Exhibit 10.1


 


AMENDED AND
RESTATED EMPLOYMENT AGREEMENT


 


This
Amended and Restated Employment Agreement (the “Agreement”), entered
into as of April 26,  2010, is by
and between Beacon Power Corporation, a Delaware corporation (the “Company”),
and F.  William Capp (the “Executive”)


 


WHEREAS, the Executive is an
employee of the Company, and the Company desires to retain his services and he
wishes to continue his employment by the Company;


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:


 


SECTION 1.  TERM.  The Company shall employ the Executive for a
term commencing on April 1, 2010 and continuing until March 31, 2011,
unless renewed or terminated pursuant to Section 9.  The period of the Executive’s employment
hereunder is referred to as the “Employment Period.”


 


SECTION 2.  DUTIES.  The Executive shall serve the Company as
President and Chief Executive Officer and shall have duties and
responsibilities consistent with such position. 
Such duties and responsibilities shall include, but not be limited to,
overall management of the Company.  The
Executive will report to the Board of Directors of the Company (the “Board”).  The Executive will generally perform his
services at the Company’s principal offices, which are currently located in
Tyngsboro, Massachusetts; provided, however, that the Executive
may be required to travel from time to time in connection with Company
business.


 


SECTION 3.  FULL TIME; BEST EFFORTS.  During the Employment Period the Executive
shall use his best efforts to promote the interests of the Company and shall
devote his full business time and efforts to its business and affairs.  The Executive shall not engage in any
business activity which could reasonably be expected to interfere with the
performance of the Executive’s duties, services and responsibilities hereunder.


 


SECTION 4.  COMPENSATION.  The Executive shall be entitled to
compensation as follows:


 


(a)           Base Salary.  During the Employment Period, the Executive
will receive a salary at an annual gross rate of $325,000 (as the same may be
adjusted from time to time, the “Base Salary”), which shall be payable
in accordance with the Company’s regular payroll practices applicable to senior
executive officers.  The Executive’s Base
Salary shall be reviewed by the Board at least annually and may be increased
(but not decreased) in the Board’s discretion, depending upon the performance
of the Executive and of the Company.


 


(b)           Annual Bonus.  The Executive shall be eligible to receive an
annual bonus based on the achievement of individual and Company performance
objectives determined annually by the Compensation Committee of the Board in
consultation with the Executive.  The
amount of the annual bonus will be targeted at an amount equal to eighty-five
percent (85%) of Base Salary per year. 
The Executive and the Compensation Committee of the Board will set
performance goals and targets for the annual bonus prior to March 31 of
the applicable performance year.  The
Compensation Committee shall evaluate such performance goals and targets and
such annual bonus, if any, shall be paid on March 1 of the following year.


 


(c)           Long
term incentive compensation. 
Effective on the effective date of this Agreement, the Company has
entered into long term incentive compensation arrangements with Executive, contemplating
the grant of non-qualified stock options and restricted stock units.


 


(d)           Withholding. The Company may
withhold from compensation payable to the Executive all applicable federal,
state, and local withholding taxes as required by law.


 


SECTION 5.  BENEFITS.


 


(a)           Generally.  The Executive will be entitled to such fringe
benefits as are generally available to the Company’s executive officers,
including group health and dental insurance coverage, group long and short-term
disability insurance coverage, and 401(k) plan and stock plan
participation.  He will also be entitled
to a fringe 


 

















 


benefit
consisting of reimbursement of the cost to the Executive (above any applicable
insurance coverage) of an executive physical every other year (not to exceed
$1,000 for each such physical).  In the
event that any insurance policy is paying disability benefits to Executive, and
if the amount of the Executive’s monthly base salary that would be paid in the
absence of such disability is higher than the monthly insurance payments, then
the Company shall pay Executive an amount per month equal to such excess, for
so long as the Executive is employed with the Company.  No such difference shall be payable after the
Executive’s employment expires or is terminated.


 


(b)           Paid Vacation.


 


(i)  In addition to
U.S. statutory holidays, the Executive will be entitled to 20 business days of
paid vacation per calendar year, accruing at the rate of 1.66 days per
month.  The number of unused vacation
days that may be carried forward from one calendar year to the next shall be
limited to up to ten days of the current calendar year’s unused accrual (less
an equal amount of any unused PVA, defined below).   For any unused vacation accrual from the current calendar
year that cannot be carried over into the next year, the Company shall pay the Executive a
cash amount (based on the Executive’s then current year’s base salary) equal to
such excess up to a maximum not to exceed ten vacation days.  Any such unused excess over ten vacation days
from the current calendar year that was accrued shall be forfeited.


 


(ii) 
Notwithstanding the foregoing, any paid vacation time that the Executive had
accrued prior to January 1, 2010 (“Prior Vacation Accrual” or “PVA”) shall
remain available for the Executive’s use, provided that the Compensation
Committee, in its sole discretion, may elect from time to time to direct the
Company to pay the Executive a cash amount (based on the Executive’s then
current year’s base salary) equal to part or all of any such Prior Vacation
Accrual.


 


(iii) Vacation time
that is used by the Executive shall first be drawn from any unused accrual with
respect to the current calendar year, and then (assuming the current year’s
accrual has been used) then from any Prior Vacation Accrual.  The Executive shall coordinate with the Chair
of the Company Compensation Committee if he wishes to use more than 20 vacation
days in any calendar year.


 


(iv) Upon any
termination of employment, the Company shall pay Executive a lump sum equal to
any unused PVA, plus a lump sum equal to up to ten days of current year
vacation accrual.   Any remaining accrued
but unused or unpaid days shall be forfeited.


 


(v) The following
table illustrates these principles as applied to Executive’s actual, unused PVA
as of the date hereof and to his possible vacation day use during calendar 2010,
assuming employment through December 31, 2010:


 


	
  Executive’s 

  	
   

  	
  Current

  Accrual for 

  	
   

  	
  Examples
  of Conceivable

  Use During 2010

  	
   

  	
  Ex. of 

  	
   

  	
  Ex. of
  2010

  Accrual That

  	
   

  	
  Ex. of
  Possible

  Carried 

  	
   

  
	
  Actual PVA

  At 1/1/10

  	
   

  	
  2010 Cal.

  Yr

  	
   

  	
  From

  PVA

  	
   

  	
  From 2010

  accrual

  	
   

  	
  Req’d
  Paid

  to Exec.

  	
   

  	
  Executive

  Forfeits

  	
   

  	
  Forward

  to 2011

  	
   

  
	
  76.21
  days

  	
   

  	
  20
  days

  	
   

  	
  —

  	
   

  	
  5
  days

  	
   

  	
  10
  days

  	
   

  	
  5
  days

  	
   

  	
  76.21
  days

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  	
  10

  	
   

  	
  10

  	
   

  	
  —

  	
   

  	
  76.21

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  —

  	
   

  	
  20

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  76.21

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  10
  days

  	
   

  	
  20

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  66.21

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  66.21

  	
   

  	
  20

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  10

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  76.21

  	
   

  	
  20

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  



 


(c)           Life Insurance.  The Company will provide the Executive with
group term life insurance in an amount equal to no less than two times his Base
Salary plus $1,000,000.


 


SECTION 6.  EXPENSE REIMBURSEMENT.  The Executive will be entitled to
reimbursement of all reasonable and necessary business expenses incurred by the
Executive in the ordinary course of business on behalf of the Company, subject
to presentation of appropriate documentation and compliance with policies
established by the Board.


 


SECTION 7. NON-DISCLOSURE
AND ASSIGNMENT OF INVENTION AGREEMENT; INDEMNIFICATION AGREEMENT.  The parties acknowledge and agree that the
Executive has executed and delivered to the Company the Company’s standard form
of Invention and Non-Disclosure Agreement and that the Company and the
Executive 


 


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have
executed and delivered an Indemnification Agreement in form and substance
satisfactory to both parties (the “Indemnification Agreement”).


 


SECTION 8.  NON-COMPETITION AND NON-SOLICITATION
COVENANTS.


 


(a)           Non-competition.  The Executive agrees that during the
Employment Period and for the longer
of (i) 18 months thereafter, and (ii) the period during which the
Company is providing payment to the Executive under Section 9(c) of
this Agreement, he will not own, manage, operate, control, be employed by, provide
services as an independent contractor or consultant to, own any stock or other
investment in or debt of, or otherwise be connected in any manner with the
ownership, management, operation or control of, any business or enterprise that
at the time of termination, competes with the Company or conducts business in a
field in respect of which the Board is making plans to enter.


 


(b)           Non-solicitation.  The Executive agrees that during the
Employment Period and for two year thereafter, he will not attempt to persuade
or induce any employee of the Company to terminate his or her employment with
the Company for any reason.


 


(c)           Acknowledgments by Executive.  The Executive acknowledges that the covenants
set forth in this Section 8 are reasonable in scope and are no greater
than is necessary to protect the Company’s legitimate business interests.  The Executive further acknowledges that any
breach by him of the covenants set forth in this Section 8 would
irreparably injure the Company, and that money damages would not adequately
compensate the Company for the injuries that it would suffer.  The parties accordingly agree that in the
event of any breach or threatened breach by the Executive of any of the
covenants set forth in this Section 8, the Company may obtain, from any
court of competent jurisdiction, both preliminary and permanent injunctive
relief in order to prevent the occurrence or continuation of such injuries,
without being required to prove actual damages or post any bond or other
security.  Nothing in this Agreement
shall prohibit the Company from pursuing any other legal or equitable remedy
that may be available to it in the event of the Executive’s breach of any of
the covenants set forth in this Agreement.


 


SECTION 9.  TERMINATION.


 


(a)           Employment
Termination.  The
employment of the Executive pursuant to this Agreement shall terminate upon the
occurrence of any of the following:


 


(i) 
At the election of the Company, for Cause, immediately upon written notice by
the Company to the Executive.  For purposes
of this Agreement, “Cause” shall be deemed to exist upon a reasonable
good faith finding by the Board that the Executive has:


 


(1) committed an act constituting fraud,
embezzlement or other felony, determined in the reasonable opinion of the Board
acting in its sole discretion, or


 


(2) materially
breached his obligations under this Agreement or the Inventions and
Nondisclosure Agreement, and failed to cure same within 30 days after written
notice thereof is given to him by the Company, or


 


(3) materially breached the Company’s material
policies, including but not limited to the Company’s policies regarding insider
trading and sexual harassment, or


 


(4) engaged in willful misconduct and failed to
cure same within 30 days after written notice thereof is given to him by the
Company.


 


(ii) 
At the election of the Company, without Cause, upon at least 90 days written
notice by the Company to the Executive.


 


(iii) 
The death of the Executive, or (in the discretion of the Company) the
Disability of the Executive.  For
purposes of this Agreement, “Disability” shall be considered to exist:


 


(1) if the Executive fails to perform his
normal duties for at least 60 days (not counting days taken for vacation),
whether or not consecutive, during any 180-day period, or


 


3

















 


(2) if the Executive’s insurance company has
confirmed that any disability insurance benefits are going to be paid by reason
of Executive’s incapacitation, or


 


(3) if the Board, acting in its sole discretion
but after reasonable consultation with Executive, concludes that the Executive
suffers from a degree of physical or mental incapacitation as a result of
illness or accident which makes it reasonably unlikely that the Executive will
be able to perform his normal duties for a period of 60 days.  In reaching this conclusion, the Board may
consult third parties, including, but not limited to, other employees,
physicians, psychiatrists, and counselors.


 


(iv) 
At the election of the Executive, for any reason, upon at least 90 days prior
written notice to the Company.


 


(v) 
At the election of the Executive for Good Reason, provided that the
Executive shall have given written notice to the Company within 30 days after
he becomes aware of the occurrence of any event of Good Reason specifying such
event, and such event shall be continued for a period of 30 days following such
notice.  For purposes of this Agreement, “Good
Reason” means any of the following events:


 


(1) a material diminution in the duties,
responsibilities, position or job title of the Executive without the Executive’s
written consent.  For example:


 


(A) It will not be considered such a diminution
if Executive is required to report to an executive chairman (who is not
appointed CEO).


 


(B) It will be considered such a diminution if
in the event of a business combination involving the Company by means of a
reorganization, merger, consolidation, recapitalization, or asset sale (other
than one described below in subparagraph 4), the Executive remains as President
and CEO of the Company itself but is not appointed as the President and CEO of
the other party to such combination by the 180th day after
closing (or, the Executive and the Company have not reached some other,
mutually acceptable arrangement by then).


 


(2) a material breach by the Company of its
obligations under this Agreement or the Indemnification Agreement, or


 


(3) a change in the primary location where the
Executive is expected to perform his services hereunder to a location that is
more than 50 miles away from Tyngsboro, Massachusetts, or


 


(4) a Sale of the Business (as defined
below)  For purposes of this Agreement, a
“Sale of the Business” means (A) the acquisition by a person,
group, or party of 50% or more of the outstanding capital stock of the Company
in a single transaction or series of contractually related transactions, (B) a
change of a majority of the members of the Board (other than by resignation or
by any replacement of such resigned Board member(s)) when the change of the
various directors occurs at substantially the same time, without the approval
or consent of the members of the Board before such change, (C) the
acquisition of the Company by means of a reorganization, merger, consolidation,
recapitalization, or asset sale, unless the owners of the capital stock of the
Company before such transaction own immediately after such transaction more
than 50% of the capital stock of the acquiring or succeeding entity in
substantially the same proportions (without giving effect to any funds that may
be newly invested in the Company or such acquiring or succeeding entity at
about the same time), or (D) the approval of a liquidation or dissolution
of the Company.


 


(5) the failure of the Executive to be
nominated for reelection to the Board, or his removal from the Board without
cause.


 


(b)  Effect of Termination.


 


(i) 
Termination Pursuant to Section 9(a)(i) relating
to termination for cause or Section 9(a)(iv) relating to termination
at the election of Executive for any reason.  In the event the Executive’s employment is
terminated pursuant to Section 9(a)(i) or Section 9(a)(iv), the
Company shall pay to the Executive his accrued Base Salary through the last
date of his employment hereunder (the “Termination Date”) and shall
continue to provide to the Executive the benefits described in Section 5
(the “Benefits”) through the Termination Date, but shall have no


 


4

















 


further
responsibility for any compensation or benefits to the Executive for any time
period subsequent to the Termination Date.


 


(ii) 
Termination pursuant to Section 9(a)(ii) relating
to termination without cause. 
In the event the Executive’s employment is terminated pursuant to Section 9(a)(ii),
the Company shall:


 


(1) Pay to the Executive a cash amount equal to
his then monthly Base Salary multiplied by twelve.


 


(2) Continue to provide the benefits described
in Sections 5(a) and 5(c) to the Executive until the first
anniversary of the Termination Date.


 


(3) Within five business days after the
Termination Date, pay the Executive an amount equal to his bonus which was paid
(or which has been determined but not yet paid) with respect to the prior
fiscal year multiplied by a fraction, the numerator of which is the number of
full fiscal months that have elapsed in the then current fiscal year prior to
the Termination Date, and the denominator of which is 12.  In no event shall payment under this Section 9(b)(ii)(3) exceed
80% of the Executive’s base salary for the prior year.  If the bonus with respect to the prior fiscal
year has not yet been determined by the date that the parties must calculate
the amount to be paid under this paragraph, then the parties shall calculate
this portion of the severance by reference to the bonus paid with respect to
the year next preceding the prior fiscal year.


 


(iii) 
Termination pursuant to Section 9(a)(v) relating
to termination at the election of Executive for Good Reason.  In the event the Executive’s employment is
terminated pursuant to Section 9(a)(v), the Company shall:


 


(1) Pay to the Executive a cash amount equal to
his then monthly Base Salary multiplied by twelve.


 


(2) Continue to provide the benefits described
in Sections 5(a) and 5(c) to the Executive until the first
anniversary of the Termination Date.


 


(3) Within five business days after the
Termination Date, pay the Executive an amount equal to his bonus which was paid
(or which has been determined but not yet paid) with respect to the prior
fiscal year multiplied by a fraction, the numerator of which is the number of
full fiscal months that have elapsed in the then current fiscal year prior to
the Termination Date, and the denominator of which is 12.  In no event, shall payment under this Section 9(b)(iii)(3) exceed
80% of the Executive’s base salary for the prior year.  If the bonus with respect to the prior fiscal
year has not yet been determined by the date that the parties must calculate
the amount to be paid under this paragraph, then the parties shall calculate
this portion of the severance by reference to the bonus paid with respect to
the year next preceding the prior fiscal year.


 


(iv) 
Termination pursuant to Section 9(a)(iii) relating
to the death or disability of the Executive.  In the event the Executive’s employment is
terminated pursuant to Section 9(a)(iii), the Company shall:


 


(1) Continue to pay to Executive or his estate,
as the case may be, an amount equal to his then current Base Salary for the
three-month period following the Termination Date.


 


(2) Continue for the 12-month period following
the Termination Date all health and dental insurance benefits the Executive was
entitled to at the Termination Date.


 


(v) 
Golden Parachute Payment Excise Tax
Protection.  In the event
that the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended (the “Code”), (or any successor penalty or excise
tax subsequently imposed by law) applies to any payments or benefits
specifically paid or conferred only under this Agreement (which shall not
include any payments or benefits paid or conferred under the long-term
incentive compensation arrangement or the performance based long-term incentive
compensation arrangement referenced in Section 4(c)) (the “Excise Tax”),
an additional amount shall be paid by the Company to the Executive equal to the
amount of such Excise Tax (the “Gross Up
Payment”); provided, however in no event shall the aggregate amount
payable by the Company to Executive for any excise tax imposed by Section 4999
of the Code


 


5

















 


pursuant
to this Agreement and all other agreements between the Company and Executive
exceed $500,000.  Any such Gross Up
Payment shall be made to the Executive as soon as practicable, but in no event
later than the close of the calendar year following the calendar in which the
Excise Tax is remitted to the applicable taxing authority. The Company and its
advisers shall make the determination of the amount of the Gross Up
Payment.  To the extent that the amount
of such Gross Up Payment exceeds the amount of Excise Tax actually paid by
Executive, Executive shall promptly pay to the Company such excess amount.


 


(c)           Continuation/Nonrenewal.  Unless this Agreement has
been otherwise terminated before the end of the scheduled Employment Period as
described in Section 1, the Company and the Executive agree to discuss in
good faith the possible continuation of the Executive’s employment, commencing
six months prior to such date.  If the
Company fails to offer the Executive a new employment agreement, with at least
equivalent material terms to this Agreement, by such date and in fact the
Executive ceases to be an employee of the Company (other than for Cause)
following such date the Company shall pay the Executive a monthly amount for
twelve months equal to his last prevailing monthly Base Salary, plus
one-twelfth of the Executive’s bonus for the most recent fiscal year of the
Company, in accordance with the Company’s regular payroll practices, less
applicable withholdings required by law. 
If the bonus with respect to the most recent fiscal year has not yet
been determined by the date that the parties must calculate the amount to be
paid under this paragraph with respect to bonus, then the parties shall
calculate this portion of the severance by reference to the bonus paid with
respect to the year next preceding such most recent fiscal year.


 


SECTION 10.  NO CONFLICTING AGREEMENTS.  The Executive represents and warrants to the
Company that he is not a party to or bound by any confidentiality, non-competition,
non-solicitation or other agreement or restriction that could conflict with or
be violated by the performance of his duties for the Company.


 


SECTION 11.  NO DISPARAGEMENT.  Each party agrees that at all times following
the termination of the Executive’s employment hereunder, such party shall not
make or cause to be made, directly or indirectly, any statements to any third
party that disparage or denigrate the other party or, in the case of the
Company, any of its current or former directors, officers or employees, unless
required by law.


 


SECTION 12.  ENFORCEABILITY, ETC.  This Agreement shall be interpreted in such a
manner as to be effective and valid under applicable law, but if any provision
hereof shall be prohibited or invalid under any such law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating or nullifying the remainder of such provision or any other
provisions of this Agreement.  If any one
or more of the provisions contained in this Agreement shall for any reason be
held to be excessively broad as to duration, geographical scope, activity, or
subject, such provisions shall be construed by limiting and reducing it so as
to be enforceable to the maximum extent permitted by applicable law.


 


SECTION 13.  NOTICES.  Any notice or other communication given
pursuant to this Agreement shall be in writing and shall be personally
delivered, sent by nationally recognized overnight courier or express mail, or
mailed by first class certified or registered mail, postage prepaid, return
receipt requested as follows:


 


	
  (a) If to the Executive:

  F. William Capp

   

  	
  (b) If to the Company:

  Beacon
  Power Corporation

  65
  Middlesex Road

  Tyngsboro,
  MA  01879

  Attn:  Compensation Committee

  



 


or
to such other address as a party shall have designated by notice to the other
party.


 


SECTION 14.  GOVERNING LAW.  This Agreement shall be governed by and
construed in accordance with the internal laws of the Commonwealth of
Massachusetts without giving effect to any choice or conflict of laws provision
or rule that would cause the application of the domestic substantive laws
of any other jurisdiction.


 


SECTION 15.  AMENDMENTS AND WAIVERS.  No amendment or waiver of this Agreement or
any provision hereof shall be binding upon the party against whom enforcement
of such amendment or waiver is sought unless it is made in writing and signed
by or on behalf of such party.  The
waiver by either party of a breach of any provision of this Agreement by the
other party shall not operate and be construed as a waiver or a continuing
waiver by that party of the same or any subsequent breach of any provision of
this Agreement by the other party.  To
the extent that the final regulations under Section 409A of the Code
require modifications to this Agreement in 


 


6

















 


order
to avoid that section’s penalty tax, the parties agree to discuss amending this
Agreement accordingly. Notwithstanding the foregoing, to the extent the Company
reasonably determines that any portion of the payments or benefits payable
under this Agreement is subject to Section 409A of the Code, such portion
of payments or benefits payable shall (i) to the extent required by Section 409A
of the Code, be delayed for six months from the Termination Date or (ii) to
the extent permitted under subsequent guidance from the Internal Revenue
Service, be otherwise made to comply with such Section 409A requirements,
provided, however, that any such action under this subsection (ii) that is
more detrimental to Executive than that in subsection (i) shall only be
made with Executive’s consent.  To the
extent required in order to avoid accelerated taxation and/or tax penalties
under Section 409A, the Executive shall not be considered to have
terminated employment with the Company for purposes of the Agreement and no
payments shall be due under the Agreement which are payable upon termination of
employment until the Executive would be considered to have incurred a “separation
from service” from the Company within the meaning of Section 409A.


 


SECTION 16.  BINDING EFFECT.  This Agreement shall be binding on and inure
to the benefit of the parties hereto and their respective heirs, executors and
administrators, successors and assigns, except that it may not be assigned by
the Company without the Executive’s consent, provided that the Company may
assign this Agreement to an entity that acquires substantially all of the
Company’s assets by means of an asset sale, merger or otherwise, provided
further that such entity shall agree in writing to assume and be bound by this
Agreement.  This Agreement is personal to
the Executive and is not assignable by him.


 


SECTION 17.  ENTIRE AGREEMENT.  This Agreement constitutes the final and
entire agreement of the parties with respect to the matters covered hereby and
replaces and supersedes all other agreements and understandings relating
hereto, other than the RSU (restricted stock unit) and option agreements
already in place.


 


SECTION 18.  PRONOUNS.  Whenever the context may require, any
pronouns used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural, and vice versa.


 


SECTION 19.  SURVIVABILITY.  Sections 6-20 herein shall survive the
termination of this Agreement.


 


SECTION 20.  COUNTERPARTS.  This Agreement may be executed in any number
of counterparts, and with counterpart signature pages, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.


 


7

















 


IN
WITNESS WHEREOF, this Agreement has been executed as a sealed instrument as of
the date first above written.


 


	
  EXECUTIVE

  	
   

  	
  BEACON POWER CORPORATION

  
	
   

  	
   

  	
   

  
	
  /s/ F. William Capp

  	
   

  	
   

  
	
  F. William Capp

  	
   

  	
  By:  

  	
  /s/ Jack P. Smith

  
	
   

  	
   

  	
  Name: Jack P. Smith

  
	
   

  	
   

  	
  Title: Chairman, Compensation Committee