EMPLOYMENT AGREEMENT
Exhibit
10.8
This
EMPLOYMENT AGREEMENT
(the “Agreement”) dated this 27th day of
October, 2009 the (“Effective Date”), by and between THE XXXXX GROUP, INC., a
Delaware corporation (“Employer”), and XXXXXXX X. XXXXXXX III
(“Executive”). This Agreement supersedes and replaces in its entirety the
previous employment agreement, dated _________ ____, 200___ between Employer and
Executive.
In
consideration of the mutual promises, terms, covenants and conditions set forth
herein and the performance of each, the parties hereto hereby agree as
follows:
Section
1.
EMPLOYMENT
AND DUTIES.
Employer hereby employs Executive as President of The Xxxxx Group, Inc.
Executive hereby accepts this employment upon the terms and conditions herein
contained and agrees to devote Executive’s full working time, attention, and
efforts to promote and further the business of Employer. Executive shall not,
during the term of his employment hereunder, be engaged in any other business
activity pursued for gain, profit or other pecuniary advantage if such activity
interferes with Executive’s duties and responsibilities hereunder. As President
of The Xxxxx Group, Inc., Executive shall take direction from Employer’s board
of directors and the President of Xxxxx Holdings, Inc. and shall be responsible
for the management of all of Employer’s divisions and subsidiaries, except for
(i) Employer’s Xxxxx Brokerage division (which shall be managed by, and the
employees of which shall report directly to, Employer’s Board of Directors, or
its designee) and (ii) Employer’s subsidiary Xxxxx Worldwide Transportation,
Inc. (“CWT”) (which shall be managed by, and the executive officers of which
shall report directly to, CWT’s Board of Directors, or its designee). If the
Chief Financial Officer of The Xxxxx Group, Inc. is also the Chief Financial
Officer of Xxxxx Holdings, Inc. (the parent company of The Xxxxx Group, Inc.),
there shall be dual reporting responsibility for that position.
Section
2.
COMPENSATION.
For all
services rendered by Executive, Employer shall compensate Executive as
follows:
(a) Base Salary. The base
salary payable to Executive shall be at the annual rate of Two Hundred Fifty-One
Thousand, Three Hundred and Twenty-Seven Dollars ($251,327) through December 31,
2009, payable in accordance with Employer’s regular payroll schedule. Starting
January 1, 2010, Executive’s annual base salary shall adjust to levels outlined
in Exhibit A, commensurate with the new corporate bonus pool. Executive shall
participate in annual reviews of his performance in accordance with Employer’s
regular policies and procedures. At Employer’s discretion, Executive’s may
receive base salary increases from time- to- time during the Term hereof in line
with other senior executives of Employer and Employer’s assessment of
Executive’s performance.
(b) Incentive Bonus. The
Executive shall be paid a bonus based on the domestic divisions’ profitability
(the “Domestic Corporate Pool”), as outlined in Exhibit A (“Incentive Bonus”),
with the calculation subject to review by the President and CEO of Xxxxx
Holdings, Inc.
(c) Benefits and Other
Compensation. Executive shall be entitled to receive additional benefits
and compensation from Employer in such form and to such extent as specified
below:
(i) Reimbursement
for all business travel and other out-of-pocket expenses, reasonably incurred by
Executive in the performance of Executive’s duties pursuant to this Agreement
provided such expenses are consistent with Employer’s travel and expense
reimbursement policy, and appropriately documented in reasonable detail by
Executive consistent with Employer’s expense reporting policy.
(ii) Vacation,
holidays and sick days in accordance with Employer’s Employee Handbook, a copy
of which is delivered herewith by Employer to Executive. Employer reserves the
right to amend, modify or delete any provision of the Employee Handbook at any
time. Executive will receive four (4) weeks paid vacation annually. The Employee
Handbook is not a contract of employment between Employer and Executive or any
part thereof, but is a current statement of Employer’s policies and procedures
with respect to the matters set forth therein.
(iii) Participation
in Employer-sponsored benefit plans, such as health, pension, short-term
disability and life insurance, etc., per plan requirements, as and when
implemented by Employer. Summary Plan Descriptions of Employer’s existing
retirement plans, life insurance program, disability insurance program and
employee health insurance program have heretofore been delivered to Executive.
Employer reserves the right to amend any of such plans at any time, including
the termination of any and all of such plans, for any reason, and in such event,
Executive shall have only such rights with respect thereto as are required by
law or provided by Employer for all similarly situated employees of
Employer.
(iv) Auto
allowance of Twelve Thousand Dollars ($12,000) per year, payable in equal
bi-weekly installments with the payment of Executive’s regular base salary, for
reimbursement of all automobile related expenses, including lease payments, oil,
maintenance and repair.
(d) Amounts
paid to Executive under this Section shall be subject to all required
withholdings and deductions for taxes, etc.
Section
3. TERM; CESSATION;
RIGHTS ON CESSATION.
The term
of this Agreement shall be for a term of one (1) year commencing on the
Effective Date and continuing until the first anniversary thereof (the “Term”)
unless otherwise terminated as herein. The term of this agreement will
automatically renew for consecutive one (1) year terms, unless either one of the
parties notifies the other party in writing at least 30 days prior to any
anniversary date of their intention not to renew the agreement. This Agreement
and Executive’s employment may be terminated in any one of the following
ways:
(a) Death. The death of
Executive shall immediately terminate this Agreement with no severance
compensation due to Executive’s estate hereunder or otherwise.
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(b) Disability. Subject
to and conditioned upon Employer’s compliance with applicable law, if, as a
result of incapacity due to physical or mental illness or injury which results
in Executive being absent from Executive’s full-time duties hereunder for one
hundred eighty (180) consecutive days, then ten (10) days after receiving
written notice (which notice may occur before or after the end of such one
hundred eighty (180) day period, but which shall not be effective earlier than
the last day of such one hundred eighty (180) day period), Employer may
terminate Executive’s employment hereunder provided Executive is unable to
resume Executive’s full-time duties at the conclusion of such ten (10) day
notice period. In the event this Agreement is terminated as a result of
Executive’s disability, Executive shall have no right to any severance
compensation hereunder or otherwise.
(c) Good Cause. Employer
may terminate the Agreement ten (10) days after delivery of written notice to
Executive for “good cause”, which shall be: (1) Executive’s breach of this
Agreement; (2) Executive’s failure to adequately perform Executive’s material
duties and responsibilities hereunder after Employer has given Executive written
notice of the particulars of such failure and Executive has not brought his
performance into compliance within such reasonable period as Employer may
specify in writing (the intention of this item (2) is not to allow Employer to
terminate Executive without cause create an “employment at will” contract, but
rather to ensure that Executive perform his duties in a manner and with such
diligence as is expected of Employer’s senior executives); (3) Executive’s
willful dishonesty, fraud, misconduct or any conduct constituting or exhibiting
moral turpitude or which adversely affects the operations or reputation of
Employer; (4) Executive’s conviction in a court of competent jurisdiction of a
felony or any misdemeanor other than a minor traffic violation; or (5) chronic
alcohol abuse or illegal drug use by Executive. In the event of a termination
for “good cause”, as enumerated above, Executive shall have no right to any
severance compensation hereunder or otherwise.
(d) Without Good
Cause. Executive’s employment may be terminated without “good
cause” by Employer during the Term hereof. Should Executive’s employment be
terminated by Employer without good cause during the Term, and provided
Executive complies with the terms of Section 5 hereof and does not breach the
terms of Employer’s Confidentiality Policy described in Section 6, Executive
shall be entitled to all Base Salary payable for the Term and the Incentive
Bonus earned through the last date of Executive’s employment (prorated and
accrued on a daily basis for the Employer’s fiscal year) to be paid in the same
manner and at the same time as set forth in Section 2 hereof, and Employer will
continue to provide throughout the Term the health insurance benefit, the
pension benefit and the life insurance benefit described in Section 2(c)(iii)
and the auto allowance described in Section 2(c)(iv) but not any of the benefits
and other compensation described in Section 2(c) above which will terminate on
the last day of employment except as to amounts already vested in accordance
with any benefit plans.
(e) By Executive. At any
time after the commencement of employment, Executive may terminate this
Agreement and Executive’s employment effective ninety (90) days after written
notice is provided to Employer. If Executive resigns or otherwise terminates
Executive’s employment, Executive shall receive no severance compensation or any
amounts with respect to the Incentive Bonus. At any time after receipt of
Executive’s notice of termination of this Agreement, Employer may waive
performance of Executive’s employment duties for the balance of the notice
period, provided Employer continues payment of the regular installments of
Executive’s base salary and continues Executive’s other benefits described in
Section 2(c) through the last date of such notice period.
(f) Upon
termination of this Agreement for any reason provided herein, (i) Executive
shall be entitled to receive all compensation earned and all benefits and
reimbursements due and payable to Executive only to the extent and in the manner
expressly provided in this Section 3, and (ii) except as otherwise provided by
Section 16 hereof all other rights, duties and obligations of Employer and the
Executive under this Agreement shall cease and terminate as of the Cessation
Date.
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(g) Severance. If
Executive’s employment is terminated by Employer pursuant to Section 3(d)
without good cause, or Employer does not elect the term to renew for a
consecutive one-year term, then Employer shall continue to pay Executive (the
“Severance”) his then current Base Salary for one (1) year following the
expiration of the Term. Payment of Severance is subject to Executive’s execution
of a separation agreement, in a form reasonably acceptable to Employer, which
shall include a general release of all claims and rights that Executive may have
against Employer and its affiliated entities and their respective directors,
officers and employees, including but not limited to all claims and rights
relating to Executive’s employment and/or termination (a “Release”). Severance
will be paid to Executive in equal installments on Employer’s regular bi-weekly
paydays commencing the first pay period following expiration of the revocation
period provided for in the Release and will be subject to any applicable local,
state, and federal tax withholding obligations. Notwithstanding anything herein
to the contrary, the Severance payments shall terminate ten (10) days after
Employer provides notice to Executive that Employer intends to terminate such
payments because Executive has breached a provision of Sections 4, 5(b) or 6 of
this Agreement. It is understood and agreed that the Release shall not release
any remaining obligations of Employer under this Agreement to be performed from
and after the date of such Release.
Section
4. INTELLECTUAL
PROPERTY.
Executive
will fully and promptly disclose to Employer all Intellectual Property which
Executive may conceive or make, alone or with others, during the period of the
Executive’s employment with Employer, whether or not during working hours, or
within ninety (90) days after the Cessation Date, which relates to, results from
or is suggested by: (1) activities of Employer; (2) Employer’s industry; (3) any
Proprietary Information of Employer; or (4) any work Executive may have done or
may do for Employer. Any and all worldwide patent, copyright, trademark or other
right, title and interest in and to the Intellectual Property, upon creation in
whole or in part while Executive is employed by Employer shall immediately vest
in Employer, and if subject to copyright protection, shall be deemed a
work-made-for-hire prepared by an employee within the scope of his employment
under the U.S. Copyright Act of 1976, 17 U.S.C. Section 101, et seq., as
amended, or such other U.S. copyright statute in force at the time the work is
created. To the extent any Intellectual Property prepared by Executive for
Employer hereunder is deemed not to be a work-made-for-hire by a court of
competent jurisdiction, Executive hereby irrevocably assigns, effective as of
the date of creation of all or a part of such Intellectual Property, all
worldwide right, title and interest in and to such Intellectual Property to
Employer, and Executive hereby agrees to and warrants waiver of any and all
moral rights in the Intellectual Property to the extent allowed by law. With
respect to any other rights, title or interest in the Intellectual Property,
including without limitation all other intellectual property rights, Executive
hereby irrevocably assigns all worldwide right, title and interest in and to
such Intellectual Property to Employer. In the event that any such Intellectual
Property, or the rights therein, cannot be assigned under applicable law in any
jurisdiction, Executive hereby grants to Employer and exclusive, irrevocable,
perpetual, worldwide, royalty-free license (with the right to sublicense through
one or multiple sublicensees and through multiple tiers of sublicensees without
royalty to Executive) in such jurisdictions to make, sell, use, reproduce,
distribute, create derivative Intellectual Property of, publicly perform,
publicly display and perform, and exploit such Intellectual Property in any
media or manner now known or hereafter known. Executive agrees that he will
execute any and all documents, assignments, licenses or other instruments,
affidavits, or certificates required or requested by Employer for the purpose of
implementing Executive’s obligations under this Section 4.
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Section
5. RETURN
OF EMPLOYER PROPERTY; RESTRICTIVE COVENANTS.
(a) Employer
Property. All Proprietary Information including, without
limitation, records, designs, patents, business plans, financial statements,
manuals, correspondence, reports, charts, advertising materials, memoranda,
customer lists and other property delivered to or compiled by Executive by or on
behalf of Employer, which pertain to the business, activities or future plans of
Employer, shall be and remain the property of Employer, and be subject at all
times to its discretion and control and shall be, upon cessation of Executive’s
employment with Employer, collected by Executive and delivered promptly to
Employer without request by Employer.
(b) Restrictive
Covenants. During the Term of this agreement and, without regard to its
termination for any reason, for a period of twelve months after the later of the
termination of this agreement or payment is made to executive pursuant to its
terms, Executive shall not unless acting pursuant hereto or with the prior
written consent of Employer, in the geographic territory of North
America:
(i) Director
or indirection, own manage, operate, finance, join, control or participate in
the ownership, financing, operation financing or control of, or be connected as
an officer, director, employee, partner, principal, agent, representative
consultant or otherwise with, or use to permit Executives name to be used in
connection with any Competing Business (defined below): provided, however, that
notwithstanding the foregoing, this provision shall not be construed to prohibit
the ownership by Executive of not more than one percent (1%) of the capital
stock of any corporation which is engaged in any of the foregoing businesses
having a class of securities registered pursuant to the Securities and Exchange
Act of 1934, as amended;
(ii) Solicit
or divert to any Competing business, and individual or entity which is a
customer of Employer or its affiliates;
(iii) Employ,
attempt to employ, solicit or assist in any Competing Business in employing any
employee of Employer or its affiliates; or
(iv) Be
employed by any customer of Employer or its affiliates if such employment
results in a loss to Employer or its affiliates of any business from such
customer.
The term
“Competing Business” shall mean any business or enterprise engaged in third
party management logistics or transportation brokerage and service activities or
which is otherwise in direct competition with the primary business lines engaged
in by Employer and/or its affiliates. During the term of this Agreement or on
the date of Executives termination, provided that “Competing Business” shall not
include any line of business in which Employer or its affiliates is not engaged
on the date of the Executive’s termination. In the event that the provision of
this Section 5 should ever be adjudicated exceed the time, geographic, product
or other limitations permitted by applicable law in any jurisdiction then such
provisions shall be deemed reformed in such jurisdiction to the maximum time,
geographic, product or other limitations permitted by applicable
law.
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(c) Equitable Relief.
Executive acknowledges that the restrictions contained in section 4 and 5
hereof, are, in view of the nature of the business of Employer and/or its
affiliates and the geographic scope of that business reasonable and necessary to
protect the legitimate interest of Employer and/or its affiliates and that any
violation of any provision of those Sections will result in irreparable injury
to Employer and/or its affiliates. Executive also acknowledges that in the event
of any such violation, Employer shall be entitled to preliminary and permanent
injunctive relief without the necessity of providing actual damages, and to an
equitable account of all earnings, profits and other benefits arising from any
such violation, which rights shall be cumulative and in addition to any other
rights and remedies to which it may be entitled. Executive agrees that in the
event of any such violation, an action may be commenced for any such preliminary
and permanent injunctive relief and other equitable relief in any federal or
state court of competent jurisdiction sitting in Xxxxxx County, New Jersey or
any other court of competent jurisdiction. In the event of a violation, the
twelve month term of the restriction shall urn form the date the violation
ceases. Executive herby waives, to the fullest extent permitted by law, any
objection that Executive may now or hereafter have to such jurisdiction or to
laying of the venue of any such suit, action or proceeding brought in such a
court and any claim that such suit, action or proceeding has been, brought in an
inconvenient forum. Executive agrees that effective service of process may be
made upon Executive by mail under the notice provisions contained in Section
11.
Section
6. CONFIDENTIALITY.
Executive
shall execute and deliver to Employer simultaneously herewith the Employer’s
Confidentiality Policy.
Section
7. NO PRIOR
AGREEMENTS.
Executive
hereby represents and warrants to Employer that the execution of this Agreement
by Executive and his employment by Employer and the performance of Executive’s
duties hereunder will not violate or be a breach of any oral or written
agreement with, or other duty owed to, a former employer of Executive or any
other Person. Further, Executive agrees to indemnify Employer from and against
any and all claims, judgments, fines, actions, suits, demands, charges, costs
and expenses including but not limited to attorneys’ fees and expenses
(collectively, “Claims”), relating to, arising from, or in connection with (i)
any actions by Executive outside the scope of Executive’s duties hereunder or
(ii) any breach by Executive of any oral or written agreement between Executive
and any third party or any other duty owed by Executive to any third
party.
Section
8. ASSIGNMENT;
BINDING EFFECT.
This
Agreement may not be assigned by either party without the express written
consent of the other party, which consent may be withheld for any reason;
provided however, Employer may assign this Agreement to any Person who is
controlled by, in control of or under common control with Employer and any
Person who acquires the business of Employer.
Section
9. DEFINITIONS.
For
purposes of this Agreement, the following terms shall have the respective
meanings ascribed thereto in this Section 9:
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“Cessation Date”
means the date of cessation of Executive’s employment with Employer for whatever
reason.
“Intellectual
Property” means literary, artistic works and/or other projects,
inventions, discoveries, know-how or improvements, whether or not patentable,
copyrightable or subject to other statutory or common law protection, created in
whole or in part during Employee’s employment, including without limitation any
revisions, alterations, variations, improvements or derivative works thereof,
and any ideas, inventions, process, designs, whether patentable, copyrightable
or susceptible to other forms of intellectual property protection Executive
therewith or resulting therefrom.
“Person” means any
individual, firm, company, limited liability company, partnership (including,
without limitation, any general, limited, limited liability or limited liability
limited partnership), corporation (including not-for-profit), joint venture,
unincorporated organization or association, trust, union, governmental entity,
department or agency, or any other entity, business or organization of whatever
nature.
Section
10. COMPLETE
AGREEMENT; AMENDMENT.
(a) This
Agreement is not a promise of future employment beyond the Term hereof. There is
no promise or commitment by Employer to Executive that this Agreement will be
renewed or extended, regardless of Executive’s performance hereunder or the
achievement of announced goals. There is no promise or commitment to Executive
regarding additional compensation or benefits or increased compensation or
benefits if this Agreement is extended, renewed or superseded by a new Agreement
for an additional Term. This Agreement supersedes any other agreements or
understandings, written or oral, between Employer and Executive, and Executive
has no oral representations, understandings or agreements with Employer or any
of its officers, directors or representatives covering the same subject matter
as this Agreement. This written Agreement is the final, complete and exclusive
statement and expression of the agreement between Employer and Executive and of
all the teens of this Agreement, and it cannot be varied, contradicted or
supplemented by evidence of any prior or contemporaneous oral or written
agreements.
(b) This
written Agreement may not be later modified except by a written instrument
signed by a duly authorized officer of Employer and Executive, and no term of
this Agreement may be waived except by a written instrument signed by the party
waiving the benefit of such term.
Section
11. NOTICE.
Any and
all notices given in connection with this Agreement shall be deemed adequately
given only if in writing and personally delivered, sent by first class
registered or certified mail, postage prepaid, return receipt requested, sent by
overnight national courier service, sent by facsimile, provided a hard copy is
mailed on that day to the party for whom such notices are intended or sent by
other means at least as fast and reliable as first class mail. A written notice
shall be deemed to have been given to the recipient party on the earlier of (i)
the date it shall be delivered to the address required by this Agreement, (ii)
the date delivery shall have been refused at the address required by this
Agreement, (iii) with respect to notices sent by mail, the date as of which the
postal service shall have indicated that the notice has been delivered to the
address required by this Agreement, (iv) with respect to a facsimile, the date
on which the facsimile is sent. Any and all notices referred to in this
Agreement, or which any party desires to give the other, shall be addressed as
follows:
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To
Employer:
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The
Xxxxx Group, Inc.
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X.X.
Xxx 000
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Xxxxxxx,
XX 00000
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ATTN:
Xxxxxxx X. Xxxxx Fax:
000-000-0000
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8
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To
Executive:
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Xxxxxxx
X. Xxxxxxx III
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00
Xxx Xxxxxx Xxxxx
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Xxxxxxxxx,
XX 00000
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Section
12. SEVERABILITY;
HEADINGS.
If any
portion of this Agreement is held invalid or inoperative, the other portions of
this Agreement shall be deemed valid and operative and, so far as is reasonable
and possible, effect shall be given to the intent manifested by the portion held
invalid or inoperative. The paragraph headings herein are for reference purposes
only and are not intended in any way to describe, interpret, define or limit the
extent or intent of the Agreement or of any part hereof.
Section
13. GOVERNING
LAW.
This
Agreement shall in all respects be construed according to the laws of the State
of New Jersey.
Section
14. CONSENT TO
JURISDICTION; SERVICE OF PROCESS.
Employer
and Executive hereby irrevocably submit to the jurisdiction of the state or
federal courts for the situs of Employer’s business, in connection with any
suit, action or other proceeding arising out of or relating to this Agreement,
and hereby agree not to assert, by way of motion, as a defense, or otherwise in
any such suit, action or proceeding that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this Agreement or the subject matter hereof may
not be enforced by such courts.
Section
15. CONSTRUCTION AND
INTERPRETATION.
Should
any provision of this Agreement require judicial interpretation, the parties
hereto agree that the court interpreting or construing the same shall not apply
a presumption that the terms hereof shall be more strictly construed against one
party by reason of the rule of construction that a document is to be more
strictly construed against the party that itself, or through its agent, prepared
the same, and it is expressly agreed and acknowledged that the Executive,
Employer and their respective representatives, legal and otherwise, have
participated in the preparation hereof.
Section
16. SURVIVAL.
Notwithstanding
anything in this Agreement to the contrary, Sections 4, 5, 7, 12, 13, 14, 15,
16, and 17 of this Agreement shall survive any termination of this Agreement or
of the Executive’s employment hereunder until the expiration of the respective
statute(s) of limitations applicable thereto.
Section
17. THIRD
PARTY BENEFICIARIES.
This
Agreement does not create, and shall not be construed as creating, any rights
enforceable by any Person or entity not a party to this
Agreement.
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Section
18. COUNTERPARTS.
This
Agreement may be executed simultaneously in two (2) or more counterparts, each
of which shall be deemed an original and all of which together shall constitute
but one and the same instrument.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
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“EMPLOYER”
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THE XXXXX GROUP,
INC.
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By:
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/s/
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Name:
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Title:
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“EXECUTIVE”
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/s/
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Xxxxxxx
X. Xxxxxxx III
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