EMPLOYMENT AGREEMENT
Exhibit
10.4
This
EMPLOYMENT AGREEMENT, entered into as of this 15sh day of March 2019,
by and between LIBERATED SYNDICATION INC, a Nevada corporation with
an office at 0000 Xxxx Xxxx. Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxxx
00000 (hereinafter called the “Company”) and XXXX
XXXXXXXX (hereinafter called the “Executive”) residing
at 0000 XxXxxxxxx Xxxx Xxxx, Xxxxxxx Xxxx, XX 00000.
RECITALS
WHEREAS, the
Executive is employed by the Company as Chief Financial Officer
(“CFO”) of the Company and its subsidiaries
(“Subsidiaries”), and has performed duties of his
employment in a capable and efficient manner, resulting in
substantial benefit to the Company; and
WHEREAS, the
Company desires to
extend the Employment agreement, dated March 1,
2017(the “Original Agreement”) of the Executive, and
Executive is desirous of committing himself to continued service to
the Company on the terms herein provided. The terms herein
supersede and replace the terms of the Original
Agreement.
AGREEMENTS
NOW,
THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged
by the parties hereto, the Company and the Executive agree as
follows:
1.
Employment. The
Company will employ the Executive and the Executive accepts
employment on the terms and conditions set forth in this
Agreement.
2.
Duties. The
Executive shall serve the Company and Subsidiaries as CFO, under
the terms and conditions provided herein. The
Executive’s duties hereunder shall include such duties as are
normally incident to the position of CFO. The Executive shall
perform his duties hereunder faithfully and to the best of his
abilities and in furtherance of the business of the Company and to
the promotion of its interests. To further perform the Executive
duties as are commonly incumbent upon that position, the Executive
agrees to travel to or work at other locations, from time to time,
as reasonable for the benefit of the company. It is understood and
acceptable that the Executive works for other organization and
businesses outside the Company.
3.
Term of Employment.
The term of the Executive’s employment hereunder shall be
through February 28, 2023. On March 1, 2023, and on each
March 1st thereafter
(each such date being hereinafter referred to as a “Renewal
Date”), the term of the Executive’s employment
hereunder shall automatically be extended for an additional one (1)
year period unless the Company notifies the Executive in writing at
least ninety (90) days prior to the applicable Renewal Date that
the Company does not wish to extend this Agreement beyond February
28, 2023 or the additional one (1) year term and subsequent
additional one (1) year renewals. The Executive may terminate this
Agreement upon thirty (30) days advance written notice to the
Company at any point during the Executive’s term of
employment.
4. Salary.
The Company agrees to pay and the Executive agrees to accept, in
accordance with the provisions contained herein, as compensation
for performance of his duties and obligations to the Company
hereunder, a salary at an annual rate set by the Board of Directors
of the Company (the “Board”), but shall in no event be
less than Three-Hundred Fifty Thousand Dollars ($350,000) per year,
exclusive of the benefits described in Section 5, 6 and 7
hereof. Such salary shall be payable in equal semi-monthly
installments, less usual, customary and the applicable government
mandated payroll deductions. The Executive’s salary
shall be reviewed annually by the Board for possible
increases. In addition, the Company agrees to pay and the
Executive agrees to accept, in accordance with the provisions
contained herein, as compensation for performance of his duties and
obligations to the Company hereunder, any fees or payments
authorized by the Board to be paid to the Executive for membership
on the Board or any committee thereof. All amounts described
in this Section shall be referred to in this Agreement collectively
as the Executive’s “Salary”. The Executive shall
be entitled to participate in such bonus programs as the Board of
Directors or the compensation committee may establish in the sole
discretion of the Board. The Executive, with Board approval, shall
be eligible to receive shares of Common Stock or Options to
purchase shares of Common Stock. At March 1, 2020, the Executive shall receive a
bonus equal to two times the Executive’s highest annual
salary. This initial bonus is earned as of March 1, 2020. At the
end of the term of this employment agreement (February 28, 2023),
the Executive shall receive a bonus equal to two times the
Executive’s highest annual salary. If the Executive leaves by
his own accord and not a “Resignation for Good Reason”
as defined below, after
February 28, 2020, the Executive shall receive the initial bonus. If the Executive leaves by his
own accord and not a “Resignation for Good Reason” as
defined below, at the end of this Employment Agreement (February
28, 2023), the Executive shall receive a bonus equal to or greater
than two times the Executive's highest annual
salary.
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5.
Change in
Control. Whether via changes in the entity, or any
change in the Executive's duties, titles, or capacities, the
Executive is entitled to the same salaries and benefits as if the
CFO contract had remained in force.
(a)
Unless the Executive unilaterally terminates his own contract, or
for other reasons, fails to complete the remainder of this
Employment Agreement, the Executive will receive the same salary
and benefits, including the bonuses, as were the stipulated
remunerations for performing his duties as CFO. Such remunerations
will continue to be paid for consulting and advisory services or a
re-designation to another role in the Company as agreed to by the
executive on a monthly basis for contract duration.
(b)
Should the Executive lose his employment for reasons that are
unable to be controlled by the Board of Directors, or for other
reasons, fails to complete the remainder of the contract, the
Executive will receive the same salary and benefits, including the
bonuses, as were the stipulated remunerations for performing his
duties as CFO. Such remunerations will continue to be paid for
consulting and advisory services or a re-designation to another
role in the Company as agreed to by the executive on a monthly
basis for contract duration.
6.
Expenses. All
reasonable travel and other expenses incidental to the rendering of
services by the Executive hereunder shall be paid by the Company in
accordance with the Company’s policies and
procedures.
7.
Benefits.
(a)
Benefit
Plans. The Executive shall be entitled to participate
in all Executive benefit plans, including, without limitation,
medical, hospital, insurance, pension and 401(k) plans hereafter
adopted by the Board of Directors of the Company or its Subsidiary
for its Executive employees and employees, and to receive any other
fringe benefits that may be made generally available to the
Company’s Executive employees from time to time.
(b)
Vacations.
The Executive shall be entitled to vacations each year in
accordance with the Company’s policies in effect from time to
time, of up to four (4) weeks. Vacation shall be granted on January
1 of each calendar year of this agreement and taken on a calendar
basis. Any unused vacation at the end of the calendar year will be
forfeited and will not accrue or carry forward to the subsequent
calendar year.
(c)
Health
Benefits. Notwithstanding any other provision of this
Agreement or any other agreement between the Executive and the
Company, the Company agrees upon the termination of
Executive’s employment for any reason other than Cause (as
hereinafter defined), or upon Executive’s retirement from the
Company, or upon the Executive’s death while employed by the
Company, the Company shall provide at its sole cost, to Executive,
and the Executive’s spouse at the time of termination of
employment as well as applicable dependents, the same level of
health care benefits as currently provided to Executive and his
family, on the date hereof; for a term of 10 years from the date of
separation of employment unless executive is covered by another
company employment contract.
The
Company further agrees that in the event that the level of health
care benefits provided by the Company to its Executives is expanded
at any time prior to the occurrence of the triggering event
described in either Section 7(c)(i) or Section 7(c)(ii) hereof, the
health care benefit that is required to be provided by Section
7(c)(i) or Section 7(c)(ii) shall be at such expanded
level.
8.
Termination.
(a)
Death. The
Executive’s employment hereunder shall terminate upon his
death.
(b)
Cause. The
Company may terminate the Executive’s employment hereunder
for Cause. For the purpose of this Agreement, the Company shall
have “Cause” to terminate the Executive’s
employment hereunder upon (i) the willful failure of the Executive
to substantially perform his duties hereunder; (ii) the engaging by
the Executive in dishonesty or other misconduct materially
injurious to the Company; (iii) the commission by the Executive of
a felony (only involving the Company); or (iv) a material breach by
the Executive of this Agreement, provided that such breach shall
not have been cured by the Executive within thirty (30) days after
written notice thereof from the Company to the Executive. (v)
Gross negligence in the performance of the duties of the executive
for the Company. Notwithstanding the foregoing, the Executive shall
not be deemed to have been terminated for Cause unless and until
there shall have been delivered to the Executive a copy of a
resolution, duly adopted by the affirmative vote of not less than
seventy-six percent (76%) of the entire membership of the Board of
Directors of the Company at a meeting of the Board called and held
for the purpose (after thirty (30) days prior written notice to the
Executive and an opportunity for him, together with his counsel, to
be heard before the Board), finding that in the good faith opinion
of the Board the Executive was guilty of conduct set forth above in
clause (i), (ii), (iii) or (iv) of this Section 8(b) and specifying
the particulars thereof in detail.
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(c)
Resignation for Good
Reason. The Executive may terminate his employment
hereunder for Good Reason. For the purpose of this Agreement
“Good Reason” shall mean:
(1)
a material breach by the Company, by act or omission, of this
Agreement, which the Company fails to cure within thirty (30) days
after receipt of written notice from the Executive of such material
breach (or, in the case of a material breach which the Company
cannot reasonably cure within said thirty (30) day period which the
Company fails to commence within said thirty (30) day period to
diligently cure);
(2)
material change by the Company of the Executive’s functions,
duties or responsibilities which change would cause the
Executive’s position with the Company to become of less
dignity, responsibility, importance, prestige or scope, including,
without limitation, a change from being senior officer of a
publicly held company; except as consultant to the Chief
Financial Officer (CFO) and or Board of Directors (BOD) in an
advisory capacity as defined in Section 5.
(3) permanent
assignment or reassignment by the Company of the Executive without
the Executive's consent to another place of employment more than 50
miles from the Executive's current place of employment;
or
(4)
a reduction in the Executive’s base pay or bonus opportunity
from the previous year.
(5)
ruling by any
organization that would cause the Company to terminate the position
of the Executive or result in a material change of the Executives
function as defined in section 8.(c)(2).
No such
event described above shall constitute Good Reason unless the
Executive gives timely written notice to the Company, specifying
the event relied upon for such termination of such event and the Company has not
remedied such within 30 days of the notice. The Company and
Executive, upon mutual written agreement may waive any of the
foregoing provisions which would otherwise constitute a Good
Reason.
(d)
Disability.
If, as a result of the Executive’s incapacity due to physical
or mental illness, the Executive shall have been absent from his
duties hereunder on a full time basis for ninety (90) consecutive
business days, the Company may terminate the Executive’s
employment hereunder.
9.
Effect of
Termination.
(a)
Termination by the Company
for Cause or Due to Executive’s Death. If the
Executive’s employment hereunder shall be terminated due to
the Executive’s death or for Cause, the Company shall pay the
Executive his full Salary and other benefits through the date of
termination at the rate then in effect. Upon termination of the
Executive’s employment pursuant to subsections 8(a) and 8(b)
hereof, the Company shall have no further obligations to the
Executive under this Agreement, except as specified in subsection
7(c).
(b)
Termination by the Company
Due to the Executive’s Disability. During any
period that the Executive is prevented from performing his duties
hereunder as a result of incapacity due to physical or mental
illness, the Executive shall continue to receive his Salary and
benefits in the amounts or rates in effect upon the commencement of
his disability (less any amounts payable to the Executive under any
Company disability insurance policy or plan) until the
Executive’s employment hereunder is terminated by the Company
pursuant to Section 8(d) hereof. Upon termination of the
Executive’s employment pursuant to subsection 8(d) hereof,
the Company shall have no further obligations to the Executive
under this Agreement, except as specified in subsection
7(c).
(c)
Termination by the Company
without Cause or by Executive Resignation for Good
Reason. If the Executive’s employment hereunder
shall be terminated by the Company, other than for death, Cause or
disability, or the Executive Resigns for Good Reason, the Company
agrees to pay as a severance pay an amount equal to the Salary
which would have been payable over the remaining term of this
Agreement or, if such remaining term is less than twelve (12)
months, then for a period of twelve (12) months immediately
following the termination. All unvested stock options held by
the Executive shall automatically vest, all bonuses, including both
bonuses specified in section 4, due the Executive, shall be deemed
earned and be paid immediately upon termination, and all shares due
the Executive shall be immediately vested and/or all milestones
achieved with all shares issued to the Executive. The Company shall
also provide to the Executive the benefits described in Section
7(a) and Section 7(c) hereof for a term not shorter than the period
that said severance pay shall be payable. In addition, the
Company shall pay to the Executive any accrued bonus through the
date of termination. The Company’s notice of
non-extension of this Agreement, described in Section 3 hereof,
shall not constitute a termination by the Company for the purposes
of this Section 9(c).
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10.
Termination by Change in
Control. If, and only if, the Executive’s
employment is terminated following a Change in Control of the
Company, the provisions in Section 9(c) of this Agreement shall be
followed in addition to the provisions in Section 5 of this
agreement.
11.
Assignment;
Successors. The provisions of this Agreement shall
survive any Change in Control and is subject to the provisions of
Section 10 hereof, if the Company shall be merged, be the subject
of a Tender Offer, or consolidated into any other corporation or if
substantially all of the assets of the Company shall be transferred
to another corporation, the provisions of this Agreement shall be
binding upon the corporation resulting from such merger or
consolidation or to which assets shall have been transferred (the
“Surviving Corporation”), and this provision shall
apply in the event of any subsequent merger, consolidation or
transfer. In any such event, the Surviving Corporation shall
enter into an agreement with the Executive whereby the Surviving
Corporation and the Executive shall agree to perform this
Agreement, including Section 10 hereof, in the same manner and to
the same extent the Company would be required to perform it if no
such merger, consolidation or transfer had taken
place.
12.
Agreement Not to
Compete.
(a) The
Executive hereby covenants and agrees that, provided the Company
makes any payments and provides any benefits which may be required
under Section 9 and 10 hereof, at no time during the
Executive’s employment by the Company, nor for a period of
six (6) months immediately following the termination thereof, will
the Executive for himself or on behalf of any other person,
partnership, company or corporation, directly or indirectly,
acquire any financial or beneficial interest in, provide consulting
services to, be employed by, contract with, or own, manage, operate
or control any business producing, manufacturing, selling,
distributing, promoting or dealing in products or services
identical or similar to the products or services of the Company or
Subsidiaries, which is defined as providing “podcast hosting
services,” or otherwise compete with the Company or
Subsidiaries in the Company’s Service Area, specifically the
northeastern Region of the United States. Nothing in this
Agreement shall prevent the Executive from holding or investing in
securities listed on a national securities exchange or sold in the
over-the-counter market.
(b) The
Executive hereby covenants and agrees that, provided the Company
makes any payments which may be required under Section 9 and 10
hereof, at all times during his employment by the Company, and for
six (6) months after termination of such employment, the Executive
shall not directly or indirectly contact or solicit any clients of
the Company or employ or seek to employ any person or entity
employed at that time by the Company, Subsidiary, affiliates or
licensees or otherwise encourage or entice such person or entity to
leave employment or terminate such employment.
(c) In
the event that this Section 12 shall be determined by arbitrators
or by any court of competent jurisdiction to be unenforceable by
reason of its extending for too great a period of time or over too
large a geographic area or over too great a range of activities, it
shall be interpreted to extend only over the maximum period of
time, geographic area or range of activities as to which it may be
enforceable.
13.
Confidential
Information. The Executive acknowledges that, in and
as a result of his relationship with the Company, the Executive has
access to certain Confidential Information of the Company, as
hereinafter defined. The Executive recognizes that the Confidential
Information is confidential and solely the property of the Company,
and that unauthorized disclosure or use of such Confidential
Information by the Executive will be deemed a breach of this
Agreement. The Executive agrees to use his best efforts to keep
secret and retain in the strictest confidence all Confidential
Information and confidential matters which relate to the Company,
Subsidiary or any affiliate of the Company. For purposes of this
Agreement, Confidential Information means any and all information
related to the Company and its business, including, but not limited
to, products, services, suppliers, vendors, clients, prospects,
business plans, marketing techniques, pricing, financial
information, customer lists, supplier lists, trade secrets, pricing
policies and other business affairs of the Company, Subsidiary and
any affiliate of the Company, learned by him before or after the
date of this Agreement, regardless of whether such information is
reduced to writing and/or is in existence in the date hereof. The
Executive agrees not to disclose any such Confidential Information
to anyone outside the Company, Subsidiary or any affiliates,
whether during or after his period of service with the Company,
except in the course of performing his duties hereunder. Upon
request by the Company, the Executive agrees to deliver promptly to
the Company upon termination of employment by the Company, or at
any time thereafter as the Company may request, all Company,
Subsidiary or any affiliate materials, memoranda, notes, records,
reports, manuals, drawings, designs, computer files in any media
and other documents (and all copies thereof) relating to the
Company’s, Subsidiary’s or any affiliate’s
business and all property of the Company, Subsidiary or any
affiliate of the Company, which he may then possess or have under
his control.
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14.
Remedies. The
Company’s obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder
shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have
against the Executive or others. In no event shall the
Executive be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to the Executive
under any of the provisions of this Agreement. Each party
shall be responsible for its own expenses and legal fees incurred
in connection with any arbitration, however, in the event that the
Executive prevails in the Arbitration, the Company agrees to pay,
all legal fees and expenses which the Executive may reasonably
incur as a result of any dispute or contest by or with the Company
regarding the validity or enforceability of, or liability under,
any provision of this Agreement, plus in each case interest at the
applicable Federal rate provided for in Section 7872(f)(2) of the
Internal Revenue Code. In any such action brought by the
parties, the parties voluntarily agree that any and all
disputes under this Agreement, either an action at law or an action
for injunctive relief, shall be settled exclusively by arbitration
as set forth hereinafter. The Arbitrator may award any remedies or
damages that a judge could provide under the applicable statute or
law. The obligation of the Company under this Section 14
shall survive the termination for any reason of this Agreement
(whether such termination is by the Company, by the Executive, upon
the expiration of this Agreement or otherwise).
15.
Arbitration.
To the extent permitted by applicable law, any controversy or
dispute arising out of, or relating to, this Agreement, or any
alleged breach hereof, the parties voluntarily agree that said
disputes shall be settled exclusively by arbitration in Pittsburgh,
Pennsylvania, in accordance with Pennsylvania law, and shall be
conducted in accordance with the Rules of the American Arbitration
Association then in effect. The parties hereby consent to the
jurisdiction of the courts of the Commonwealth of Pennsylvania and
of the United States District Court for the Western District of
Pennsylvania for all purposes in connection with the arbitration.
The arbitrator shall be selected by the Executive and Company, the
parties. In the event that the parties cannot agree on the
arbitrator within thirty (30) days following receipt by one party
of a demand for arbitration from another party, then the Arbitrator
shall be selected by the American Arbitration Association. The
Arbitrator shall convene a hearing no later than thirty (30) days
following the selection. The arbitration award shall be final and
binding upon both parties without any right of appeal by either of
the parties. Judgment may be entered and execution issued in any
court of competent jurisdiction. The Company shall pay the total
cost of the Arbitrator’s professional fees and related
expenses. The parties further agree that arbitration
proceedings must be instituted within one year after the claimed
breach occurred, and that failure to institute arbitration
proceedings within such period shall constitute an absolute bar to
the institution of any proceedings and the waiver of all
claims.
16.
Governing
Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the Commonwealth of
Pennsylvania.
17.
Entire
Agreement. This Agreement constitutes the full and
complete understanding and agreement of the parties with respect to
the subject matter hereof, supersedes all prior understandings and
agreements as to employment of the Executive, and cannot be
amended, changed, modified or terminated without the written
consent of the parties hereto.
18.
Waiver of
Breach. No provision of this Agreement shall be deemed
waived unless such waiver is in writing and signed by the party
making such waiver. The waiver by either party of a breach of any
term of this Agreement shall not operate nor be construed as a
waiver of any subsequent breach thereof.
19.
Notices. Any
notice hereunder shall be in writing and shall be given by personal
delivery or certified or registered mail, return receipt requested,
to the following addresses:
If to
the Executive:
Xxxx
Xxxxxxxx
0000
XxXxxxxxx Xxxx Xxxx
Xxxxxxx
Xxxx, XX 00000
or to
such other address as the Executive may have furnished to the
Company in writing:
If to
the Company:
Chief
Financial Officer
0000
Xxxx Xxxx
Xxxxx
000
Xxxxxxxxxx, XX
00000
or to
such other address as the Company may have furnished to the
Executive in writing.
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20.
Severability.
If any one or more of the provisions contained in this Agreement
shall be invalid, illegal or unenforceable in any respect under any
applicable law, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be
affected or impaired thereby.
21.
Headings. The
headings, titles or captions of the Sections of this Agreement are
included only to facilitate reference, and they shall not define,
limit, extend or describe the scope or intent of this Agreement or
any provision hereof; and they shall not constitute a part hereof
or affect the meaning or interpretation of this Agreement or any
part thereof.
IN WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
EXECUTIVE
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Date:
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___3/15/2019_____
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/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
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Chief Financial Officer
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Date:
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___3/15/2019______
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/s/ Xxxxxxxxxxx Xxxxxxx
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Xxxxxxxxxxx Xxxxxxx
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Chief Executive Officer
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Date:
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___3/15/2019______
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/s/ J. Xxxxxxx Xxxxx
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J. Xxxxxxx Xxxxx
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Compensation Committee Member
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Director
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Date:
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__3/15/2019_______
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/s/ Denis Yevstifeyev
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Denis Yevstifeyev
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Compensation Committee Member
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Director
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Date:
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___3/15/2019______
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/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
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Compensation Committee Member
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Director
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