EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of
December 22, 2004 (the "Effective Date"), by and between Astralis Ltd., a
Delaware corporation ("Employer"), and Xxxx Xxxxxxx X'Xxxx, an individual
residing at 00 Xxxxx Xxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx 00000 ("Executive").
WITNESSETH:
WHEREAS, Executive is a key executive of Employer with substantial
knowledge and experience in the operation of the business of Employer; and
WHEREAS, Employer desires to continue to employ Executive, and Executive
desires to continue such employment, pursuant to the terms and conditions set
forth herein.
NOW, THEREFORE, the parties hereto, in consideration of the foregoing
recitals and the mutual covenants and promises set forth herein, do hereby agree
as follows:
1. Definitions
As used herein, the following terms have the following meanings:
"Agreement" means this Employment Agreement.
"Annual Bonus" has the meaning given such term in Section 6 of this
Agreement.
"Base Salary" has the meaning given such term in Section 5 of this
Agreement.
"Board" means the Board of Directors of Employer.
"Cause" means: (i) the commission of an act by Executive
constituting fraud, theft, or embezzlement by the Executive in connection with
the performance of his duties under this Agreement; (ii) the willful and
repeated failure or refusal by Executive to substantially perform his duties
under this Agreement, provided, however, that in case of this clause (ii),
termination for Cause shall occur only if Employer has given written notice of
the default to Executive and Executive has failed to cure the default in
question during a period of thirty (30) days after the date of Executive's
receipt of such notice; or (iii) the conviction of Executive for a crime
constituting a felony.
"Change in Control" or "CIC" of Employer shall be deemed to have
occurred if:
(a) any person or "group" as defined in Section 1 3(d)(3) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), becomes the
beneficial owner, directly or indirectly, of thirty-three percent (33%) or more
of the combined voting power of Employer's outstanding voting securities; or
(b) any merger, consolidation, reorganization or similar event
involving Employer or any of its subsidiaries, as a result of which the holders
of the voting securities of
Employer immediately prior to such merger, consolidation,
reorganization or similar event do not directly or indirectly hold at least
fifty-one percent (51%) of the aggregate voting power of the voting securities
of the surviving entity; or
(c) the individuals who, as of the Effective Date, constitute the
Board (as of the date hereof the "Incumbent Board") cease for any reason to
constitute at least two-thirds (2/3) of the Board, or in the case of a merger or
consolidation of Employer, do not constitute at least two-thirds (2/3) of the
board of directors of the surviving company (or in a case where the surviving
corporation is controlled, directly or indirectly by another corporation or
entity, do not constitute at least two-thirds (2/3) of the board of such
controlling corporation or do not have at least two-thirds (2/3) of the voting
seats on any body comparable to a board of directors of such controlling entity,
or if there is no body comparable to a board of directors, at least two-thirds
(2/3) voting control of such controlling entity); provided that any person
becoming a director (or, in the case of a controlling non-corporate entity,
obtaining a position comparable to a director) subsequent to the Effective Date
hereof whose election, or nomination for election, was approved by a vote of the
persons comprising at least two-thirds (2/3) of the Incumbent Board, shall be,
for purposes of this Agreement, considered as though such person were a member
of the Incumbent Board; or
(d) there is a liquidation or dissolution of Employer or sale or
other transfer of all or substantially all of the assets of Employer; or
(e) if Employer enters into an agreement or series of agreements or
the Board passes a resolution which will result in the occurrence of any of the
matters described in Subsections (a) through (d) above, and Executive's employ
is terminated subsequent to the date of execution of such agreement or series of
agreements or the passage of such resolution, but prior to the occurrence of any
of the matters described in Subsections (a) through (d), then, upon the
occurrence of any of the matters described in Subsections (a) through (d), a
Change of Control shall be deemed to have retroactively occurred on the date of
the execution of the earliest of such agreement(s) or the passage of such
resolution.
"Code" means the Internal Revenue Code of 1986, as amended.
"Disability" has the meaning given such term in Section 9(a)(ii) of
this Agreement.
"Employer" has the meaning given such term in the Preamble to this
Agreement.
"Executive" has the meaning given such term in the Preamble to this
Agreement.
"Good Reason" means: (i) any material change in Executive's position
with Employer as described in Section 3; (ii) a material change in the nature or
scope of Executive's responsibilities, authority, powers, functions or duties
from the responsibilities, authority, powers, functions or duties which
Executive has as of the Effective Date and as described below in Section 3;
(iii) any removal or failure to re-elect Executive as a Director of Employer;
(iv) Employer's requiring Executive to be based at a location that requires
Executive to travel at least an additional thirty-five (35) miles per day from
his current location as of the Effective Date; (v) any failure of a Successor
Employer to assume and agree to perform Employer's obligations
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under this Agreement; or (vi) a material breach by Employer of any provision of
this Agreement made known to Employer in writing which is not cured within
thirty (30) days after Executive's notice to Employer thereof
"Plan" means the 2001 Stock Option Plan of Employer.
"Successor Employer" means any corporation, partnership, limited
liability company, limited partners or any other entity that (i) acquires
greater than fifty percent (50%) or the assets of Employer, (ii) acquires
greater than fifty percent (50%) of the outstanding capital stock of Employer or
(iii) is the surviving entity in the event of a CIC.
2. Term of Employment
Subject to the provisions of Section 9, the employment of Executive
pursuant to this Agreement shall commence the date hereof and continue until
December 31, 2007. The Executive's employment will thereafter be automatically
renewed for an unlimited number of additional terms of one (1) year each, unless
either party provides written notice of termination at least ninety (90) days
prior to the end of such term.
3. Duties and Responsibilities
Executive shall be employed throughout the term of this Agreement as
the President of Research and Development and Chairman of the Board. Subject to
the authority of the Board, Executive shall have duties, responsibilities and
authority consistent with those which normally attend the position of President
of Research and Development and Chairman of the Board. Executive shall report to
the Chief Executive Officer of the Employer.
4. Services and Efforts
Executive shall devote substantially all of his business time and
efforts to the discharge of the duties and responsibilities under this
Agreement. It shall not be considered a violation of this obligation for
Executive to serve on corporate, civic or charitable boards of directors or
committees thereof and manage his personal and family investments, so long as
such activities do not materially interfere with the performance of Executive's
responsibilities as an executive of Employer.
5. Salary
In consideration of the services to be provided by him hereunder,
Executive, during the term of his employment, shall be paid a base annual salary
of $231,000, payable in arrears in bi-monthly installments, less applicable
statutory deductions (such base annual salary as it may be adjusted from time to
time as provided herein, the "Base Salary"). Executive's Base Salary will be
reviewed by the Board not less frequently than annually, and may be adjusted
upward (but not downward) in the sole discretion of the Board.
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6. Annual Bonus
In addition to the Base Salary, Executive shall be entitled to
receive an annual bonus (the "Annual Bonus") of up to 25% of the Base Salary and
based upon achievement of such goals and subject to such additional terms as may
be determined by the Board.
7. Equity Participation
As a member of Employer's senior management team, Executive shall be
eligible to participate in the Plan. As further consideration for the agreements
and covenants hereunder, Employer hereby grants to Employee options to purchase
728,000 (seven hundred twenty-eight thousand) shares of common stock of Employer
(the "Options"). The Options will be fully vested, have an initial exercise
price of $0.70 (seventy cents) per share, and a term of ten years. The terms and
conditions of the Options shall be set forth in a Stock Option Agreement to be
executed by Employer and Executive.
8. Other Benefits
(a) The Executive shall receive such other benefits and perquisites,
including health care and vacation, in accordance with Employer's standard
benefits package as amended from time to time, provided that in no event will
such benefits and perquisites be less favorable than (i) those benefits and
perquisites which Executive is receiving as of the Effective Date, and (ii)
those benefits and perquisites which Employer generally makes available to its
other senior executives. In addition, Executive shall receive a minimum of four
(4) weeks of vacation each calendar year.
(b) Employer will pay Executive's dues in such professional
societies and organizations as the Board deems appropriate, and will pay on
behalf of Executive (or reimburse Executive for) reasonable expenses incurred by
Executive at the request of, or on behalf of, Employer in the performance of
Executive's duties pursuant to this Agreement, and in accordance with Employer's
employment policies, including reasonable expenses incurred by Executive in
attending conventions, seminars, and other business meetings, in appropriate
business entertainment activities, and for promotional expenses. Executive must
file expense reports with respect to such expenses in accordance with Employer's
policies.
(c) Employer will reimburse Executive for any costs and fees
associated with the procurement of appropriate visas for himself and for his
family.
(d) Employer will reimburse Executive for any reasonable attorneys'
fees and expenses directly associated with Executive's employment with, and
investment in, Employer, including fees and expenses associated with the
preparation of this Agreement.
9. Termination of Employment
a. Termination. The Executive's employment under this Agreement
may be terminated under the following circumstances:
i. Death. The Executive's employment will terminate upon
his death.
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ii. Disability. Employer may terminate Executive's
employment if, as a result of Executive's incapacity due
to physical or mental injury or illness, Executive has
not performed his duties on a full-time basis for a
continuous period of 180 days ("Disability").
iii. Cause. Employer may terminate Executive's employment for
Cause.
iv. Non-Renewal. The Executive's employment will terminate
upon the expiration of the term of this Agreement as
provided in Section 2 (a "Non-Renewal").
v. Termination upon Change of Control. In the event of a
Change of Control, Executive shall have 180 days to
notify Employer in writing that he has elected to
terminate his employment with Employer. The notice must
state the Date of Termination, which may be no less than
30 days nor more than 60 days from the date of the
notice. If Executive fails to provide the notice within
the required 180 days, Executive shall have no further
right to terminate his employment as a result of the
Change of Control and Executive will continue to be
employed pursuant to the terms and conditions of this
Agreement.
vi. Termination by Employer without Cause. Employer may
terminate Executive's employment at any time without
Cause.
vii. Resignation by Executive. The Executive may resign as an
employee upon written notice to Employer either without
Good Reason or for Good Reason.
b. Notice of Termination. Any termination of Executive's
employment by Employer or by Executive (other than termination
pursuant to Section 9(a)(i) above) shall be communicated by
written Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall
mean a notice which shall indicate the specific termination
provision in this Agreement relied upon and, if applicable,
shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated.
x. Xxxx of Termination. "Date of Termination" shall mean: (i) if
Executive's employment is terminated by his death, the date of
his death; (ii) if Executive's employment is terminated due to
the expiration of the term of this Agreement, the last day of
the then current term; (iii) if Executive's employment is
terminated due to a Change of Control, the Date of Termination
specified in Executive's notice under Section 9(a)(v); and
(iv) if Executive's employment is terminated for any other
reason, the date on which a Notice of Termination is given.
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10. Compensation During Disability and Upon Termination
a. Compensation During Disability. During any period that
Executive is employed by Employer but unable to perform his
duties under this Agreement as a result of Executive's
incapacity due to physical or mental injury or illness (the
"Disability Period"), Executive will continue to receive the
Base Salary and Annual Bonus and benefits to which he is
entitled under this Agreement.
b. Compensation Upon Termination due to Death or Disability. If
Executive's employment is terminated due to the death of
Executive or Disability (as provided by Section 9(a)(ii)),
then Executive shall be entitled to the following:
i. An amount equal to one (1) times Executive's annual Base
Salary established for the fiscal year in which the Date
of Termination occurs;
ii. An amount equal to one (1) times Executive's Annual
Bonus award established for the fiscal year in which
Executive's Date of Termination occurs; and
iii. An amount equal to Executive's unpaid Base Salary and
accrued but unused vacation pay through the Date of
Termination.
c. Compensation Upon Termination After a Change of Control, for
Good Reason or Without Cause. If Executive's employment
terminates for any reason within 180 days after a Change of
Control, Executive employment is terminated due to Executive's
resignation for Good Reason (as provided by Section
9(a)(vii)), or Executive's employment is terminated by
Employer without Cause (as provided by Section 9(a)(vi)), then
Executive shall be entitled to the following:
i. An amount equal to two (2) times Executive's annual Base
Salary established for the fiscal year in which the Date
of Termination occurs;
ii. An amount equal to two (2) times Executive's Annual
Bonus award established for the fiscal year in which
Executive's Date of Termination occurs;
iii. An amount equal to Executive's unpaid Base Salary and
accrued but unused vacation pay through the Date of
Termination; and
iv. A continuation of the benefits received by Executive
immediately prior to the Date of Termination for two (2)
full years after the Date of Termination (or if
continuation under Employer's then current plans is not
allowed, then provision at Employer's expense but
subject to payment by Executive of those payments which
Executive would have been obligated to make under
Employer's then current plans, of substantially similar
benefits from one or more third party providers). These
benefits shall be provided to Executive at the same
coverage level, as in effect as of the Date of
Termination or, if greater, as in effect sixty (60) days
prior to the
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Date of Termination, and at the same premium cost to
Executive which was paid by Executive at the time such
benefits were provided.
d. Compensation Upon Termination Due to Cause, Resignation
without Good Reason or Non-Renewal. If Executive's employment
is terminated by Employer for Cause (as provided in Section
9(a)(iii)), Executive's employment is terminated due to
Executive's resignation as an employee without Good Reason (as
provided by Section 9(a)(vii)), or Executive's employment
shall terminate due to Non-Renewal, then Executive shall be
entitled to receive the following:
i. An amount equal to one (1) times Executive's annual Base
Salary established for the fiscal year in which the Date
of Termination occurs;
ii. An amount equal to one (1) times Executive's Annual
Bonus award established for the fiscal year in which
Executive's Date of Termination occurs;
iii. An amount equal to Executive's unpaid Base Salary and
accrued but unused vacation pay through the Date of
Termination; and
iv. A continuation of the benefits received by Executive
immediately prior to the Date of Termination for one (1)
full year after the Date of Termination (or if
continuation under Employer's then current plans is not
allowed, then provision at Employer's expense but
subject to payment by Executive of those payments which
Executive would have been obligated to make under
Employer's then current plans, of substantially similar
benefits from one or more third party providers). These
benefits shall be provided to Executive at the same
coverage level, as in effect as of the Date of
Termination or, if greater, as in effect sixty (60) days
prior to the date of the Change in Control, and at the
same premium cost to Executive which was paid by
Executive at the time such benefits were provided.
e. Payment of the amount described in Subsections (i), (ii) and
(iii) of Sections 9(b), (c) and (d) shall be paid in cash to
Executive in a single lump sum as soon as practicable
following the Date of Termination, but in no event beyond
thirty (30) days from such date. All other payments due to
Executive upon termination of employment shall be paid in
accordance with the terms of such applicable plans or
programs.
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11. Restrictive Covenant
In the event that Executive's employment is terminated for Cause, or
if his employment with Employer ends due to voluntary termination of employment
by Executive without Good Reason, then:
a. Executive shall not, during the term of this Agreement and for
a period of one (1) year after such termination, directly or
indirectly, work as an employee, employer, consultant, agent,
principal, partner, manager, stockholder, officer, director,
or in any other individual or representative capacity for any
person or entity who or which directly competes with the
business activity conducted by Employer at the time of such
termination (or during the previous twelve-month period).
b. Executive shall not, during the term of this Agreement and for
a period of one year after Executive's termination of
employment with Employer, on his behalf or on behalf of any
other business enterprise, directly or indirectly, under any
circumstance other than at the direction and for the benefit
of Employer, (i) solicit for employment any person who is or
was employed by Employer during the period of Executive's
employment with Employer, or (ii) call on, solicit, or take
away any person or entity who or which is or was a customer of
Employer at the time of such termination (or during the
previous twelve-month period).
c. It is expressly agreed by Executive that the nature and scope
of each of the provisions set forth above in this Section 11
are reasonable and necessary. If, for any reason, any aspect
of the above provisions as it applies to Executive is
determined by a court of competent jurisdiction to be
unreasonable or unenforceable, the provisions shall only be
modified to the minimum extent required to make the provisions
reasonable and/or enforceable, as the case maybe.
12. Confidentiality
The Executive acknowledges that during the course of performing his
duties and responsibilities hereunder, he may have access to and be entrusted
with confidential information concerning the present and contemplated financial
status and activities of Employer, and the disclosure of any of such
confidential information to competitors of Employer would be highly detrimental
to the interests of Employer. The Executive further acknowledges and agrees that
the right to maintain the confidentiality of such information constitutes a
proprietary right which Employer is entitled to protect. Accordingly, Executive
covenants and agrees with Employer that he will not, during the term of this
Agreement and thereafter, disclose any of such confidential information to any
person, firm or corporation, nor shall he make use of such information, except
as required in the normal course of his employment hereunder or as required by
law or judicial process.
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13. Company Property
a. Any patents, inventions, discoveries, applications or
processes designed, devised, created, discovered or invented
by Executive in the course of Executive's employment under
this Agreement and which pertain to any aspect of Employer's
business shall be the sole and absolute property of Employer,
and Executive (i) shall promptly report the same to Employer,
(ii) hereby assigns Executive's right, title and interest in
same to Employer and (iii) shall promptly execute any and all
documents that may from time to time reasonably be requested
by Employer to assure Employer the full and complete ownership
thereof. The parties acknowledge that nothing in this Section
13 is intended to constitute an assignment of any of the
intellectual property rights that were licensed under that
certain License Agreement dated as of April 21, 2001, by and
between Executive and Astralis LLC (which entity subsequently
assigned its license rights to Hercules Development Group,
Inc., a predecessor of Employer), or any other patents,
inventions, discoveries, applications or processes which were
designed, devised, created, discovered or invested by
Executive prior to his employment by Employer.
b. All records, files, lists, including computer generated lists,
drawings, documents, equipment and similar items relating to
Employer's business which Executive shall prepare or receive
from Employer shall remain Employer's sole and exclusive
property. Upon termination of his employment, Executive shall
promptly return to Employer all property of Employer in his
possession. Executive further represents that he will not copy
or cause to be copied, print out or cause to be printed out
any software, documents or other materials originating with or
belonging to Employer. Executive additionally represents that,
upon termination of his employment with Employer, he will not
retain in his possession any such software, documents or other
materials.
14. Equitable Relief
Executive acknowledges that a breach by Executive of any of the
terms of Sections 11, 12 or 13 hereof may result in damages to Employer for
which there shall be no adequate remedy at law. Accordingly, in the event of any
breach of any of the provisions of Sections 11, 12 or 13 hereof, Employer shall
be entitled to equitable relief by way of injunction or otherwise in addition to
any damages which Employer may be entitled to recover.
15. Indemnification
Employer shall indemnify Executive, to the fullest extent permitted
by Delaware law, with respect to any threatened, pending or completed action,
suit or proceeding, brought against him by reason of the fact that he is or was
a director, officer, employee or agent of Employer or is or was serving at the
request of Employer as a director, officer, employee or agent of another person
or entity. To the fullest extent permitted by Delaware law, Employer shall, in
advance of final disposition, pay any and all expenses incurred by Executive in
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connection with any threatened, pending or completed action, suit or proceeding
with respect to which Executive may be entitled to indemnification hereunder.
Executive's right to indemnification provided herein shall survive the
termination of Executive's employment hereunder.
16. Severability
Each paragraph of this Agreement shall be and remain separate from
and independent of and severable from all and any other paragraphs herein except
where otherwise indicated by the context of the Agreement. The decision or
declaration that one or more of the paragraphs are null and void shall have no
effect on the remaining paragraphs of this Agreement.
17. Executive Representation
Executive represents and warrants that he is not limited under any
contractual or other provision from entering into this Agreement and performing
his obligations hereunder.
18. Successors and Assigns, Assignment and Intended Beneficiaries
Neither this Agreement, nor any of Executive's rights, powers,
duties or obligations hereunder, may be assigned or delegated by Executive. This
Agreement shall be binding upon and inure to the benefit of Executive and his
heirs and legal representatives and Employer and its successors.
19. Notice
Except as otherwise expressly provided in this Agreement, any
notice, request, demand or other communication permitted or required to be given
under this Agreement shall be in writing, shall be sent by one of the following
means to Executive and Employer at the addresses set forth below (or to such
other address as shall be designated hereunder by notice to the other parties
and persons receiving copies, effective upon actual receipt), and shall be
deemed conclusively to have been given: (a) on the first business day following
the day timely deposited with Federal Express (or other equivalent national
overnight courier) or United States Express Mail, with the cost of delivery
prepaid or for the account of the sender; (b) on the fifth business day
following the day duly sent by certified or registered United States mail,
postage prepaid and return receipt requested; or (c) when otherwise actually
received by the addressee on a business day (or on the next business day if
received after the close of normal business hours or on any non-business day).
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If to Employer:
Astralis Ltd.
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chairman of the Compensation Committee
Telecopier: x0-000-000-0000
With a copy to:
XxXxxxxx & English, LLP
4 Gateway Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxx: Xxxxxxx X. Xxxxxx, Esq.
Telecopier: x0-000-000-0000
If to Executive:
Xxxx Xxxxxxx X'Xxxx
00 Xxxxxx Xxxxx
Xxxx Xxxxxxx
Xxx Xxxxxx 00000
With a copy to:
Xxxxxx & Xxxxx LLP
0000 Xxxxx Xxxxxx
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, XX, Xxx.
00. Governing Law/Venue
The interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of New Jersey without giving effect
to conflicts of laws principles thereof. Any disputes or controversies arising
under this Agreement shall be resolved exclusively by the state or federal
courts located in the State of New Jersey and each of the parties hereto
consents to the exclusive jurisdiction of such courts in connection with the
subject matter hereof The prevailing party in any action arising out of or
relating to this Agreement shall be entitled to recover its reasonable
attorneys' fees, costs and expenses at the conclusion of any trial proceedings
and at the conclusion of any appellate level proceedings.
21. Interpretation/Headings
Each party to this Agreement has had the opportunity to review this
Agreement with counsel. The parties acknowledge and agree that the terms and
provisions of this Agreement have been negotiated, shall be construed fairly as
to each of the parties hereto, and shall not be
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construed in favor of or against any party. The Section headings contained in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
22. Miscellaneous
The provisions of this Agreement shall not be extended, varied,
changed, modified or supplemented other than by agreement in writing signed by
the parties hereto. There are no other terms or conditions, representations or
understandings except as herein set forth. The failure of either party to
enforce at any time or for any period of time any one or more of the provisions
hereof shall not be construed to be a waiver of such provisions or of the right
of such party thereafter to enforce each such provision.
23. Survival
The provisions of Sections 7 through 15 and 18 through 23 of this
Agreement shall survive the expiration or termination of this Agreement for any
reason.
24. Counterparts
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute a
single instrument.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed as of the date first written above.
ASTRALIS LTD:
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director and Co-Chair, Astralis
Compensation Committee
EXECUTIVE:
/s/ Xxxx Xxxxxxx X'Xxxx
-----------------------------------------
Xxxx Xxxxxxx X'Xxxx
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