EMPLOYMENT AGREEMENT
EXHIBIT 10.2
THIS EMPLOYMENT AGREEMENT (this “Agreement”) dated and effective as of April 3, 2006 (the
“Effective Date”) is by and between US Dataworks, Inc., a Nevada corporation (the
“Company”), and Xxxxx X. Xxxxxxxx (“Xxxxxxxx”). In consideration of the mutual covenants
and promises contained herein, the parties agree as follows.
WHEREAS, the Company deems it essential that it have the advantage of the services of Xxxxxxxx
and desires to enter into a continuing agreement of employment with him, and to provide Xxxxxxxx
with compensation, including stock options.
ARTICLE 1
GENERAL PROVISIONS
Section 1.1 Employment. The Company hereby employs Xxxxxxxx, and Xxxxxxxx accepts
such employment by the Company upon the terms and conditions hereof.
Section 1.2 Term. Subject to earlier termination as specifically set forth herein,
the initial term of this Agreement shall be commencing on the Effective Date and continuing until
April 3, 2008 (the “Term”). The Term shall be extended automatically without further action by
either party for successive one (1) year terms (each extension expiring on the anniversary of April
2), unless either party shall have served not less than ninety (90) days prior written notice upon
the other party that this Agreement shall terminate.
Section 1.3 Termination. Xxxxxxxx’x employment and this Agreement shall terminate
upon the earliest to occur of any of the following events (the actual date of such termination
being referred to herein as the “Termination Date”):
(a) Pursuant to Section 1.2.
(b) In the event of Xxxxxxxx’x death or disability as set forth in Section 3.7.
(c) Termination of Xxxxxxxx’x employment by the Company for cause without any prior notice
(except as specifically set forth below), upon the occurrence of any of the following events (each
of which shall constitute “Cause”):
(i) any embezzlement or wrongful diversion of funds of the Company or any affiliate of the
Company by Xxxxxxxx;
(ii) gross malfeasance by Xxxxxxxx in the conduct of Xxxxxxxx’x duties;
(iii) breach of this Agreement or any of the Company’s written policies and, if such breach is
capable of being cured, as determined by the Board of Directors of the Company (the “Board of
Directors”), failure of Xxxxxxxx to cure such breach after notice and reasonable opportunity to
cure such breach;
(iv) gross neglect by Xxxxxxxx in carrying out Xxxxxxxx’x duties; or
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(v) willful violation by Xxxxxxxx of any applicable federal or state securities laws or
regulations.
(d) Termination of Xxxxxxxx’x employment by the Company at any time without Cause.
(e) Termination by Xxxxxxxx of his employment at any time.
Section 1.4 Termination Obligations: Return of Company Property. Upon termination of
this Agreement, Xxxxxxxx shall promptly return all Company property.
ARTICLE 2
POSITION AND DUTIES; OTHER BUSINESS ACTIVITIES
Section 2.1 Position. Xxxxxxxx shall be employed as President, Payment Products
Division and Vice Chairman. Xxxxxxxx shall report directly to the Chief Executive Officer of the
Company.
Section 2.2 Duties: Full Attention to Business. The primary focus of Xxxxxxxx’x
employment is to develop and execute strategies for the organic revenue growth of the Company
through the Payment Products Division. Xxxxxxxx shall be directly responsible for the supervision
and management of the Company’s Payment Products Division, and shall perform such services for the
Company that reasonably serve the purpose of this Agreement and/or meet the needs of the Company,
and that are consistent with the position Xxxxxxxx holds. Xxxxxxxx will be responsible for all
sales efforts, new product definition, product management, analysis of competition, and personally
managing the relationship of selected large strategic accounts. Xxxxxxxx shall devote his full
business time, energies, interest, abilities, and productive efforts to the business of the
Company. Except as may be approved by the Company’s Board of Directors, Xxxxxxxx shall not render
any consulting services to others for compensation and, in addition, shall not engage in any
activity which conflicts or interferes with his performance of duties hereunder. Notwithstanding
the provisions of this Section 2.2, Xxxxxxxx may, with the prior written consent of the Board of
Directors, engage in civic, charitable, or educational activities, provided that such service and
activities do not, individually or in the aggregate, interfere with the performance of Xxxxxxxx’x
duties under the Agreement.
Section 2.3 Covenant Not To Compete During Term. During the Term, Xxxxxxxx shall
comply in all respects with the Company’s written policies with respect to conflicts of interest.
Except as may be approved by the Company’s Board of Directors, Xxxxxxxx shall not engage in or be
interested, directly or indirectly, in any business or operation competitive with the Company. For
the purpose of this paragraph, Xxxxxxxx shall be deemed to be interested in a business or operation
which is competitive with the Company if Xxxxxxxx is a holder of five percent (5%) or more of the
issued and outstanding ownership interests in such business or operation, or serves as a director,
officer, employee, agent, partner, individual proprietor, lender, consultant, or independent
contractor of such business or operation.
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Section 2.4 Non-Disclosure of Confidential Information. Xxxxxxxx acknowledges that in
connection with his employment by the Company or its affiliates, he has and may acquire or learn
“Confidential Information” of the Company by virtue of a relationship of trust and confidence
between Xxxxxxxx and the Company. Xxxxxxxx warrants and agrees that during the Term he shall not
disclose to anyone (other than to officers of the Company or to such other persons as such officers
may designate), or use, except in the course of his employment with the Company or its affiliates,
any Confidential Information acquired by him in the course of or in connection with his employment.
As used herein, the term “Confidential Information” shall include, but not be limited to: all
information of any type or kind, whether or not reduced to a writing and whether or not conceived,
originated, discovered or developed in whole or in part by Xxxxxxxx, which is directly related to
the Company, its operations, policies, agreements with third parties, its financial affairs and
related matters, including business plans, strategic planning information, product information,
purchase and sales information and terms, supplier negotiation points, styles and strategies,
contents and terms of contracts between the Company and suppliers, advertisers, vendors, contact
persons, terms of supplier and/or vendor contracts or particular transactions, potential supplies
and/or vendors, or other related data; marketing information such as but not limited to, prior,
ongoing or proposed marketing programs, presentations, or agreements by or on behalf of the
Company, pricing information, customer bonus programs, marketing tests and/or results of marketing
efforts, computer files, lists and reports, manuals and memos pertaining to the business of the
Company, lists or compilations of vendor and/or supplier names, addresses, phone numbers,
requirements and descriptions, contract information sheets, compensation requirements or terms,
benefits, policies, and any other financial information whether about the Company, entities related
or affiliated with the Company or other key information pertaining to the business of the Company,
including but not limited to all information which is not generally available to or known in the
information services industry (or is available only as a result of an unauthorized disclosure) and
is treated by the Company as “Confidential Information” during the term of this Agreement,
regardless of whether or not such Information is a “trade secret” as otherwise defined by
applicable law unless such information is in the public domain.
Section 2.5 No Solicitation of Company’s Employees. Xxxxxxxx specifically agrees that
during the Term and for a period of one (1) year after his termination of employment with the
Company, Xxxxxxxx shall not, directly or indirectly, either for himself or for any other person,
firm, corporation, or legal entity, solicit any individual, then employed by the Company to leave
the employment of the Company with the exception of Xxxxxxx Xxxxxxxx.
Section 2.6 Ownership of Work Product and Ideas. Any discoveries, inventions,
patents, materials, licenses and ideas applicable to the industry or relating to Xxxxxxxx’x
services for the Company or its affiliates, whether or not patentable or copyrightable, created by
Xxxxxxxx during his employment by the Company or its affiliates (“Work Product”) and all business
opportunities within the industry (“Opportunities”) introduced to Xxxxxxxx by the Company or its
affiliates will be owned by the Company, and Xxxxxxxx will have no personal interest in such,
except to the extent that the Company allows Xxxxxxxx to invest or participate in or have other
rights to such Work Product or Opportunities. Xxxxxxxx will, in such connection, promptly disclose
any such Work Product and Opportunities to the Company and, upon request of the Company, will
assign to the Company all right in such Work Product and Opportunities.
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ARTICLE 3
COMPENSATION; BENEFITS
Section 3.1 Salary. The Company shall pay Xxxxxxxx seven thousand nine hundred
sixteen Dollars and sixty seven cents ($7,916.67) on a semi-monthly basis, for an annualized base
salary (“Base Salary”) of One Hundred Ninety Dollars ($190,000). Beginning with the first
anniversary of the Effective Date and for each subsequent year of employment (or any portion of any
such year), Xxxxxxxx shall be entitled to a Base Salary review by the Company to determine if any
increase to Base Salary is warranted as a result of performance.
Section 3.2 Bonus. The primary focus of Xxxxxxxx’x employment is to increase the
Payment Products Division revenue. As an incentive to achieving this end, a cash bonus, paid
quarterly, equal to four percent (4%) of the revenue increase, if any, determined by comparing the
Top-line Revenues for the prior fiscal year’s quarter against the Top-line Revenues for the current
fiscal quarter (“Revenue Growth Bonus”) shall be paid to Xxxxxxxx within thirty (30) days of the
Company’s fiscal quarter’s end. In the event that the Company’s cash position at the end of any
fiscal quarter is such that the Company, in good faith, determines that it will not have sufficient
cash to fund its business operations for the next three successive fiscal quarters, then, in lieu
of an all cash Revenue Growth Bonus, Xxxxxxxx will, at his option, receive a Revenue Growth Bonus
payable as follows: (i) cash in any portion Xxxxxxxx chooses, up to but not exceeding fifty percent
(50%) of the Revenue Growth Bonus amount, and (ii) the remaining balance of the Revenue Growth
Bonus shall be payable in shares of restricted common stock equal to one hundred ten percent (110%)
of the non-cash balance of the Revenue Growth Bonus granted at the date of the current 10-q or 10-k
filing. If the cash payment is not made, it will be accrued at a 10% interest rate. For the purpose
of this Agreement, “Top-line Revenues” shall mean all revenues recognized by the Company during the
fiscal year in accordance with generally accepted accounting principles (GAAP) and as reported in
the Company’s SEC Forms 10-q and 10-k. In the event Xxxxxxxx is paid a Revenue Growth Bonus and
the Top-line Revenues for the fiscal quarter in question are subsequently adjusted (such adjustment
being made in accordance with GAAP and reported as an amendment to the corresponding SEC Form 10-q
or 10-k as such) then, as a result: (i) if the Revenue Growth Bonus is determined to have been
underpaid, any resulting increase in cumulative bonuses due will be promptly paid on the next
succeeding payroll processing date; conversely, (ii) if the Revenue Growth Bonus is determined to
have been overpaid (either by accounting adjustment or negative Top-line Revenues for the
subsequent fiscal quarter) any Revenue Growth Bonus previously paid and determined (in accordance
with GAAP) to have been overpaid, shall be offset against any subsequent Revenue Growth Bonus
earned during the Term of this Agreement. In no case will the bonus earned exceed four percent (4%)
of the increase of the Top-line Revenue for the fiscal year. Upon termination of this Agreement,
any offset to be made against future Revenue Growth Bonuses shall be deemed non-recoverable.
Section 3.3 FY2006 Bonus. In recognition for the Xxxxxxxx’x part in securing a major
contract, the Company will pay Xxxxxxxx forty eight thousand one hundred twenty five dollars
($48,125) at the effective date of this agreement and the remaining forty eight thousand one
hundred twenty five dollars ($48,125) in twenty four (24) installments, semi-monthly, in the
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amount of two thousand and five dollars and twenty one cents ($2,005.21) for his successful
efforts in securing this sale.
Section 3.4 Paid Vacation. Xxxxxxxx shall be entitled to be paid vacation time under
the Company’s policies applicable to other senior executives of the Company’s policies, but in no
event shall Xxxxxxxx be eligible for less than four (4) weeks of paid time off per calendar year.
Section 3.5 Stock Options.
(a) Subject to approval of the Compensation Committee of the Board of Directors, which such
grant shall be made as promptly hereafter as practicable, the Company will grant to Xxxxxxxx an
option to purchase five hundred fifty thousand (550,000) shares of common stock of the Company
under the Plan, which shall be intended to qualify as an incentive stock option to the maximum
extent permitted under Section 422 of the Internal Revenue Code of 1986, as amended. The option
shall be subject to the terms and conditions of the Plan and an option agreement to be entered into
between the Company and Xxxxxxxx, in a form approved by the Compensation Committee of the Board of
Directors which option agreement shall provide that such option shall have a ten (10) year term
(subject to earlier termination in connection with termination of employment). All such options
will have the exercise price per share equal to the fair market value of the Company’s common stock
as of the date of grant.
(b) The option shall vest and become exercisable, subject to continued employment as follows:
(i) one hundred fifty thousand (150,000) shares of common stock shall vest on April 3, 2006;
(ii) two hundred thousand (200,000) shares of common stock shall vest on April 3, 2007,
(iii) two hundred thousand (200,000) shares of common stock shall vest on April 3, 2008, and,
(iv) in each case to become fully vested and exercisable upon a Change in Control as defined
in the Plan (a “Change in Control”).
(c) Xxxxxxxx shall be eligible to receive additional grants of options pursuant to the Plan in
the sole discretion of the Compensation Committee of the Board of Directors.
Section 3.6 Other Benefits. During the Term, Xxxxxxxx shall be entitled to
participate in present and future employee benefit plans which are available to the Company’s
employees, subject to eligibility requirements thereunder.
Section 3.7 Disability or Death. If the Board of Directors determines, on the basis
of professional medical advice, that Xxxxxxxx has become unable to substantially perform his duties
under this Agreement due to illness or mental or physical disability with reasonable accommodation,
and that such failure or inability has continued or is reasonably expected to continue for any
consecutive six-month period, the Company shall have the option to terminate
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this Agreement by giving written notice to Xxxxxxxx thereof and the basis therefor at least thirty (30) days prior to
the effective date of termination. This Agreement shall also terminate immediately upon Xxxxxxxx’x
death. If Xxxxxxxx’x employment with the Company is terminated pursuant to this Section 3.7, the
Company shall pay Xxxxxxxx the salary, bonuses, and commissions which are earned but unpaid as of
the date of termination.
Section 3.8 Severance.
(a) If the Company terminates Xxxxxxxx’x employment other than for Cause pursuant to Section
1.3(d), other than by reason of death or Disability pursuant to Section 3.7, or if Xxxxxxxx resigns
within ten (10) days following a material reduction in his duties (as per Section 2.2) or material
reduction of compensation within six (6) months following a Change in Control then subject to
Xxxxxxxx’x continuing obligations under Section 2.4 and Section 2.5 and in consideration of the
execution, delivery and effectiveness of a general release of claims in a standard form approved by
the Company, the Company shall pay to Xxxxxxxx a lump sum of two (2) times Xxxxxxxx’x current Base
Salary in cash, any Revenue Growth Bonus (calculated on a trailing twelve month (TTM) year-to-year
basis) and shall vest one hundred percent (100%) of Xxxxxxxx’x then remaining unvested portion of
the Stock Options granted in accordance with this Agreement, in addition to other amounts payable
from qualified plans, nonqualified retirement plans, and deferred compensation plans, which amounts
shall be paid in accordance with the terms of such plans, any unpaid FY2006 bonus accrued but
unpaid (Section 3.3), within fifteen (15) days after the date of termination (or, if later, upon
the effectiveness of the general release following any applicable revocation period).
(b) If the Company terminates Xxxxxxxx’x employment for Cause, or if Xxxxxxxx resigns, then
Xxxxxxxx shall only be entitled to be paid his accrued, unpaid Base Salary through the effective
date of his termination of employment, any Revenue Growth Bonus (calculated on a trailing twelve
month year-to-year basis), any unpaid FY2006 bonus accrued but unpaid (Section 3.3), and his
entitlement to other amounts payable from qualified plans, nonqualified retirement plans, and
deferred compensation plans shall be determined in accordance with the terms of such plans.
(c) No severance benefits shall be provided pursuant to this Section 3.8 if Xxxxxxxx’x
employment is terminated by reason of expiration or non-renewal of this Agreement in accordance
with Section 1.2. with the exception of any earned Revenue Growth Bonus or any unpaid FY2006 bonus.
Section 3.9 Excess Parachute Payments.
(a) If there is a “Change in Control” of the Company within the meaning of Section 280G of
the Internal Revenue Code of 1986, as amended (the “Code”), a portion of the benefits to which
Xxxxxxxx is entitled under this Agreement could be characterized as “excess
parachute payments” within the meaning of Section 280G of the Code. The parties hereto
acknowledge that the protections set forth in this Section 3.9 are important, and it is agreed that
Xxxxxxxx should not have to bear the full burden of the excise tax that might be levied under
Section 4999 of the Code or any similar provision of federal, state of local law, in the event that
any portion of the benefits payable to Xxxxxxxx pursuant to this Agreement or the other incentive
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plans of the Company are treated as an excess parachute payment. The parties, therefore, have
agreed as set forth in this Section 3.9.
(b) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that
any payment or distribution (including income recognized by Xxxxxxxx upon the early vesting of
restricted property or upon the exercise of options whose exercise date has been accelerated) by
the Company or any other Person to or for the benefit of Xxxxxxxx (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined
without regard to any additional payments required under this Section 3.9, (a “Payment”) would be
subject to the excise tax imposed by Section 4999 of the Code or any similar provision of any
federal, state or local law or any interest or penalties are incurred by Xxxxxxxx with respect to
such excise tax (such excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the “Excise Tax”), then the Company shall pay an additional payment,
not to exceed the amount of Xxxxxxxx’x then current Base Salary in the aggregate (a “Gross-Up
Payment”), in an amount such that after payment by Xxxxxxxx of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation, any income taxes (and
any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Gross-Up
Payment, Xxxxxxxx retains an amount of the Gross-Up Payment equal to fifty percent (50%) of the
Excise Tax imposed on the Payments. Xxxxxxxx will bear the cost of the remaining fifty percent
(50%) until the aggregate Gross-Up Payments from the Company have reached the amount of Xxxxxxxx’x
then current Base Salary, and will thereafter bear all additional taxes, interest or penalties.
(c) In the event of any dispute as to the applicability or amount of any Gross-Up Payment, all
determinations required to be made under this Section 3.9, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by the independent public accounting firm regularly
employed by the Company (the “Accounting Firm”) which shall provide detailed supporting
calculations both to the Company and to Xxxxxxxx within fifteen (15) business days after the
receipt of notice from Xxxxxxxx that there has been a Payment, or such earlier time as is requested
by the Company. All fees and expenses of the Accounting Firm will be borne by the Company. If the
Accounting Firm determines that no Excise Tax is payable by Xxxxxxxx, it shall furnish Xxxxxxxx
with a written statement that failure to report the Excise Tax on Xxxxxxxx’x applicable federal
income tax return would not result in the imposition of a negligence or similar penalty. Any
determination by the Accounting Firm shall be binding on the Company and Xxxxxxxx unless and until
a final determination is received from the Internal Revenue Service indicating a contrary result.
As a result of uncertainty in the application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments may
not have been made by the Company that should have been made (“Underpayment”), consistent with the
calculations required to be made hereunder. If Xxxxxxxx thereafter is required to make a payment
of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Xxxxxxxx,
consistent with the maximum limitation stated in this Section 3.9. In the event it is determined
by the Accounting Firm that the Gross Payments previously made by the Company exceeded the
limitations stated in this Section 3.9, upon written notice from the Company, accompanied by a
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copy of the Accounting Firm’s calculation of same, the amount of such overpayment shall be promptly paid
by Xxxxxxxx to the Company.
ARTICLE 4
MISCELLANEOUS PROVISIONS
Section 4.1 Entire Agreement. This Agreement contains the entire Agreement between
the Parties and supersedes all prior oral and written Agreements, understandings, commitments, or
practices between the Parties with respect to the subject matter hereof. Other than as expressly
set forth herein, Xxxxxxxx and the Company acknowledge and represent that there are no other
promises, terms, conditions or representations (verbal or written) regarding any matter relevant
hereto. No supplement, modification, or amendment of any term, provision or condition of this
Agreement shall be binding or enforceable unless evidenced in writing and executed by the parties.
The provisions of Sections 2.4, 2.5, and 2.6 shall survive termination of this Agreement.
Section 4.2 Applicable Law. This Agreement shall be governed exclusively by and
construed in accordance with the laws of the State of Texas, notwithstanding choice of law
provisions thereof; and the venue of any litigation commenced hereunder shall be Houston, Texas.
Section 4.3 Injunctive Relief. Xxxxxxxx acknowledges that his services are of a
special, unique, unusual, extraordinary and intellectual character, which gives them a peculiar
value, the loss of which cannot be reasonably or adequately compensated in damages in an action at
law. If he should breach this Agreement, in addition to its rights and remedies under general law,
the Company shall be entitled to seek equitable relief by way of injunction or otherwise.
Section 4.4 Partial Invalidity. If the application of any provision of this
Agreement, or any section, subsection, subdivision, sentence, clause, phrase, word or portion of
this Agreement should be held invalid or unenforceable, the remaining provisions thereof shall not
be affected thereby, but shall continue to be given full force and effect as if the invalid or
unenforceable provision had not been included herein.
Section 4.5 Notices. Notices given under this Agreement shall be given by registered
or certified mail, postage prepaid, return receipt requested, or by personal delivery to the
respective addresses of the parties. Notices to Xxxxxxxx shall be sent to 0000 Xxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attn: Xxxxx X. Xxxxxxxx. Notices to the Company shall be sent to
0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attn: Chief Executive Officer. A mailed
first-class notice shall be deemed given two (2) business days after deposit with U.S. Postal
Service.
Section 4.6 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which shall constitute one and the same
instrument.
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Section 4.7 Assignment. This Agreement may not be assigned or encumbered in any way
by Xxxxxxxx. The Company may assign this Agreement to any successor (whether by merger,
consolidation, or purchase of the Company’s stock) to all or a controlling interest in the
Company’s business, in which case this Agreement shall be binding upon and inure to the benefit of
such successor(s) and assign(s).
Section 4.8 Limitation on Waiver. A waiver of any term, provision, or condition of
this Agreement shall not be deemed to be, or constitute a waiver of any other term, provision or
condition herein, whether or not similar. No waiver shall be binding unless in writing and signed
by the waiving party.
Section 4.9 Attorney’s Fees. In the event that any proceeding is commenced involving
the interpretation or enforcement of the provisions of this Agreement, the Party prevailing in such
proceeding shall be entitled to recover its reasonable costs and attorneys’ fees.
Section 4.10 Taxes. All payments made pursuant to the provisions of this Agreement
shall be subject to the withholding of applicable taxes.
Section 4.11 Not for the Benefit of Creditors or Third Parties. The provisions of
this Agreement are intended only for the regulation of relations among the parties. This Agreement
is not intended for the benefit of creditors of the parties or other third parties and no rights
are granted to creditors of the parties or other third parties under this Agreement.
IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date.
| US DATAWORKS, INC. | ||||||
| By | /s/ Xxxxxxx X. Xxxxx
|
|||||
| Name | Xxxxxxx X. Xxxxx | |||||
| Title: | Chief Executive Officer | |||||
| /s/ Xxxxx X. Xxxxxxxx | ||||||
| Xxxxx X. Xxxxxxxx | ||||||
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