Exhibit 10.20
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of November 18, 1998, is by and
between INTERIM SERVICES INC., a Delaware corporation (hereinafter referred
to as the "Company"), and XXXX XXXX (hereinafter the "Executive").
RECITALS
A. The Executive currently serves as the Company's
President, Commercial Staffing Group, and his services and knowledge are
valuable to the Company in connection with the management of its business.
B. The Company desires to continue to employ the Executive
and to enter into a new agreement embodying the terms of such employment.
C. The Executive desires to continue the Executive's
employment and to enter into a new agreement embodying the terms of such
employment.
AGREEMENTS
NOW, THEREFORE, to induce the Executive to remain in the
employ of the Company and its subsidiaries, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Company and the Executive agree as follows:
1. EMPLOYMENT.
During the Term of Employment (as defined in Section 2
hereof), the Executive shall serve as President, Commercial Staffing Group.
The Executive shall perform and assume all duties and responsibilities
customary to such position and shall devote all of his business time and
energies thereto. In carrying out such duties and responsibilities, the
Executive shall report to, and be subject to the direction of, Chief
Operating Officer and the Board of Directors of the Company (the "Board").
2. TERM.
The Term of Employment under this Agreement shall commence as
of the date of this Agreement and shall continue at the will of the Company
and the Executive (the "Term of Employment"). Either party may terminate the
Executive's employment at any time and for any reason.
3. BASE SALARY.
The Company shall pay the Executive, in accordance with the
Company's regular payroll practices applicable to salaried employees, an
annualized base salary at the rate in effect on the date of this Agreement,
as the same may from time to time be increased or decreased at
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the sole discretion of the Compensation Committee of the Board (the
"Compensation Committee").
4. INCENTIVE AWARDS.
a) The Executive shall participate in the Company's annual
incentive plan for senior-level executives as in effect from time to time,
subject to the performance standards set by the Compensation Committee.
Payment of any annual incentive award shall be made at the same time that
such awards are paid to other senior-level executives of the Company. The
Executive's annual incentive award target shall be set by the Compensation
Committee.
b) The Executive shall be eligible to receive grants under
the Company's long-term incentive plan as in effect from time to time;
provided, however, that the size, type and other terms and conditions of any
such grant to the Executive shall be determined by the Compensation Committee.
5. BENEFITS, FRINGES AND PERQUISITES.
The Executive shall be entitled to participate in all employee
pension and welfare benefit, fringe benefit and perquisite plans and programs
made available to the Company's senior-level executives as in effect from
time to time.
6. VACATION.
The Executive shall be entitled to vacation in accordance with
the Company's vacation policy applicable to its senior-level executives.
Vacations shall be arranged in order that they not materially interfere with
the normal functioning of the Company's business activities or the
performance of the Executive's duties hereunder.
7. BUSINESS EXPENSES.
The Company shall reimburse the Executive for any ordinary,
necessary and reasonable business expenses that the Executive incurs in
connection with the performance of his duties under this Agreement, in
accordance with the Company's policy regarding the reimbursement of business
expenses.
8. TERMINATION OF EMPLOYMENT.
a) DEATH OR DISABILITY. The Executive's employment shall
terminate upon the Executive's Death, and Company may terminate the Executive's
employment due to Disability (as defined herein). If, during the Term of
Employment, the Executive's employment is terminated due to Death or Disability,
the Executive (or Executive's estate or legal representative, as the case may
be) shall be entitled to receive:
i) Executive's base salary through the date of such
termination of employment at the rate in effect at the time thereof;
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ii) an amount, payable at the same time that annual
incentive awards for the year in which the Executive's employment so
terminates are paid to senior-level executives of the Company, equal
to the product of the Executive's annual incentive award target for
such year and a fraction, the numerator of which is the number of days
in such year through the date of such termination of employment, and
the denominator of which is 365; provided, however, that no such
amount shall be paid to the Executive (or to Executive's estate or
legal representative, as the case may be) if annual incentive awards
for such year are not paid to senior-level executives of the Company
generally;
iii) reimbursement for expenses incurred by the
Executive in accordance with the Company's policy but not reimbursed
prior to the date of such termination of employment;
iv) any vested deferred base salary and annual
incentive awards (including, without limitation, interest or other
credits on such deferred amounts); and
v) any other compensation or benefits that may be
owed or provided to the Executive in accordance with the terms and
conditions of any applicable plans and programs of the Company.
For purposes of this Agreement, "Disability" shall mean the
Executive's inability, by reason of illness or other physical or mental
disability, to perform the principal duties required by the position held by
the Executive at the inception of such illness or disability, for any
consecutive 180-day period. A determination of Disability shall be subject to
the certification of a qualified medical doctor agreed to by the Company and
the Executive or, in the Executive's incapacity to designate a doctor, the
Executive's legal representative. If the Company and the Executive cannot
agree on the designation of a doctor, then each party shall nominate a
qualified medical doctor and the two doctors shall select a third doctor, and
the third doctor shall make the determination as to Disability.
b) FOR CAUSE. The Company may terminate the Executive's
employment for Cause (as defined herein) if the Board determines that Cause
exists and serves written notice of such termination to the Executive. If,
during the Term of Employment, the Company terminates the Executive's
employment for Cause, all of the Executive's annual incentive awards,
long-term incentive awards, stock options and other stock or long-term
incentive grants which are not then vested or not then exercisable shall be
canceled as of the date of the Board's written notice of termination, and the
Executive shall be entitled to receive:
i) Executive's base salary through the date of
such termination of employment at the rate in effect at the time
thereof;
ii) reimbursement for expenses incurred by the
Executive in accordance with the Company's policy but not reimbursed
prior to the date of such termination of employment;
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iii) any vested deferred base salary and vested
annual incentive awards (including, without limitation, interest or
other credits on such deferred amounts but not including unvested
bonuses or amounts payable for the year in which the Board's written
notice of termination for Cause is made, or unvested bonuses or
amounts payable after the Board's written notice of termination for
Cause is made); and
iv) any other compensation or benefits that may be
owed or provided to the Executive in accordance with the terms and
conditions of any applicable plans and programs of the Company.
The Executive shall be entitled to receive no other
compensation or benefits, whether pursuant to this Agreement or
otherwise, except as and to the extent required by law.
For purposes of this Agreement, "Cause" shall mean one or more
of the following:
(I) the material violation of any of the terms and
conditions of this Agreement or any written agreements the Executive
may from time to time have with the Company (after 30 days following
written notice from the Board specifying such material violation and
Executive's failure to cure or remedy such material violation within
such 30-day period);
(II) inattention to or failure to perform Executive's
assigned duties and responsibilities competently for any reason other
than due to Disability (after 30 days following written notice from
the Board specifying such inattention or failure, and Executive's
failure to cure or remedy such inattention or failure within such
30-day period);
(III) engaging in activities or conduct injurious to the
reputation of the Company or its affiliates including, without
limitation, engaging in immoral acts which become public information
or repeatedly conveying to one person, or conveying to an assembled
public group, negative information concerning the Company or its
affiliates;
(IV) commission of an act of dishonesty, including, but not
limited to, misappropriation of funds or any property of the Company;
(V) commission by the Executive of an act which constitutes
a misdemeanor (involving an act of moral turpitude) or a felony;
(VI) the material violation of any of the Policies referred
to in Section 9 hereof (after 30 days following written notice from
the Board specifying such failure, and the Executive's failure to cure
or remedy such inattention or failure within such 30-day period);
(VII) refusal to perform the Executive's assigned duties and
responsibilities or other insubordination (after 30 days following
written notice from the Board specifying
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such refusal or insubordination, and the Executive's failure to cure
or remedy such refusal or insubordination within such 30-day period);
or
(VIII) unsatisfactory performance of duties by the Executive
as a result of alcohol or drug use by the Executive.
c) WITHOUT CAUSE. The Company may terminate the
Executive's employment without Cause. If, during the Term of Employment, the
Company terminates the Executive's employment without Cause, other than due
to Disability, then in lieu of any amount otherwise payable under this
Agreement, or as damages for termination of Executive's employment without
Cause, the Executive shall be entitled to receive:
i) Within thirty (30) days of the date of the
Board's written notice of termination without Cause, a lump sum cash
severance payment (reduced by any applicable payroll or other taxes
required to be withheld) equal to the sum of the Executive's annual
salary for the current year plus his target bonus for the current year
(provided that if the notice of termination is given prior to the
determination of the Executive's salary or target bonus for the year
in which the notice of termination is given, then the amounts shall be
the annual salary for the prior year and the greater of the target
bonus for the prior year or the actual bonus earned by the Executive
for the prior year). The current year shall be (A) for purposes of
determining annual salary, the year then generally used by the Company
for setting salaries for senior-level executives (currently April 1
through the following March 31), and (B) for purposes of determining
target bonus, the fiscal year then generally used by the Company for
setting target bonuses for senior-level executives, in which the Board
gives the Executive written notice of termination, and the prior year
shall be the twelve-month period immediately preceding the current
year.
ii) Reimbursement for expenses incurred by the
Executive in accordance with the Company's policy but not reimbursed
prior to the date of such termination of employment.
iii) Any vested deferred base salary and annual
incentive awards (including, without limitation, interest or other
credits on such deferred amounts).
iv) Any other compensation or benefits that may be
owed or provided to the Executive in accordance with the terms and
conditions of any applicable plans and programs of the Company.
If the Company terminates Executive's employment without
Cause, any vesting or service requirements with respect to any
employee stock options granted to the Executive and then outstanding
shall be deemed satisfied.
d) VOLUNTARY TERMINATION. If, during the Term of
Employment, the Executive terminates his employment other than due to
Retirement, the Executive shall be entitled to receive:
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i) Executive's base salary through the date of
such termination of employment at the rate in effect at the time
thereof;
ii) reimbursement for expenses incurred by the
Executive in accordance with the Company's policy but not reimbursed
prior to the date of such termination of employment;
iii) any vested deferred base salary and annual
incentive awards (including, without limitation, interest or other
credits on such deferred amounts); and
iv) no other compensation or benefits except as and
to the extent required by law.
e) INELIGIBILITY FOR SEVERANCE PLAN PAYMENTS. Anything in
this Agreement to the contrary notwithstanding, Executive shall not be
entitled to any payment under any of the Company's severance plans, programs
or arrangements.
9. COMPANY POLICIES.
The Executive shall strictly follow and adhere to all written
policies of the Company which are not inconsistent with this Agreement or
applicable law including, without limitation, securities laws compliance
(including, without limitation, use or disclosure of material nonpublic
information, restrictions on sales of Company stock, and reporting
requirements), conflicts of interest (including, without limitation, doing
business with the Company or its affiliates without the prior approval of the
Board), and employee harassment.
10. CONFIDENTIALITY.
The Executive will not at any time (whether during or after
Executive's employment with the Company) disclose or use for Executive's own
benefit or purposes, or for the benefit or purpose of any other person, firm,
partnership, joint venture, association, corporation or other business
organization, entity or enterprise, any trade secrets, information, data, or
other confidential information relating to customers, employees, job
applicants, services, development programs, prices, costs, marketing,
trading, investment, sales activities, promotion, processes, systems, credit
and financial data, financing methods, plans, proprietary computer software,
request for proposal documents, or the business and affairs of the Company
generally, or of any affiliate of the Company; provided, however, that the
foregoing shall not apply to information which is generally known to the
industry or the public other than as a result of the Executive's breach of
this covenant. The Executive agrees that upon termination of his employment
with the Company for any reason, he will return to the Company immediately
all memoranda, books, papers, plans, information, letters and other data, and
all copies thereof or therefrom (whether in written, printed or electronic
form), in any way relating to the business of the Company and its affiliates.
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The Executive acknowledges and agrees that the Company's remedies at
law for a breach or threatened breach of any of the provisions of this
Section would be inadequate and, in recognition of this fact, the Executive
agrees that, in the event of such a breach or threatened breach, in addition
to any remedies at law, the Company, without posting any bond, shall be
entitled to obtain equitable relief in the form of specific performance, a
temporary restraining order, a temporary or permanent injunction or any other
equitable remedy which may then be available.
11. COVENANT NOT TO COMPETE.
a) IN GENERAL. The Executive agrees that during
Executive's employment with the Company and for a period of one (1) year
after the termination of such employment for whatever reason (the
"Non-Compete Period"), he shall not, anywhere in the world:
i) engage in any business, whether as an employee,
consultant, partner, principal, agent, representative or stockholder
(other than as a stockholder of less than a one percent (1%) equity
interest) or in any other corporate or representative capacity with
any other business, whether in corporate, proprietorship, or
partnership form or otherwise, where such business is engaged in any
activity which competes with the business of the Company or its
affiliates as conducted on the date the Executive's employment
terminated or during the 180 day period prior thereto, or which will
compete with any proposed business activity of the Company in the
planning stage on such date or during such period;
ii) solicit business from, or perform services for,
or induce others to perform services for, any company or other
business entity which at any time during the one (1) year period
immediately preceding the Executive's termination of employment with
the Company was a client of the Company or its affiliates; or
iii) offer, or cause to be offered, employment with
any business, whether in corporate, proprietorship, or partnership
form or otherwise, either on a full-time, part-time or consulting
basis, to any person who was employed by the Company or its affiliates
or for whom the Company or its affiliates performed outplacement
services, in either case at any time during the one (1) year period
immediately preceding the date the Executive's termination of
employment with the Company.
For purposes of this Agreement, affiliates of the Company
include subsidiaries 50% or more owned by the Company and the
Company's franchisees and licensees.
b) CONSIDERATION. The consideration for the foregoing
covenant not to compete, the sufficiency of which is hereby acknowledged, is
the Company's agreement to employ the Executive and provide compensation and
benefits pursuant to this Agreement.
c) EQUITABLE RELIEF AND OTHER REMEDIES. The Executive
acknowledges and agrees that the Company's remedies at law for a breach or
threatened breach of any of the provisions of this Section would be
inadequate and, in recognition of this fact, the Executive
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agrees that, in the event of such a breach or threatened breach, in addition
to any remedies at law, the Company, without posting any bond, shall be
entitled to obtain equitable relief in the form of specific performance,
temporary restraining order, a temporary or permanent injunction or any other
equitable remedy which may then be available.
d) REFORMATION. If the foregoing covenant no to compete
would otherwise be determined invalid or unenforceable by a court of
competent jurisdiction, such court shall exercise its discretion in reforming
the provisions of this Section to the end that the Executive be subject to a
covenant not to compete, reasonable under the circumstances, enforceable by
the Company.
12. COMPANY POLICIES, PLANS AND PROGRAMS.
Whenever any rights under this Agreement depend on the terms
of a policy, plan or program established or maintained by the Company, any
determination of these rights shall be made on the basis of the policy, plan
or program in effect at the time as of which the determination is made. No
reference in this Agreement to any policy, plan or program established or
maintained by the Company shall preclude the Company from prospectively or
retroactively changing or amending or terminating that policy, plan or
program or adopting a new policy, plan or program in lieu of the
then-existing policy, plan or program.
13. BINDING AGREEMENT; SUCCESSORS.
a) This Agreement shall be binding upon and shall inure to
the benefit of the Company and its successors and assigns. The Company shall
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company, by agreement to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken
place. For purposes of this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid.
b) This Agreement shall be binding up and shall inure to
the benefit of the Executive and the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
beneficiaries, devises and legatees. If the Executive should die while any
amounts are payable to him hereunder, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement
to the Executive's devisee, legatee, beneficiary or other designee or, if
there be no such designee, to the Executive's estate.
14. CHANGE IN CONTROL AGREEMENTS.
Simultaneously with the execution and delivery of this
Agreement, the Company and the Executive have executed and delivered a Change
In Control Agreement ("C-I-C Agreement"), which applies under the
circumstances and during the period described therein. If circumstances
arise which cause both the C-I-C Agreement and this Agreement to apply to the
Company and the Executive, then, to the extent of any inconsistency between
the provisions of
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this Agreement and the C-I-C Agreement, the terms of the C-I-C Agreement
alone shall apply. However, if the C-I-C Agreement does not apply (as, for
example, if there is no Change in Control as described therein, or the C-I-C
Agreement has expired, or the C-I-C Agreement simply does not apply), then
the provisions of this Agreement shall control and be unaffected by the C-I-C
Agreement.
15. NOTICES.
For the 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 (i) on the date of delivery if delivered by hand, (ii)
on the date of transmission, if delivered by confirmed facsimile, (iii) on
the first business day following the date of deposit if delivered by
guaranteed overnight delivery service, or (iv) on the third business day
following the date delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
Xxxx Xxxx
0000 X.X. 00 Xxxxxxx
Xxxxxxxx, XX 00000
If to the Company:
Interim Services Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
16. GOVERNING LAW.
The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of Florida, without
regard to principles of conflicts of laws.
17. ENTIRE AGREEMENT; AMENDMENT.
This Agreement and the C-I-C Agreement contain the entire
agreement between the parties concerning the subject matter hereof and
supersede all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with respect to
the subject matter hereof. No provisions of this Agreement may be amended,
modified, waived or discharged unless such amendment, waiver, modification or
discharge is agreed to in writing signed by the Executive and the Company.
No agreements or
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representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement.
18. 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 will
constitute one and the same instrument.
19. NON-ASSIGNABILITY.
This Agreement is personal in nature and neither of the
parties hereto shall, without the consent of the other, assign, or transfer
this Agreement or any rights or obligations hereunder, except as provided in
Section 13. Without limiting the foregoing, the Executive's right to receive
payments hereunder shall not be assignable or transferable, whether by
pledge, creation of a security interest or otherwise, other than a transfer
by his will or trust or by the laws of descent or distribution, and in the
event of any attempted assignment or transfer contrary to this paragraph the
Company shall have no liability to pay any amount so attempted to be assigned
or transferred.
20. RESOLUTION OF DISPUTES.
a) The parties shall submit any claim, demand, dispute,
charge or cause of action (in any such case, a "Claim") arising out of, in
connection with, or relating to this Agreement to binding arbitration in
conformance with the J*A*M*S/ENDISPUTE Streamlined Arbitration Rules and
Procedures or the J*A*M*S/ENDISPUTE Comprehensive Arbitration Rules and
Procedures, as applicable, but expressly excluding Rule 28 of the J*A*M*S/
ENDISPUTE Streamlined Rules and Rule 32 of the J*A*M*S/ENDISPUTE
Comprehensive Rules, as the case may be. All arbitration procedures shall be
held in Fort Lauderdale, Florida and shall be subject to the choice of law
provisions set forth in Section 16 of this Agreement.
b) In the event of any dispute arising out of or relating
to this Agreement for which any party is seeking injunctive relief, specific
performance or other equitable relief, such matter may be resolved by
litigation. Accordingly, the parties shall submit such matter to the
exclusive jurisdiction of the United States District Court for the Southern
District of Florida or, if jurisdiction is not available therein, any other
court located in Broward County, Florida, and hereby waive any and all
objections to such jurisdiction or venue that they may have. Each party
agrees that process may be served upon such party in any manner authorized
under the laws of the United States or Florida, and waives any objections
that such party may otherwise have to such process.
21. NO SETOFF.
The Company shall have no right of setoff or counterclaim in
respect of any claim, debt or obligation against any payment provided for in
this Agreement.
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22. NON-EXCLUSIVITY OF RIGHTS.
Nothing in this Agreement shall prevent or limit the
Executive's continuing or future participation in any benefit, bonus,
incentive or other plan or program provided by the Company or any of its
subsidiaries or successors and for which the Executive may qualify, nor shall
anything herein limit or reduce such rights as the Executive may have under
any other agreements with the Company or any of its subsidiaries or
successors. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan or program of the Company or any
of its subsidiaries shall be payable in accordance with such plan or program,
except as explicitly modified by this Agreement.
23. WITHHOLDING.
The Company may withhold from any amounts payable under this
Agreement such federal, state and local taxes as are required to be withheld
(with respect to amounts payable hereunder or under any benefit plan or
arrangement maintained by the Company) pursuant to any applicable law or
regulation.
24. INVALIDITY OF PROVISIONS.
In the event that any provision of this Agreement is
adjudicated to be invalid or unenforceable under applicable law in any
jurisdiction, the validity or enforceability of the remaining provisions
thereof shall be unaffected as to such jurisdiction and such adjudication
shall not affect the validity or enforceability of such provision in any
other jurisdiction. To the extent that any provision of this Agreement is
adjudicated to be invalid or unenforceable because it is overbroad, that
provision shall not be void but rather shall be limited to the extent
required by applicable law and enforced as so limited. The parties expressly
acknowledge and agree that Sections 11 and 24 are reasonable in view of the
parties' respective interests.
25. NON-WAIVER OF RIGHTS.
The failure by the Company or the Executive to enforce at any
time any of the provisions of this Agreement or to require at any time
performance by the other party of any of the provisions hereof shall in no
way be construed to be a waiver of such provisions or to affect either the
validity of this Agreement, or any part hereof, or the right of the Company
or the Executive thereafter to enforce each and every provision in accordance
with the terms of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered as of the day and year first above set forth.
PLEASE NOTE: BY SIGNING THIS AGREEMENT, THE EXECUTIVE IS HEREBY CERTIFYING
THAT THE EXECUTIVE (A) HAS RECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND
STUDY BEFORE EXECUTING IT; (B) HAS READ THIS AGREEMENT CAREFULLY BEFORE
SIGNING IT; (C) HAS HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE AGREEMENT
TO ASK ANY QUESTIONS
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THE EXECUTIVE HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY ANSWERS
TO ALL SUCH QUESTIONS; AND (D) UNDERSTANDS THE EXECUTIVE'S RIGHTS AND
OBLIGATIONS UNDER THE AGREEMENT.
THIS AGREEMENT IN SECTION 18 CONTAINS A BINDING ARBITRATION
PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.
INTERIM SERVICES INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Senior Vice President and Secretary
EXECUTIVE
By: /s/ Xxxx Xxxx
------------------------------------
Xxxx Xxxx
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