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EXHIBIT 99.6
AMENDED AND RESTATED
EMPLOYEE BENEFITS AGREEMENT
THIS AMENDED AND RESTATED EMPLOYEE BENEFITS AGREEMENT (this
"Agreement") is made and entered into this 23rd day of April 2001 (the
"Effective Date"), by and between The Xxxxxxxx Companies, Inc., a Delaware
corporation ("Xxxxxxxx"), and Xxxxxxxx Communications Group, Inc., a Delaware
corporation ("Communications"). The parties to this Agreement are collectively
referred to as the "Parties", and singularly as a "Party".
WHEREAS, the Parties entered into an Employee Benefits Agreement dated
September 30, 1999, in conjunction with the initial public offering of
Communications (the "Prior Agreement");
WHEREAS, Xxxxxxxx plans to spin-off a portion of the issued and
outstanding Communications Class A Common Stock, par value $.01 per share, held
by Xxxxxxxx to the shareholders of Xxxxxxxx (the "Spin-Off");
WHEREAS, the Parties desire to amend and restate the Prior Agreement
with respect to the Spin-Off; and
WHEREAS, it is appropriate and desirable to set forth certain
agreements that will govern certain matters relating to the Spin-Off and the
conduct of business after its closing and the relationship of Xxxxxxxx and
Communications and their respective subsidiaries following the Spin-Off,
NOW, THEREFORE, the Parties agree, intending to be legally bound, as
follows:
ARTICLE I
DEFINITIONS
1.01. DEFINITIONS. As used in this Agreement, in addition to the terms
defined in the Preamble and Recitals hereof, the following terms shall have the
following meanings, applicable to both the singular and plural forms of the
terms described:
"ACTION" shall mean any demand, action, suit, countersuit, arbitration,
inquiry, proceeding or investigation by or before any federal, state, local or
foreign or international Governmental Authority or any arbitration or mediation
tribunal.
"AGREEMENT" shall have the meaning ascribed to it in the Preamble.
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"BUSINESS DAY" means any calendar day which is not a Saturday, Sunday
or public holiday under the laws of the State of New York.
"CLOSING" means the consummation of the spin-off of shares of the Class
A Common Stock to the shareholders of Xxxxxxxx.
"CLOSING DATE" means the date on which the Closing occurs.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, and
the United States Treasury regulations promulgated thereunder, including any
successor legislation.
"COMMUNICATIONS ACTIVITIES" shall mean and include all business
activities and lines of business conducted by any member of the Communications
Group on the Closing Date that was not a member of the Xxxxxxxx Group at the
Closing Date;
"COMMUNICATIONS EMPLOYEES" shall mean those employees, former
employees, retirees, agents, and subcontractors of the Communications Group as
of Closing, except as the context otherwise specifically requires. Employees
shall include employees on short and long-term disability and other leaves of
absence.
"COMMUNICATIONS GROUP" shall mean Communications and its direct and
indirect subsidiaries.
"ENERGY ACTIVITIES" shall mean and include all business activities and
lines of business conducted by any member of the Xxxxxxxx Group on the Closing
Date that was not a member of the Communications Group at the Closing Date.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, local, foreign
or international court, government, department, commission, board, bureau,
agency, official or other regulatory administrative or governmental authority.
"GROUP" means the Communications Group or the Xxxxxxxx Group, as the
context requires.
"INFORMATION" means any Information, whether or not patentable or
copyrightable in written, oral or electronic or other tangible or intangible
forms, stored in any medium, including studies, reports, records, books,
contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models,
prototype samples, computer date, disks, diskettes, tapes, computer programs or
other software, marketing plans, customer names, communications by or to
attorneys, memos and other materials prepared by attorneys and any other
technical, financial employee or business information or data.
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"INTERNAL REVENUE SERVICE" shall mean the United States Internal
Revenue Service.
"LIABILITIES" shall mean any and all debts, liabilities and obligations
(relating to performance or otherwise), absolute or contingent, matured or
unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown,
whenever arising, including those debts, liabilities and obligations arising
under any law, rule, regulation, Action, threatened Action, order or consent
decree of any court, any governmental or other regulatory or administrative
agency or commission or any award of any arbitration tribunal, and those arising
under any contract, guarantee, commitment or undertaking.
"PERSON" means any individual, corporation, partnership, limited
liability company or partnership, joint venture, association, governmental
entity, or any other entity.
"XXXXXXXX GROUP" shall mean Xxxxxxxx and its direct and indirect
subsidiaries except the Communications Group.
ARTICLE II
TERMINATION OF PRIOR AGREEMENT
2.01 TERMINATION OF PRIOR AGREEMENT. As of the Effective Date of this
Agreement, the Prior Agreement is hereby terminated and the terms and conditions
of this Agreement supersede those of the Prior Agreement, except for obligations
arising under the Prior Agreement prior to such date.
ARTICLE III
BENEFIT PLANS
3.01 PENSION PLANS. (a) A new Communications pension plan ("WCG Pension
Plan") was established effective January 1, 2001. Upon Closing, Xxxxxxxx shall
direct the trustee of the trust under the Xxxxxxxx Pension Plan ("Xxxxxxxx
Trust") to transfer in cash or in kind, as agreed to by Xxxxxxxx and
Communications, from the Xxxxxxxx Trust to the trustee of the trust under the
WCG Pension Plan ("Communications Trust"), an amount estimated by an actuary
selected by Xxxxxxxx to equal ninety percent (90%) of the Transfer Amount, as
defined below. The "Transfer Amount" shall mean an amount equal to the present
value of the accrued benefits of the Communications Employees who participated
in the Xxxxxxxx Pension Plan ("Communications Pension Plan Participants"), as
calculated by the Xxxxxxxx actuary in accordance with Section 414(1) of the Code
and the regulations promulgated thereunder. As soon as practicable following
Closing, but in no event later than one hundred eighty (180) days after Closing,
Xxxxxxxx shall direct the trustee of the Xxxxxxxx Trust to transfer to the
trustee of the WCG Pension Plan the excess of the Transfer Amount over the
actual amount previously
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transferred, plus actual earnings or minus actual losses on such amount within
the Xxxxxxxx Trust. The amount to be transferred shall be adjusted by any
pension benefit payments made by the Xxxxxxxx Trust on behalf of the
Communications Trust or the Communications Trust on behalf of the Xxxxxxxx
Trust, and to reflect data corrections or the movement of employees between the
Parties. In the event the amount to be transferred is a negative amount,
Communications shall transfer from the Communications Trust back to the Xxxxxxxx
Trust such amount plus actual earnings or minus actual losses within the
Communications Trust from the date of the initial transfer. Upon the receipt of
the Transfer Amount (i) the WCG Pension Plan shall assume the liabilities of the
Xxxxxxxx Pension Plan for accrued benefits of Communications Pension Plan
Participants, theretofore the liability of the Xxxxxxxx Pension Plan, (ii)
neither Communications nor any member of the Communications Group shall have any
liability with respect to the Xxxxxxxx Pension Plan, (iii) neither Xxxxxxxx nor
any member of the Xxxxxxxx Group shall have any liability with respect to the
accrued benefits of Communications Pension Plan Participants and (iv) Xxxxxxxx
and the Xxxxxxxx Pension Plan shall retain all liabilities for accrued benefits
of Xxxxxxxx Pension Plan participants who are not Communications Pension Plan
Participants.
(b) The calculation of the Transfer Amount by Xxxxxxxx shall be
determinative. Xxxxxxxx shall provide Communications with all the documentation
reasonably necessary for Communications to verify such calculation, together
with a written certification of the Transfer Amount prepared by the actuary for
the Xxxxxxxx Pension Plan Communications and Xxxxxxxx shall provide each other
with such records and information as may be necessary or appropriate to carry
out their obligations under this Section or for the purposes of administration
of the WCG Pension Plan and Xxxxxxxx Pension Plan and they shall cooperate in
the filing of documents required by the transfer of assets and liabilities
described herein.
(c) Xxxxxxxx shall retain the Xxxxxxxx Pension Plan assets and
liabilities relating to Communications Employees who terminated employment prior
to January 1, 2001.
3.02 401K PLANS. (a) Communications shall establish a new 401k plan
effective on or before the Closing Date. Upon commencement of the new
Communications 401(k) plan, Communications shall cease to be a participating
employer in any Xxxxxxxx 401(k) plan and Communications Employees shall cease
active participation in such plans. Effective as of the Closing Date, all
Communications Employees with account balances in Xxxxxxxx 401(k) plans shall
become fully vested in such benefits. Subject to Internal Revenue Service
approval, which has been requested, Communications Employees shall be eligible
to request distribution of their Xxxxxxxx 401(k) plan benefits after the Closing
Date.
(b) Communications and Xxxxxxxx shall provide each other with such
records and information as may be necessary or appropriate to carry out their
obligations under this Section or for the purposes of administration of the
Communications Plan and any Xxxxxxxx 401(k) Plan and they shall cooperate as
necessary to effect the actions described herein.
3.03 NON-QUALIFIED PLANS. Communications shall adopt and restate the
Communications Solutions Supplemental Retirement Plan for the benefit of the
Communications Employees who were, immediately prior to January 1, 2001,
participating in the Xxxxxxxx
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Supplemental Retirement Plan or who become eligible for participation in the
Communications Supplemental Retirement Plan on or after January 1, 2001. As of
the Closing, Communications shall assume and be solely responsible for the
liabilities and obligations relating to the Communications Employees arising
under the Xxxxxxxx Supplemental Retirement Plan. Xxxxxxxx shall retain the
Xxxxxxxx Supplemental Retirement Plan liabilities relating to Communications
Employees who terminated employment prior to January 1, 2001.
3.04 OTHER BENEFIT PLANS. (a) Effective as of Closing, Communications
shall establish medical, life and other welfare benefit plans with terms and
conditions substantially comparable in all material respects to such plans and
programs currently maintained by Xxxxxxxx. Upon Closing, all liabilities to or
relating to Communications Employees shall cease to be liabilities of the
Xxxxxxxx welfare benefit plans and shall be assumed by the corresponding
Communications welfare benefit plans and programs.
(b) Xxxxxxxx shall retain liability under the Xxxxxxxx retiree medical plan for
Communications Employees who retired prior to January 1, 2001 and who are
eligible to participate in the Xxxxxxxx retiree medical plan.
(c) Except as otherwise provided herein, each Party shall retain or assume
liability for their respective employees who are on short or long-term
disability or other leave of absence, COBRA participants and retirees.
(d) Communications shall retain all assets and liabilities relating to or
arising out of benefit plans formerly maintained by Xxxxxxxx Communications
Solutions, LLC.
ARTICLE IV
INFORMATION
4.01 EXCHANGE OF INFORMATION. (a) Each of Xxxxxxxx and Communications
on behalf of its respective Group agrees to provide or cause to provide to the
other Group at any time after the Closing as soon as reasonably practicable
after written notice therefor any Information in the possession or in control of
such respective Group that the requesting Party reasonably needs: (i) to comply
with reporting, disclosure, filing or other requirements imposed on the
requesting Party (including under applicable securities or tax laws) by a
Governmental Authority having jurisdiction over the requesting Party, (ii) for
use in any other judicial, regulatory, administrative tax or other proceedings
or in order to satisfy audit, accounting, claims, regulatory, litigation, tax or
other similar requirements, or (iii) to comply with its obligations under this
Agreement, the Prior Agreement or any similar Agreements; provided, however, if
any Party determines that any such provision of Information could be
commercially detrimental, violate any law or Agreement, or waive any
attorney-client privilege, the Parties shall take all reasonable measures to
permit the compliance with such obligations in a manner that avoids any such
harm or consequence.
(b) After the Closing Date, Communications shall have access during
regular business hours (as in effect from time to time) to the documents and
objects of historical significance that
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relate to the Communications Activities that are located in the Xxxxxxxx
records. Communications may obtain copies (but not originals) of documents for
bona fide business purposes. Communications shall pay reasonable per hour costs
for archives research services. Nothing herein should be deemed to restrict the
access of any member of the Xxxxxxxx Group to any such documents or objects or
to impose any liability on any member of the Xxxxxxxx Group if any such
documents or objects are not maintained or preserved by Xxxxxxxx.
(c) After the date hereof, (i) Communications shall maintain and effect
at its own cost and expense adequate systems and controls to the extent
necessary to enable members of the Xxxxxxxx Group to satisfy their respective
reporting, accounting, audit and other obligations, and (ii) Communications
shall provide or cause to be provided to Xxxxxxxx in such form as Xxxxxxxx shall
request at no charge to Xxxxxxxx all financial and other data and information
that Xxxxxxxx determines necessary in order to prepare Xxxxxxxx financial
statements and reports or filings with any Governmental Authority.
4.02 OWNERSHIP OF INFORMATION. Any Information owned by one Group that
is provided to a requesting Party pursuant to this Agreement shall be deemed to
remain the property of the providing Party. Unless specifically set forth
herein, nothing contained in this Agreement should be construed as granting or
conferring rights or licenses or otherwise in any such Information.
4.03 COMPENSATION FOR PROVIDING INFORMATION. Except as otherwise
provided in this Agreement, the Party requesting Information shall reimburse the
other Party for the reasonable cost, if any, of creating, gathering or copying
such Information, to the extent that such costs are incurred for the benefit of
the requesting Party. Except as may be otherwise specifically provided elsewhere
in this Agreement or any other Agreement between the Parties, such cost shall be
computed in accordance with the providing Party's standard methodology and
procedures.
4.04 RECORD RETENTION. To facilitate the possible exchange of
Information pursuant to this Agreement after the Closing Date, the Parties agree
to use their reasonable best efforts to retain all Information in their
respective possession or control in accordance with the records retention
policies of Xxxxxxxx as in effect of the Closing Date as such may from time to
time be changed. No Party will destroy or permit any of its subsidiaries to
destroy any Information which the other Party may have the right to obtain
pursuant to this Agreement prior to the third anniversary of the Closing Date
without first using its reasonable best efforts to notify the other Party of the
proposed destruction and giving the other Party the opportunity to take
possession of such Information prior to such destruction; provided, however,
that in the case of any Information relating to Taxes or to environmental
liabilities, such period shall be extended to expiration of the applicable
statute of limitations (giving effect to any extensions thereof).
4.05 LIMITATION OF LIABILITY. No Party shall have any liability to any
other Party in the event that any Information exchanged or provided pursuant to
this Agreement which is an estimate or forecast, or which is based on an
estimate or forecast, is found to be inaccurate in the absence of willful
misconduct by the Party providing such Information. No Party shall
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have any liability to any other Party if any Information is destroyed after the
reasonable best efforts by such Party to comply with the provisions of this
Agreement.
4.06 OTHER AGREEMENTS PROVIDING FOR EXCHANGE OF INFORMATION. The rights
and obligations granted under this Agreement are subject to any specific
limitations, qualifications or additional provisions on the sharing, exchange or
confidential treatment of Information as set forth in any other agreement
between the Parties.
4.07 CONFIDENTIALITY. Each of the Parties hereto on behalf of itself
and each member of its respective Group agrees to hold and to cause its
respective directors, officers, employees, agents, accountants, counsel and
other advisors and representatives to hold in strict confidence with at least
the same degree of care that applies to Xxxxxxxx confidential and proprietary
information pursuant to policies in effect and practices in place on the Closing
Date, all information concerning each other Group that is either in its
possession (including Information in its possession prior to the Closing Date)
or furnished by any such group or its respective directors, officers, employees,
agents, accountants, counsel or other advisors and representatives at any time
pursuant to this Agreement and shall not use any of such Information other than
for purposes expressly permitted hereunder.
4.08 PROTECTIVE ARRANGEMENTS. If any Party and any member of its Group
either determines on the advice of its counsel that it is required to disclose
any Information pursuant to applicable law or receives any demand under lawful
process or from any Governmental Authority to disclose or provide Information of
any other Party (or any other member of any other Party's Group) that is subject
to the confidentiality provisions hereof, such Party shall notify the other
Party prior to disclosing or providing such Information and shall cooperate at
the expense of the requesting Party in seeking any reasonable protective
arrangements requested by such other Party. Subject to the foregoing, the Person
that receives such request may thereafter disclose or provide Information to the
extent required by such law (as so advised by counsel) by lawful process of such
Governmental Authority.
ARTICLE IV
DISPUTE RESOLUTION
5.01 In the event of a dispute under this Agreement, Xxxxxxxx and
Communications, agree to resolve the dispute in accordance with the Dispute
Resolution Procedures set forth in the Amended and Restated Separation Agreement
of which this Agreement is an exhibit, and made a part hereof.
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ARTICLE VI
FURTHER ASSURANCE AND ADDITIONAL COVENANT
6.01 FURTHER ASSURANCES. (a) In addition to the actions specifically
provided for elsewhere in this Agreement, each of the Parties hereto shall use
its reasonable best efforts, prior to, on and after the Closing Date, to take,
or cause to be taken, all actions, and to do, or cause to be done, all things,
reasonably necessary, proper or advisable under applicable laws, regulations and
agreements to consummate and make effective the transactions contemplated by
this Agreement.
(b) Without limiting the foregoing, prior to, on and after the Closing
Date, each Party hereto shall cooperate with the other Parties, and without any
further consideration, but at the expense of the requesting Party, to execute
and deliver, or use its reasonable best efforts to cause to be executed and
delivered, all instruments, including instruments of conveyance, assignment and
transfer, and to make all filings with, and to obtain all consents, approvals or
authorizations of any Governmental Authority or any other Person under any
permit, license, agreement, indenture or other instrument (including any
consents or governmental approvals), and to take all such other actions as such
Party may reasonably be requested to take by any other Party hereto from time to
time, consistent with the terms of this Agreement in order to effectuate the
provisions and purposes of this Agreement and the transfers of assets and the
assignment and assumption of liabilities and the other transactions contemplated
hereby and thereby. Without limiting the foregoing, each Party shall, at the
reasonable request, cost and expense of any other Party, take such other actions
as may be reasonably necessary to vest in such other Party good and marketable
title, free and clear of any security interest, if and to the extent it is
practicable to do so.
(c) Prior to the Closing Date, if one or more of the Parties identifies
any commercial or other service that is needed to assure a smooth and orderly
transition of the businesses in connection with the consummation of the
transactions contemplated hereby, and that is not otherwise governed by the
provisions of this Agreement, the Parties shall cooperate in determining whether
there is a mutually acceptable arm's-length basis on which one or more of the
other Parties will provide such service.
(d) Communications hereby assumes that portion of Xxxxxxxx' obligations
related to Communications and its subsidiaries under both: (i) that certain
agreement between Xxxxxxxx WPC-I, Inc. ("WPC") and The Xxxxxxxx Companies, Inc.,
dated September 21, 1998, whereby Xxxxxxxx compensates WPC for performances of
services by WPC on behalf of Communications and its subsidiaries; and (ii) that
certain agreement among Xxxxxxxx Risk Management L.L.C. ("WRM") and The Xxxxxxxx
Companies, Inc., and Xxxxxxxx WPC-I , Inc., dated September 21, 1998, whereby
Xxxxxxxx compensates WRM for performance of Xxxxxxxx' risk management
obligations on behalf of Communications and its subsidiaries.
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6.02 WAIVER OF TERMINATION RIGHTS. Each Party waives and, to the extent
required to make such waivers effective, Communications shall cause the Persons
comprising the Communications Group to waive and Xxxxxxxx shall cause the
Persons comprising the Xxxxxxxx Group to waive, any right to terminate, cease
performing under, revise unilaterally, or increase the charges in, any agreement
between the Communications Group and the Xxxxxxxx Group as a result of any
provision in such agreement that would permit such action if Xxxxxxxx no longer
controls (through voting stock or ownership of half, a majority, or a
supermajority of Communications common stock) or no longer owns (directly or
indirectly through one or more subsidiaries) any Person comprising the
Communications Group.
ARTICLE VII
EFFECTIVE DATE
7.01 EFFECTIVE DATE: This Agreement shall become effective at the
Closing.
ARTICLE VIII
SUCCESSORS AND ASSIGNS
8.01. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Parties hereto and their respective successors and permitted assigns and shall
inure to the benefit of the Parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned by either Party hereto to
any other person without the prior written consent of the other Party hereto.
ARTICLE IX
NO THIRD-PARTY BENEFICIARIES
9.01 NO THIRD-PARTY BENEFICIARIES. Nothing expressed or implied in this
Agreement shall be construed to give any person or entity other than the Parties
hereto any legal or equitable rights hereunder.
ARTICLE X
ENTIRE AGREEMENT
10.01. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the Parties with respect to the subject matter hereof.
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ARTICLE XI
AMENDMENT
11.01. AMENDMENT. This Agreement may not be amended except by an
instrument signed by the Parties hereto.
ARTICLE XII
WAIVERS
12.01. WAIVERS. No waiver of any term shall be construed as a
subsequent waiver of the same term, or a waiver of any other term, of this
Agreement. The failure of any Party to assert any of its rights hereunder shall
not constitute a waiver of any such rights.
ARTICLE XIII
SEVERABILITY
13.01. SEVERABILITY. If any provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy, such
provision shall be deemed severable and all other provisions of this Agreement
shall nevertheless remain in full force and effect.
ARTICLE XIV
HEADINGS
14.01. HEADINGS. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
ARTICLE XV
NOTICES
15.01. NOTICES. All notices given in connection with this Agreement
shall be in writing. Service of such notices shall be deemed complete: (i) if
hand delivered, on the date of delivery; (ii) if by mail, on the fourth Business
Day following the day of deposit in the United States mail, by certified or
registered mail, postage prepaid; (iii) if sent by Federal Express or
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equivalent courier service, on the next Business Day; or (iv) if by telecopier,
upon receipt by sender of confirmation of successful transmission. Such notices
shall be addressed to the Parties at the following address or at such other
address for a Party as shall be specified by like notice (except that notices of
change of address shall be effective upon receipt):
IF TO XXXXXXXX:
THE XXXXXXXX COMPANIES, INC.
XXX XXXXXXXX XXXXXX
XXXXX, XXXXXXXX 00000
ATTENTION: GENERAL COUNSEL
FAX NO. 918/000-0000
IF TO COMMUNICATIONS:
XXXXXXXX COMMUNICATIONS GROUP, INC.
XXX XXXXXXXX XXXXXX
XXXXX, XXXXXXXX 00000
ATTENTION: GENERAL COUNSEL
FAX NO.: 918/000-0000
ARTICLE XVI
GOVERNING LAW
16.01. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with, the laws of the State of Oklahoma, without giving effect to
the principles of conflict of laws of such state or any other jurisdiction.
ARTICLE XVII
COUNTERPARTS
17.01. COUNTERPARTS. This Agreement may be executed in counterparts,
each of shall be an original, but all of which together shall constitute but one
and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have caused this Amended and
Restated Separation Agreement to be executed the day and year first written
above.
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XXXXXXXX COMMUNICATIONS GROUP, INC.
BY: /s/ XXXXXX X. XXXXXX
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NAME: Xxxxxx X. Xxxxxx
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TITLE: Vice President
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THE XXXXXXXX COMPANIES, INC.
BY: /s/ XXXXXXX X. XXXXXXX
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NAME: Xxxxxxx X. Xxxxxxx
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TITLE: Senior Vice President
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