EMPLOYMENT AGREEMENT
This
Employment Agreement dated as of January 1, 2008 is by and between Patriot
National Bank, a national banking association ("Patriot") and Xxxxxx Xxxxxxxxx
(the "Executive").
RECITALS
Patriot
desires to employ the Executive and to have the benefit of his skills and
services, and the Executive desires to be employed by Patriot on the terms and
conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual promises, terms, covenants and
conditions set forth herein, and the performance of each, the parties, intending
legally to be bound, hereby agree as follows:
AGREEMENTS
Section
1. Definitions. For
purposes of this Agreement, the following terms have the meanings set forth
below:
"Board" means the
Board of Directors of Patriot as same is constituted from time to
time.
"Business" means the
business operations of Patriot National Bank, which consists of the residential
mortgage brokerage origination business as it exists on the date
hereof.
"Cause" means (a) the
commission by the Executive of any act, on or after the date of this Agreement,
constituting, as to any cash funds or other receipts of Patriot, or any material
property of Patriot or any other Person, (i) theft, (ii) embezzlement, (iii)
fraud, (iv) gross misconduct, (v) dishonesty or (vi) or misappropriation of
material property under applicable law; (b) the conviction of the Executive of
(i) a crime resulting in material injury to the business or property of Patriot
or (ii) a felony; (c) the material breach by the Executive of this Agreement,
including but not limited to the failure by the Executive to follow all
reasonable and lawful directions of the Management Committee as to any material
matter, or the taking of any action by the Executive that would be reasonably
likely to cause material injury to Patriot or that would be in conflict with any
material interest to Patriot within a reasonable period of time following
Executive's receipt of written notice thereof by Patriot, which notice is
sufficiently specific so as to permit Executive reasonably to cure such
misconduct; or (d) the misuse or unlawful use of drugs, alcohol or other
controlled substances in contravention of written policies of Patriot that are
applicable to all employees of Patriot.
"Confidential
Information" means information that was or is used, developed or obtained
by Patriot in connection with its business, including (a) products or services,
(b) fees, costs and pricing structures, (c) analyses, (d) computer software,
including operating systems, applications and program listings, (e) flow charts,
manuals and documentation, (f) data bases, (g) accounting and business methods,
(h) inventions, devices, new developments, methods and processes, whether
patentable or unpatentable and whether or not reduced to practice, (i) other
copyrightable
works, (j) all technology and trade secrets, and (k) all similar and related
information in whatever form or medium, including customer
lists. Notwithstanding the foregoing, this Agreement imposes no
obligation upon the Executive with respect to Confidential Information which (a)
was known to the Executive before receipt from Patriot, (b) is or becomes
publicly available through no fault of the Executive, (c) is disclosed to the
Executive by a third party without a duty of confidentiality on the part of the
third party to Patriot, (d) is subsequently independently developed by the
Executive without a breach of this Agreement, or (e) is required to be disclosed
by the Executive in a judicial or administrative proceeding, provided that the
Executive gives Patriot reasonable advance notice of such required disclosure so
that Executive may contest the disclosure or seek a protective
order.
"Effective Date" means
the date of this Agreement.
"Employment Period"
has the meaning set forth in Section 5 of this Agreement.
"Executive" means
Xxxxxx Xxxxxxxxx.
"Permanent Disability"
shall have occurred if as a result of physical or mental incapacity, the
Employee shall have been incapable of performing Employee's duties hereunder for
a period in excess of 120 consecutive days in any 6 month period, or an
aggregate of 240 days in any 12 month period.
"Person" means an
individual, a partnership, a corporation, a limited liability company, an
association, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision
thereof.
"Reimbursable
Expenses" has the meaning set forth in Section 4.4 of this
Agreement.
"Subsidiary" means,
with respect to any Person, any corporation, partnership, limited liability
company, association or other business entity of which (a) if a corporation, a
majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or a combination thereof, or (b) if a partnership,
limited liability company, association or other business entity, a majority of
the partnership or other similar ownership interests thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more
Subsidiaries of the Person or a combination thereof. For purposes of
this Agreement, a Person or Persons will be deemed to have a majority ownership
interest in a partnership, limited liability company, association or other
business entity if such Person or Persons are allocated a majority of
partnership, limited liability company, association or other business entity
gains or losses or control the managing director or member or general partner of
such partnership, limited liability company, association or other business
entity.
"Termination Date"
shall mean December 31, 2008.
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Section
2. Employment. Patriot
hereby employs the Executive, and the Executive hereby accepts employment with
Patriot, upon the terms and conditions set forth in this Agreement, for the
Employment Period provided in Section 5.
Section3. Position and
Duties.
3.1 Position. The
Executive shall hold the position of Executive Vice President of Patriot
National Bank, and the title Residential Sales Manager of Patriot National
Bank. During the Employment Period, the Executive will perform such
reasonable executive and management duties as may, from time to time, be
determined and assigned to him by the Management Committee of Patriot National
Bank, which duties shall relate primarily to the residential real estate
mortgage origination business of Patriot and its
affiliates. Patriot shall not require the Executive to relocate
to any office of Patriot outside of Fairfield County, Connecticut.
3.2 Performance of Duties; Other
Activities. The Executive shall devote his best efforts,
attention and skills toward performing his duties on behalf of Patriot, and his
full business and professional time to fully and faithfully perform such duties
and responsibilities to the best of his abilities in a diligent, trustworthy,
businesslike and efficient manner. The Executive shall do such
traveling as may reasonably be required in connection with the performance of
his duties and responsibilities hereunder, provided that the Executive will not
be assigned to regular duties such as would require him to relocate his
permanent residence.
3.3 Reporting. The
Executive will report to the Chairman or Chief Executive Officer of Patriot
National Bank.
Section
4 Compensation and
Benefits.
4.1 Compensation. The
compensation payable to the Executive by Patriot during the Employment Period is
set forth on Schedule A hereto.
4.2 Executive Stock Purchases
and Stock Options. The Executive may be granted options and opportunities
to purchase Patriot Common Stock consistent with stock purchase plans and option
plans provided to senior management of Patriot and as may be awarded in the sole
discretion of Patriot's Board of Directors from time to time.
4.3 Benefits. In
addition to the aforesaid compensation, the Executive shall be entitled to be
included under the same rules or restrictions in any employee welfare and
retirement plan or program of Patriot generally available to its employees and
or officers, including, without limitation, plans for hospital services, medical
services benefits, sick pay, dental and other health plans, as well as the
following benefits during the Employment Period:
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(a)
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four
weeks of paid vacation per year during the Employment
Period;
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(b)
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five
personal/sick days per year;
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(c)
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participation
in the 401K Plan of Patriot consistent with the participation afforded
other similarly positioned Patriot
executives.
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4.4 Expenses. Patriot
shall reimburse the Executive for any and all reasonable expenses incurred by
him in the course of performing his duties under this Agreement which are
consistent with Patriot's policies in effect from time to time including
business travel, entertainment, mileage expenses and other business expenses
("Reimbursable Expenses"), subject to Patriot's requirements with respect to
reporting and documentation of expenses.
Section
5 Employment Period and
Termination.
5.1 Employment
Period. The Executive's employment hereunder shall commence on
the Effective Date, and, unless renewed or modified by written agreement between
Patriot and the Executive, the Employment Period will terminate on the
"Termination Date"; provided, however,
that (a) the Employment Period shall terminate prior to such date upon the
Executive's death or Permanent Disability, and (b) the Employment Period may be
terminated by Patriot at any time prior to such date, if such termination shall
be for Cause. The Executive and Patriot agree to begin negotiations
to renew this employment agreement by September 15, 2008 and to use their best
efforts to complete negotiations by October 15, 2008 provided, however, that
neither the Executive nor Patriot shall have any legal obligation to renew this
employment agreement.
5.2 Unjustified
Termination. Except as otherwise provided in Section 5.3
below, if the Employment Period shall be terminated by Patriot prior to the
Termination Date for any reason other than (a) for Cause, or (b) as a result of
the death or Permanent Disability of the Executive (collectively, an
"Unjustified Termination"), the Executive shall, so long as the Executive has
not breached and does not breach the provisions of Sections 6, 7 or 8 of this
Agreement, be entitled to receive during the unexpired portion of the Employment
Period (i) continuation of his compensation, (ii) reimbursement of all
Reimbursable Expenses incurred by the Executive prior to the termination of the
Employment Period, and (iii) continuation of all medical benefits.
5.3 Justified
Termination. If the Employment Period shall be terminated by
Patriot prior to the Termination Date (a) for Cause, (b) as a result of the
Executive's resignation, or (c) as a result of the death or permanent disability
of the Executive (collectively, a "Justified Termination"), the Executive shall
be entitled to receive only his compensation through the date of termination and
reimbursement of all Reimbursable Expenses incurred by the Executive prior to
the termination of the Employment Period. A termination for Cause
shall become effective on the date designated by Patriot.
5.4 Benefits. Except
as otherwise required by law, all of the Executive's rights to fringe benefits
under this Agreement, if any, that would otherwise accrue after the termination
of the Employment Period as a result of a Justified Termination will cease upon
such Justified Termination.
4
Section
6. Non-Solicitation
Agreement. The Executive covenants and agrees that during the
restricted period beginning eighteen months from the Executive’s departure , the
Executive will refrain from interfering with the employment relationship between
Patriot and its employees and will not solicit any of such employees for
employment by any other financial institution or organization in the residential
mortgage business.
Section
7 Delivery
of Materials Upon Termination of Employment. As requested by
Patriot from time to time and upon the termination of the Executive's employment
with Patriot for any reason, the Executive will promptly deliver to Patriot all
copies and embodiments, paper, electronic or in whatever form or medium, of all
Confidential Information in the Executive's possession or within his control
irrespective of the location or form of such material and, if requested by
Patriot, will provide Patriot with written confirmation that all such materials
have been delivered to Patriot.
Section
8. Nondisclosure
and Non-use of Confidential Information. The Executive will
not, at any time, disclose or use any Confidential Information of which the
Executive is or becomes aware, whether or not such information is developed by
him, except to the extent that such disclosure or use is directly related to and
required by the Executive's performance of duties assigned to the Executive
pursuant to this Agreement.
Section
9. Affiliates;
Equitable Relief. The Executive acknowledges that a breach or
threatened breach by him of any of his covenants contained in Sections 6, 7 and
8 of this Agreement could cause irreparable harm to Patriot for which it would
have no adequate remedy at law. Accordingly, and in addition to any
remedies which Patriot may have at law, in the event of an actual or threatened
breach by the Executive of his covenants contained in Sections 6, 7 and 8 of
this Agreement, Patriot shall have the absolute right to apply to any court of
competent jurisdiction for such injunctive or other equitable relief as such
court may deem necessary or appropriate in the circumstances.
Section
10. No Prior
Agreements. The Executive hereby represents and warrants to
Patriot that the execution of this Agreement by Executive, his employment by
Patriot, and the performance of his duties hereunder will not violate or be a
breach of any agreement with a former employer, client, or any other
Person. Further, Executive agrees to indemnify and hold harmless
Patriot and its officers, directors, and representatives for any claim,
including, but not limited to, reasonable attorney's fees and expenses of
investigation, of any such third party that such third party may now have or may
hereafter come to have against Patriot or such other persons, based upon or
arising out of any non-competition
agreement, invention, secrecy, or other agreement between Employee and such
third party that was in existence as of the date of this
Agreement. To the extent that Employee had any oral or written
employment agreement or understanding with Patriot, this Agreement shall
automatically supersede such agreement or understanding, and upon execution of
this
5
Agreement
by Employee and Patriot, such prior agreement or understanding automatically
shall be deemed to have been terminated and shall be null and void.
Section
11 Miscellaneous.
11.1 Remedies. The
parties to this Agreement shall have all rights and remedies set forth in this
Agreement, all rights and remedies which either party has been granted at any
time under any other agreement or contract and all of the rights which either
has under any law. Both parties will be entitled to enforce such
rights specifically, without posting a bond or other security, to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law or available in equity.
11.2 Waivers and
Amendments. The provisions of this Agreement may be amended or
waived only by a written agreement executed and delivered by Patriot and the
Executive. No other course of dealing between the parties to this
Agreement or any delay in exercising any rights hereunder will operate as a
waiver of any rights of any such parties.
11.3 Successors and
Assigns. All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto and their respective
heirs, executors, administrators, personal representatives, successors and
assigns, whether so expressed or not; provided that the Executive may not assign
his rights or delegate his obligations under this Agreement without the written
consent of Patriot.
11.4 Severability. Whenever
possible, each provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
11.5 Counterparts. This
Agreement may be executed simultaneously in two or more counterparts, any one of
which need not contain the signatures of more than one party, but all of which
counterparts taken together will constitute one and the same
agreement.
11.6 Descriptive
Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this
Agreement.
11.7 Notices. All
notices, demands or other communications to be given or delivered under or by
reason of the provisions of this Agreement will be in writing and will be deemed
to have been given when delivered personally to the recipient, two business days
after the date when sent to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Such notices, demands,
and other communications will be sent to the Executive and to Patriot at the
addresses set forth below.
If to the
Executive:
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Xxxxxx
Xxxxxxxxx
0000
Xxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Or
Xxxxxx
Xxxxxxxxx
0
Xxxxxxxxxx Xxxx
Xxx
Xxxxxxxxx, XX 00000
If to
Patriot:
Patriot
National Bank
000
Xxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Attn:
Chief Executive Officer
or to
such other address or to the attention of such other Person as the recipient
party has specified by prior written notice to the sending party.
11.8 No Third Party
Beneficiary. This Agreement will not confer any rights or
remedies upon any person other than Patriot, the Executive and their respective
heirs, executors, administrators, personal representatives, successors and
permitted assigns.
11.9 Entire
Agreement. This Agreement constitutes the entire agreement
among the parties and supersedes any prior understandings, agreements or
representations by or among the parties, written or oral, that may have related
in any way to the subject matter hereof.
11.10 Construction. The
language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent, and no rule of strict construction will
be applied against any party. Any reference to any federal, state,
local or foreign statute or law will be deemed also to refer to all rules and
regulations promulgated there under, unless the context requires
otherwise. The use of the word "including" in this Agreement means
"including without limitation" and is intended by the parties to be by way of
example rather than limitation.
11.11 Life
Insurance. The Executive agrees that Patriot shall have the
right to obtain life insurance on the Executive's life, at the sole expense of
Patriot, as the case may be, and with Patriot as the sole beneficiary
thereof. The Executive shall (a) cooperate fully in obtaining such
life insurance, (b) sign any necessary consents, applications and other related
forms or documents and (c) take any reasonably required medical
examinations.
11.12 Survival. Sections
6, 7, 8 and 9, of this Agreement will survive and continue in full force in
accordance with their terms notwithstanding any termination of the Employment
Period.
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Date
Executed: March 12,
2008
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
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PATRIOT
NATIONAL BANK
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By: __________________
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Chairman
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_______________________
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Xxxxxx
Xxxxxxxxx
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SCHEDULE
A
2008 Compensation (January
1, 2008 – December 31, 2008)
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1.
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Guaranteed
Draw against commission - $210,000 paid in equal monthly
installments.
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2.
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Commissions
– Payable at the unchanged commission plan which becomes effective on
January 1, 2008 (See attached schedule
B).
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3.
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Override
(A) – 4% payable on the gross commission revenue generated by those loan
originators which report directly to
Marcus, payable at the end of each calendar
quarter.
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4.
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Business
Referrals - If Xxxxxx Xxxxxxxxx derives any business resulting from an
internal referral and/or subsequent or related referrals, the commission
rate will be negotiated and not necessarily the payment percentage
indicated from the attached Schedule B. Each transaction and
the agreed payout rate will be initialed, indicating agreement by Marcus
and the Chairman or Chief Executive Officer, prior to any payment related
to each individual transaction.
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9
Schedule
B
Loan Originator Compensation
Structure
For Loans Closed and Funded
Beginning January 1 2008
a. Commission Payout –
Payout percentage applies to the entire commission (*)
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Gross
Commission
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Payout
%
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$0
- $3,000
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40%
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$3,001
- $8,000
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50%
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$8,001
- $14,000
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60%
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$14,001
and over
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70%
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(*)
Negotiated payouts for loans placed in the Patriot portfolio that would be
difficult to place outside of the bank.
b. Marketing Credits –
All uses of credits have to pre-approved by Management.
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·
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For
every $100,000 in gross commissions, there will be $2,000 in marketing
credits available.
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Marketing
credits must be used by year-end or they
expire.
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Use of
Credits
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Must
be used to generate additional business for the
bank
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Open
Houses/Documented Business Functions,
etc.
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Brochures
and other advertising, etc.
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c. Fees Earned by
Division:
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Application
Fee
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Processing
Fee
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1)
First Mortgages
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$150
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$300
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Piggy
Back HELOC
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$100
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2)
Stand Alone HELOC
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$300
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SCHEDULE
C
Xxxxxx
Xxxxxxxxx
Job Responsibilities –
2008
Sales Manager - Residential
Lending
Includes
but not limited to:
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Maintain
high ethical standards
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Recruit
and train loan originators
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Assist
loan originators in structuring and closing
deals
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Manage
the resolution of any customer related
issues
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Grow
our revenue stream by hiring more loan originators, offering additional
types
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of loans
(B and C, FHA, etc.)
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Establish
loan origination officers in appropriate geographical locations, while
considering the potential for possible bank branch
expansion
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Encourage
loan originators to seek out commercial
loans
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Establish
and cultivate new investor
relationships
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Keeping
aware of new technology to support our employees and
business
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Administration
and budgeting
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