EMPLOYMENT AGREEMENT
EXHIBIT
10.2
This
AGREEMENT (the “Agreement”)
is
made this 16th
day
of May 2003, by and between COUGAR BIOTECHNOLOGY, INC., a Delaware corporation
with principal executive offices at 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, XX 00000 (the “Company”),
and
XXXX XXXXXXXX, residing at 000 Xxxxxxx Xxxxxx, #000, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000 (the “Executive”).
W
I T N E S S E T H:
WHEREAS,
the Company desires to employ the Executive as President and Chief Executive
Officer of the Company, and the Executive desires to serve the Company in those
capacities, upon the terms and subject to the conditions contained in this
Agreement;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto hereby agree as follows:
1. Employment.
The
Company agrees to employ the Executive, and the Executive agrees to be employed
by the Company, upon the terms and subject to the conditions of this
Agreement.
2. Term.
The
employment of the Executive by the Company as provided in Section 1 shall be
for
a period of one year commencing on the date hereof, unless sooner terminated
in
accordance with the provisions of Section 9 below (the “Term”);
provided, however, that the Term shall be extended automatically for additional
one-year periods unless one party shall advise the other in writing at least
60
days before the initial expiration of the Term or an anniversary date thereof
that this Agreement shall no longer be so extended.
3. Duties;
Best Efforts; Place of Performance.
(a) The
Executive shall serve as President and Chief Executive Officer of the Company
and shall perform, subject to the direction of the Board of Directors of the
Company, such duties as are customarily performed by the President and Chief
Executive Officer. The Executive shall also have such other powers and duties
as
may be from time to time directed by the Board of Directors of the Company,
provided that the nature of the Executive’s powers and duties so prescribed
shall not be inconsistent with the Executive’s position and duties
hereunder.
(b) The
Executive shall devote substantially all of his business time, attention and
energies to the business and affairs of the Company and
shall
use his best efforts to advance the best interests of the Company and shall
not
during the Term be actively engaged in any other business activity, whether
or
not such business activity is pursued for gain, profit or other pecuniary
advantage, that will interfere with the performance by the Executive of his
duties hereunder or the Executive’s availability to perform such duties or that
will adversely affect, or negatively reflect upon, the Company.
4. Directorship.
The
Company shall use its best efforts to cause the Executive to be elected as
a
member of its Board of Directors throughout the Term and shall include him
in
the management slate for election as a director at every stockholders meeting
during the Term at which his term as a director would otherwise expire. The
Executive agrees to accept election, and to serve during the Term, as director
of the Company, without any compensation therefor other than as specified in
this Agreement.
5. Compensation.
As full
compensation for the performance by the Executive of his duties under this
Agreement, the Company shall pay the Executive as follows:
(a) Base
Salary. The Company shall pay the Executive a base salary (the “Base
Salary”)
at a
rate of $200,000 per annum, payable in equal semi-monthly installments during
the Term. The
Board
of Directors of the Company shall annually review the Base Salary to determine
whether an increase in the amount thereof is warranted.
(b) Discretionary
Bonus. At the sole discretion of the Board of Directors of the Company, the
Executive shall receive an additional annual bonus (the “Discretionary
Bonus”)
in an
amount equal to up to 75% of his Base Salary, based upon his performance on
behalf of the Company during the prior year. The Discretionary Bonus shall
be
payable either as a lump-sum payment or in installments as determined by the
Board of Directors of the Company in its sole discretion. In addition,
the
Board
of Directors of the Company shall annually review the Guaranteed Bonus to
determine whether an increase in the amount thereof is warranted.
(c) License
Bonus. For each new technology that the Company in-licenses or otherwise
acquires and which are first introduced to the Company by or through the
Executive, the Company shall pay the Executive a bonus (a “License Bonus”)
equal
to $75,000.
(d) Withholding.
The Company shall withhold all applicable federal, state and local taxes and
social security and such other amounts as may be required by law from all
amounts payable to the Executive under this Section 5.
(e) Equity.
Prior to, or contemporaneously with, the execution of this Agreement, the
Company and the Executive shall enter into a Stock Purchase Agreement for the
sale by the Company to the Executive of 750,000 shares of its common stock,
par
value $0.001 per share (the “Common Stock”), representing 15% of the total
outstanding Common Stock of the Company as of the date hereof.
(f) Expenses.
The Company shall reimburse the Executive for all normal, usual and necessary
expenses incurred by the Executive in furtherance of the business and affairs
of
the Company, including reasonable travel and entertainment, upon timely receipt
by the Company of appropriate vouchers or other proof of the Executive’s
expenditures and otherwise in accordance with any expense reimbursement policy
as may from time to time be adopted by the Company.
(g) Other
Benefits. The Executive shall be entitled to all rights and benefits for which
he shall be eligible under any benefit or other plans (including, without
limitation, dental, medical, medical reimbursement and hospital plans, pension
plans, employee stock purchase plans, profit sharing plans, bonus plans and
other so-called "fringe" benefits) as the Company shall make available to its
senior executives from time to time.
(h) Vacation.
The Executive shall, during the Term, be entitled to a vacation of four (4)
weeks per annum,
in
addition to holidays observed by the Company.
The
Executive shall not be entitled to carry any vacation forward to the next year
of employment and shall not receive any compensation for unused vacation
days.
6. Confidential
Information and Inventions.
(a) The
Executive recognizes and acknowledges that in the course of his duties he is
likely to receive confidential or proprietary information owned by the Company,
its affiliates or third parties with whom the Company or any such affiliates
has
an obligation of confidentiality. Accordingly, during and after the Term, the
Executive agrees to keep confidential and not disclose or make accessible to
any
other person or use for any other purpose other than in connection with the
fulfillment of his duties under this Agreement, any Confidential and Proprietary
Information (as defined below) owned by, or received by or on behalf of, the
Company or any of its affiliates. “Confidential and Proprietary Information”
shall include, but shall not be limited to, confidential or proprietary
scientific or technical information, data, formulas and related concepts,
business plans (both current and under development), client lists, promotion
and
marketing programs, trade secrets, or any other confidential or proprietary
business information relating to development programs, costs, revenues,
marketing, investments, sales activities, promotions, credit and financial
data,
manufacturing processes, financing methods, plans or the business and affairs
of
the Company or of any affiliate or client of the Company. The Executive
expressly acknowledges the trade secret status of the Confidential and
Proprietary Information and that the Confidential and Proprietary Information
constitutes a protectable business interest of the Company. The Executive
agrees: (i) not to use any such Confidential and Proprietary Information for
himself or others; and (ii) not to take any Company material or reproductions
(including but not limited to writings, correspondence, notes, drafts, records,
invoices, technical and business policies, computer programs or disks) thereof
from the Company’s offices at any time during his employment by the Company,
except as required in the execution of the Executive’s duties to the Company.
The Executive agrees to return immediately all Company material and
reproductions (including but not limited, to writings, correspondence, notes,
drafts, records, invoices, technical and business policies, computer programs
or
disks) thereof in his possession to the Company upon request and in any event
immediately upon termination of employment.
(b) Except
with prior written authorization by the Company, the Executive agrees not to
disclose or publish any of the Confidential and Proprietary Information, or
any
confidential, scientific, technical or business information of any other party
to whom the Company or any of its affiliates owes an obligation of confidence,
at any time during or after his employment with the Company.
(c) The
Executive agrees that all inventions, discoveries, improvements and patentable
or copyrightable works (“Inventions”)
initiated, conceived or made by him, either alone or in conjunction with others,
during the Term
shall be
the sole property of the Company to the maximum extent permitted by applicable
law and, to the extent permitted by law, shall be “works made for hire” as that
term is defined in the United States Copyright Act (17 U.S.C.A., Section 101).
The Company shall be the sole owner of all patents, copyrights, trade secret
rights, and other intellectual property or other rights in connection therewith.
The Executive hereby assigns to the Company all right, title and interest he
may
have or acquire in all such Inventions; provided, however, that the Board of
Directors of the Company may in its sole discretion agree to waive the Company’s
rights pursuant to this Section 6(c) with respect to any Invention that is
not
directly or indirectly related to the Company’s business. The Executive further
agrees to assist the Company in every proper way (but at the Company’s expense)
to obtain and from time to time enforce patents, copyrights or other rights
on
such Inventions in any and all countries, and to that end the Executive will
execute all documents necessary:
(i) to
apply
for, obtain and vest in the name of the Company alone (unless the Company
otherwise directs) letters patent, copyrights or other analogous protection
in
any country throughout the world and when so obtained or vested to renew and
restore the same; and
(ii) to
defend
any opposition proceedings in respect of such applications and any opposition
proceedings or petitions or applications for revocation of such letters patent,
copyright or other analogous protection.
(d) The
Executive acknowledges that while performing the services under this Agreement
the Executive may locate, identify and/or evaluate patented or patentable
inventions having commercial potential in the fields of pharmacy,
pharmaceutical, biotechnology, healthcare, technology and other fields which
may
be of potential interest to the Company or one of its affiliates (the
“Third
Party Inventions”).
The
Executive understands, acknowledges and agrees that all rights to, interests
in
or opportunities regarding, all Third-Party Inventions identified by the
Company, any of its affiliates or either of the foregoing persons’ officers,
directors, employees (including the Executive), agents or consultants during
the
Employment Term shall be and remain the sole and exclusive property of the
Company or such affiliate and the Executive shall have no rights whatsoever
to
such Third-Party Inventions and will not pursue for himself or for others any
transaction relating to the Third-Party Inventions which is not on behalf of
the
Company.
(e) The
provisions of this Section 6 shall survive any termination of this
Agreement.
7. Non-Competition,
Non-Solicitation and Non-Disparagement.
(a) The
Executive understands and recognizes that his services to the Company are
special and unique and that in the course of performing such services the
Executive will have access to and knowledge of Confidential and Proprietary
Information (as defined in Section 6) and the Executive agrees that, during
the
Term and for a period of eighteen
(18)
months
thereafter, he shall not in any manner, directly or indirectly, on behalf of
himself or any person, firm, partnership, joint venture, corporation or other
business entity (“Person”),
enter
into or engage in any business which is engaged in any business directly or
indirectly competitive with the business of the Company, either as an individual
for his own account, or as a partner, joint venturer, owner, executive,
employee, independent contractor, principal, agent, consultant, salesperson,
officer, director or shareholder of a Person in a business competitive with
the
Company within the geographic area of the Company’s business, which is deemed by
the parties hereto to be worldwide. The Executive acknowledges that, due to
the
unique nature of the Company’s business, the loss of any of its clients or
business flow or the improper use of its Confidential and Proprietary
Information could create significant instability and cause substantial damage
to
the Company and its affiliates and therefore the Company has a strong legitimate
business interest in protecting the continuity of its business interests and
the
restriction herein agreed to by the Executive narrowly and fairly serves such
an
important and critical business interest of the Company. For purposes of this
Agreement, the Company shall be deemed to be actively engaged on the date hereof
in the development of novel application drug delivery systems for presently
marketed prescription and over-the-counter drugs and providing consulting
services in connection therewith, and in the future in any other business in
which it actually devotes substantive resources to study, develop or pursue.
Notwithstanding the foregoing, nothing contained in this Section 7(a) shall
be
deemed to prohibit the Executive from (i) acquiring or holding, solely for
investment, publicly traded securities of any corporation, some or all of the
activities of which are competitive with the business of the Company so long
as
such securities do not, in the aggregate, constitute more than three percent
(3%) of any class or series of outstanding securities of such
corporation.
(b) During
the Term and for a period of 18 months thereafter, the Executive shall not,
directly or indirectly, without the prior written consent of the
Company:
(i) solicit
or induce any employee of the Company or any of its affiliates to leave the
employ of the Company or any such affiliate; or hire for any purpose any
employee of the Company or any affiliate or any employee who has left the
employment of the Company or any affiliate within one year of the termination
of
such employee’s employment with the Company or any such affiliate or at any time
in violation of such employee’s non-competition agreement with the Company or
any such affiliate; or
(ii) solicit
or accept employment or be retained by any Person who, at any time during the
term of this Agreement, was an agent, client or customer of the Company or
any
of its affiliates where his position will be related to the business of the
Company or any such affiliate; or
(iii) solicit
or accept the business of any agent, client or customer of the Company or any
of
its affiliates with respect to products, services or investments similar to
those provided or supplied by the Company or any of its affiliates.
(c) The
Executive agrees that both during the Term and at all times thereafter, he
shall
not directly or indirectly disparage, whether or not true, the name or
reputation of the Company or any of its affiliates, including but not limited
to, any officer, director, employee or shareholder of the Company or any of
its
affiliates.
(d) In
the
event that the Executive breaches any provisions of Section 6 or this Section
7
or there is a threatened breach, then, in addition to any other rights which
the
Company may have, the Company shall (i) be entitled, without the posting of
a
bond or other security, to injunctive relief to enforce the restrictions
contained in such Sections and (ii) have the right to require the Executive
to
account for and pay over to the Company all compensation, profits, monies,
accruals, increments and other benefits (collectively “Benefits”)
derived or received by the Executive as a result of any transaction constituting
a breach of any of the provisions of Sections 6 or 7 and the Executive hereby
agrees to account for and pay over such Benefits to the Company.
(e) Each
of
the rights and remedies enumerated in Section 7(d) shall be independent of
the
others and shall be in addition to and not in lieu of any other rights and
remedies available to the Company at law or in equity. If any of the covenants
contained in this Section 7, or any part of any of them, is hereafter construed
or adjudicated to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants or rights or remedies which shall be
given full effect without regard to the invalid portions. If any of the
covenants contained in this Section 7 is held to be invalid or unenforceable
because of the duration of such provision or the area covered thereby, the
parties agree that the court making such determination shall have the power
to
reduce the duration and/or area of such provision and in its reduced form such
provision shall then be enforceable. No such holding of invalidity or
unenforceability in one jurisdiction shall bar or in any way affect the
Company’s right to the relief provided in this Section 7 or otherwise in the
courts of any other state or jurisdiction within the geographical scope of
such
covenants as to breaches of such covenants in such other respective states
or
jurisdictions, such covenants being, for this purpose, severable into diverse
and independent covenants.
(f) In
the
event that an actual proceeding is brought in equity to enforce the provisions
of Section 6 or this Section 7, the Executive shall not urge as a defense that
there is an adequate remedy at law nor shall the Company be prevented from
seeking any other remedies which may be available. The Executive agrees that
he
shall not raise in any proceeding brought to enforce the provisions of Section
6
or this Section 7 that the covenants contained in such Sections limit his
ability to earn a living.
(g) The
provisions of this Section 7 shall survive any termination of this
Agreement.
8. Representations
and Warranties by the Executive.
The
Executive hereby represents and warrants to the Company as follows:
(i) Neither
the execution or delivery of this Agreement nor the performance by the Executive
of his duties and other obligations hereunder violate or will violate any
statute, law, determination or award, or conflict with or constitute a default
or breach of any covenant or obligation under (whether immediately, upon the
giving of notice or lapse of time or both) any prior employment agreement,
contract, or other instrument to which the Executive is a party or by which
he
is bound.
(ii) The
Executive has the full right, power and legal capacity to enter and deliver
this
Agreement and to perform his duties and other obligations hereunder. This
Agreement constitutes the legal, valid and binding obligation of the Executive
enforceable against him in accordance with its terms. No approvals or consents
of any persons or entities are required for the Executive to execute and deliver
this Agreement or perform his duties and other obligations
hereunder.
9. Termination.
The Executive’s employment hereunder shall be terminated upon the Executive’s
death and may be terminated as follows:
(a) The
Executive’s employment hereunder may be terminated by the Board of Directors of
the Company for Cause. Any of the following actions by the Executive shall
constitute “Cause”:
(i) The
willful failure, disregard or refusal by the Executive to perform his duties
hereunder;
(ii) Any
willful, intentional or grossly negligent act by the Executive having the effect
of injuring, in a material way (whether financial or otherwise and as determined
in good-faith by a majority of the Board of Directors of the Company), the
business or reputation of the Company or any of its affiliates, including but
not limited to, any officer, director, executive or shareholder of the Company
or any of its affiliates;
(iii) Willful
misconduct by the Executive
in
respect of the duties or obligations of the Executive under this
Agreement,
including, without limitation, insubordination with respect to directions
received by the Executive from the Board of Directors of the Company;
(iv) The
Executive’s indictment of any felony or a misdemeanor involving moral turpitude
(including entry of a nolo contendere plea);
(v) The
determination by the Company, after a reasonable and good-faith investigation
by
the Company following a written allegation by another employee of the Company,
that the Executive engaged in some form of harassment prohibited
by law
(including, without limitation, age, sex or race discrimination),
unless
the Executive’s actions were specifically directed by the Board of Directors of
the Company;
(vi) Any
misappropriation or embezzlement of the property of the Company or its
affiliates (whether or not a misdemeanor or felony);
(vii) Breach
by
the Executive of any of the provisions of Sections
6, 7
or
8
of this
Agreement; and
(viii) Breach
by
the Executive of any provision of this Agreement other than those contained
in
Sections
6, 7
or
8
which is
not cured by the Executive within thirty (30) days after notice thereof is
given
to the Executive by the Company.
(b) The
Executive’s employment hereunder may be terminated by the Board of Directors of
the Company due to the Executive’s Disability. For purposes of this Agreement, a
termination for “Disability”
shall
occur (i) when the Board of Directors of the Company has provided a written
termination notice to the Executive supported by a written statement from a
reputable independent physician to the effect that the Executive shall have
become so physically or mentally incapacitated as to be unable to resume, within
the ensuing twelve (12) months, his employment hereunder by reason of physical
or mental illness or injury, or (ii) upon rendering of a written termination
notice by the Board of Directors of the Company after the Executive has been
unable to substantially perform his duties hereunder for 90 or more consecutive
days, or more than 120 days in any consecutive twelve month period, by reason
of
any physical or mental illness or injury. For purposes of this Section 9(b),
the
Executive agrees to make himself available and to cooperate in any reasonable
examination by a reputable independent physician retained by the
Company.
(c) The
Executive’s employment hereunder may be terminated by the Board of Directors of
the Company (or its successor) upon the occurrence of a Change of Control.
For
purposes of this Agreement, “Change
of Control”
means
(i) the acquisition, directly or indirectly, following the date hereof by any
person (as such term is defined in Section 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended), in one transaction or a series of related
transactions, of securities of the Company representing in excess of fifty
percent (50%) or more of the combined voting power of the Company’s then
outstanding securities if such person or his or its affiliate(s) do not own
in
excess of 50% of such voting power on the date of this Agreement, or (ii) the
future disposition by the Company (whether direct or indirect, by sale of assets
or stock, merger, consolidation or otherwise) of all or substantially all of
its
business and/or assets in one transaction or series of related transactions
(other than a merger effected exclusively for the purpose of changing the
domicile of the Company).
10. Compensation
upon Termination.
(a) If
the
Executive’s employment is terminated as a result of his death or Disability, the
Company shall pay to the Executive or to the Executive’s estate, as applicable,
his
Base
Salary and any accrued and any unpaid Bonus and expense reimbursement amounts
through the date of his Death or Disability.
(b) If
the
Executive’s employment is terminated by the Board of Directors of the Company
for Cause, then the Company shall pay to the Executive his Base Salary through
the date of his termination and the Executive shall have no further entitlement
to any other compensation or benefits from the Company.
(c) If
the
Executive’s employment is terminated by the Company (or its successor) upon the
occurrence of a Change of Control, the Company (or its successor, as applicable)
shall continue to pay to the Executive his Base Salary for a period of one
year
following such termination.
(d) If
the
Executive’s employment is terminated by the Company other than as a result of
the Executive’s death or Disability and other than for reasons specified in
Sections 10(b) or (c), then the Company shall continue to pay to the Executive
his Base Salary for a period of one year following such termination, and (ii)
pay the Executive any expense reimbursement amounts owed through the date of
termination. The Company’s obligation under clauses (i) and (ii) in the
preceding sentence shall be subject to offset by any amounts otherwise received
by the Executive from any employment during the one year period following the
termination of his employment.
(e) This
Section 10 sets forth the only obligations of the Company with respect to the
termination of the Executive’s employment with the Company, and the Executive
acknowledges that, upon the termination of his employment, he shall not be
entitled to any payments or benefits which are not explicitly provided in
Section 10.
(f) Upon
termination of the Executive’s employment hereunder for any reason, the
Executive shall be deemed to have resigned as director of the Company, effective
as of the date of such termination.
(g) The
provisions of this Section 10 shall survive any termination of this
Agreement.
11. Miscellaneous.
(a) This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York, without giving effect to its principles
of conflicts of laws.
(b) Any
dispute arising out of, or relating to, this Agreement or the breach thereof
(other than Sections 6 or 7 hereof), or regarding the interpretation thereof,
shall be finally settled by arbitration conducted in New York City in accordance
with the rules of the American Arbitration Association then in effect before
a
single arbitrator appointed in accordance with such rules. Judgment upon any
award rendered therein may be entered and enforcement obtained thereon in any
court having jurisdiction. The arbitrator shall have authority to grant any
form
of appropriate relief, whether legal or equitable in nature, including specific
performance. For the purpose of any judicial proceeding to enforce such award
or
incidental to such arbitration or to compel arbitration and for purposes of
Sections 6 and 7 hereof, the parties hereby submit to the non-exclusive
jurisdiction of the Supreme Court of the State of New York, New York County,
or
the United States District Court for the Southern District of New York, and
agree that service of process in such arbitration or court proceedings shall
be
satisfactorily made upon it if sent by registered mail addressed to it at the
address referred to in paragraph (g) below. The
costs
of such arbitration shall be borne proportionate to the finding of fault as
determined by the arbitrator. Judgment on the arbitration award may be entered
by any court of competent jurisdiction.
(c) This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and their respective heirs, legal representatives, successors and
assigns.
(d) This
Agreement, and the Executive’s rights and obligations hereunder, may not be
assigned by the Executive. The Company may assign its rights, together with
its
obligations, hereunder in connection with any sale, transfer or other
disposition of all or substantially all of its business or assets.
(e) This
Agreement cannot be amended orally, or by any course of conduct or dealing,
but
only by a written agreement signed by the parties hereto.
(f) The
failure of either party to insist upon the strict performance of any of the
terms, conditions and provisions of this Agreement shall not be construed as
a
waiver or relinquishment of future compliance therewith, and such terms,
conditions and provisions shall remain in full force and effect. No waiver
of
any term or condition of this Agreement on the part of either party shall be
effective for any purpose whatsoever unless such waiver is in writing and signed
by such party.
(g) All
notices, requests, consents and other communications, required or permitted
to
be given hereunder, shall be in writing and shall be delivered personally or
by
an overnight courier service or sent by registered or certified mail, postage
prepaid, return receipt requested, to the parties at the addresses set forth
on
the first page of this Agreement, and shall be deemed given when so delivered
personally or by overnight courier, or, if mailed, five days after the date
of
deposit in the United States mails. Either party may designate another address,
for receipt of notices hereunder by giving notice to the other party in
accordance with this paragraph (g).
(h) This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter hereof, and supersedes all prior agreements,
arrangements and understandings, written or oral, relating to the subject matter
hereof. No representation, promise or inducement has been made by either party
that is not embodied in this Agreement, and neither party shall be bound by
or
liable for any alleged representation, promise or inducement not so set
forth.
(i) As
used
in this Agreement, “affiliate” of a specified Person shall mean and include any
Person controlling, controlled by or under common control with the specified
Person.
(j) The
section headings contained herein are for reference purposes only and shall
not
in any way affect the meaning or interpretation of this Agreement.
(k) This
Agreement may be executed in any number of counterparts, each of which shall
constitute an original, but all of which together shall constitute one and
the
same instrument.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
| COUGAR BIOTECHNOLOGY, INC. | ||
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| By: | ||
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Name:
Title:
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| EXECUTIVE | ||
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| By: | /s/ Xxxx X. Xxxxxxxx | |
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Name:
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