EMPLOYMENT AGREEMENT
EXHIBIT
10.5
This
Employment Agreement (this “Agreement”)
is
entered into as of May 1, 2006, by and between CenterStaging Musical
Productions, Inc. (the “Company”),
and
Xxxxxxx X. Xxxxxxxx (the “Employee”).
In
consideration of the promises and mutual covenants outlined herein, and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, it is mutually covenanted and agreed by and among the parties
as
follows:
1. Engagement
and Responsibilities
1.1 Engagement.
Upon
the terms and subject to the conditions set forth in this Agreement, the Company
hereby engages and employs Employee as Executive Vice President-Administration
and Music Publishing, and Employee hereby accepts such engagement and
employment.
1.2 Duties.
Employee’s duties and responsibilities shall be those incident to the positions
set forth in Section 1.1,
and
shall include those duties and services for the Company Group as any executive
officer senior to Employee shall, in his sole and absolute discretion, from
time
to time reasonably direct which are not inconsistent with Employee’s positions
described in Section 1.1.
Unless
and until changed by the Board, Employee shall report to the Chief Executive
Officer of the Company.
1.3 Standard
of Care.
During
the Term, Employee shall perform his duties faithfully and to the best of his
ability and shall devote his business efforts and time to the Company, to
fulfill the objectives of the Company.
1.4 Other
Activities.
Employee shall devote his full business time to the business and affairs of
the
Company, provided, however, that Employee may perform civil and charitable
activities.
2. Definitions.
For
purposes of this Agreement, the following terms shall have the meanings set
forth below:
2.1 “Affiliate”
shall
mean, with respect to any specified Person, (a) any other Person who,
directly or indirectly, owns or controls, is under common ownership or control
with, or is owned or controlled by, such specified Person, (b) any other
Person who is a director, officer, partner or trustee of the specified Person
or
a Person described in clause (a) of this definition or any spouse of the
specified Person or any such other Person, (c) any relative of the
specified Person or any other Person described in clause (b) of this
definition, or (d) any Person of which the specified Person and/or any one
or more of the Persons specified in clause (a),(b) or (c) of this
definition, individually or in the aggregate, beneficially own 20% or more
of
any class of voting securities or otherwise have a substantial beneficial
interest.
2.2 “Board”
shall
mean the Board of Directors of the Company.
2.3 “Cause”
shall
mean, in the context of the termination of Employee’s employment by the Company,
termination by vote of the Board based on one or more of the following
reasons:
2.3.1 willful
and repeated failure to comply with the lawful directions of the Board or an
executive officer or officers senior to Employee;
2.3.2 gross
negligence or willful misconduct in the performance of Employee’s duties to the
Company;
2.3.3 commission
of any act of fraud against the Company Group; or
2.3.4 participation
in a fraud against the Company Group that adversely affects the Company in
a
material way
2.3.5 breach
of
any obligation, duty or agreement under this Agreement, which breach is not
cured or corrected within 15 days of written notice thereof from the
Company (except for breaches of Sections 1.4
and
10
of this
Agreement, which cannot be cured and for which the Company need not give any
opportunity to cure.
2.4 “Change
of Control”
shall
mean:
2.4.1 any
“person” (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended), other than any Principal Stockholder or
Stockholders, who becomes the “beneficial owner” (as defined in Rule 3d-3 under
said Act), directly or indirectly, of securities of the Company representing
50%
or more of the total voting power represented by the Company’s then outstanding
voting securities; or
2.4.2 the
date
of the consummation of a merger or consolidation of the Company with any other
corporation that has been approved by the stockholders of the Company, other
than a merger or consolidation which would result in the voting securities
of
the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities
of
the surviving entity or the parent corporation of the surviving entity) more
than 50% of the total voting power represented by the voting securities of
the
Company, the surviving entity or the parent of the surviving entity, as
applicable, outstanding immediately after such merger or consolidation;
or
2.4.3 the
date
the stockholders of the Company approve a plan of complete liquidation of the
Company; or
2.4.4 the
date
of the consummation of the sale or disposition by the Company of all or
substantially all of the Company’s assets other than to a Person of which the
Principal Stockholders own directly or indirectly more than 50% of the total
voting power represented by the voting securities of such Person.
For
purposes of the definition of Change of Control, if the Company is a subsidiary
of another corporation or entity, references in this Section 2.4 to the Company
shall mean such other corporation or entity, and it shall be deemed under
Section 2.4.4 that the Company shall have sold “all or substantially all of the
Company’s assets” if either: (i) any person” (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other
than
any Principal Stockholder or Stockholders, becomes the “beneficial owner” (as
defined in Rule 3d-3 under said Act), directly or indirectly, of securities
of
CenterStaging Musical Productions, Inc. representing 50% or more of the total
voting power represented by the Company’s then outstanding voting securities; or
(ii) CenterStaging Musical Productions, Inc. sells or disposes of all or
substantially all of its assets.
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2.5 “Company
Group”
shall
mean the Company and each Person that is consolidated with the Company for
financial reporting purposes, including as of the date hereof CenterStaging
Corp.
2.6 “Confidential
Information”
shall
mean any and all information concerning the business of the Company that
Employee may receive or develop during his engagement pursuant to this Agreement
including, without limitation, all documents, procedures, policies, programs,
reports, plans, proposals, technical information, know-how, systems and other
information unique to the Company, its customers or principals, received or
developed by Employee.
2.7 “Inventions”
shall
mean all discoveries, developments, designs, improvements, inventions, formulas,
software programs, processes, techniques, know-how, negative know-how, data,
research, techniques, and technical data (whether or not patentable or
registrable under patent, copyright or similar statutes and including all rights
to obtain, register, perfect, and enforce those proprietary interests) that
are
related to or useful in the Company’s present or future business or result from
use of property owned, leased, or contracted for by the Company. “Inventions”
shall also include anything that derives actual or potential economic value
from
not being generally known to the public or to other persons who can obtain
economic value from its disclosure or use.
2.8 “Person” shall
mean an individual or a corporation, limited liability company, limited
liability partnership, partnership, association, trust or other entity.
2.9 “Proprietary
Information”
shall
mean information (a) that is not known by actual or potential competitors of
the
Company or is generally unavailable to the public; (b) that has been
created, discovered, developed, or otherwise become known to the Company or
in
which property rights have been assigned or otherwise conveyed to the Company;
and (c) that has material economic value or potential material economic value
to
the Company’s present or future business. “Proprietary Information” shall
include trade secrets (as defined under California Civil Code Section 3426.1)
and all other discoveries, developments, designs, improvements, inventions,
formulas, software programs, processes, techniques, know-how, negative know-how,
data, research, techniques, technical data, customer and supplier lists, and
any
modifications or enhancements of any of the foregoing, and all program,
marketing, sales, or other financial or business information disclosed to
Employee by the Company, either directly or indirectly, in writing or orally
or
by drawings or observation, which has actual or potential economic value to
the
Company.
2.10 “Principal
Stockholders”
shall
mean Xxxxxx Xxxxxxx, Jan Parent, Xxxxxx Xxxxxxxxxx, Xxxxx Xxxxxx, and their
respective Affiliates.
3
2.11 “Rights”
shall
mean all patents, trademarks, service marks and copyrights, and other rights
pertaining to Proprietary Information, Inventions, or both.
2.12 “Severance
Termination Date”
shall
mean the earlier to occur of: (a) Employee’s death, and (b) the later to occur
of: (i) one year from the date of termination of employment and (ii) December
31, 2008.
2.13 “Term”
shall
mean the period commencing on the date of this Agreement and ending upon
termination of Employee’s engagement pursuant to Section 3
of this
Agreement.
3. Term
and Termination.
Employee’s engagement and employment by the Company pursuant to this Agreement
shall commence on April 1, 2006 and shall terminate upon the earliest to occur
of the following:
3.1 upon
the
death of Employee;
3.2 upon
delivery to Employee of written notice of termination by the Company if Employee
shall suffer a physical or mental disability which renders Employee, in the
reasonable judgment of the Board, unable to perform his duties and obligations
under this Agreement for either 90 consecutive days or 180 days in any 12-month
period;
3.3 upon
delivery to Employee of written notice of termination by the Company for
Cause;
3.4 upon
delivery to Employee of written notice of termination by the Company other
than
for Cause;
3.5 upon
a
Change of Control, unless Employee elects to continue his employment pursuant
to
this Agreement by written notice to the Company prior to the occurrence of
the
Change of Control; or
3.6 upon
not
less than 30 days’ prior written notice of termination by Employee at any time
after December 31, 2008.
4. Compensation
4.1 Base
Compensation.
During
the Term, the Company shall pay Employee as compensation for his services a
base
salary at the annualized rate of $150,000 through June 30, 2007, and at the
amount determined by the Board thereafter, but not less than an increase of
10%
per year (the “Base
Salary”).
The
Base Salary shall be payable in accordance with the Company’s payroll practices
but not less frequently than monthly.
4.2 Bonus.
Employee shall not be entitled to any guaranteed bonus, but may from time to
time receive discretionary bonuses.
4.3 Withholding.
The
Company may deduct from any compensation payable to Employee (including payments
made pursuant to Section 8
of this
Agreement in connection with or following termination of employment) amounts
sufficient to cover Employee’s share of applicable federal, state and/or local
income tax withholding, old-age and survivors’ and other Social Security
payments, state disability and other insurance premiums and
payments.
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5. Benefits.
During
the Term, the Company shall provide Employee with the following benefits, at
no
cost or expense to the Employee: (a) medical, dental and vision insurance
(co-pays to be paid by Employee); (b) term life insurance with a death benefit
equal up to $2,000,000 and a beneficiary(ies) of Employee’s choice; provided
that the
Company shall not be required to expend more than $5,000 per year for the
premiums for such term life insurance. Employee shall also have the right to
participate in such other benefit plans that the Company may from time to time
make available to its officers.
6. Expenses.
During
the Term, the Company shall reimburse Employee for travel, entertainment or
other expenses incurred by Employee in the furtherance of or in connection
with
the performance of Employee’s duties hereunder. Employee shall be entitled to
“business” class travel and accommodations.
7. Vacations
and Holidays.
During
the Term, Employee will be entitled to paid vacation accruing at 1.25 days
per
month, with the timing and duration of specific vacations mutually and
reasonably agreed to by the Company and Employee. In addition, Employee will
be
entitled to all enumerated Company holidays and three floating holidays per
year. The right to carry over unused vacation in any given year shall be subject
to Company policy.
8. Severance
Payments/Benefits Following Termination of Employment.
Employee shall be entitled to the following severance benefits upon termination
of employment, and no other severance benefits:
8.1 If
Employee’s employment with the Company terminates pursuant to Section
3.1
(Employee’s death), Section 3.2
(Employee’s disability), Section 3.3 (by the Company for Cause), or 3.6 (by
Employee), Employee shall be entitled to no severance benefits.
8.2 If
Employee’s employment with the Company terminates pursuant to Section
3.3
(by the
Company for Cause), subject to applicable law and regulations, the Company
shall
be entitled to offset against any payments due Employee the loss and damage,
if
any, which shall have been suffered by the Company as a result of the acts
or
omissions of Employee giving rise to termination under Section 3.3. The
foregoing shall not be construed to limit any cause of action, claim or other
rights that the Company may have against Employee in connection with such acts
or omissions.
8.3 If
Employee’s employment with the Company terminates by reason of Section
3.4
(termination by the Company without cause), Employee shall be entitled to
receive, until the Severance Termination Date: (a) salary at the rate in effect
upon termination of employment; and (b) a continuation of medical, dental,
vision, and other insurance as provided under Section 5
of this
Agreement; provided
that
Employee shall be entitled to other insurance only to the extent permitted
under
the terms of the Company’s insurance policies (e.g., Employee would be entitled
to be covered by disability insurance only if the policy permitted coverage
for
non-employees or persons of Employee’s age, health, etc.).
5
8.4 If
Employee’s employment terminates pursuant to Section 3.5
as a
result of a Change of Control, Employee shall be entitled to: (a) as of the
closing of the Change of Control if the Company is a party to the transaction
resulting in a Change of Control, or within 30 days after a Change of Control
if
the Company is not a party to the Change of Control, a lump sum payment equal
to
the greater of: (i) Employee’s annual salary at the rate in effect as of the
date of Change of Control; and (ii) the amount of salary that Employee would
receive from the date of Change of Control to December 31, 2008; and (b)
continuation of medical, vision, dental and other insurance benefits provided
under Section 5
of this
Agreement until the later of December 31, 2008 or one year following the
Change of Control;
provided
that
Employee shall be entitled to other insurance only to the extent permitted
under
the terms of the Company’s (or its successor’s) insurance policies (e.g.,
Employee would be entitled to be covered by disability insurance only if the
policy permitted coverage for non-employees or persons of Employee’s age,
health, etc.).
8.5 For
Employee to receive the severance benefits under Sections 8.3
and
8.4
of this
Agreement, Employee must execute and deliver to the Company a release, in form
and substance satisfactory to the Company, releasing the Company from all claims
relating to Employee’s employment and termination of employment, excluding
express rights of Employee under this Agreement and rights to indemnification
under any other agreement that Employee may have with any member of the Company
Group and under applicable law. The release shall not include a release of
the
rights of Employee under contracts not relating to his employment with the
Company (for example, Employee shall not release rights under a lease pursuant
to which Employee has leased real or personal property to the
Company).
8.6 Employee
acknowledges that in the event of termination of his employment for any reason,
Employee shall not be entitled to any severance or other compensation from
the
Company except as specifically provided in this Section 8.
Without
limitation on the generality of the foregoing, this section supersedes any
plan
or policy of the Company that provides for severance to its officers or
employees, and Employee shall not be entitled to any benefits under any such
plan or policy.
8.7 Employee
acknowledges that the Company has the right to terminate Employee’s employment
without cause and that such termination shall not be a breach of this Agreement
or any other express or implied agreement between the Company and Employee.
Accordingly, in the event of such termination, Employee shall be entitled only
to those benefits specifically provided for in this Agreement in the event
of
such termination, and shall not have any other rights to any compensation or
damages from the Company for breach of contract.
9. Conditional
Nature of Severance Payments; Non-Compete.
Employee acknowledges that the nature of the Company’s business is such that if
Employee were to become retained, engaged, employed by, or substantially
involved in the business of a direct competitor of the Company during the period
following the termination of Employee’s relationship with the Company, it would
be very difficult for Employee not to rely on or use the Company’s trade secrets
and confidential information. Thus, to avoid the inevitable disclosure of the
Company’s trade secrets and confidential information, Employee agrees and
acknowledges that Employee’s right to receive the severance and other benefits
set forth in Section 8
of this
Agreement shall be conditioned upon Employee not directly or indirectly engaging
in (whether as an employee, consultant, agent, proprietor, principal, partner,
stockholder other than as the holder of less than 5% of the issued and
outstanding stock of a publicly held corporation, member, corporate officer,
director or otherwise), nor having any ownership interest in or participating
in
the financing, operation, management or control of, any Person that is in direct
competition with the Company until the later of December 31, 2008 or one year
from termination of employment. Upon any material breach of this Section
9
by
Employee, the Company shall have no obligation to provide any further severance
payments and other benefits pursuant to Section 8
of this
Agreement.
6
10. Confidential
Information
10.1 Non-Disclosure.
At all
times during Employee’s employment, and after termination of employment,
Employee shall not make any unauthorized disclosure or use of and shall use
his
best efforts to prevent publication or disclosure or use of the Confidential
Information.
10.2 Consent
to Restraining Order.
Employee acknowledges that any unauthorized disclosure or use of the
Confidential Information by Employee may result in material damages to the
Company and Employee consents to the issuance of a temporary restraining order
or temporary or permanent injunction or other equitable remedy to prohibit,
prevent or enjoin unauthorized disclosure or use of Confidential Information
by
Employee.
10.3 Restrictions.
Except
as authorized by the Company, Employee will not:
10.3.1 duplicate,
transfer or disclose nor allow any other Person to duplicate, transfer or
disclose any of the Company’s Confidential Information;
10.3.2 use
the
Company’s Confidential Information without the prior written consent of the
Company; or
10.3.3 incorporate,
in whole or in part, within any domestic or foreign patent application any
proprietary or Confidential Information disclosed by the Company.
10.4 Safeguarding.
Employee will safeguard all Confidential Information at all times so that it
is
not exposed to or used by unauthorized persons, and will exercise at least
the
same degree of care to protect Employee’s own confidential
information.
10.5 Exceptions.
The
restrictive obligations set forth above shall not apply to the disclosure or
use
of information which:
10.5.1 is
or
later becomes publicly known under circumstances involving no breach of this
Agreement by Employee;
10.5.2 is
already known to Employee in the same form at the time of receipt of the
Confidential Information; or
10.5.3 is
lawfully made available to Employee by a third party.
10.6 Public
Domain.
If
Employee contends that any such Confidential Information disclosed to him by
the
Company is in the public domain or was in the possession of Employee in the
same
form prior to such disclosure and not under an obligation of confidence,
Employee will, within ten days of receipt by Employee of such disclosure, give
written notice of such contention to the Company, which written notice shall
include a complete identification of the information in question and the
derivation thereof, including particulars of any contract in which Employee
or
any other Person has made use of such concept or information. If Employee has
not within ten days of receipt by Employee of such disclosure given such written
notice to the Company, then it shall be conclusively presumed that all
information communicated by the Company to Employee concerning the development
originated with the Company and constitutes Confidential
Information.
7
10.7 Bringing
Documents from Former Employer.
Employee hereby certifies that he has not brought and will not bring with him
to
the Company or use while performing his executive duties for the Company any
materials or documents of a former employer of Employee which are not generally
available to the public except the know-how to which the right to use has been
duly licensed to the Company by such former employer. Employee understands
that
while employed by the Company, he is not to breach any obligation of confidence
or duty and Employee agrees that he will fulfill all such obligations during
his
employment with the Company.
10.8 Survival.
The
provisions of this Section 10
shall
survive the termination of this Agreement.
11. Intellectual
Property
11.1 All
Proprietary Information and Inventions shall be the sole and exclusive property
of the Company and its assigns, and the Company and its assigns shall be the
sole owner of all Rights.
11.2 The
Company forever owns throughout the universe in all media now or later known,
from inception, all right, title, and interest (including, without limitation,
worldwide rights of copyright) in any and all of Employee’s work product
(“Work
Product”)
embodied in any intangible or tangible form, including, without limitation,
all
designs, ideas, concepts, themes, stories, suggestions, reports, plans,
specifications, drawings, photographs, videotapes, schematics, discs,
prototypes, samples, models, Inventions, Proprietary Information, and all other
things, information, documents, and items in any media (now known or hereafter
developed) made during the course of or in contemplation of the entry into
this
Agreement and arising from or during the provision of the services delineated
herein or provided heretofore or otherwise during Employee’s services, as a
work-made-for-hire for the Company. The Company shall have the right to utilize
the Work Product, or authorize or permit others to utilize the Work Product,
in
whole or in part, in any manner without limitation or restriction as the Company
shall elect, or refrain from using the Work Product, at the Company’s election.
The Work Product and all related rights emanating therefrom, such as the right
to reproduce, display, distribute, perform, and prepare derivative works, shall
be owned solely by the Company and deemed to be the Company’s work-made-for-hire
under the U.S. copyright laws and similar laws of other countries and related
international treaties and conventions.
11.3 To
the
extent that any Work Product is not deemed to be work-made-for-hire, then
Employee hereby assigns to the Company all right, title and interest in all
Work
Product (including, without limitation, all worldwide rights of copyright)
he
creates or co-creates under this Agreement. On Company’s request, Employee
agrees to assist the Company, at its expense, in obtaining trademarks,
copyrights or patents, including the disclosure of all pertinent information
and
data, in the execution of all applications, specifications, oaths, and
assignments, and in the preparation of all other instruments and papers which
the Company or its successors deems necessary to apply for and to obtain the
assignment or conveyance of said trademarks, copyrights and patents to the
Company. Employee shall execute, as and when requested, a Certificate of
Authorship, but his signature on this Agreement is deemed to have the same
force
and legal effect.
8
12. Assignment.
This
Agreement will be binding upon and inure to the benefit of (a) the heirs,
executors and legal representatives of Employee upon Employee’s death, and (b)
any successor of the Company as a result of any consolidation or merger or
the
sale of all or substantially all of the assets of the Company. Any such
successor of the Company will be deemed substituted for the Company under the
terms of this Agreement for all purposes. None of the rights of Employee to
receive any form of compensation payable pursuant to this Agreement may be
assigned or transferred except by Employee by will or the laws of descent and
distribution.
13. Notices.
All
notices, requests, demands and other communications called for hereunder shall
be in writing and shall be deemed given (a) on the date of delivery if delivered
personally, (b) one day after being sent by a well established commercial
overnight service, or (c) four days after being mailed by registered or
certified mail, return receipt requested, prepaid and addressed to the parties
or their successors at the following addresses, or at such other addresses
as
the parties may later designate in writing:
|
If
to the Company:
|
|
CenterStaging
Musical Productions, Inc.
0000
Xxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Attn:
Chief Executive Officer
|
|
If
to Employee:
|
|
at
the last residential address known by the
Company.
|
14. Severability.
In the
event that any provision hereof becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Agreement will continue
in full force and effect without said provision.
15. Arbitration.
With
the exception of matters in which equitable or injunctive relief is sought
or
required, the parties to this Agreement shall submit all disputes relating
to
this Agreement, whether sounding in contract, tort, or based on a state, federal
or administrative statute, rule, or regulation, or all of them, to binding
arbitration in accordance with California Civil Procedure Code Sections 1280
through 1294.2. Either party may enforce the award of the arbitrator under
Section 1285 of the Code. The parties understand that they are waiving their
rights to a jury trial. For matters in which equitable or injunctive relief
is
sought or required, a court of competent jurisdiction shall be the appropriate
forum. The party demanding arbitration shall submit a written claim to the
other
party setting out the basis of the claim and proposing the name of the
arbitrator. The responding party shall have 10 business days in which to respond
to this demand in a written answer, and to either accept or reject the proposed
arbitrator. If the proposed arbitrator is accepted, the arbitration will proceed
before the designated arbitrator, who will establish the rules of the
proceeding; provided, however, that reasonable discovery rules will apply so
that both sides can obtain the necessary information to prepare the matter
for
arbitration, but recognizing that certain limitations may be appropriate to
lessen the cost of the arbitration; provided, further, that the arbitrator
shall
permit the filing of motions for summary judgment. If the responding party
rejects the proposed arbitrator, said party will propose an arbitrator to the
party demanding arbitration who shall have ten (10) days to either accept or
reject the proposed arbitrator. If rejected, the entire dispute will then be
submitted to the American Arbitration Association and will be governed by its
then Employment Dispute and/or Commercial Litigation Rules. In either case,
the
Arbitration will be conducted in the County of Los Angeles and the costs of
it
(administrative and arbitrator fees) will be borne by the Company.
9
16. Integration.
This
Agreement represents the entire agreement and understanding between the parties
as to the subject matter herein and supersedes all prior or contemporaneous
agreements whether written or oral. No waiver, alteration, or modification
of
any of the provisions of this Agreement will be binding unless in writing and
signed by duly authorized representatives of the parties hereto.
17. Governing
Law.
This
Agreement will be governed by the laws of the State of California (with the
exception of its conflict of laws provisions).
18. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but all of which together shall constitute one and
the
same instrument.
19. Confidentiality
of Terms.
Until
such time as this Agreement or the terms and conditions of this Agreement are
made public, Employee agrees not to disclose, either directly or indirectly,
any
information, including any of the terms of this agreement, regarding
compensation, salary, bonuses, or stock purchase or option allocations to any
Person, including other employees and/or consultants of the Company;
provided,
however,
that
Employee may discuss such terms with members of his immediate family and any
legal, tax or accounting specialists who provide individual legal, tax or
accounting advice.
IN
WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
of
the Company by its duly authorized officer, as of the day and year first above
written.
| CenterStaging Musical Productions, Inc. | ||
| |
|
|
| Date: | By: | /s/ Xxxxx Xxxxxx |
|
Xxxxx Xxxxxx, Chief Executive Officer |
||
| Employee | ||
| /s/ Xxxxxxx X. Xxxxxxxx | ||
| Xxxxxxx X. Xxxxxxxx | ||
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