bank at least $1,250,000 of the
proceeds of the sale of the Shares.
2. In addition to the agreements with respect to the terms of the
Offering set forth in Section 1(b)(ii) of the Stock Purchase Agreement, the
Company and First Banks hereby agree that the Company shall include in a
pre-effective amendment to the Registration Statement to be filed with the
Commission, a limitation on the Oversubscription Privilege such that after full
exercise of the Basic Subscription Privilege (as defined in the Registration
Statement), each stockholder will be entitled, subject to the availability of
shares of Common Stock not subscribed for under the Basic Subscription
privilege and to the restrictions and limitations set forth in the Registration
Statement, to oversubscribe for up to the higher of (i) 1,000,000 additional
shares or (ii) an additional 10.695 shares for each share of Common Stock held
on the Rights Record Date (as defined in the Registration Statement) (the
"Oversubscription Privilege");
3. At the request of First Banks, and in amendment of Section
1(b)(ii)(A) of the Stock Purchase Agreement, the Company shall not register in
the Registration Statement any of the shares (including the Shares) sold and
issued to First Banks pursuant to the Stock Purchase Agreement.
4. Subsection 1(b)(iii) of the Stock Purchase Agreement is hereby
deleted in its entirety and shall have no further force or effect.
5. First Banks hereby commits to act as a "Standby Purchaser" in
the Offering, such that First Banks agrees to purchase from the Company, at a
purchase price of $0.10 per share, at the conclusion of the applicable
stockholder and public subscription period(s)(as determined by the Company's
Board of Directors pursuant to the terms of the Registration Statement), such
number of shares of Company Common Stock as may be required to raise the Bank's
Tier I capital ratio to 7.0%. First Banks agrees to be described in the
Registration Statement as a Standby Purchaser in the Offering and to seek the
required Approvals to act in said capacity, if any.
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6. This Agreement shall terminate: (a) upon the termination of
the Stock Purchase Agreement or (b) in the event that any Approvals required to
consummate the transactions contemplated hereby are not obtained on or prior to
the date of the performance of any act required hereby, unless extended by the
mutual consent of the parties hereto.
7. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware in effect at the time of the
execution hereof.
8. This Agreement may be executed in any number of counterparts,
each of which counterparts when so executed and delivered shall be deemed to be
an original, but all such respective counterparts shall together constitute but
one and the same instrument.
9. Any notices required to be given pursuant to this Agreement
shall be given in accordance with Section 13 of the Stock Purchase Agreement.
10. Except as set forth herein and in that certain Additional
Investment Agreement entered into by and among the parties hereto on October
31, 1995, all other provisions and terms of the Stock Purchase Agreement
remain unchanged and in full force and effect. This Agreement shall not
operate as an amendment or waiver of, or estoppel with respect to, any other
obligation, covenant, agreement or condition contained in the Stock Purchase
Agreement.
11. This Agreement, together with the Stock Purchase Agreement,
and together with the Letters of Representation and Approvals to be received
pursuant hereto, constitute the entire agreement of the parties with respect to
the subject matter hereof.
IN WITNESS WHEREOF, and intending to be legally bound thereby, each of
First Banks, Inc., First Commercial Bank and First Commercial Bancorp, Inc. has
signed or caused to be signed its name, all as of the day and year first above
written, and James F. Dierberg has consented to the terms of this Agreement by
execution hereof.
FIRST COMMERCIAL BANCORP, INC.
By: /s/ Manuel Perry, Jr.
-----------------------------------------
Name: Manuel Perry, Jr.
Title: Chairman of the Board of Directors
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FIRST COMMERCIAL BANK
By: /s/ James E. Culleton
---------------------------------------------
Name: James E. Culleton
Title: President
DIERBERG
/s/ James F. Dierberg
---------------------------------------------
James F. Dierberg, an individual
FIRST BANKS, INC.
By: /s/ James F. Dierberg
---------------------------------------------
Name: James F. Dierberg
Title: Chairman, President and Chief Executive
Officer
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