EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of the 14th day of August
2000 (the "Effective Date") by and between Bentley Pharmaceuticals, Inc., a
Delaware corporation (the "Employer"), and Jordan A. Horvath (the "Employee"),
as the same may be modified, supplemented, amended or restated from time to time
in the manner provided herein.
RECITALS
The Employer desires to employ the Employee, and the Employee desires
to be employed by the Employer, all upon the terms and provisions and subject to
the conditions set forth in this Agreement.
WITNESSETH
NOW THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree to be legally bound as follows:
1. Employment. The Employer hereby employs the Employee, and the Employee hereby
accepts such employment as the Vice President and General Counsel of the
Employer upon the terms and subject to the conditions set forth in this
Agreement. The Employee shall, without any compensation in addition to that
which is specifically provided in this Agreement, serve in such further offices
or positions with Employer or any subsidiary or affiliate of Employer
(collectively, the "Employer Group") as shall from time to time be reasonably
requested by the Chief Executive Officer or Board of Directors of Employer. Each
office and position within the Employer Group in which Employee may serve or to
which he may be appointed shall be consistent in title and duties with
Employee's positions as Vice President and General Counsel of the Employer.
2. Term. Subject to the termination provisions hereinafter contained, the term
of employment under this Agreement shall be for an initial term of three years
and 4 1/2 months, commencing on the Effective Date and terminating on December
31, 2003. This Agreement and the Employee's employment hereunder shall
thereafter be automatically renewed for successive one (1) year terms, unless
terminated as hereinafter provided. The term of employment hereunder, and any
extension thereof pursuant to this paragraph, are referred to as the ("Term").
3. Compensation, Reimbursement, etc.
(a) Base Salary. On the Effective Date, the Employer shall pay to the
Employee as compensation for all services rendered by the Employee a base salary
of $290,000 plus annual bonuses as determined by the Compensation Committee of
the Board of Directors, subject to Sections 3(d) and 3(e).
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(b) Expense Reimbursement. The Employer shall reimburse the Employee on
a semi-monthly basis for all reasonable expenses incurred by the Employee in the
performance of his duties under this Agreement; provided however, that the
Employee shall have previously furnished to the Employer an itemized account,
satisfactory to the Employer, in substantiation of such expenditures.
(c) Benefits. The Employee shall be entitled to health and other
benefits on the same terms and conditions as the Employer has made available all
other senior executives of Employee, including without limitation participation
in and contributions to the Employer's 401(k) plan, health and other welfare
plans. All benefit plans shall be effective throughout the Term and may be
provided at the outset either by participation in Employer's plans or by
reimbursement to the Employee for participation in Employee's plans from a
previous employer. The Employer shall obtain a term life insurance and
disability policy for the Employee with a value equal to at least one and
one-half year's base salary payable to the estate of the Employee upon the
Employee's death or to the Employee in the event of disability as provided in
Section 7(b) hereof.
(d) Bonuses. The Employee shall be eligible for a bonus during each
year of the Term in an amount to be determined by the Compensation Committee.
Bonuses (payable in cash and/or common stock of the Company) will be determined
based upon, but not limited to, Employee's involvement in: improvements to the
financial position of the Company, the attainment of strategic alliances,
acquisition of new products, acquisition of technologies, purchase of
developmental products for future commercialization, raising of capital, as well
as specific personal and corporate goals. The Employee will be evaluated by the
Chief Executive Officer who at the end of each year will make his recommendation
to the Board of Directors Compensation Committee. Any increase in the Employee's
compensation would be effective at the beginning of the calendar year.
(e) Annual Review. The Employee shall be reviewed by the Chief
Executive Officer of the Employer on an annual (calendar year) basis and be
eligible to receive a minimum of five percent increase in base salary and
issuance (or vesting) of stock options as determined by the Board's Compensation
Committee.
(f) Stock Option Plan. The Employee has been granted stock options
under the 1991 Stock Option Plan or any successor plan (the "Plan") or Non-Plan
Options (defined below) for 150,000 shares which will vest as to 50,000 shares
on each anniversary of this Agreement. Additional grants may be made as
determined by the Board of Directors' Compensation Committee, in an amount not
less than set forth in paragraph (e) above.
4. Duties. The Employee is engaged as the Vice President and General Counsel of
Bentley Pharmaceuticals, Inc. In addition, the Employee shall have such other
duties and hold such offices as may from time to time be reasonably assigned to
him by the Chief Executive Officer and/or the Board of Directors of the
Employer.
5. Extent of Services. During the Term, the Employee shall devote his full time,
energy and attention to the benefit and business of the Employer and its
affiliates and shall not be employed by another entity, except as a consultant
to or as a director of a non-competitive company or, if a
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company that is competitive to or could be of strategic interest to the
Employer, as approved by the Employer's Board of Directors.
6. Vacation and Days Off. The Employee may take a maximum of four weeks of
vacation each calendar year (or a pro rata amount for each portion thereof), at
times to be determined in a manner most convenient to the business of the
Employer, as approved by the Chief Executive Officer. A maximum of one week
unused vacation may be carried over from one calendar year to the next or will
be paid to the Employee.
7. Termination Following Death or Incapacity.
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(a) Death. All rights of the Employee under this Agreement shall
terminate upon death (other than rights accrued prior thereto). All Plan Options
shall vest in accordance with the Plan and shall be exercisable for a period of
time as set forth in the Plan. All Non-Plan Options shall immediately vest and
transfer to the Employee's estate and be exercisable for a period of 5 years
from the date of his death or the period of time as set forth in the Non-Plan
Option Contract, whichever is greater. However, at the election of the
Employee's estate, all Plan Options may be terminated and may be replaced with
Non-Plan Options (the "Replacement Options"). The Replacement Options shall have
the same terms as set forth in the Plan, except that terms relating to Non-Plan
Options, which are set forth in this Agreement and which vary the terms of the
Plan shall govern. The Employer shall pay to the estate of the Employee any
unpaid salary and other benefits due as well as reimbursable expenses accrued
and owing to the Employee prior to his death. The Employer agrees to maintain
life insurance on the Employee equivalent to one and one half year's base salary
and will be payable to the Employee's estate upon his death. The Employer shall
have no additional financial obligation under this Agreement to the Employee or
his estate beyond the term-life insurance benefit and as discussed above.
(b) Disability.
(i) During any period of disability, illness or incapacity during
the term of this Agreement which renders the Employee at least temporarily
unable to perform the services required under this Agreement, throughout this
time the Employee shall receive his salary payable under Section 3 of this
Agreement, less any benefits received by him under any insurance carried by or
provided by the Employer; provided however, all rights of the Employee under
this Agreement (other than rights already accrued) shall terminate as provided
below upon the Employee's permanent disability (as defined below).
(ii) The term "permanent disability" as used in this Agreement shall
mean the inability of the Employee, as determined by the Board of Directors of
the Employer, by reason of physical or mental disability to perform the duties
required of him under this Agreement after a period of: (a) 120 consecutive days
of such disability; or (b) disability for at least six months during any twelve
month period. Upon such determination, the Board of Directors may terminate the
Employee's employment under this Agreement upon ten (10) days prior written
notice. In the event of permanent disability all Plan Options shall vest in
accordance with the terms of the Plan and shall be exercisable for a period of
time as set forth in the Plan. All Non-Plan Options shall immediately vest and
will be exercisable for a period of five years or the
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period of time indicated in the option contract, whichever is greater. At the
election of the Employee, Plan Options may be terminated and may be replaced by
Replacement Options.
(iii) If any determination of the Board of Directors with respect to
permanent disability is disputed by the Employee, the parties hereto agree to
abide by the decision of a panel of three physicians. The Employee and Employer
shall each appoint one member, and the third member of the panel shall be
appointed by the other two physicians. The Employee agrees to make himself
available for and to submit to reasonable examinations by such physicians as may
be directed by the Employer. Failure to submit to any such exam shall constitute
a material breach of this Agreement. In the event such a panel is convened, the
party whose position is not sustained will bear all the associated costs.
8. Other Terminations.
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(a) Without Cause.
(i) Either the Employee or the Employer may terminate this Agreement
upon written notice, sixty (60) days prior to the end of the initial term or any
one-year extension of this Agreement.
(ii) If the Employee gives notice pursuant to paragraph (i) above,
the Employer shall have the right to either (a) relieve the Employee, in whole
or in part, of his duties under this Agreement (without reduction in
compensation) or (b) to accelerate the date of termination to coincide with the
date on which the written notice is received (without reduction in compensation
for the notice period).
(iii) Notwithstanding any provisions hereof to the contrary, the
Employer may terminate this Agreement without cause at any time. If the Employer
terminates this Agreement pursuant to the provisions of this paragraph
8(a)(iii), it shall pay to the Employee as a severance benefit, in cash, an
amount equal to two (2) times the Employee's Base Salary plus bonus, all Plan
Options shall vest in accordance with the terms of the Plan and shall be
exercisable for a period of time as set forth in the Plan and all Non-Plan
Options shall immediately vest and be exercisable by the Employee for a period
of five years or the period of time indicated in the Non-Plan Option contract
whichever is greater. At the election of the Employee, all Plan Options may be
terminated and may be replaced by Replacement Options.
(b) For Cause.
(i) The Employer may terminate this Agreement without notice (a)
upon the Employee's breach of any material provision of this Agreement, or (b)
for other "good cause" (as defined below).
(ii) The term "good cause" as used in this Agreement shall include,
but shall not be limited to: (a) conduct which breaches Employee's fiduciary
duties to the Employer; (b) conviction of any crime involving moral turpitude;
and (c) substantial dependence, as determined by the Board of Directors of the
Employer, on any addictive substance, including but not limited to alcohol,
amphetamines, barbiturates, methadone, cannabis, cocaine, PCP, THC, LSD or
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narcotic drug. Should the Employee dispute such a determination, the parties
hereto agree to abide by the decision of a panel of three physicians as
described in section 7 (b)(iii).
(iii) Payment on Termination. If this Agreement is terminated
pursuant to Section 8(b), the Employer shall pay to the Employee any unpaid
salary and other benefits and reimbursable expenses accrued and owing to the
Employee. Such payment shall be in full and complete discharge of any and all
liabilities or obligations of the Employer to the employee hereunder except any
additional compensation that may be owed as provided in Section 9 hereof. The
Employee shall be entitled to no further benefits under this Agreement other
than extension of health benefits at the Employee's expense and Plan Options
shall vest in accordance with the terms of the Plan and shall be exercisable for
a period of time as set forth in the Plan and all Non-Plan Options awarded to
the Employee shall immediately vest and be exercisable for a period of 5 years
or the period of time indicated in the option contract, whichever is greater.
9. Termination of Employment Upon Change in Control.
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(a) For purposes hereof, a "Change in Control" shall be deemed to have
occurred if:
(i) there has occurred a "change in control" as such term is used in
Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as in effect as the date hereof (hereinafter referred to
as the "Act");
(ii) if there has occurred a Change in Control as the term "Control"
is defined in Rule 12b-2 promulgated under the Act;
(iii) when any "person" (as such term is defined in Section3 (a) (9)
and 13 (d) (3) of the Act), during the Term of this Agreement, becomes a
beneficial owner, directly or indirectly, of securities of the Employer
representing 20% or more of the Employer's then outstanding securities having
the right to vote on the election of directors in such person did not have 20%
or more at the commencement of the Term; or if such a person having more than
20% increases his or its holdings by more that 15% during the Term;
(iv) if the stockholders of the Employer approve a plan of complete
liquidation or dissolution of the Employer or a merger or consolidation in which
the Employer is not the surviving corporation;
(v) if there has occurred a change in ownership of effective control
of the Employer (within the meaning of Section 280G (b) (2) (A) of the Internal
Revenue Code of 1986, as amended (the "Code"); or
(vi) when the individuals who are members of the Board of Directors
of the Employer on the date hereof shall cease to constitute at least a majority
of the Board of Directors of the Employer, provided, however, that any new
director whose election to the Board of Directors or nomination for election to
the Board of Directors then still in office, shall not be deemed to have
replaced his or her predecessor.
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(b) The Employee may terminate his employment at any time within 12
months after a Change in Control and any of the following events has occurred:
(i) an assignment to the Employee of any duties inconsistent with
the status of the Employee's office and/or position with the Employer as
constituted immediately prior to the Change in Control or a significant adverse
change in the nature or scope of the Employee's authority, power, compensation,
functions or duties as constituted immediately prior to the Change in Control,
or
(ii) a failure by the Employer, after having received written notice
from the Employee specifying a material breach of its obligations pursuant to
this Agreement, to cure such breach within 30 days after receipt of such notice,
or
(iii) the Employee determines that the work environment is hostile
or uncomfortable.
An election by the Employee to terminate his employment following a
Change in Control shall not be deemed a voluntary termination of employment by
the Employee for the purpose of interpreting the provisions of this Agreement or
any of the Employer's employee benefit plans and arrangements. The Employee's
continued employment with the Employer for any period of time during the Term of
this Agreement after a Change of Control shall not be considered a waiver of any
right he may have to terminate his employment to the extent permitted under this
Section 9(b).
If the Employer terminates the Employee without cause pursuant to
Section 8(a) hereof within 12 months after a Change in Control has occurred,
such termination shall be deemed an election by the Employee to terminate his
employment pursuant to this Section 9(b) and Employee shall have the right to
the compensation set forth in Section 9(c) instead of the compensation set forth
in Section 8(a). In addition, in the event of such termination, the Employee
shall continue to have the obligations provided for in Sections 11 and 12
hereof.
(c) If the Employee's employment with the Employer is terminated under
Section 9(b) hereof:
(i) the Employee shall be paid in a lump sum, within 30 days after
termination of employment, in cash, severance pay in an amount equal to 2.99
times his Base Salary plus bonuses, or that amount of salary and bonuses that
would have been due to the Employee through the expiration of the Term of this
Agreement, whichever is the greater; Notwithstanding the foregoing, if the
majority of the Board approves a transaction which results in a Change in
Control, (a) the Employee may not terminate his employment pursuant to Section
9(b)(iii) hereof and the amount paid to the Employee shall be calculated using
the multiplier 2.0 rather than 2.99 as set forth in Section 9 (c).
(ii) the Employee shall be issued a number of stock options to
purchase shares of common stock (the "Common Stock") of the Employer equal to
the number of stock options (vested or non-vested) held by the Employee
immediately prior to the effective date of any
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Change in Control. To the extent that a sufficient number of options for shares
of Common Stock are available under the Plan, options to purchase such shares
shall be issued under the Plan ("the Plan Options"); to the extent that there
are an insufficient number of shares available under the Plan, such number of
options to purchase shares shall be issued outside of the Plan (the "Non-Plan
Options"). The exercise price of the shares underlying the Plan Options shall
equal the fair market value of the Employer's Common Stock on the date of the
Employee's termination and the exercise price of the shares underlying the
Non-Plan Options shall equal the closing bid price of the Employer's Common
Stock on the Effective Date of this Agreement; and
(iii) all stock options held by the Employee immediately prior to
the effective date of the Change in Control and those Plan Options granted
pursuant to Section 9(c)(ii) shall immediately vest and become fully exercisable
for a period of time indicated in the option contract, and all Non-Plan Options
granted pursuant to Section 9(c)(ii) shall immediately vest and become fully
exercisable for a period of 5 years or the period of time indicated in the
option contract, whichever is greater; however, at the option of the Employee,
if the Employee is to receive options pursuant to this section, all Plan Options
may be terminated and may be replaced with Replacement Options; and
(iv) benefits, as provided in Section 3(c), shall continue until the
end of the Term as if the Employee continued to remain in employment through the
end of the Term of this Agreement or for a period of five years whichever is
greater.
The lump sum severance payment described in this Section 9(c)(i)-(iv)
is hereinafter referred to as the "Termination Compensation." The amount of the
Termination Compensation shall be determined, at the expense of the Employer, by
its regular outside certified public accountant. Upon payment of the Termination
Compensation and any other accrued compensation, this Agreement shall terminate
(except for the Employee's obligations pursuant to Sections 10, 11, 12, 13 and
14 hereof) and be of no further force or effect.
(d) After a Change in Control has occurred, the Employer shall honor
the Employee's exercise of the Employee's outstanding stock options and any
other stock related rights, in accordance with this Employment Agreement. After
a Change in Control has occurred and the Employee's employment is terminated as
a result thereof, the Employee (or his designated beneficiary or personal
representative(s)) shall also receive, except to the extent already paid
pursuant to Section 9(c)(i) hereof or otherwise, the sums the Employee would
otherwise have received (whether under this Agreement, by law or otherwise) by
reason of termination of employment as if a Change of Control had not occurred.
(e) Notwithstanding anything in this Agreement to the contrary, the
Employee shall have the right, prior to the receipt by him of any amounts due
hereunder, to treat some or all of such amounts as a loan from the Employer
which the Employee shall repay to the Employer, within 90 days from the date of
receipt, with interest at the rate provided in Section 7872 of the Code. The
repayment of the loan balance will be with the deferred severance which will
then be supplied by the Employer. Notice of any such waiver or treatment of
amounts received as a loan shall be given by the Employee to the Employer in
writing and shall be binding upon the Employer.
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(f) The Employee shall not be required to mitigate the payment of the
Termination Compensation or other benefits or payments by seeking other
employment. To the extent that the Employee shall, after the Term of this
Agreement, receive compensation from any other employment, the payment of
Termination Compensation or other benefits or payments shall not be adjusted.
10. Disclosure, Proprietary Rights. The Employee agrees that during the Term of
his employment by the Employer, he will disclose only to the Employer all ideas,
methods, plans, formulas, processes, trade secrets, developments or improvements
known by him which relate directly or indirectly to the business of the
Employer, including any lines of business, acquired by the Employee during his
employment by the Employer; provided, that nothing in this Section 10 shall be
construed as requiring any such communication where the idea, plan, method or
development is lawfully protected from disclosure, including but not limited to
trade secrets of third parties. For purposes of the Agreement, the term "the
business of the Employer" shall include, without limitation, the following: the
design, development, obtaining regulatory approval, production, manufacturing,
marketing, and licensing of prescription and non-prescription drugs, medical
devices, and methods for the diagnosis, evaluation, treatment or correction of
any disease, injury, illness or other medical or health condition and such other
lines of business as the Employer shall engage in during the Term hereof. The
parties further agree that any inventions, formulas, trade secrets, ideas, or
secret processes which shall arise form any disclosure made by the Employee
pursuant to this paragraph, whether or not subject to patent, shall be and
remain the sole property of the Employer.
11. Confidentiality. The Employee agrees to keep in strict secrecy and
confidence any and all information the Employee assimilates or to which he has
access during his employment by the Employer and which has not been publicly
disclosed and is not a matter of common knowledge in the fields of work of the
Employer. The Employee agrees that both during and after the Term of his
employment by the Employer, he will not, without prior written consent of the
Employer, disclose any such confidential information to any third person,
partnership, joint venture, company, corporation, or other organization.
12. Non-Competition. The Employee covenants that he will not engage, directly or
indirectly, alone or in conjunction with others, as an agent, employee,
investor, director, shareholder or partner in any business which provides
products, information and/or services to the public which are competitive with
those provided by the Employer Group; provided, however, that the ownership by
the Employee of 5% or less of the issued and outstanding shares of any class of
securities which is traded on a national securities exchange or in the over the
counter market shall not constitute a breach of the provisions of this section.
This covenant shall continue for the Term hereof and for a one year period
subsequent to the termination of this Agreement. Through the Term of this
Agreement and for a period of one year thereafter, if the Employee is terminated
for good cause, the Employee will not on his own behalf or on behalf of any
other business enterprise, directly or indirectly, solicit or induce any
creditor, customer, client, supplier, officer, employee or agent of the Employer
Group to sever his/her or its relationship with or leave the employ of the
Employer Group.
13. Conflict of Interest. The Employee shall devote his full time, energy and
attention to the benefit and business of the Employer Group and shall not be
employed by another entity, except
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as permitted in Section 5. It is understood by and between the parties hereto
that the restrictive covenants set forth in Sections 10, 11, 12, 13 and 14 are
essential elements of this Agreement and that but for the agreement of the
Employee to comply with such covenants, the Employer would not have entered into
this Agreement. Notwithstanding anything to the contrary in this Agreement, the
terms and provisions of Sections 11, 12, 13 and 14 of this Agreement, together
with any definitions used in such terms and provisions, shall survive the
termination or expiration of this Agreement. The existence of any claim or cause
of action of the Employee against the Employer, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by the
Employer of such covenants.
14. Specific Performance. The Employee agrees that damages at law will be
insufficient remedy to the Employer if the employee violates the terms of
Sections 10, 11, 12 or 13 of this Agreement and that the Employer shall be
entitled, upon application to a court of competent jurisdiction, to obtain
injunctive relief to enforce the provisions of such Sections, which injunctive
or other equitable relief shall be in addition to any other rights or remedies
available to the Employer, and the Employee agrees that he will not raise and
hereby waives any objection or defense that there is an adequate remedy at law.
15. Compliance with Other Agreements. The Employee represents and warrants that
the execution of this Agreement by him and his performance of his obligation
hereunder will not conflict with, result in the breach of any provision of,
terminate, or constitute a default under any agreement to which the Employee is
or may be bound.
16. Waiver of Breach. The waiver by the Employer of a breach of any of the
provisions of this Agreement by the Employee shall not be construed as a waiver
of any subsequent breach by the Employee.
17. D&O Insurance; Indemnification. The Employer hereby agrees to maintain in
full force and effect for the duration of this Agreement, Director's and
Officer's Liability Insurance of at least $2,000,000 and to indemnify and hold
harmless to the full extent permitted by law, the Employee for acts performed by
him in carrying out his duties and responsibilities in accordance with this
Agreement.
18. Binding Effect, Assignment. The rights and obligations of the Employer under
this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Employer. This Agreement is a personal employment
contract and the rights, obligations and interests of the Employee hereunder may
not be sold , assigned or hypothecated. Whenever in this Agreement reference is
made to any party, such reference shall be deemed to include the successors,
assigns, heirs, and legal representatives of such party, and without limiting
the generality of the foregoing, all representations, warranties, covenants and
other agreements made by or on behalf of the Employee in this Agreement shall
inure to the benefit of the successors and assigns of the Employer; provided,
however, that nothing herein shall be deemed to authorize or permit the Employee
to assign any of his rights or obligations under this Agreement to any other
person (whether or not a family member or other affiliate or the Employee, other
than as specifically provided in this Agreement), and the Employee covenants and
agrees that he shall not make any such assignments.
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19. Modification, Amendment, Etc. Each and every modification and amendment of
this Agreement shall be in writing and signed by all of the parties hereto, and
each and every waiver of, or consent to any departure from, any representation,
warranty, covenant or other term or provision of this Agreement shall be in
writing and signed by each affected party hereto.
20. Notice. Any notice required or permitted to be given under this Agreement
shall be sufficient if in writing and if sent by certified or registered mail,
first class, return receipt requested, to the Employer, at its executive offices
as set forth in its filings with the Securities and Exchange Commission and, to
the Employee, at his address as set forth on the current employment records of
the Employer.
21. Severability. It is agreed by the Employer and Employee that if any portion
of the provisions set forth in this Agreement are held to be unreasonable,
arbitrary or against public policy, then that portion of such covenants shall be
considered divisible both as to time and geographical area. The employer and
Employee agree that if any court of competent jurisdiction determines the
specific time period or the specified geographical area applicable to this
Agreement to unreasonable , arbitrary or against public policy, then a lesser
time period or geographical are which is determined to be reasonable,
non-arbitrary and not against public policy may be enforced against the
Employee. The Employer and Employee agree that the foregoing covenants are
appropriate and reasonable when considered in light of the nature and extent of
the business conducted by the Employer.
22. Entire Agreement. This Agreement contains the entire agreement between the
Employer and the employee and superseded all prior agreement and understandings,
oral or written, with respect to the subject matter hereof.
23. Headings. The headings contained in this agreement are for reference
purposes only and shall not affect the meaning or interpretation of the
Agreement.
24. Governing Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of New York.
25. Counterparts. This Agreement may be executed in two counterparts copies of
the entire document or of signature pages to the document, each of which may be
executed by one or more of the parties hereto, but all of which when taken
together, shall constitute a single agreement binding upon all of the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written.
Employer
BENTLEY PHARMACEUTICALS, INC.
By: /s/ James R. Murphy
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James R. Murphy
President
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Employee
/s/ Jordan A. Horvath
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Jordan A. Horvath
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