Exhibit 10.27
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ADDENDUM TO EMPLOYMENT AGREEMENT
WHEREAS, Wyndham International, Inc. (the "Company") and Xxxxx X. Xxxxxxx
(the "Executive") are parties to that certain Executive Employment Agreement
effective as of April 1, 2000 (the "Employment Agreement"); and
WHEREAS, the Company and the Executive wish to amend certain provisions of
the Employment Agreement as specified in this Addendum to Employment Agreement
(this "Addendum");
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and the Executive hereby agree that effective
September 14, 2001, the Employment Agreement is amended as hereinafter set
forth.
1. Certain Defined Terms. Capitalized terms not otherwise defined herein
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shall have the meanings ascribed to such terms in the Employment Agreement.
2. Amendment to Paragraph 4. Unauthorized Disclosure. Paragraph 4 of the
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Employment Agreement is hereby deleted in its entirety and replaced with the
following:
4. Unauthorized Disclosure.
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(a) Confidential Information. Executive acknowledges that in
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the course of his employment with the Company (and, if applicable,
its predecessors), he has been allowed to become, and will continue
to be allowed to become, acquainted with the business affairs,
information, trade secrets, and other matters of the Company and its
subsidiaries which are of a proprietary or confidential nature,
including but not limited to the operations, business opportunities,
price and cost information, finance, customer information, business
plans, various sales techniques, manuals, letters, notebooks,
procedures, reports, products, processes, services, and other
confidential information and knowledge (collectively the
"Confidential Information") concerning the business of the Company,
its predecessors and their respective subsidiaries. The Company
agrees to provide on an ongoing basis such Confidential Information
as the Company deems necessary or desirable to aid Executive in the
performance of his duties. Executive understands and acknowledges
that such Confidential Information is confidential, and he agrees
not to disclose such Confidential Information to anyone outside the
Company except to the extent that (i) Executive deems such
disclosure or use reasonably necessary or appropriate in connection
with performing his duties on behalf of the Company, (ii) Executive
is required by order of a court of competent jurisdiction (by
subpoena or similar process) to disclose or discuss any Confidential
Information, provided that in such case, Executive shall promptly
inform the Company of such event, shall cooperate with the Company
in attempting to obtain a protective order or
to otherwise restrict such disclosure, and shall only disclose
Confidential Information to the minimum extent necessary to comply
with any such court order; (iii) such Confidential Information
becomes generally known to and available for use by the hotel and
hospitality industry (the "Hotel Industry"), other than as a result
of any action or inaction by Executive; or (iv) such information has
been rightfully received by a member of the Hotel Industry or has
been published in a form generally available to the Hotel Industry
prior to the date Executive proposes to disclose or use such
information. Executive further agrees that he will not during
employment and/or at any time thereafter use such Confidential
Information in competing, directly or indirectly, with the Company
or any of its subsidiaries. At such time as Executive shall cease to
be employed by the Company, he will immediately turn over to the
Company all Confidential Information, including papers, documents,
writings, electronically stored information, other property, and all
copies of them provided to or created by him during the course of
his employment with the Company.
(b) Heirs, successors, and legal representatives. The
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foregoing provisions of this Paragraph 4 shall be binding upon
Executive's heirs, successors, and legal representatives. The
provisions of this Paragraph 4 shall survive the termination of this
Agreement for any reason.
(c) Definition of Subsidiary. For purposes of this Paragraph 4
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and for purposes of Paragraph 5 (Covenant Not to Compete) below,
"subsidiary" of the Company means any corporation, partnership,
joint venture, limited liability company or other entity of which
(i) at least a majority of the securities or other interests having
by their terms voting power to elect a majority of the board of
directors or others performing similar functions for such entity is
directly or indirectly beneficially owned by the Company (either
alone or through or together with one or more of its subsidiaries),
or (ii) the Company or any subsidiary of the Company is a general
partner or manager.
3. Amendment to Paragraph 5. Covenant Not to Compete. Paragraph 5 of the
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Employment Agreement is hereby deleted in its entirety and replaced with the
following:
5. Covenant Not to Compete. In consideration for the Option,
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the Restricted Unit Award granted to Executive on April 12, 2001,
the other consideration set forth in the Addendum, the Company's
promise to provide Confidential Information as set forth in
Paragraph 4 above (including the Confidential Information provided
by the Company to Executive concurrently with the execution of the
Addendum, which Executive acknowledges has not been previously
provided to Executive), and for Executive's employment by the
Company under the terms provided in this Agreement, and as a means
to aid in the performance and enforcement of the terms of and
preserve the rights of the Company
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pursuant to the Unauthorized Disclosure provisions of Paragraph 4,
Executive agrees as follows:
(a) during the term of Executive's employment with the
Company and for a period of twenty-four (24) months
thereafter, regardless of the reason for termination of
employment, Executive will not, directly or indirectly, as an
owner, director, principal, agent, officer, employee, partner,
consultant, servant, or otherwise, carry on, operate, manage,
control, or become involved in any manner with any business,
operation, corporation, partnership, association, agency, or
other person or entity which is in the business of owning,
operating, managing or granting franchise rights with respect
to hotels, motels or other lodging facilities in any area or
territory in which the Company or any of its subsidiaries
conducts operations; provided, however, that the foregoing
shall not prohibit Executive from owning up to one percent
(1%) of the outstanding stock of a publicly held company
engaged in the hospitality business. Notwithstanding the
foregoing, after Executive's employment with the Company has
terminated, upon receiving written permission by the Board,
Executive shall be permitted to engage in such activities with
respect to any other hotel, motel or lodging facility that
would be immaterial to the operations of the Company and its
subsidiaries in the area or territory in question.
Immateriality, for purposes of the foregoing sentence, shall
be determined in the sole discretion of the Board in good
faith.
(b) during the term of Executive's employment with the
Company and for a period of twenty-four (24) months
thereafter, regardless of the reason for termination of
employment, Executive will not, directly or indirectly, either
for himself or for any other business, operation, corporation,
partnership, association, agency, or other person or entity,
call upon, compete for, solicit, divert, or take away, or
attempt to divert or take away any of the customers
(including, without limitation, any hotel owner, lessor or
lessee, asset manager, trustee or consumer with whom the
Company or any of its subsidiaries from time to time (i) has
an existing agreement or business relationship; (ii) has had
an agreement or business relationship within the two-year
period preceding the Executive's last day of employment with
the Company; or (iii) has included as a prospect in its
applicable pipeline) or vendors of the Company or any of its
subsidiaries in any of the areas or territories in which the
Company or any of its subsidiaries conducts operations if such
action has the intent or effect of interfering with the
Company's or any of its subsidiaries' relationship with the
vendor or customer.
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(c) during the term of Executive's employment with the
Company and for a period of twenty-four (24) months
thereafter, regardless of the reason for termination of
employment, Executive will not directly or indirectly solicit
or induce any current or prospective employee of the Company
or any of its subsidiaries (including, without limitation, any
current or prospective employee of the Company or any of its
subsidiaries within the six-month period preceding Executive's
last day of employment with the Company or within the 24-month
period of this covenant) to accept employment with Executive
or with any business, operation, corporation, partnership,
association, agency, or other person or entity with which
Executive may be associated, and Executive will not employ or
cause any business, operation, corporation, partnership,
association, agency, or other person or entity with which
Executive may be associated to employ any current or
prospective employee of the Company or any of its subsidiaries
without providing the Company with ten (10) days' prior
written notice of such proposed employment.
(d) Executive agrees and acknowledges that the
restrictions contained in this noncompetition covenant are
reasonable in scope of activity, duration and geographical
area and are necessary to protect the Company's business
interests and Confidential Information after the Effective
Date of this Agreement. If any provision of this
noncompetition covenant as applied to any party or to any
circumstance is adjudged by a court to be invalid or
unenforceable, the same will in no way affect any other
circumstance or the validity or enforceability of this
Agreement. If any such provision, or any part thereof, is held
to be unenforceable because of the duration of such provision
or the scope of activity or area covered thereby, the parties
agree that the court making such determination shall have the
power to reduce the duration and/or area and/or scope of
activity of such provision, and/or to delete specific words or
phrases, and in its reduced form, such provision shall then be
enforceable and shall be enforced. The parties agree and
acknowledge that the breach of this noncompetition covenant
will cause irreparable damage to the Company, and upon breach
of any provision of this noncompetition covenant, the Company
shall be entitled to injunctive relief, specific performance,
or other equitable relief; provided, however, that this shall
in no way limit any other remedies which the Company may have
(including, without limitation, the right to seek monetary
damages).
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(e) Should Executive violate the provisions of this
Paragraph, then in addition to all other rights and remedies
available to the Company at law or in equity, the duration of
this covenant shall automatically be extended for the period
of time from which Executive began such violation until he
permanently ceases such violation.
4. Amendment to Subparagraph (6)(e). Termination by Executive. The last
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two sentences of Subparagraph 6(e) of the Employment Agreement are hereby
deleted in their entirety and replaced with the following:
"Good Reason Process" shall mean that (i) the Executive
reasonably determines in good faith that a "Good Reason" event has
occurred; (ii) Executive notifies the Company in writing (the "Good
Reason Notice") of the occurrence of the Good Reason event; (iii)
for a period (the "Good Reason Process Period") consisting of not
less than thirty (30) days if the Good Reason Notice is delivered to
the Company within 18 months after the occurrence of the first event
constituting a Change in Control (as defined in Subparagraph 8(c))
and not less than ninety (90) days in all other instances, Executive
cooperates in good faith with the Company's efforts to modify
Executive's employment situation in a manner acceptable to Executive
and the Company; and (iv) notwithstanding such efforts, one or more
of the Good Reason events continues to exist and has not been
modified in a manner acceptable to Executive. If the Company cures
the Good Reason event during the applicable Good Reason Process
Period, Good Reason shall be deemed not to have occurred.
5. Amendment to Subparagraph 7(d)(i). The last sentence of Subparagraph
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7(d)(i) of the Employment Agreement is hereby deleted in its entirety and
replaced with the following:
Notwithstanding the foregoing, in the event Executive terminates his
employment for Good Reason as provided in Subparagraph 6(e), he
shall be entitled to the Severance Amount only if he provides the
Good Reason Notice provided for in Subparagraph 6(e) within thirty
(30) days after the occurrence of the event or events which
constitute Good Reason as specified in clauses (A), (B), (C), (D),
(E) and (F) of Subparagraph 6(e) and he provides the Notice of
Termination provided for in Subparagraph 6(f) within five (5) days
after the expiration of the Good Reason Process Period;
6. Amendment to Paragraph 8. Change in Control Payment. In the last
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sentence of the first paragraph of Paragraph 8 of the Employment Agreement, the
words "These provisions" are hereby deleted and replaced with "The provisions of
Subparagraph 8(a)".
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7. Amendments to Subparagraph 8(a). Change in Control. The first sentence
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of Subparagraph 8(a)(i) of the Employment Agreement is hereby deleted in its
entirety and replaced with the following:
If within eighteen (18) months after the occurrence of the first
event constituting a Change in Control, Executive's employment is
terminated by the Company without Cause as provided in Subparagraph
6(d) or Executive terminates his employment for Good Reason as
provided in Subparagraph 6(e), then the Company shall pay Executive
the Severance Amount as provided in Subparagraph 7(d)(i) in
substantially equal bi-weekly installments, in arrears, over
twenty-four (24) months; provided, however, that in the event
Executive commences any employment with an employer other than the
Company during such twenty-four (24) month period, the Company shall
not be entitled to any right of set-off against the Severance Amount
for any cash compensation received by the Executive from the new
employer during such period.
Subparagraph 8(a)(iii) is hereby deleted in its entirety and
replaced with the following:
(iii) Notwithstanding anything to the contrary in any
applicable option agreement or stock-based award agreement, in the
event of a Change in Control during the Period of Employment, any
unvested portions of any stock option or other stock-based award
shall fully vest and become exercisable one hundred eighty (180)
days after the date of the Change in Control (provided Executive is
employed by the Company on such 180th day) or, if earlier, on the
date following the Change in Control that the Executive's employment
with the Company is terminated by the Company without Cause or by
the Executive for Good Reason. In the event of such termination,
Executive shall have three hundred sixty (360) days following the
Date of Termination to exercise all his stock options; provided,
however, in no event may Executive exercise any stock option on or
after the Expiration Date of such option (as defined in the
applicable option agreement). With respect to a Change in Control
occurring after the date of the Addendum, the foregoing provisions
of this Subparagraph 8(a)(iii) are hereby substituted for and
replace any provisions in any applicable option agreement relating
to vesting in connection with a Change in Control or exercisability
if Executive's employment is terminated without Cause or for Good
Reason within 180 days after a Change in Control. Notwithstanding
the first sentence of this Subparagraph 8(a)(iii), the Restricted
Unit Award granted to Executive on April 12, 2001 shall not vest as
provided in such first sentence and shall instead vest in accordance
with the terms of such Restricted Unit Award. Executive shall also
be entitled to any other rights and benefits with respect to
stock-related awards, to the extent and upon the terms provided in
the employee stock option or incentive plan or any agreement or
other
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instrument attendant thereto (as amended hereby) pursuant to which
such options or awards were granted; and
8. Amendments to Subparagraph 8(b). Gross Up Payment. Subparagraph 8(b)(i)
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of the Employment Agreement is hereby deleted in its entirety and replaced with
the following:
(i) Excess Parachute Payment. If Executive incurs the tax (the
"Excise Tax") imposed by Section 4999 of the Internal Revenue Code
of 1986 (the "Code") on "excess parachute payments" within the
meaning of Section 280G(b)(1) of the Code (whether such excess
parachute payments arise out of this Agreement or otherwise), the
Company will pay to Executive an amount such that the net amount
retained by Executive, after deduction of any Excise Tax on the
excess parachute payment and any federal, state and local income
taxes and employment taxes (together with penalties and interest)
and Excise Tax upon the payment provided for by this sentence, will
be equal to the Severance Amount. In addition, if pursuant to the
immediately preceding sentence a full gross up payment is not made
to Executive for the entire amount of Excise Tax (and any federal,
state and local income taxes and employment taxes (together with
penalties and interest) and Excise Tax on the payment provided for
in the immediately preceding sentence) incurred by Executive in
connection with the first event constituting a Change in Control,
then the Company will pay to Executive an additional amount that,
after taking into account the amount payable pursuant to the
immediately preceding sentence, will completely gross up the
Executive for the entire amount of Excise Tax (and for any federal,
state and local income taxes and employment taxes (together with
penalties and interest) and Excise Tax on the payments provided for
by this Subparagraph 8(b)(i)); provided, however, that any payment
made pursuant to this sentence will not exceed an amount equal to
twice the Executive's Base Salary or Adjusted Base Salary, as
applicable, in effect immediately prior to the date of the Change in
Control. The payments made pursuant to this Subparagraph 8(b)(i) are
collectively referred to herein as the "Gross Up Payments". It is
the intent that the Gross Up Payments provided for by this
Subparagraph 8(b)(i) place Executive in the same position Executive
would have been in had no Excise Tax been imposed, subject to the
limitation on the Gross Up Payment provided for in the second
sentence of this Subparagraph 8(b)(i) by the proviso of such
sentence.
Subparagraph 8(b)(ii) is hereby deleted in its entirety and replaced
with the following:
(ii) Applicable Rates. For purposes of determining the amount
of the Gross Up Payments, Executive will be deemed to pay federal
income taxes at the highest marginal rate of federal income taxation
in the calendar year in which the Gross Up Payments are to be made
and state and local income taxes at the highest marginal rates of
taxation in the state and locality of Executive's primary
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residence for the calendar year in which the Gross Up Payments are
to be made, net of the maximum reduction in federal income taxes
that could be obtained from deduction of such state and local taxes.
Subparagraphs 8(b)(iii) and 8(b)(iv) are hereby deleted in their
entirety and are replaced with the following:
(iii) Time for Payment. The Company will pay the estimated
amount of the Gross Up Payments in cash to Executive at such time or
times when the Excise Tax is due. Executive and the Company and
their respective tax advisors agree to confer and reasonably
cooperate in the determination of the actual amount of the Gross Up
Payments. Without limiting the foregoing, Executive shall, if
requested by the Company, cooperate in a valuation of Executive's
obligations under paragraph 5 of this Agreement by a valuation firm
selected and paid for by the Company. Further, Executive and the
Company agree to make such adjustments to the estimated amount of
the Gross Up Payments as may be necessary to equal the actual amount
of the Gross Up Payments, which in the case of Executive will refer
to refunds of prior overpayments and in the case of the Company will
refer to makeup of prior underpayments.
9. Amendment to Subparagraph 8(c). Definitions. The penultimate sentence
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of Subparagraph 8(c) is hereby deleted in its entirety and replaced with the
following:
All defined terms used in the definition of "Change in Control"
shall have the same meaning as set forth in the Certificate of
Designation of Series B Convertible Preferred Stock of Wyndham
International, Inc. as in effect on the Effective Date of this
Agreement.
10. Amendment to Paragraph 13. Arbitration; Other Disputes. Paragraph 13
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of the Employment Agreement is hereby deleted in its entirety and replaced with
the following:
13. Mediation and/or Arbitration; Other Disputes.
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(a) General Procedures. In the event of any dispute or
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controversy arising under or in connection with the terms of this
Agreement, the parties shall first promptly try in good faith to
settle such dispute or controversy by mediation under the Commercial
Mediation Rules of the American Arbitration Association ("AAA")
before resorting to arbitration, provided, however, that if the
dispute or controversy concerns whether Executive is entitled to a
payment under subparagraph 8(a) or 8(b) or the amount of any payment
to which the Executive is entitled under subparagraph 8(a) or 8(b),
the expedited procedures in subparagraph 13(b) will apply. In the
event such dispute or controversy remains unresolved in whole or in
part for a period of thirty (30) days after it is submitted to
mediation, the parties will settle any remaining dispute or
controversy exclusively by arbitration in Dallas, Texas in
accordance with
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the Commercial Arbitration Rules of the AAA then in effect. The
parties hereto agree that any dispute relating to the terms of this
Agreement or the performance by the parties of their respective
obligations under the terms of this Agreement shall not in any event
be subject to the AAA's National Rules for the Resolution of
Employment Disputes. Judgment may be entered on the arbitrator's
award in any court having jurisdiction. With respect to a dispute or
other controversy arising under or in connection with the terms of
this Agreement after a Change in Control, all administration fees
and arbitration fees shall be paid solely by the Company. Each party
agrees to pay its own legal fees and expenses incurred in connection
with mediation and/or arbitration.
Notwithstanding the above, the Company shall be entitled
to seek a restraining order or injunction in any court of competent
jurisdiction to prevent any continuation of any violation of
paragraph 4 or 5 hereof. Should a dispute occur concerning
Executive's mental or physical capacity as described in
subparagraphs 6(b), 6(c) or 7(b), a doctor selected by Executive and
a doctor selected by the Company shall be entitled to examine
Executive. If the opinion of the Company's doctor and Executive's
doctor conflict, the Company's doctor and Executive's doctor shall
together agree upon a third doctor, whose opinion shall be binding.
Any amount to which Executive is entitled under this
Agreement (including any disputed amount) which is not paid when due
shall bear interest from the date due until paid at a rate equal to
the lesser of eighteen percent (18%) per annum or the maximum lawful
rate.
(b) Expedited Procedures. The following expedited procedures
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apply in the event of any dispute or controversy concerning whether
Executive is entitled to a payment under subparagraph 8(a) or 8(b)
or the amount of any payment to which Executive is entitled under
subparagraph 8(a) or (b), and are intended to supplement the general
procedures detailed above. The parties shall first promptly try in
good faith to settle such dispute or controversy by expedited
mediation under the Commercial Mediation Rules of the AAA, as
modified by this Agreement, before resorting to arbitration. In the
event that such dispute or controversy remains unresolved in whole
or in part for a period of fifteen (15) days after either party
files a request for expedited mediation with the AAA, the parties
will settle any remaining dispute or controversy exclusively by
expedited arbitration in Dallas, Texas in accordance with the
Expedited Procedures of the Commercial Arbitration Rules of the AAA
then in effect, as modified by this Agreement. The parties agree
that the arbitration hearing will be held sixty (60) days after the
filing of a demand for expedited arbitration. The parties further
agree that the following deadlines shall apply: (1) a party has
fifteen (15) days following the
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conclusion of the mediation period to file an arbitration demand;
(2) the opposing party then has seven (7) days to file an answering
statement; (3) thereafter, the parties have thirty-five (35) days to
conduct discovery, and (4) the parties have seven (7) days following
the close of discovery to exchange copies of all exhibits that they
intend to submit at the hearing. During the first five (5) days of
the discovery period, and prior to either party starting discovery,
the parties must agree upon the type of discovery that will be
conducted and upon a discovery schedule. Any dispute regarding the
type of discovery or the discovery schedule must be resolved by the
arbitrator during a discovery conference conducted in person or on
the telephone within the first five (5) days of the discovery
period. The parties agree that the arbitrator shall have fifteen
(15) days after the arbitration hearing to issue an award. The award
shall be written and reasoned, if requested by one of the parties.
11. Governing Law. The validity, interpretation, construction, and
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performance of this Addendum shall be governed by the laws of the State of Texas
(without regard to principles of conflicts of laws).
12. Counterparts. This Addendum may be executed in several counterparts,
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each of which shall be deemed an original but all of which together will
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Addendum
effective as of September 14, 2001.
WYNDHAM INTERNATIONAL, INC.
By:/s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: Senior Vice President - Human Resources
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/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, Executive
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