Ex-99.B8(a)
CUSTODIAN AGREEMENT
XXXXXX FUNDS
This Agreement, dated as of the 28th day of April, 1996 by and between
Xxxxxx Funds (the "Fund"), a Massachusetts business trust, and CoreStates Bank,
N.A. (the "Bank").
WITNESSETH:
WHEREAS, the Fund desires to appoint the Bank to act as Custodian of its
portfolio securities, cash and other property from time to time deposited with
or collected by the Bank for the Fund;
WHEREAS, the Bank is qualified and authorized to act as Custodian for the
Fund and the separate series thereof (each a "Portfolio" and, collectively, the
"Portfolios"), and is willing to act in such capacity upon the terms and
conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto, intending to be legally bound,
do hereby agree as follows:
SECTION 1. The terms as defined in this Section wherever used in this
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Agreement, or in any amendment or supplement hereto, shall have meanings herein
specified unless the context otherwise requires.
CUSTODIAN: The term Custodian shall mean the Bank in its capacity as Custodian
under this Agreement.
DEPOSITORY: The term Depository means any depository service which acts as a
system for the central handling of securities where all securities of any
particular class or series of an issuer deposited within the system are treated
as fungible and may be transferred by bookkeeping entry without physical
delivery.
PROPER INSTRUCTIONS. For purposes of this Agreement, the Custodian shall be
deemed to have received Proper Instructions upon receipt of written (including
instructions received by means of computer terminals or facsimile
transmissions), telephone or telegraphic instructions from a person or persons
authorized from time to time by the Trustees of the Fund to give the particular
class of instructions. Telephone or telegraphic instructions shall be confirmed
in writing by such person or persons as said Trustees shall have from time to
time authorized to give the particular class of instructions in question. The
Custodian may act upon telephone or telegraphic instructions without awaiting
receipt of written confirmation, and shall not be liable for the Fund's failure
to confirm such instructions in writing.
SECURITIES: The term Securities means stocks, bonds, rights, warrants and all
other negotiable or non-negotiable paper issued in certificated or book-entry
form commonly known as "securities" in banking custom or practice.
SHAREHOLDERS: The term Shareholders shall mean the registered owners from time
to time of the Shares of the Fund in accordance with the registry records
maintained by the Fund or agents on its behalf.
SHARES: The term Shares of the Fund shall mean the issued and outstanding
shares of common stock of the Fund.
SECTION 2. The Fund hereby appoints the Custodian as Custodian of the Fund's
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cash, Securities and other property, to be held by the Custodian as provided in
this Agreement. The Custodian hereby accepts such appointment subject to the
terms and conditions hereinafter provided. The Bank shall open a separate
custodial account in the name of the Fund on the books and records of the Bank
to hold the Securities of the Fund deposited with, transferred to or collected
by the Bank for the account of the Fund, and a separate cash account to which
the Bank shall credit monies received by the Bank for the account of or from the
Fund. Such cash shall be segregated from the assets of others and shall be and
remain the sole property of the Fund.
SECTION 3. The Fund shall from time to time file with the Custodian a certified
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copy of each resolution of its Board of Trustees authorizing the person or
persons to give Proper Instructions and specifying the class of instructions
that may be given by each person to the Custodian under this Agreement, together
with certified signatures of such persons authorized to sign, which shall
constitute conclusive evidence of the authority of the officers and signatories
designated therein to act, and shall be considered in full force and effect with
the Custodian fully protected in acting in reliance thereon until it receives
written notice to the contrary; provided, however, that if the certifying
officer is authorized to give Proper Instructions, the certification shall be
also signed by a second officer of the Fund.
SECTION 4. The Fund will cause to be deposited with the Custodian hereunder the
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applicable net asset value of Shares sold from time to time whether representing
initial issue, other stock or reinvestments of dividends and/or distributions
payable to Shareholders.
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SECTION 5. The Bank, acting as agent for the Fund, is authorized, directed and
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instructed subject to the further provisions of this Agreement:
(a) to hold Securities issued only in bearer form in bearer form;
(b) to register in the name of the nominee of the Bank, the Bank's
Depositories, or sub-custodians, (i) Securities issued only in
registered form, and (ii) Securities issued in both bearer and
registered form, which are freely interchangeable without penalty;
(c) to deposit any Securities which are eligible for deposit (i) with any
domestic or foreign Depository on such terms and conditions as such
Depository may require, including provisions for limitation or
exclusion of liability on the part of the Depository; and (ii) with
any sub-custodian which the Bank uses, including any subsidiary or
affiliate of the Bank;
(d) (i) to credit for the account of the Fund all proceeds received
and payable on or in respect of the assets maintained
hereunder,
(ii) to debit the account of the Fund for the cost of acquiring
Securities the Bank has received for the Fund, against
delivery of such Securities to the Bank,
(iii) to present for payment Securities and other obligations
(including coupons) upon maturity, when called for
redemption, and when income payments are due, and
(iv) to make exchanges of Securities which, in the Bank's opinion,
are purely ministerial as, for example, the exchange of
Securities in temporary form for Securities in definitive form
or the mandatory exchange of certificates;
(e) to forward to the Fund, and/or any other person designated by the
Fund, all proxies and proxy materials received by the Bank in
connection with Securities held in the Fund's account, which have been
registered in the name of the Bank's nominee, or are being held by any
Depository, or sub-custodian, on behalf of the Bank;
(f) to sell any fractional interest of any Securities which the Bank has
received resulting from any stock
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dividend, stock split, distribution, exchange, conversion or similar
activity;
(g) to release the Fund's name, address and aggregate share position to
the issuers of any domestic Securities in the account of the Fund,
provided, however, the Fund may instruct the Bank not to provide any
such information to any issuer;
(h) to endorse and collect all checks, drafts or other orders for the
payment of money received by the Bank for the account of or from the
Fund;
(i) at the direction of the Fund, to enroll designated Securities
belonging to the Fund and held hereunder in a program for the
automatic reinvestment of all income and capital gains distributions
on those Securities in new shares (an "Automatic Reinvestment
Program"), or instruct any Depository holding such Securities to
enroll those Securities in an Automatic Reinvestment Program;
(j) at the direction of the Fund, to receive, deliver and transfer
Securities and make payments and collections of monies in connection
therewith, enter purchase and sale orders and perform any other acts
incidental or necessary to the performance of the above acts with
brokers, dealers or similar agents selected by the Fund, including any
broker, dealer or similar agent affiliated with the Bank, for the
account and risk of the Fund in accordance with accepted industry
practice in the relevant market, provided, however, if it is
determined that any certificated Securities transferred to a
Depository or sub-custodian, the Bank, or the Bank's nominee, the
Bank's sole responsibility for such Securities under this Agreement
shall be to keep the Securities safe in accordance with Section 11
hereof; and
(k) to notify the Fund and/or any other person designated by the Fund upon
receipt of notice by the Bank of any call for redemption, tender
offer, subscription rights, merger, consolidation, reorganization or
recapitalization which (i) appears in The Wall Street Journal (New
York edition), The Standard & Poor's Called Bond Record for Preferred
Stocks, Financial Daily Called Bond Service, The Xxxxx Services, any
official notifications from The Depository Trust Company and such
other publications or services to which the Bank may from time to time
subscribe, (ii) requires the Bank to act in response thereto, and
(iii) pertain to Securities belonging to the Fund and held
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hereunder which have been registered in the name of the Bank's nominee
or are being held by a Depository or sub-custodian on behalf of the
Bank. Notwithstanding anything contained herein to the contrary, the
Fund shall have the sole responsibility for monitoring the applicable
dates on which Securities with put option features must be exercised.
All solicitation fees payable to the Bank as agent in connection
herewith will be retained by the Bank unless expressly agreed to the
contrary in writing by the Bank.
Notwithstanding anything in this Section to the contrary, the Bank is authorized
to hold Securities for the Fund which have transfer limitations imposed upon
them by the Securities Act of 1933, as amended, or represent shares of mutual
funds (i) in the name of the Fund, (ii) in the name of the Bank's nominee, or
(iii) with any Depository or sub-custodian.
SECTION 6. The Custodian's compensation shall be as agreed to from time to time
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by the Fund and the Custodian. The Bank is authorized to charge the Fund's
account for such compensation. All expenses and taxes payable with respect to
the Securities in the account of the Fund including, without limitation,
commission charges on purchases and sales and the amount of any loss or
liability for stockholders' assessments or otherwise, claimed or asserted
against the bank or against the Bank's nominee by reason of any registration
hereunder shall be charged to the Fund.
SECTION 7. In connection with its functions under this Agreement, the Custodian
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shall:
(a) render to the Fund a daily report of all monies received or paid on
behalf of the Fund; and
(b) create, maintain and retain all records relating to its activities and
obligations under this Agreement in such manner as will meet the
obligations of the Fund with respect to said Custodian's activities in
accordance with generally accepted accounting principles. All records
maintained by the Custodian in connection with the performance of its
duties under this Agreement will remain the property of the Fund and
in the event of termination of this Agreement will be relinquished to
the Fund.
SECTION 8. Any Securities deposited with any Depository or with any sub-
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custodian will be represented in accounts in the name of the Bank which include
only property held by the Bank as Custodian for customers in which the Bank acts
in a fiduciary or agency capacity.
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Should any Securities which are forwarded to the Bank by the Fund, and which are
subsequently deposited to the Bank's account in any Depository or with any sub-
custodian, or which the Fund may arrange to deposit in the Bank's account in any
Depository or with any sub-custodian, not be deemed acceptable for deposit by
such Depository or sub-custodian, for any reason, and as a result thereof there
is a short position in the account of the Bank with the Depository for such
Security, the Fund agrees to furnish the Bank immediately with like Securities
in acceptable form.
SECTION 9. The Fund represents and warrants that: (i) it has the legal right,
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power and authority to execute, deliver and perform this Agreement and to carry
out all of the transactions contemplated hereby; (ii) it has obtained all
necessary authorizations; (iii) the execution, delivery and performance of this
Agreement and the carrying out of any of the transactions contemplated hereby
will not be in conflict with, result in a breach of or constitute a default
under any agreement or other instrument to which the Fund is a party or which is
otherwise known to the Fund; (iv) it does not require the consent or approval of
any governmental agency or instrumentality, except any such consents and
approvals which the Fund has obtained; (v) the execution and delivery of this
Agreement by the Fund will not violate any law, regulation, charter, by-law,
order of any court or governmental agency or judgment applicable to the Fund;
and (vi) all persons executing this Agreement on behalf of the Fund and carrying
out the transactions contemplated hereby on behalf of the Fund are duly
authorized to do so.
In the event any of the foregoing representations should become untrue,
incorrect or misleading, the Fund agrees to notify the Bank immediately in
writing thereof.
SECTION 10. The Bank represents and warrants that: (i) it has the legal right,
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power and authority to execute, deliver and perform this Agreement and to carry
out all of the transactions contemplated hereby; (ii) it has obtained all
necessary authorizations; (iii) the execution, delivery and performance of this
Agreement and the carrying out of any of the transactions contemplated hereby
will not be in conflict with, result in a breach of or constitute a default
under any agreement or other instrument to which the Bank is a party or which is
otherwise known to the Bank; (iv) it does not require the consent or approval of
any governmental agency or instrumentality, except any such consents and
approvals which the Bank has obtained; (v) the execution and delivery of this
Agreement by the Bank will not violate any law, regulation, charter, by-law,
order of any court or governmental agency or judgment applicable to the Bank;
(vi) it is qualified to act as a custodian for a registered investment company
under the Investment Company Act of 1940; and (vii) all persons executing this
Agreement on behalf of the Bank and carrying out the transactions contemplated
hereby on behalf of
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the Bank are duly authorized to do so. In the event that any of the foregoing
representations should become untrue, incorrect or misleading, the Bank agrees
to notify the Fund immediately in writing thereof.
SECTION 11. All cash and Securities held by the Bank hereunder shall be kept
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with the care exercised as to the Bank's own similar property. The Bank may at
its option insure itself against loss from any cause, but shall be under no
obligation to insure for the benefit of the Fund.
SECTION 12. No liability of any kind shall be attached to or incurred by the
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Custodian by reason of its custody of the Fund's assets held by it from time to
time under this Agreement, or otherwise by reason of its position as Custodian
hereunder except only for its own negligence, bad faith, or willful misconduct
in the performance of its duties as specifically set forth in the Custodian
Agreement. Without limiting the generality of the foregoing sentence, the
Custodian:
(a) may rely upon the advice of counsel for the Fund; and for any action
taken or suffered in good faith based upon such advice or statements
the Custodian shall not be liable to anyone;
(b) shall not be liable for anything done or suffered to be done in good
faith in accordance with any request or advice of, or based upon
information furnished by, the Fund or its authorized officers or
agents;
(c) is authorized to accept a certificate of the Secretary or Assistant
Secretary of the Fund, or Proper Instructions, to the effect that a
resolution in the form submitted has been duly adopted by its Board of
Trustees or by the Shareholders, as conclusive evidence that such
resolution has been duly adopted and is in full force and effect; and
(d) may rely and shall be protected in acting upon any signature, written
(including telegraph or other mechanical) instructions, request,
letter of transmittal, certificate, opinion of counsel, statement,
instrument, report, notice, consent, order, or other paper or document
reasonably believed by it to be genuine and to have been signed,
forwarded or presented by the purchaser, Fund or other proper party or
parties.
SECTION 13. The Fund, its successors and assigns do hereby fully indemnify and
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hold harmless the Custodian its successors and assigns, from any and all loss,
liability, claims, demand, actions, suits and expenses of any nature as the same
may arise
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from the failure of the Fund to comply with any law, rule, regulation or order
of the United States, any state or any other jurisdiction, governmental
authority, body, or board relating to the sale, registration, qualification of
units of beneficial interest in the Fund, or from the failure of the Fund to
perform any duty or obligation under this Agreement.
Upon written request of the Custodian, the Fund shall assume the entire defense
of any claim subject to the foregoing indemnity, or the joint defense with the
Custodian of such claim, as the Custodian shall request. The indemnities and
defense provisions of this Section 13 shall indefinitely survive termination of
this Agreement.
SECTION 14. If so instructed by the Fund, the Custodian shall appoint one or
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more U.S. banking institutions as sub-custodian (including, but not limited to,
U.S. banks located in foreign countries) of Securities and moneys at any time
owned by the Fund. The Custodian shall have no liability to the Fund or any
other person by reason of any act or omission of any sub-custodian so appointed,
and the Fund shall indemnify the Custodian and save it harmless from any and
against any and all actions, suits, and claims, whether groundless or otherwise,
and from and against any and all losses, damages, costs, charges, counsel fees,
payments, expenses, and liabilities arising directly or indirectly out of or in
connection with the performance of any sub-custodian which the Custodian was
instructed to appoint. The Custodian shall not be under any obligation to
prosecute or to defend any action, suit, or claim arising out of or in
connection with the performance of any such sub-custodian, which, in the opinion
of its counsel, may involve it in expense or liability, and the Fund shall, so
often as reasonably requested, furnish the Custodian with satisfactory indemnity
against such expense or liability, and upon request of the Custodian, the Fund
shall assume the entire defense of any action, suit, or claim subject to the
foregoing indemnity. The Fund shall pay all fees and expenses of any Sub-
Custodian which the Fund instructs the Custodian to appoint.
In addition, the Custodian may from time to time in its discretion appoint
in writing (and may at any time remove) any other bank or trust company (which
may include a foreign branch or agency of a bank or trust company) as sub-
Custodian hereunder, to carry out as agent of the Custodian, in accordance with
the terms of this Agreement, such of the provisions of this Agreement as the
Custodian may from time to time direct; provided, however, that any such sub-
custodian (which must itself meet the qualifications for a successor custodian
set forth in Section 16 hereof and which must be selected with reasonable care,
having in mind the duties to be assigned to it) is understood to be the agent of
the Custodian and not of the Fund, and the Custodian shall be fully responsible
for the acts of any sub-custodian
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which the Custodian shall appoint in its discretion, and the Custodian shall not
be relieved of any of its responsibilities hereunder by the appointment of any
such sub-custodian.
SECTION 15. This Agreement may be amended from time to time without notice to
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or approval of the Shareholders by a supplemental agreement executed by the Fund
and the Bank and amending and supplementing this Agreement in the manner
mutually agreed.
SECTION 16. Either the Fund or the Custodian may give one hundred twenty (120)
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days' written notice to the other of the termination of this Agreement, such
termination to take effect at the time specified in the notice. In case such
notice of termination is given either by the Fund or by the Custodian, the
Trustees of the Fund shall, by resolution duly adopted, promptly appoint a
successor Custodian (the "Successor Custodian") which Successor Custodian shall
be a bank, trust company, or a bank and trust company in good standing, with
legal capacity to accept custody of the cash and Securities of a mutual fund.
Upon receipt of written notice from the Fund of the appointment of such
Successor Custodian and upon receipt of Proper Instructions, the Custodian shall
deliver such cash and Securities as it may then be holding hereunder directly
and only to the Successor Custodian. Unless or until a Successor Custodian has
been appointed as above provided, the Custodian then acting shall continue to
act as Custodian under this Agreement.
Every Successor Custodian appointed hereunder shall execute and deliver an
appropriate written acceptance of its appointment and shall thereupon become
vested with the rights, powers, obligations and custody of its predecessor
Custodian. The Custodian ceasing to act shall nevertheless, upon request of the
Fund and the Successor Custodian and upon payment of its charges and
disbursements, execute an instrument in form approved by its counsel
transferring to the Successor Custodian all the predecessor Custodian's rights,
duties, obligations and custody.
Subject to the provisions of Section 22 hereof, in case the Custodian shall
consolidate with or merge into any other corporation, the corporation remaining
after or resulting from such consolidation or merger shall ipso facto without
the execution of filing of any papers or other documents, succeed to and be
substituted for the Custodian with like effect as though originally named as
such, provided, however, in every case that said successor corporation maintains
the qualifications set out in Section 17(f) of the Investment Company Act of
1940, as amended.
SECTION 17. This Agreement shall take effect when assets of the Fund are first
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delivered to the Custodian.
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SECTION 18. This Agreement may be executed in two or more counterparts, each of
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which when so executed shall be deemed to be an original, but such counterparts
shall together constitute but one and the same instrument.
SECTION 19. A copy of the Agreement and Declaration of Trust of the Fund is on
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file with the Secretary of the Commonwealth of Massachusetts, and notice is
hereby given that this instrument is executed on behalf of the Trustees of the
Fund as Trustees and not individually and that the obligations of this
instrument are not binding upon any of the Trustees, officers or Shareholders of
the Fund individually, but binding only upon the assets and property of the
Fund. No Portfolio of the Fund shall be liable for the obligations of any other
Portfolio of the Fund.
SECTION 20. The Custodian shall create and maintain all records relating to its
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activities and obligations under this Agreement in such manner as will meet the
obligations of the Fund under the Investment Company Act of 1940, with
particular attention to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder,
applicable Federal and state tax laws and any other law or administrative rules
or procedures which may be applicable to the Fund.
Subject to security requirements of the Custodian applicable to its own
employees having access to similar records within the Custodian, the books and
records of the Custodian pertaining to this Agreement shall be open to
inspection and audit at any reasonable times by officers of, attorneys for, and
auditors employed by, the Fund.
SECTION 21. Nothing contained in this Agreement is intended to or shall require
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the Custodian in any capacity hereunder to perform any functions or duties on
any holiday or other day of special observance on which the Custodian is closed.
Functions or duties normally scheduled to be performed on such days shall be
performed on, and as of, the next business day the Custodian is open.
SECTION 22. This Agreement shall extend to and shall be binding upon the
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parties hereto and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by the Fund without the written
consent of the Custodian, or by the Custodian without the written consent of the
Fund, authorized or approved by a resolution of its Board of Trustees.
SECTION 23. All communications (other than Proper Instructions which are to be
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furnished hereunder to either party, or under any amendment hereto, shall be
sent by mail to the address listed below, provided that in the event that the
Bank, in its sole discretion, shall determine that an emergency exists, the Bank
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may use such other means of communications as the Bank deems advisable.
To the Fund: Xxxxx X. Xxxxxx
SEI Corporation
000 Xxxx Xxxxxxxxxx Xxxx
Xxxxx, XX 00000
To the Bank: Xxxx Xxxxxx
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CoreStates Bank, NA
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000 Xxxxxx Xxxxxx
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Xxxxxxxxxxxx, XX 00000
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SECTION 24. This Agreement, and any amendments hereto, shall be governed,
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construed and interpreted in accordance with the laws of the Commonwealth of
Pennsylvania applicable to agreements made and to be performed entirely within
such Commonwealth.
IN WITNESS WHEREOF, the Fund and the Custodian have caused this Agreement to be
signed by their respective officers as of the day and year first above written.
XXXXXX FUNDS
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title:
CORESTATES BANK, N.A.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
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