kovalcheck-bankagreement.htm


     

    
      

      

    

    
      Exhibit
        10.5

       

       

      ABINGTON
        BANK

      AMENDED
        AND RESTATED EMPLOYMENT
        AGREEMENT

      


      


      This
        AMENDED AND RESTATED EMPLOYMENT
        AGREEMENT (this “Agreement”), is made and entered into as of the 28th day of
        November 2007, between Abington Savings Bank, a Pennsylvania chartered,
        stock-form savings bank doing business as “Abington Bank” (the “Bank” or the
“Employer”), and Frank Kovalcheck (the “Executive”).

      


      


      WITNESSETH

      


      WHEREAS,
        the Executive is currently
        employed as a Senior Vice President of the Bank, and the Executive and the
        Bank
        have previously entered into an employment agreement dated December 29, 2006
        (the “Prior Agreement”); and

      


      WHEREAS,
        the Bank desires to amend and
        restate the Prior Agreement in order to make changes to comply with Section
        409A
        of the Code (as defined herein), as well as certain other changes;

      


      NOW
        THEREFORE, in consideration of the
        premises and mutual agreements herein contained, the Bank and the Executive
        hereby agree as follows:

      


      1.           Definitions.  The
        following words and terms shall have the meanings set forth below for the
        purposes of this Agreement:

      


      (a)           Base
        Salary.  “Base Salary” shall have the meaning set forth in
        Section 3(a) hereof.

      


      (b)           Cause.  Termination
        by the Employer of the Executive’s employment for “Cause” shall mean termination
        because of personal dishonesty, incompetence, willful misconduct, breach
        of
        fiduciary duty involving personal profit, intentional failure to perform
        stated
        duties, willful violation of any law, rule or regulation (other than traffic
        violations or similar offenses) or final cease-and-desist order, willful
        conduct
        which is materially detrimental (monetarily or otherwise) to the Employer
        or
        material breach of any provision of this Agreement.

      


      (c)           Change
        in Control.  “Change in Control” shall mean a change in the
        ownership of the Corporation or the Bank, a change in the effective control
        of
        the Corporation or the Bank or a change in the ownership of a substantial
        portion of the assets of the Corporation or the Bank, in each case as provided
        under Section 409A of the Code and the regulations thereunder.

      


      (d)           Code.  “Code”
        shall mean the Internal Revenue Code of 1986, as amended.

      


      (e)           Corporation.  “Corporation”
        shall mean Abington Bancorp, Inc., a Pennsylvania corporation, or any successor
        thereto.

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (f)           Date
        of Termination.  “Date of Termination” shall mean (i) if the
        Executive’s employment is terminated for Cause, the date on which the Notice of
        Termination is given, and (ii) if the Executive’s employment is terminated for
        any other reason, the date specified in such Notice of Termination.

      


      (g)           Disability.  “Disability”
        shall mean the Executive (i) is unable to engage in any substantial gainful
        activity by reason of any medically determinable physical or mental impairment
        which can be expected to result in death or can be expected to last for a
        continuous period of not less than 12 months, or (ii) is, by reason of any
        medically determinable physical or mental impairment which can be expected
        to
        result in death or can be expected to last for a continuous period of not
        less
        than 12 months, receiving income replacement benefits for a period of not
        less
        than three months under an accident and health plan covering employees of
        the
        Employer.

      


      (h)           Good
        Reason.  Termination by the Executive of the Executive’s
        employment for “Good Reason” shall mean termination by the Executive based on
        the occurrence of any of the following events:

      


      
        	
                 

              	
                (i)

              	
                any
                  material breach of this Agreement by the Employer, including without
                  limitation any of the following: (A) a material diminution in the
                  Executive’s base compensation, (B) a material diminution in the
                  Executive’s authority, duties or responsibilities, or (C) a material
                  diminution in the authority, duties or responsibilities of the
                  officer to
                  whom the Executive is required to report,
                  or

              


      

      


      
        	
                 

              	
                (ii)

              	
                any
                  material change in the geographic location at which the Executive
                  must
                  perform his services under this
                  Agreement;

              


      

      


      provided,
        however, that prior to any termination of employment for Good Reason, the
        Executive must first provide written notice to the Employer within ninety
        (90)
        days of the initial existence of the condition, describing the existence
        of such
        condition, and the Employer shall thereafter have the right to remedy the
        condition within thirty (30) days of the date the Employer received the written
        notice from the Executive.  If the Employer remedies the condition
        within such thirty (30) day cure period, then no Good Reason shall be deemed
        to
        exist with respect to such condition.  If the Employer does not remedy
        the condition within such thirty (30) day cure period, then the Executive
        may
        deliver a Notice of Termination for Good Reason at any time within sixty
        (60)
        days following the expiration of such cure period.

      


      (i)           IRS.  “IRS”
        shall mean the Internal Revenue Service.

      


      (j)           Notice
        of Termination.  Any purported termination of the Executive’s
        employment by the Employer for any reason, including without limitation for
        Cause, Disability or Retirement, or by the Executive for any reason, including
        without limitation for Good Reason, shall be communicated by a written “Notice
        of Termination” to the other party hereto.  For purposes of this
        Agreement, a “Notice of Termination” shall mean a dated notice which (i)
        indicates the specific termination provision in this Agreement relied upon,
        (ii)
        sets forth in reasonable detail the facts and circumstances claimed to provide
        a
        basis for termination of the Executive’s employment under the provision so
        indicated, (iii) specifies a Date of Termination, which shall be not less
        than
        fifteen (15) nor more than ninety (90) days after such Notice of Termination
        is
        given, except in the case of the Employer’s termination of the Executive’s
        employment for Cause, which shall be effective immediately; and (iv) is given
        in
        the manner specified in Section 10 hereof.

      


      
        
          
          

        

        
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      (k)           Retirement.  “Retirement”
        shall mean voluntary termination by the Executive in accordance with the
        Employer’s retirement policies, including early retirement, generally applicable
        to the Employer’s salaried employees.

      


      2.           Term
        of Employment.

      


      (a)           The
        Employer hereby employs the Executive as Senior Vice President, and the
        Executive hereby accepts said employment and agrees to render such services
        to
        the Employer on the terms and conditions set forth in this Agreement. Subject
        to
        the terms hereof, this Agreement shall terminate three (3) years after January
        1, 2007 (the “Commencement Date”).  Beginning on the day which is one
        year subsequent to the Commencement Date, and on each annual anniversary
        thereafter, the term of this Agreement shall be extended for a period of
        one
        additional year provided that the Employer has not given notice to the Executive
        in writing at least 30 days prior to such day that the term of this Agreement
        shall not be extended further and/or the Executive has not given notice to
        the
        Employer of his election not to extend the term at least thirty (30) days
        prior
        to any such anniversary date.  If any party gives timely notice that
        the term will not be extended as of any such annual anniversary date, then
        this
        Agreement shall terminate at the conclusion of its remaining
        term.  References herein to the term of this Agreement shall refer
        both to the initial term and successive terms.

      


      (b)           During
        the term of this Agreement, the Executive shall perform such executive services
        for the Employer as is consistent with his title of Senior Vice President
        and
        from time to time assigned to him by the Employer’s Board of
        Directors.

      


      3.           Compensation
        and Benefits.

      


      (a)           The
        Employer shall compensate and pay the Executive for his services during the
        term
        of this Agreement at a minimum base salary of $129,000 per year (“Base Salary”),
        which may be increased from time to time in such amounts as may be determined
        by
        the Board of Directors of the Employer and may not be decreased without the
        Executive’s express written consent.  In addition to his Base Salary,
        the Executive shall be entitled to receive during the term of this Agreement
        such bonus payments as may be determined by the Board of Directors of the
        Employer.

      


      (b)           During
        the term of this Agreement, the Executive shall be entitled to participate
        in
        and receive the benefits of any pension or other retirement benefit plan,
        profit
        sharing, stock option, employee stock ownership, or other plans, benefits
        and
        privileges given to employees and executives of the Employer, to the extent
        commensurate with his then duties and responsibilities, as fixed by the Board
        of
        Directors of the Employer.  The Employer shall not make any changes in
        such plans, benefits or privileges which would adversely affect the Executive’s
        rights or benefits thereunder, unless such change occurs pursuant to a program
        applicable to all executive officers of the Employer and does not result
        in a
        proportionately greater adverse change in the rights of or benefits to the
        Executive as compared with any other executive officer of the
        Employer.  Nothing paid to the Executive under any plan or arrangement
        presently in effect or made available in the future shall be deemed to be
        in
        lieu of the salary payable to the Executive pursuant to Section 3(a)
        hereof.

      


      
        
          
          

        

        
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      (c)           During
        the term of this Agreement, the Executive shall be entitled to paid annual
        vacation in accordance with the policies as established from time to time
        by the
        Board of Directors of the Employer.  The Executive shall not be
        entitled to receive any additional compensation from the Employer for failure
        to
        take a vacation, nor shall the Executive be able to accumulate unused vacation
        time from one year to the next, except to the extent authorized by the Board
        of
        Directors of the Employer.

      


      4.           Expenses.  The
        Employer shall reimburse the Executive or otherwise provide for or pay for
        all
        reasonable expenses incurred by the Executive in furtherance of, or in
        connection with the business of the Employer, including, but not by way of
        limitation, automobile and traveling expenses, subject to such reasonable
        documentation and other limitations as may be established by the Board of
        Directors of the Employer.  If such expenses are paid in the first
        instance by the Executive, the Employer shall reimburse the Executive
        therefor.  Such reimbursement shall be paid promptly by the Employer
        and in any event no later than March 15 of the year immediately following
        the
        year in which such expenses were incurred.

      


      5.           Termination.

      


      (a)           General.  The
        Employer shall have the right, at any time upon prior Notice of Termination,
        to
        terminate the Executive’s employment hereunder for any reason, including without
        limitation termination for Cause, Disability or Retirement, and the Executive
        shall have the right, upon prior Notice of Termination, to terminate his
        employment hereunder for any reason.

      


      (b)           Termination
        for Cause or Voluntary Resignation.  In the event that the
        (i) the Executive’s employment is terminated by the Employer for Cause, or
        (ii) the Executive terminates his employment hereunder other than for Good
        Reason, the Executive shall have no right pursuant to this Agreement to
        compensation or other benefits for any period after the applicable Date of
        Termination.

      


      (c)           Termination
        Due to Disability, Retirement or Death.  In the event that
        the Executive’s employment is terminated as a result of Disability, Retirement
        or the Executive’s death during the term of this Agreement, the Executive shall
        have no right pursuant to this Agreement to compensation or other benefits
        for
        any period after the applicable Date of Termination.

      


      (d)           Involuntary
        or Good Reason Termination Prior to a Change in Control.  In
        the event that (i) the Executive’s employment is terminated by the Employer for
        other than Cause, Disability, Retirement or the Executive’s death or (ii) such
        employment is terminated by the Executive for Good Reason, in each case prior
        to
        a Change in Control, then the Employer shall:

      


      
        
          
          

        

        
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      (A)           pay
        to the Executive in a lump sum as of the Date of Termination, a cash severance
        amount equal to the product of two (2) times (i) the Executive’s then current
        Base Salary, and (ii) the cash bonus paid to the Executive by the Employer
        for
        the calendar year preceding the Date of Termination; and

      


      (B)           maintain
        and provide for a period ending at the earlier of (i) twenty-four (24) months
        subsequent to the Date of Termination or (ii) the date of the Executive’s
        full-time employment by another employer (provided that the Executive is
        entitled under the terms of such employment to benefits substantially similar
        to
        those described in this subparagraph (B)), with the Executive responsible
        for
        paying the same share of any premiums, co-payments or deductibles as if he
        was
        still an employee, the Executive’s continued participation in all group
        insurance, life insurance, health and accident, and disability insurance
        coverage offered by the Employer in which the Executive was participating
        immediately prior to the Date of Termination; provided that any insurance
        premiums payable by the Employer or any successors pursuant to this Section
        5(d)(B) shall be payable at such times and in such amounts as if the Executive
        was still an employee of the Employer, subject to any increases in such amounts
        imposed by the insurance company or COBRA, and the amount of insurance premiums
        required to be paid by the Employer in any taxable year shall not affect
        the
        amount of insurance premiums required to be paid by the Employer in any other
        taxable year; and provided further that if the Executive’s participation in any
        group insurance plan is barred, the Employer shall arrange to provide the
        Executive with insurance benefits substantially similar to those which the
        Executive was entitled to receive under such group insurance plan at no
        additional cost to the Executive; and

      


      (C)           pay
        to the Executive, in a lump sum as of the Date of Termination, a cash amount
        equal to the projected cost to the Employer of providing benefits to the
        Executive for a period of twenty-four (24) months pursuant to any other employee
        benefit plans, programs or arrangements offered by the Employer in which
        the
        Executive was entitled to participate immediately prior to the Date of
        Termination (other than cash bonus plans, retirement plans or stock compensation
        plans of the Employer or the Corporation), with the projected cost to the
        Employer to be based on the costs incurred for the calendar year immediately
        preceding the year in which the Date of Termination occurs and with any
        automobile-related costs to exclude any depreciation on Bank-owned
        automobiles.

      


      (e)           Involuntary
        or Good Reason Termination Concurrently with or Subsequent to a Change in
        Control.  In the event that (i) the Executive’s employment is
        terminated by the Employer for other than Cause, Disability, Retirement or
        the
        Executive’s death or (ii) such employment is terminated by the Executive for
        Good Reason, in each case either concurrently with or subsequent to a Change
        in
        Control, then the Employer shall, subject to the provisions of Section 6
        hereof,
        if applicable,

      


      (A)           pay
        to the Executive, in a lump sum as of the Date of Termination, a cash severance
        amount equal the product of three (3) times (i) the Executive’s then current
        Base Salary, and (ii) the cash bonus paid to the Executive by the Employer
        for
        the calendar year preceding the Date of Termination; and

      


      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

      (B)           maintain
        and provide for a period ending at the earlier of (i) thirty-six (36) months
        subsequent to the Date of Termination or (ii) the date of the Executive’s
        full-time employment by another employer (provided that the Executive is
        entitled under the terms of such employment to benefits substantially similar
        to
        those described in this subparagraph (B)), with the Executive responsible
        for
        paying the same share of any premiums, co-payments or deductibles as if he
        was
        still an employee, the Executive’s continued participation in all group
        insurance, life insurance, health and accident and disability insurance coverage
        offered by the Employer in which the Executive was participating immediately
        prior to the Date of Termination; provided that any insurance premiums payable
        by the Employer or any successors pursuant to this Section 5(e)(B) shall
        be
        payable at such times and in such amounts as if the Executive was still an
        employee of the Employer, subject to any increases in such amounts imposed
        by
        the insurance company or COBRA, and the amount of insurance premiums required
        to
        be paid by the Employer in any taxable year shall not affect the amount of
        insurance premiums required to be paid by the Employer in any other taxable
        year; and provided further that if the Executive’s participation in any group
        insurance plan is barred, the Employer shall arrange to provide the Executive
        with insurance benefits substantially similar to those which the Executive
        was
        entitled to receive under such group insurance plan at no additional cost
        to the
        Executive; and

      


      (C)           pay
        to the Executive, in a lump sum as of the Date of Termination, a cash amount
        equal to the projected cost to the Employer of providing benefits to the
        Executive for a period of thirty-six (36) months pursuant to any other employee
        benefit plans, programs or arrangements offered by the Employer in which
        the
        Executive was entitled to participate immediately prior to the Date of
        Termination (other than cash bonus plans, retirement plans or stock compensation
        plans of the Employer or the Corporation), with the projected cost to the
        Employer to be based on the costs incurred for the calendar year immediately
        preceding the year in which the Date of Termination occurs and with any
        automobile-related costs to exclude any depreciation on Bank-owned
        automobiles.

      


      6.           Limitation
        of Benefits under Certain Circumstances.  If the payments and
        benefits pursuant to Section 5 hereof, either alone or together with other
        payments and benefits which the Executive has the right to receive from the
        Employer, would constitute a “parachute payment” under Section 280G of the Code,
        then the payments and benefits payable by the Employer pursuant to Section
        5
        hereof shall be reduced by the minimum amount necessary to result in no portion
        of the payments and benefits under Section 5 being non-deductible to the
        Employer pursuant to Section 280G of the Code and subject to the excise tax
        imposed under Section 4999 of the Code.  If the payments and benefits
        under Section 5 are required to be reduced, the cash severance shall be reduced
        first, followed by a reduction in the fringe benefits.  The
        determination of any reduction in the payments and benefits to be made pursuant
        to Section 5 shall be based upon the opinion of independent tax counsel selected
        by the Employer and paid by the Employer.  Such counsel shall promptly
        prepare the foregoing opinion, but in no event later than ten (10) days from
        the
        Date of Termination, and may use such actuaries as such counsel deems necessary
        or advisable for the purpose.  Nothing contained herein shall result
        in a reduction of any payments or benefits to which the Executive may be
        entitled upon termination of employment under any circumstances other than
        as
        specified in this Section 6, or a reduction in the payments and benefits
        specified in Section 5 below zero.

      


      
        
          
          

        

        
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      7.           Mitigation;
        Exclusivity of Benefits.

      


      (a)           The
        Executive shall not be required to mitigate the amount of any benefits hereunder
        by seeking other employment or otherwise, nor shall the amount of any such
        benefits be reduced by any compensation earned by the Executive as a result
        of
        employment by another employer after the Date of Termination or otherwise,
        except as set forth in Sections 5(d)(B)(ii) and 5(e)(B)(ii) hereof.

      


      (b)           The
        specific arrangements referred to herein are not intended to exclude any
        other
        benefits which may be available to the Executive upon a termination of
        employment with the Employer pursuant to employee benefit plans of the Employer
        or otherwise.

      


      8.           Withholding.  All
        payments required to be made by the Employer hereunder to the Executive shall
        be
        subject to the withholding of such amounts, if any, relating to tax and other
        payroll deductions as the Employer may reasonably determine should be withheld
        pursuant to any applicable law or regulation.

      


      9.           Assignability.  The
        Employer may assign this Agreement and its rights and obligations hereunder
        in
        whole, but not in part, to any corporation, bank or other entity with or
        into
        which the Employer may hereafter merge or consolidate or to which the Employer
        may transfer all or substantially all of its assets, if in any such case
        said
        corporation, bank or other entity shall by operation of law or expressly
        in
        writing assume all obligations of the Employer hereunder as fully as if it
        had
        been originally made a party hereto, but may not otherwise assign this Agreement
        or its rights and obligations hereunder.  The Executive may not assign
        or transfer this Agreement or any rights or obligations hereunder.

      


      10.           Notice.  For
        the purposes of this Agreement, notices and all other communications provided
        for in this Agreement shall be in writing and shall be deemed to have been
        duly
        given when delivered or mailed by certified or registered mail, return receipt
        requested, postage prepaid, addressed to the respective addresses set forth
        below:

       

      
        
          	
                  To
                    the Employer:

                	 	
                  Board
                    of Directors

                
	 	 	
                  Abington
                    Savings Bank

                
	 	 	
                  180
                    Old York Road

                
	 	 	
                  Jenkintown,
                    Pennsylvania 19046

                
	 	 	 
	
                  To
                    the Executive:

                	 	
                  Frank
                    Kovalcheck

                
	 	 	
                  At
                    the address last appearing on the personnel records of the
                    Employers

                


        

      

       

      11.           Amendment;
        Waiver.  No provisions of this Agreement may be modified,
        waived or discharged unless such waiver, modification or discharge is agreed
        to
        in writing and signed by the Executive and such officer or officers as may
        be
        specifically designated by the Board of Directors of the Employer to sign
        on its
        behalf.  No waiver by any party hereto at any time of any breach by
        any other party hereto of, or compliance with, any condition or provision
        of
        this Agreement to be performed by such other party shall be deemed a waiver
        of
        similar or dissimilar provisions or conditions at the same or at any prior
        or
        subsequent time.  In addition, notwithstanding anything in this
        Agreement to the contrary, the Bank may amend in good faith any terms of
        this
        Agreement, including retroactively, in order to comply with Section 409A
        of the
        Code.

      


      
        
          
          

        

        
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      12.           Governing
        Law.  The validity, interpretation, construction and
        performance of this Agreement shall be governed by the laws of the United
        States
        where applicable and otherwise by the substantive laws of the Commonwealth
        of
        Pennsylvania.

      


      13.           Validity.  The
        invalidity or unenforceability of any provision of this Agreement shall not
        affect the validity or enforceability of any other provisions of this Agreement,
        which shall remain in full force and effect.

      


      14.           Arbitration.  Any
        controversy or claim arising out of or relating to this Agreement, or the
        breach
        thereof, shall be settled by arbitration in accordance with the rules then
        in
        effect for the American Arbitration Association, Philadelphia, Pennsylvania,
        and
        judgment upon the award rendered may be entered in any court having jurisdiction
        thereof.

      


      15.           Nature
        of Obligations.  Nothing contained herein shall create or
        require the Employer to create a trust of any kind to fund any benefits which
        may be payable hereunder, and to the extent that the Executive acquires a
        right
        to receive benefits from the Employer hereunder, such right shall be no greater
        than the right of any unsecured general creditor of the Employer.

      


      16.           Headings.  The
        section headings contained in this Agreement are for reference purposes only
        and
        shall not affect in any way the meaning or interpretation of this
        Agreement.

      


      17.           Changes
        in Statutes or Regulations.  If any statutory or regulatory
        provision referenced herein is subsequently changed or re-numbered, or is
        replaced by a separate provision, then the references in this Agreement to
        such
        statutory or regulatory provision shall be deemed to be a reference to such
        section as amended, re-numbered or replaced.

      


      18.           Counterparts.  This
        Agreement may be executed in one or more counterparts, each of which shall
        be
        deemed to be an original but all of which together will constitute one and
        the
        same instrument.

      


      19.           Regulatory
        Prohibition.  Notwithstanding any other provision of this
        Agreement to the contrary, any payments made to the Executive pursuant to
        this
        Agreement, or otherwise, are subject to and conditioned upon their compliance
        with Section 18(k) of the FDIA (12 U.S.C. §1828(k)) and the regulations
        promulgated thereunder, including 12 C.F.R. Part 359.  In the event of
        the Executive’s termination of employment with the Bank for Cause, all
        employment relationships and managerial duties with the Bank shall immediately
        cease regardless of whether the Executive is in the employ of the Corporation
        following such termination.  Furthermore, following such termination
        for Cause, the Executive will not, directly or indirectly, influence or
        participate in the affairs or the operations of the Bank.

      


      
        
          
          

        

        
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      20.           Payment
        of Costs and Legal Fees and Reinstatement of Benefits.  In
        the event any dispute or controversy arising under or in connection with
        the
        Executive’s termination is resolved in favor of the Executive, whether by
        judgment, arbitration or settlement, the Executive shall be entitled to the
        payment of (a) all legal fees incurred by the Executive in resolving such
        dispute or controversy, and (b) any back-pay, including Base Salary, bonuses
        and
        any other cash compensation, fringe benefits and any compensation and benefits
        due to the Executive under this Agreement, within thirty (30) days following
        the
        date such judgment, arbitration or settlement becomes final and
        non-appealable.

      


      21.           Entire
        Agreement.  This Agreement embodies the entire agreement
        between the Employer and the Executive with respect to the matters agreed
        to
        herein.  All prior agreements between the Employer and the Executive
        with respect to the matters agreed to herein, including the Prior Agreement
        between the Employer and the Executive, are hereby superseded and shall have
        no
        force or effect.

      


      IN
        WITNESS WHEREOF, this Agreement is
        effective as of the date first written above.

      


      THIS
        AGREEMENT CONTAINS A BINDING
        ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE
        PARTIES.

       

       

      
        
          	
                  Attest:

                	
                  ABINGTON
                    SAVINGS BANK

                
	 	 
	 	 
	/s/
                  Edward W. Gormley 	 	
                  By:

                	/s/
                  Robert W. White 
	 	 	
                  Robert
                    W. White

                
	 	 	
                  President
                    and Chief Executive Officer

                


        

        


        
          	 	 
	 	
                  EXECUTIVE

                
	 	 
	 	 
	 	
                  By:

                	/s/
                  Frank Kovalcheck 
	 	 	
                  Frank
                    Kovalcheck

                


        

      

       

       

      
        
          
          

        

        
          9