Exhibit 10(e)
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") effective as of the 3rd day of April
2000 (the "Effective Date")
BETWEEN E-Z-EM, Inc., with its principal office at
717 Main Street
Westbury, N.Y. 11590
(hereinafter referred to as the "Company")
AND Anthony A. Lombardo, having an address at
801 North Ponderosa Drive
Hartland, WI 53029-8640
(hereinafter referred to as the "Employee")
WITNESSETH
WHEREAS, the Company is in the business of (i) developing, manufacturing,
marketing, selling and distributing medical products and medical devices for use
in the imaging field, including but not limited to gastrointestinal contrast
agents and associated devices, and other products for the fields of diagnostic
and interventional radiology and gastroenterology, and (ii) developing,
manufacturing, marketing, selling and distributing H. Pylori products and
associated devices for digestive disease diagnosis and treatment, ((i) and (ii)
collectively the "Imaging Division") and (iii) developing, manufacturing,
marketing, selling and distributing therapeutic and diagnostic products for use
in the cardiovascular and peripheral vascular field and associated devices (the
"Angiographic Division") and engaging in activities relating thereto ((i), (ii)
and (iii) collectively the "Business");
WHEREAS, the Company recognizes the unique qualifications and potential
contributions of the Employee and desires to secure the services of the Employee
on an exclusive basis on the terms and conditions set forth herein; and
WHEREAS, the Employee is prepared to commit to such exclusive services in
return for specific arrangements on compensation and other benefits on the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements herein contained, the Company and the Employee do
hereby agree as follows:
1 SCOPE OF EMPLOYMENT
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1.1 Subject to the terms and conditions hereof, the Company hereby employs
the Employee to render services to the Company as President and Chief Executive
Officer, subject to the direction of the Board of Directors of the Company (the
"Board") or any committee thereof. Subject to the foregoing, the Employee shall
be responsible, consistent with his position, for all aspects of the management,
business, personnel, activities and affairs of the Company as such
responsibilities reasonably are defined by the Board from time to time.
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1.2 The Employee hereby accepts such employment and agrees faithfully to
render the services described above and to promote the interests of the Company
to the best of his ability. The Employee further agrees to devote his full
working time, attention, skill and best efforts to the performance of his duties
under this Agreement. The Employee shall not engage in any other business or
occupation during the term of this Agreement without the prior written consent
of the Board, which consent the Board may withhold in its sole discretion.
1.3 The Employee shall have such power and authority, consistent with his
position, as shall reasonably be required to enable him to perform his duties
hereunder in an efficient manner, provided that in exercising such power and
authority and performing such duties, he shall at all times be subject to the
authority and control of the Board or any committee thereof and shall report
directly to the Board.
1.4 The Employee shall perform his duties hereunder principally at the
Company's offices at 717 Main Street, Westbury, N.Y., provided, however, that he
will be required to travel and render services in different locations, from time
to time as appropriate in connection with the performance of such duties.
1.5 Throughout the term of this Agreement, the Company agrees to seek to
cause the Employee to be elected to the Board. Upon the termination of this
Agreement for any reason, the Employee shall be deemed to have automatically
resigned from any position he may then hold on the Board. Such resignation shall
be deemed effective immediately without the requirement that a written
resignation be delivered.
2 TERM OF EMPLOYMENT
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This Agreement shall continue until terminated by either the Company or the
Employee in accordance with the terms and conditions contained herein.
3 COMPENSATION, BENEFITS AND VACATION
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3.1 The Company agrees to pay the Employee, during the term of his
employment, a base salary of Two Hundred Fifty Thousand Dollars ($250,000) per
year of employment (the "Base Salary"). Base Salary shall be payable in equal
installments on a monthly basis, less such deductions or amounts to be withheld
as shall be required by applicable law and regulations. The Company shall be
under no obligation to increase the Base Salary, but may review the Employee's
Base Salary at its sole discretion.
3.2 The Employee shall be eligible for an annual bonus (the "Bonus") of up
to Fifty percent (50%) of the Base Salary during each fiscal year.
A. The Bonus, if any, shall be calculated in accordance with the
following:
1. The Employee shall participate in the Company's Executive Bonus
Cash Compensation Program ("Bonus Compensation Program") (a copy
of which is attached herewith as Exhibit A)(or as such Bonus
Compensation Program may be uniformly modified for all
participants from time to time by the Board in its sole
discretion), and, except as provided herein, in accordance with
the terms and conditions of the Bonus Compensation Program shall
be eligible to receive an annual cash bonus of up to Thirty Six
percent (36%) of the Base Salary based upon the Imaging
Division's operating income results as compared to the Board
approved budgeted operating income results for the Imaging
Division in the applicable fiscal year, such Bonus to be paid on
a quarterly basis in accordance with the terms and
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conditions of the Bonus Compensation Program. For the first year
of Employee's participation in the Bonus Compensation Program,
Employee shall be guaranteed a cash Bonus equal to fifteen
percent (15%) of the Base Salary which amount shall be paid on a
quarterly basis. If during the first year of Employee's
participation in the Bonus Compensation Program, the Employee
earns any amount of the Bonus under the Bonus Compensation
Program, such amount shall be first offset against the guaranteed
fifteen percent (15%).
2. The Board, in its sole discretion, may elect to cause the Company
to award to Employee a discretionary Bonus for the preceding
fiscal year, in the form of stock grants equal in amount to up to
Fourteen (14%) percent of the Base Salary ("Discretionary
Bonus"). The stock grants shall be in the form of Company Class B
Common Stock and the value of each share shall be based upon the
closing price of a share of the Company's Class B Common stock as
listed on the American Stock Exchange (AMEX) or such other
exchange or market as the Company may decide on the last day of
each fiscal year. (The Company's 1983 Stock Option Plan shall
have no application with respect to any stock granted pursuant to
the Discretionary Bonus). Any stock granted pursuant to the
Discretionary Bonus shall be subject to the applicable Federal
Securities Laws. Such Discretionary Bonus, if any, to be awarded
within one hundred and twenty (120) days of the end of each
fiscal year. Such Discretionary Bonus to be awarded at the
determination of the Board, in its sole and absolute judgement,
based upon the Employee's and the Company's achievement of
certain pre-determined goals, such goals to be established by the
Board in concert with the Employee in writing within Sixty (60)
days of the commencement of each fiscal year.
The Employee shall not be eligible to participate in either the Bonus
Compensation Program or the Discretionary Bonus until the commencement of the
Company's fiscal year 2001 (June 1, 2000-May 31, 2001, hereinafter "Fiscal Year
2001").
In the event this Agreement is terminated by the Company for Cause, as such
term is defined in Section 4 of this Agreement, the Employee shall not be
eligible for the Bonus or any escrowed or accrued Bonus. In the event this
Agreement is terminated by the Company without Cause or by the Employee, the
Employee shall only be eligible to receive that portion of the Bonus, if any,
that was earned during the most recent completed fiscal quarter prior to the
date of termination of this Agreement under the Bonus Compensation Program and
shall not be eligible for any other Bonus, including, but not limited to the
Discretionary Bonus.
3.3 The Company hereby grants to Employee non-qualified stock options to
purchase Three Hundred Thousand (300,000) shares of the Company's Class B non-
voting stock subject, except as provided herein, to the terms and conditions of
the E-Z-EM, Inc. 1983 Stock Option Plan (the "Plan"). The exercise price of such
stock options shall be the closing market price (as determined on the American
Stock Exchange) on the Effective Date. The stock options shall vest at a rate of
Seventy Five Thousand (75,000) shares per complete year commencing on the one
(1) year anniversary of the Effective Date and continuing for each of the next
three annual anniversary dates thereafter, subject to the forfeiture as provided
in the Plan or in this Agreement.
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3.4 The Company shall pay or reimburse the Employee for all reasonable
expenses actually and properly (in accordance with the Company's policy)
incurred or paid by him in connection with the performance of his services under
this Agreement upon presentation of expense statements or vouchers or such other
supporting documentation in such form and containing such information as the
Company may from time to time reasonably require.
3.5 The Employee shall be entitled to four (4) weeks of paid vacation
during each fiscal year of employment with the Company, provided, however that
the Employee shall not be eligible for any vacation until the commencement of
Fiscal Year 2001. Vacation time shall not accrue and, may not be carried forward
to future years.
3.6 The Company shall provide the Employee with health, accident,
disability and life insurance in accordance with its standard policies for
Company executives as adopted from time to time by the Board.
3.7 The Company shall enter into a Change in Control Agreement with the
Employee, a copy of which is attached herewith as Exhibit B.
3.8 The Employee agrees to relocate his residence to a location within the
greater New York metropolitan area, including Connecticut and New Jersey ("New
York Area") no later than October 1, 2000. The Company agrees to reimburse the
Employee for the expenses associated with the relocation from Hartland, WI to
the New York Area in accordance with the following:
a. The Company will pay for the moving of the Employee's belongings,
which includes the packing and unpacking of the Employee's belongings.
The Employee shall be required to obtain three (3) bids from national
moving companies for the costs of such move, and the lowest of such
bids shall be accepted.
b. The Company shall pay the reasonable cost of travel, hotel
accommodations and meals for two house hunting trips for the Employee
and the Employee's spouse.
c. The Company shall also pay the Employee an amount of money equivalent
to his Base Salary for one (1) month for miscellaneous and incidental
items associated with the move. This amount will be paid to the
Employee within thirty (30) days after the closing of the new
residence in the New York Area.
d. The Company agrees to pay the sales commission or other fee, if any,
due to a real estate agent or broker for the sale of the Employee's
home residence located at 801 North Ponderosa Drive, Hartland, WI,
such commission or fee not to exceed the customary amount charged in
Hartland, WI by a real estate agent or broker in connection with the
sale of a residence.
e. Notwithstanding anything herein to the contrary, the aggregate amount
payable by the Company pursuant to Sections 3.8 a, b, c and d shall
not exceed One Hundred Thousand Dollars ($100,000) and any costs over
such One Hundred Thousand Dollar ($100,000) amount shall be the sole
obligation of the Employee.
3.9 In order to assist the Employee with the purchase of a new residence in
the New York Area, the Company agrees to provide a second mortgage to the
Employee, subject to the following:
a. The Company agrees to provide a second mortgage of up to three hundred
thousand dollars ($300,000). The interest rate on the
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mortgage shall be the applicable federal rate in effect under Section
1274 (d) of the Internal Revenue Code of 1986, as amended, in order to
ensure that the Employee does not incur any imputed interest income.
The amount of the second mortgage shall be the lesser of (i) the
excess of the purchase price of the new home in the New York Area
("New Home") as evidenced by the closing documents over the sale price
of the Employee's residence at 801 North Ponderosa Drive, Hartland, WI
as evidenced by the closing documents or (ii) three hundred thousand
dollars ($300,000). The Company and the Employee shall enter into a
mortgage agreement ("Mortgage Agreement") which shall include the
terms and conditions as set forth herein.
b. For the first five (5) years following the disbursement of funds
pursuant to the Mortgage Agreement (the "Funding Date"), the Employee
shall only be obligated to pay accrued and unpaid interest on the
outstanding principal balance of the mortgage on an annual basis. Such
annual payments shall be due on each anniversary of the Funding Date
for the first five years. Commencing on the sixth anniversary of the
Funding Date and continuing on the next three (3) anniversaries of the
Funding Date thereafter, the Employee shall pay the Company accrued
and unpaid interest plus ten percent (10%) of the initial principal
amount of the mortgage. On the tenth anniversary of the Funding Date
the Employee shall repay the Company the remaining outstanding
principal amount of the mortgage plus any accrued and unpaid interest.
At any time during the term of the Mortgage Agreement, the Employee
may elect to repay the entire amount, or a portion thereof, of the
outstanding principal amount of the mortgage without penalty. At any
time during the term of the Mortgage Agreement, if the Employee sells
the New Home, the Employee shall repay the outstanding principal
amount of the mortgage plus all accrued and unpaid interest
immediately upon the closing of the sale of the New Home.
c. If the Employee's employment with the Company is terminated for any
reason, whether by the Company or by the Employee, the Employee shall
repay the outstanding principal amount of the mortgage plus all
accrued and unpaid interest within eighteen (18) months from the date
of such termination; provided, however that if the Employee sells the
New Home at any time during such eighteen (18) month period, the
Employee shall repay the outstanding principal amount of the mortgage
plus all accrued and unpaid interest immediately upon the closing of
the sale of the New Home.
3.10 The Company shall provide, at no cost to the Employee, housing at 21
Willets Road, Old Westbury, NY from the Effective Date until October 1, 2000.
3.11 The Company shall pay the reasonable transportation costs for the
Employee to travel to and from Hartland, WI each weekend from the Effective Date
until such time as his family permanently relocates to the New York Area or by
October 1, 2000, whichever is sooner. The Employee agrees to take the
appropriate action in order to obtain, where commercially available to the
public, a discounted economy advanced purchase ticket price on any
transportation in connection with any travel pursuant to this Section 3.11. In
the event that any payments made by the Company pursuant to this Section 3.11
results in any federal, state or local tax liabilities to the Employee, the
Company agrees to reimburse the Employee for such tax payments.
3.12 The Company shall provide the Employee, at no cost, an automobile in
accordance with the Company's standard automobile policy for Company executives
as adopted from time to time by the Board.
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4 TERMINATION
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4.1 Notwithstanding anything contained herein to the contrary, it is agreed
that this Agreement may be terminated without cause upon the giving of thirty
(30) days written notice by the Company to the Employee or the Employee to the
Company.
4.2 This Agreement shall automatically terminate upon the occurrence of the
first to occur of the following events or conditions:
(a) the death of the Employee; or
(b) the delivery by the Company to the Employee of written notice
that his employment is terminated for "disability" (as defined in
Section 4.3 hereof); or
(c) the delivery by the Company to the Employee of written notice
that his employment is terminated for "cause" (as defined in
Section 4.4 hereof).
4.3 "Disability" shall mean the good faith determination by the Company
that by reason of a physical or mental illness the Employee is unable to perform
the essential functions of his position as contemplated by this Agreement, with
or without reasonable accommodations by the Company, continuing for more than 60
consecutive business days or for more than an aggregate of 90 business days in
any period of 365 days. Such determination shall not be arbitrary or
unreasonable, and the Company shall take into consideration the opinion of a
physician retained by the Company, if reasonably available, as well as the
applicable provisions, if any, of the Americans with Disabilities Act. In the
event this Agreement is terminated pursuant to Section 4.2 (b), the Company
shall be obligated to continue to pay the compensation provided for in Section
3.1 to the Employee until the end of the Company's fiscal year in which the
Company provides notice to the Employee that this Agreement is terminated.
During the period of time that the Company agrees to continue to pay the
Employee as set forth in Section 4.3, any disability insurance that the Employee
receives under the Company's disability plan shall be offset against any
payments made by the Company pursuant to Section 4.3.
4.4 As used herein "Cause" shall mean the following:
(i) the good faith determination by the Company that there has been
continued neglect by the Employee of his duties hereunder;
(ii) the good faith determination by the Company that there has been
willful misconduct on the Employee's part in connection with the
performance of such duties;
(iii) any willful violation of any express direction or rule or regulation
established by the Board;
(iv) Employee's failure to relocate to the New York Area by October 1,
2000;
(v) any commission of any act of fraud, embezzlement or dishonesty by the
Employee;
(vi) the commission by the Employee of a crime or offense amounting to a
felony or a crime involving moral turpitude or theft.
Provided, however that prior to terminating this Agreement for "Cause"
pursuant to Section 4.4 (i) and (ii), the Company shall provide the Employee
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with written notice of the continued neglect or willful misconduct in reasonable
detail and the Employee shall have ten (10) days from receipt of such notice to
cure such neglect or misconduct to the reasonable satisfaction of the Company
and such termination shall be effective upon the Employee's failure to cure such
neglect or misconduct within such ten (10) days period. Notwithstanding anything
herein to the contrary, the Employee shall only be entitled to one notice and
cure period during any twelve (12) month period of employment for any act
constituting continued neglect and one notice and cure period during any twelve
(12) month period of employment for any act constituting willful misconduct.
4.5 If the Employee's employment hereunder is terminated by the Company
pursuant to Section 4.1 without cause, he shall be entitled to severance pay
equal to one (1) years Base Salary, payable in twelve (12) equal monthly
installments on the first regular pay day of each fiscal month commencing in the
first fiscal month following termination. If following the termination of
Employee by the Company pursuant to Section 4.1 of this Agreement, the Employee
breaches any provisions of Section 5 of this Agreement, the obligations of the
Company to make payments pursuant to this Section 4.5 shall immediately
terminate. Except as provided in Section 4.5 and 3.2, the Employee shall not be
entitled to any severance pay or to any other compensation, payments or benefit
(by way of salary, bonus, stock options, damages or otherwise) of any nature
relating to this Agreement or otherwise relating to or arising out of his
employment by the Company, for any period subsequent to the date of such
termination. Furthermore, upon the termination of this Agreement, the applicable
provisions of the Plan will apply to any stock option, provided, however that in
the event this Agreement is terminated, any and all unvested stock options shall
immediately expire and the Employee shall return all documents evidencing such
options to the Company.
5 EMPLOYMENT AND POST EMPLOYMENT RESTRICTIONS
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5.1 Employee acknowledges that the Company's Business is highly specialized
and operates in a competitive market, and that in rendering his services to the
Company the Employee has had or will have access to or will be exposed to
valuable trade secrets, and confidential and proprietary information belonging
to the Company. Because of the nature of the Business, the Company may be
unfairly harmed by certain activities of its present and former employees. These
activities may include disclosure or use of trade secrets or confidential and
proprietary information, entering into or participating in a competing business
of the Company, appropriating or diverting business or customers of the Company
and inducing employees of the Company to leave the employment of the Company,
all of which are in violation of recognized employee obligations. Employees may
be able to do these unfair acts because of information which was learned and
contacts which were made while in the employment of the Company. Therefore, the
Company desires to protect itself by requiring that certain persons working for
it agree to reasonable restrictions concerning their employment and post
employment activities. These restrictions are necessarily designed to prevent
harm to the Company (as well as to other employees of the Company whose business
or compensation depends upon the continuous success of the business) through
indirect methods as well as through direct activities.
5.2 For the reasons set forth above, and in consideration of the salary and
other compensation and benefits received and to be received by the Employee, the
Employee agrees as follows:
(a) The Employee agrees that during the period of his employment under this
Agreement and for a period of twelve (12) months following the termination
of this Agreement for any reason, he shall not in any state or territory of
the United States in which the Company conducts business, directly or
indirectly, own, manage, operate, control, be employed by, be a shareholder
of, be an officer of, participate in, contract with or be
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connected in any capacity or any manner with any business that directly or
indirectly (whether through related companies or otherwise) manufactures,
develops, designs, distributes, sells, or markets any product, device or
equipment substantially similar to any product, device or equipment which
at the time during the term of Employee's employment has been manufactured,
marketed, sold, or distributed by the Company or any product, device or
equipment which the Company was developing or designing during the
Employee's employment with the Company for future manufacture, marketing,
sale or distribution; provided, however that nothing herein shall prohibit
the Employee from owning, directly or indirectly, as a passive investor, in
the aggregate not more than one percent (1%) of the outstanding publically
traded stock of any company that competes with the Company in the Business.
(b) The Employee agrees that during the period of his employment under this
Agreement and for a period of twelve (12) months following the termination
of this Agreement for any reason, he will not, directly or indirectly,
solicit or hire or attempt to solicit or hire any employee of the Company
or otherwise induce any employee of the Company to leave the employment of
the Company.
(c) The Employee agrees that during the period of his employment under this
Agreement and for a period of twelve (12) months following the termination
of this Agreement for any reason, he will not appropriate, divert or assist
another to appropriate or divert any business or customer away from the
Company or attempt to do any of the foregoing.
(d) The Employee agrees that during the period of his employment under this
Agreement and following the termination of this Agreement, he will not
disclose, cause to be disclosed or otherwise allow the following
information to come into the possession of any person or entity (other than
those persons and entities that the Company has determined as being
entitled thereto) or use the following information, whether such
information is on the Company's forms, memos, computer disc or tape, or
otherwise and whether such information is in written or verbal form: sales
information, operations information, financial information, administrative
information, research information, technical information, scientific
information, data, designs, formulas, and any other information concerning
the Company, its business, its properties or its affairs that the Company
deems to be confidential or that is confidential according to industry
practices. The Employee understands and agrees that his obligations set
forth herein shall continue for so long as any information as set forth
above is deemed confidential and/or proprietary by the Company or according
to industry practices. The Employee further agrees that upon termination of
this Agreement for any reason, he will promptly return to the Company all
information of the type described above within his possession or within his
power to control, including, without limitation all copies of such
information, all abstracts of such information and any other information
containing such information in whole or in part.
(e) The Employee agrees to assign and transfer to the Company his entire
right, title and interest in and to any and all inventions, discoveries,
improvements, innovations, know-how, new ideas, formulas, processes,
techniques or concepts (collectively "Inventions") created, conceived or
developed by Employee, either solely or jointly with others, arising out of
or during the course of employment with the Company relating to the
Business together with all rights to letters patent which may be granted
thereon and that such Inventions shall inure to and be the sole property of
the Company. Immediately upon the making any Inventions, Employee shall
notify the Company thereof and shall thereafter execute and deliver to the
Company without further compensation such documents as may be
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necessary to prepare and prosecute applications for letters patent upon any
such Inventions, and to assign and transfer to the Company the Employee's
entire right, title and interest in and to any and all Inventions. The
Employee agrees that he will cooperate with the Company in connection with
the foregoing after termination of this Agreement.
5.3 In the event of a violation of Section 5.2, if the Employee is
prevented by a court from committing any further violation, whether by a
temporary restraining order, injunction or otherwise, the time periods set forth
in Section 5.2 shall be computed by commencing the periods on the date of the
applicable court order and continuing them from that date for the full period
provided.
5.4 In the event of a violation of Section 5.2, the Company shall be
entitled to seek injunctive relief in addition to damages and other remedies for
the violation, and additionally, the Company shall be entitled to reasonable
attorneys' fees and all costs incurred for the enforcement of this Agreement and
the Company shall be relieved of any further obligation to pay any compensation
or severance to Employee and the Employee shall have no further rights with
respect to benefits, including but not limited to stock options not already
vested which shall expire, except as is required by law.
5.5 The Employee shall have the right to request a waiver of all or part of
the restrictions contained in Section 5.2 by providing the Company with a
written statement containing all relevant details. The Company may, in its sole
discretion, waive all or part of the restrictions contained in Section 5.2 on
such terms and conditions, and to such extent, as it, in its sole discretion,
deems appropriate. Such waiver must be in writing.
5.6 Notwithstanding the termination of this Agreement, Section 5 hereof
shall continue in full force and effect for the periods of time provided for
therein.
6 MISCELLANEOUS
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6.1 This Agreement expresses the entire understanding and agreement of the
parties and supersedes any and all prior agreements and understandings, whether
written or oral, relating in any way to the subject matter of this Agreement.
This Agreement cannot be modified, amended or supplemented except by a written
instrument or instruments executed by each of the parties hereto.
6.2 All notices concerning this Agreement shall be deemed to have been
received two (2) days after being properly sent by commercial overnight courier
to the address below:
If to the Company:
E-Z-EM, Inc.
717 Main Street
Westbury, NY 11590
Att: Howard Stern, Chairman of the Board
If to Employee:
Anthony A. Lombardo
E-Z-EM, Inc.
717 Main Street
Westbury, NY 11590
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6.2 All rights and remedies herein granted or referred to are cumulative,
resort to one shall not preclude resort to another. No waiver by either party of
a breach of this Agreement, or any part hereof, shall be deemed to be a waiver
of any other prior, concurrent or subsequent breach of the same or different
provisions of this Agreement.
6.3 If an action is commenced to enforce the performance of any part of
this Agreement, including, without limitation, any order or release made
hereunder, the prevailing party shall be reimbursed by the other party for all
reasonable attorneys' fees and expenses.
6.4 This Agreement shall be governed by and construed under the laws of the
State of New York. If any provision of this Agreement shall be invalid or
unenforceable, this Agreement shall be deemed amended but only to the extent
required to make it valid and enforceable, and this Agreement as thereby amended
shall remain in full force and effect.
6.5 Employee represents and warrants that Employee is not subject to any
agreement, whether written or oral, contract, order, judgement, or decree of any
kind that would prevent Employee from entering into this Agreement or performing
his duties and obligations hereunder.
6.6 The section headings appearing in this Agreement are inserted only as a
matter convenience and in no way define, limit, construe or describe the scope
or extent of such section or in any way affect such section.
IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement as of the day and year set forth below.
E-Z-EM, Inc.
/s/ Howard S. Stern /s/ Anthony A. Lombardo
-------------------------------- ---------------------------
Howard S. Stern, Chairman of the Anthony A. Lombardo
Board
Date: February 23, 2000 Date: February 23, 2000
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