EXHIBIT 10.22
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (“Agreement”) is made by and between
SOUTHWEST BANK OF TEXAS NATIONAL ASSOCIATION (“Company”) and Xxxxxxx X. Xxxx,
Xx. (“Employee”).
WITNESSETH:
WHEREAS, Company is desirous of employing Employee as an employee of
the Company on the terms and conditions, and for the consideration, hereinafter
set forth and Employee is desirous of being employed by Company on such terms
and conditions and for such consideration;
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and obligations contained herein, Company and Employee agree as
follows:
ARTICLE 1
EMPLOYMENT AND DUTIES
1.1 Employment; Effective Date. Company agrees to employ Employee and
Employee agrees to be employed by Company, beginning as of the Effective Date
(as hereinafter defined) and continuing for the period of time set forth in
Article 2 of this Agreement, subject to the terms and conditions of this
Agreement. For purposes of this Agreement, the “Effective Date” shall be the
“Effective Time” as defined in the Agreement and Plan of Merger dated March 10,
2003, between Southwest Bancorporation of Texas, Inc., SWBT Merger, Inc. and
Maxim Financial Holdings, Inc. (the “Merger Agreement”).
1.2 Position. From and after the Effective Date, Company shall employ
Employee with the title of Executive Vice President. Employee shall have such
authorities, powers, functions and duties as Company shall reasonably delegate
and request, consistent with Employee’s qualifications and level of
compensation.
1.3 Duties and Services. Employee agrees to serve as a full-time
employee of the Company in the capacities referred to in paragraph 1.2 and to
perform diligently and to the best of his abilities the duties and services
appertaining to such offices, as well as such additional duties and services
appropriate to such offices which the parties mutually may agree upon from time
to time. Employee’s employment shall also be subject to the policies maintained
and established by Company, as the same may be amended from time to time.
1.4 Other Interests. Employee agrees, during the period of his
employment by Company, to devote substantially all of his time, energy and best
efforts during normal business hours (with allowances for vacation and sick
leave) to the business and affairs of Company and not to engage, directly or
indirectly, in any other business or businesses, whether or not similar to that
of Company, except with the consent of the Board of Directors of Company (the
“Board of Directors”). The foregoing notwithstanding, the parties recognize and
agree that Employee may engage in passive personal investments and other
passive
business activities that do not conflict
with the business and affairs of Company or interfere with Employee’s
performance of his duties hereunder.
1.5 Duty of Loyalty. Employee acknowledges and agrees that Employee
owes a fiduciary duty of loyalty, fidelity and allegiance to act at all times
in
the best interests of Company and to do no act that would injure the business,
interests, or reputation of Company or any of its subsidiaries or affiliates.
In
keeping with these duties, Employee shall make full disclosure to Company of
all
business opportunities pertaining to Company’s business and shall not
appropriate for Employee’s own benefit business opportunities concerning the
subject matter of the fiduciary relationship.
ARTICLE 2
TERM AND TERMINATION OF EMPLOYMENT
2.1 Term. Unless sooner terminated pursuant to other provisions hereof,
Company agrees to employ Employee for the period beginning on the Effective
Date
and ending December 31, 2005 (“the Employment Term”).
2.2 Company’s Right to Terminate. Notwithstanding the provisions of
paragraph 2.1, Company shall have the right to terminate Employee’s employment
under this Agreement at any time for any of the following reasons:
(i) upon Employee’s death;
(ii) if Employee is unable to perform the essential functions
of his job (with or without reasonable accommodation) because he has
become permanently disabled within the meaning of, and actually begins
to receive disability benefits pursuant to, the long-term disability
plan in effect for employees of the Company at that time;
(iii) for cause, which for purposes of this Agreement shall
mean Employee (A) has engaged in negligent or willful misconduct in the
performance of the duties required of him hereunder, (B) has been
convicted of a misdemeanor involving moral turpitude or convicted of a
felony, (C) has materially failed without proper legal reason to
perform the duties and responsibilities required of him hereunder
(continuing three business days after receipt of written notice of need
to cure), (D) has breached any material written corporate policy or
code of conduct established by Company that Employee is or should have
been aware of, or (E) has engaged in conduct that Employee knows or
should know is materially injurious to Company or any of its
affiliates;
(iv) for Employee’s breach of any provision of this Agreement
which, if correctable, remains uncorrected for three business days
following written notice to Employee by Company of such breach; or
(v) any other reason whatsoever, in the sole discretion of the
Board of Directors.
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2.3 Employee’s Right to Terminate. Notwithstanding the provisions of
paragraph 2.1, Employee shall have the right to terminate his employment under
this Agreement at any time for any of the following reasons:
(i) a breach by Company of any provision of this Agreement
which, if correctable, remains uncorrected for three business days
following written notice to Company by Employee of such breach;
(ii) a substantial increase by Company in the level of
responsibility of Employee from that contemplated at the inception of
the Employment Term without providing additional compensation as
mutually agreed upon by Company and Employee; or
(iii) for any other reason whatsoever, in the sole discretion
of Employee.
2.4 Notice of Termination. If Company or Employee desires to terminate
Employee’s employment hereunder at any time prior to expiration of the term of
employment as provided in paragraph 2.1, it or he shall do so by giving written
notice to the other party that it or he has elected to terminate Employee’s
employment hereunder and stating the effective date and reason for such
termination, provided that no such action shall alter or amend any other
provisions hereof or rights arising hereunder, including, without limitation,
the provisions of Articles 4 and 5 hereof.
ARTICLE 3
COMPENSATION AND BENEFITS
3.1 Base Salary. Throughout the Employment Term, Employee shall receive
an annual base salary of not less than $126,000 ($10,500 per month). Employee’s
annual base salary shall be paid in equal installments in accordance with
Company’s standard policy regarding payment of compensation to Employees but no
less frequently than monthly.
3.2 Bonuses. At the end of each calendar year during the term of this
Agreement, Employee may be entitled to a bonus of up to 30% of his then current
annual base salary. The amount of such bonus, if any, shall be entirely
discretionary with the management of Company and the Compensation Committee of
the Board of Directors. In making its determination as to the amount of any
such
bonus, management and the Compensation Committee of the Board of Directors
shall
consider the same criteria as that used for determining bonuses for other
employees of Company, from time to time. It is contemplated that such criteria
shall include Employee’s performance, Company’s financial performance and the
performance of Company’s common stock as compared to other members of its peer
group.
3.3 Other Perquisites. During his employment hereunder, Employee shall
be afforded the following benefits as incidences of his employment:
(i) Business and Entertainment Expenses. Subject to Company’s
standard policies and procedures with respect to expense reimbursement
as applied to its employees generally, Company shall reimburse Employee
for, or pay on behalf of
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Employee, reasonable and appropriate expenses incurred by Employee for
business related purposes, including dues and fees to industry and
professional organizations and costs of entertainment and business
development.
(ii) Other Company Benefits. Employee and, to the extent
applicable, Employee’s spouse, dependents and beneficiaries, shall be
allowed to participate in all benefits, plans and programs, including
improvements or modifications of the same, that are now, or may
hereafter be, available to all other employees of Company, and Employee
will be entitled to credit for prior service with MaximBank (“Maxim”)
for all purposes under such benefits, plans and programs. Such
benefits, plans and programs may include, without limitation, 401(k)
plans, health insurance or health care plans, disability insurance,
supplemental retirement plans, vacation and sick leave benefits, and
the like. Employee shall also be entitled to a monthly automobile
allowance consistent with Company policy for Executive Vice Presidents.
Company shall not, however, by reason of this paragraph be obligated to
institute, maintain, or refrain from changing, amending, or
discontinuing, any such benefit plan or program, so long as such
changes are similarly applicable to similarly situated employees
generally. This Section 3.3(ii) does not apply to cash bonuses, which
are addressed in Section 3.2.
(iii) Stock Options. Company will award an option to Employee
to purchase 10,000 shares of Company’s common stock under Company’s
1996 Stock Option Plan, within two weeks following the Effective Date,
such incentive option to be subject to the same terms and provisions
(including vesting) as those awarded to other Employees under such
plan.
ARTICLE 4
CONFIDENTIAL INFORMATION
4.1 In General. Company will disclose to Employee, or place Employee in
a position to have access to or develop trade secrets or confidential
information of Company or its affiliates; and/or will entrust Employee with
business opportunities of Company or its affiliates; and/or will place Employee
in a position to develop business goodwill on behalf of Company or its
affiliates. Employee recognizes and acknowledges that Employee will have access
to certain information of Company and that such information is confidential and
constitutes valuable, special and unique property of Company. Employee shall
not
at any time, either before, during or subsequent to the Employment Term,
disclose to others, use, copy or permit to be copied, except in pursuance of
Employee’s duties for and on behalf of Company, its successors, assigns or
nominees, any Confidential Information of Company (regardless of whether
developed by Employee) without the prior written consent of Company. The term
“Confidential Information” means any secret or confidential information or
know-how and shall include, but shall not be limited to, the plans, customers,
costs, prices, uses, corporate opportunities, research, financial data,
evaluations, prospects, and applications of products and services, results of
investigations or studies owned or used by Company, and all apparatus,
products,
processes, compositions, samples, formulas, computer programs, computer
hardware
designs, computer firmware designs, and servicing, marketing or manufacturing
methods and techniques at anytime used, developed, investigated, made or sold
by
Company, before or during the Employment Term, that are not
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readily available to the public or otherwise made available to the public
through no fault of Employee, or that are maintained as confidential by
Company.
Employee shall maintain in confidence any Confidential Information of third
parties received as a result of Employee’s employment with Company in
accordance
with Company’s obligations to such third parties and the policies established
by
Company. For purposes of this Section 4.1 and Section 5.1., below, the term
“Confidential Information” shall include information about Maxim.
4.2 Remedies. Employee acknowledges that money damages would not be a
sufficient remedy for any breach of this Article 4 by Employee, and Company
shall be entitled to enforce the provisions of this Article 4 by terminating
payments then owing to Employee under this Agreement and/or seeking specific
performance and injunctive relief as remedies for such breach or any threatened
breach. Such remedies shall not be deemed the exclusive remedies for a breach
of
this Article 4, but shall be in addition to all remedies available at law or in
equity to Company, including the recovery of damages from Employee and his
agents involved in such breach and remedies available to Company pursuant to
other agreements with Employee.
ARTICLE 5
NON-COMPETITION OBLIGATIONS
5.1 In General. As part of the consideration for the compensation and
benefits to be paid to Employee hereunder; to protect the Confidential
Information of Company, Maxim, and their affiliates that has been and will in
the future be disclosed or entrusted to Employee, the business goodwill of
Company, Maxim, and their affiliates that has been and will in the future be
developed in Employee, or the business opportunities that have been and will in
the future be disclosed or entrusted to Employee by Company, Maxim, and their
affiliates; and as an additional incentive for Company to enter into this
Agreement, Company and Employee agree to the non-competition obligations
hereunder. Employee shall not, directly or indirectly for Employee or for
others, in any geographic area or market where Company or Maxim or any of their
affiliates are conducting any business through Company or Maxim facilities as
of
the date of the termination of the employment relationship or have during the
previous twelve months conducted such business:
(i) engage in any business competitive with the business
conducted by Company or Maxim in any county in which the Company or
Maxim maintains an office;
(ii) render advice or services to, or otherwise assist, any
other person, association, or entity who is engaged, directly or
indirectly, in any business competitive with the business conducted by
Company or Maxim with respect to such competitive business; or
(iii) induce any employee of Company or any of its affiliates
to terminate his or her employment with Company, Maxim or such
affiliates, or hire or assist in the hiring of any such employee by any
person, association, or entity not affiliated with Company or Maxim.
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These non-competition obligations shall apply during the longer of (a) the
period that Employee is receiving benefits pursuant to Article 3 and Article 7
hereunder, or (b) the period beginning with the date of termination of the
employment relationship if such termination is by Company pursuant to Section
2.2(iii) or (iv) or by Employee pursuant to Section 2.3(iii) and ending on
December 31, 2005
5.2 Enforcement and Remedies. Employee understands that the
restrictions set forth in paragraph 5.1 may limit Employee’s ability to engage
in certain businesses anywhere in the world during the period provided for
above, but acknowledges that Employee will receive sufficiently high
remuneration and other benefits under this Agreement to justify such
restriction. Employee acknowledges that money damages would not be a sufficient
remedy for any breach of this Article 5 by Employee, and Company shall be
entitled to enforce the provisions of this Article 5 by terminating any
payments
then owing to Employee under this Agreement and/or seeking specific performance
and injunctive relief as remedies for such breach or any threatened breach.
Such
remedies shall not be deemed the exclusive remedies for a breach of this
Article
5, but shall be in addition to all remedies available at law or in equity to
Company, including without limitation, the recovery of damages from Employee
and
Employee’s agents involved in such breach and remedies available to Company
pursuant to other agreements with Employee.
5.3 Reformation. It is expressly understood and agreed that Company and
Employee consider the restrictions contained in this Article 5 to be reasonable
and necessary to protect the proprietary information of Company. Nevertheless,
if any of the aforesaid restrictions are found by a court having jurisdiction
to
be unreasonable, or overly broad as to geographic area or time, or otherwise
unenforceable, the parties intend for the restrictions therein set forth to be
modified by such court so as to be reasonable and enforceable and, as so
modified by the court, to be fully enforced.
ARTICLE 6
STATEMENTS CONCERNING COMPANY
6.1 In General. Employee shall refrain, both during the employment
relationship and after the employment relationship terminates, from publishing
any oral or written statements about Company, any of its affiliates, or any of
such entities’ officers, employees, agents or representatives that are
slanderous, libelous, or defamatory; or that disclose private or confidential
information about Company, any of its affiliates, or any of such entities’
business affairs, officers, employees, agents, or representatives; or that
constitute an intrusion into the seclusion or private lives of Company, any of
its affiliates, or any of such entities’ officers, employees, agents, or
representatives; or that give rise to unreasonable publicity about the private
lives of Company, any of its affiliates, or any of such entities’ officers,
employees, agents, or representatives; or that place Company, any of its
affiliates, or any of such entities’ officers, employees, agents, or
representatives in a false light before the public; or that constitute a
misappropriation of the name or likeness of Company, any of its affiliates, or
any of such entities’ officers, employees, agents, or representatives. A
violation or threatened violation of this prohibition may be enjoined by the
courts. The rights afforded Company and its affiliates under this provision are
in addition to any and all rights and remedies otherwise afforded by law.
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ARTICLE 7
EFFECT OF TERMINATION ON COMPENSATION
7.1 By Expiration. If Employee’s employment hereunder shall terminate
upon expiration of the term provided in paragraph 2.1 hereof, then all
compensation and all benefits to Employee hereunder shall terminate
contemporaneously with termination of his employment (except to the extent
benefits continue pursuant to the specific terms of any plan or program).
7.2 By Company. If Employee’s employment hereunder shall be terminated
by Company prior to expiration of the term provided in paragraph 2.1, then,
upon
such termination, regardless of the reason therefor, all compensation and
benefits to Employee hereunder shall terminate contemporaneously with the
termination of such employment (except to the extent benefits continue pursuant
to the specific terms of any plan or program); provided, however, that if such
termination shall be for any reason other than those encompassed by paragraphs
2.2(i), (ii), (iii), or (iv), then Company shall (i) pay Employee the
Termination Payments and (ii) provide Employee with Continuation Benefits. For
purposes of this Agreement, (A) the term “Termination Payments” shall mean
continuation of Employee’s annual base salary as provided in paragraph 3.1 and
continuation of Employee’s bonuses as provided in paragraph 3.2 at the average
percentage of annual base salary that was paid to Employee as bonus during the
two-year period preceding his termination of employment with Company, as if he
had remained employed by Company throughout the Employment Term, and (B) the
term “Continuation Benefits” shall mean continued coverage under Company’s
medical and dental plans and life insurance for Employee and his dependents
(including his spouse) who were covered under such plans and insurance on the
day prior to Employee’s termination of employment with Company for the same
period as the Termination Payments (provided, however, that (1) such coverage
shall terminate if and to the extent Employee becomes eligible to receive
medical, dental and life insurance coverage from a subsequent employer (and any
such eligibility shall be promptly reported to Company by Employee), (2) if
Employee (and/or his spouse) would have been entitled to retiree medical,
dental, and/or life insurance coverage under Company’s plans had he voluntarily
retired on the date of such termination, then such coverages shall be continued
as provided under such plans, and (3) in the event that continued participation
in any such Company plan is for whatever reason impermissible, Company shall
arrange upon comparable terms benefits substantially equivalent to those that
may not be so provided under the plan maintained by Company). Notwithstanding
the preceding provisions of this paragraph 7.2, as a condition to the receipt
of
any Termination Payments and/or Continuation Benefits pursuant to this
paragraph
7.2, Employee must first execute a release and agreement which shall release
Company, its affiliates and their officers, directors, employees and agents
from
any and all claims and from any and all causes of action of any kind or
character, including but not limited to all claims or causes of action arising
out of Employee’s employment with Company and the termination of such
employment.
7.3 By Employee. If Employee’s employment hereunder shall be terminated
by Employee prior to expiration of the term provided in paragraph 2.1, then,
upon such termination, regardless of the reason therefor, all compensation and
benefits to Employee hereunder shall terminate contemporaneously with the
termination of such employment (except to the extent benefits continue pursuant
to the specific terms of any plan or program); provided, however, that
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if such termination shall be pursuant to paragraph 2.3(i) or (ii), then Company
shall (i) pay Employee the Termination Payments and (ii) provide Employee with
Continuation Benefits, subject to Employee’s execution of a release and
agreement as described in the last sentence of Section 7.2.
7.4 Liquidated Damages. In light of the difficulties in estimating the
damages for an early termination of this Agreement (but not for other
independent claims that either may have against the other), Company and
Employee
hereby agree that the payments, if any, to be received by Employee pursuant to
this Article 7 shall be received by Employee as liquidated damages.
7.5 Incentive and Deferred Compensation. This Agreement governs the
rights and obligations of Employee and Company with respect to Employee’s base
salary, bonus, life insurance and certain perquisites of employment. Employee’s
rights and obligations both during the term of his employment and thereafter
with respect to stock options, restricted stock, and incentive and deferred
compensation shall be governed by the separate agreements, plans and other
documents and instruments governing such matters.
ARTICLE 8
MISCELLANEOUS
8.1 Notices. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
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If to Company to:
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Southwest Bank of Texas National Association
0000 Xxxx Xxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx, Xx. |
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If to Employee to:
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Xxxxxxx X. Xxxx, Xx.
P. O. Box 1687
League City, Texas 77574 |
or to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
8.2 Applicable Law. This Agreement is entered into under, and shall be
governed for all purposes by, the laws of the State of Texas.
8.3 No Waiver. No failure by either party hereto at any time to give
notice of any breach by the other party of, or to require compliance with, any
condition or provision of this Agreement shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time.
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8.4 Severability. If a court of competent jurisdiction determines that
any provision of this Agreement is invalid or unenforceable, then the
invalidity
or unenforceability of that provision shall not affect the validity or
enforceability of any other provision of this Agreement, and all other
provisions shall remain in full force and effect.
8.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same Agreement.
8.6 Withholding of Taxes and Other Employee Deductions. Company may
withhold from any benefits and payments made pursuant to this Agreement all
federal, state, city and other taxes as may be required pursuant to any law or
governmental regulation or ruling and all other normal employee deductions made
with respect to Company’s employees generally.
8.7 Headings. The paragraph headings have been inserted for purposes of
convenience and shall not be used for interpretive purposes.
8.8 Gender and Plurals. Wherever the context so requires, the masculine
gender includes the feminine or neuter, and the singular number includes the
plural and conversely.
8.9 Affiliate. As used in this Agreement, the term “affiliate” shall
mean any entity which owns or controls, is owned or controlled by, or is under
common ownership or control with, Company.
8.10 Successor Obligations. This Agreement shall be binding upon and
inure to the benefit of Company and any successor of Company, by merger or
otherwise.
8.11 Assignment. Except as provided in paragraph 8.10, this Agreement,
and the rights and obligations of the parties hereunder, are personal and
neither this Agreement, nor any right, benefit, or obligation of either party
hereto, shall be subject to voluntary or involuntary assignment, alienation or
transfer, whether by operation of law or otherwise, without the prior written
consent of the other party.
8.12 Term. This Agreement shall be effective on the date of its
execution as indicated below and shall continue in effect until the end of the
Employment Term provided in paragraph 2.1. Termination shall not affect any
right or obligation of any party which is accrued or vested prior to such
termination. Without limiting the scope of the preceding sentence, the
provisions of Articles 4, 5, and 6 shall survive any termination of the
employment relationship and/or of this Agreement.
8.13 Execution of Release. Prior to the consummation of the
transactions contemplated in that certain Agreement and Plan of Merger between
Southwest Bancorporation of Texas, Inc., SWBT Merger, Inc. and Maxim Financial
Holdings, Inc. dated as of March 10, 2003 (the “Acquisition Agreement”),
Employee agrees to execute an instrument, substantially in the form of Exhibit
I
to the Acquisition Agreement, and dated as of the Effective Time (as defined
under the Acquisition Agreement), releasing Maxim Financial Holdings, Inc. and
its subsidiaries from any and all claims Employee may have against such parties
(except as set forth therein).
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8.14 Entire Agreement. Except as provided in (i) the written benefit
plans and programs referenced in paragraph 3.3(ii) and (ii) any signed written
agreement contemporaneously or hereafter executed by Company and Employee, this
Agreement constitutes the entire agreement of the parties with regard to the
subject matter hereof, and contains all the covenants, promises,
representations, warranties and agreements between the parties with respect to
employment of Employee by Company. Without limiting the scope of the preceding
sentence, all prior understandings and agreements among the parties hereto
relating to the subject matter hereof are hereby null and void and of no
further
force and effect. Any modification of this Agreement shall be effective only if
it is in writing and signed by the party to be charged.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
March 10, 2003.
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SOUTHWEST BANK OF TEXAS NATIONAL ASSOCIATION
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By: |
/s/ Xxxx X. Xxxxxx, Xx.
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Xxxx X. Xxxxxx, Xx. |
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President and Chief Executive Officer |
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“COMPANY”
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/s/ Xxxxxxx X. Xxxx, Xx
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XXXXXXX X. XXXX, XX. |
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“EMPLOYEE” |
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