EXHIBIT 8(c)
Participation Agreements:
Xxx Xxx Worldwide Insurance Trust
Novation to Fund Participation Agreement
WHEREAS, on October 15, 2002, a Fund Participation Agreement (the "Agreement")
was entered into by and among Ameritas Variable Life Insurance Company
("AVLIC"), on its own behalf and on behalf of Ameritas Variable Separate Account
VA and Ameritas Variable Separate Account VL of AVLIC (the "Separate Accounts")
XxxXxx Worldwide Insurance Trust (the "Fund") and XxxXxx Associates Corporation
(the "Adviser"), whereby AVLIC issues certain individual variable life and/or
variable annuity contracts (the "Contracts"), the Fund acts as the underlying
investment vehicle of such contracts and the Adviser serves as investment
adviser to the Fund. A copy of the Agreement is attached hereto and made a part
hereof. The Agreement, by its terms, provides for amendment upon the written
agreement of all parties; and
WHEREAS, the closing of the merger of AVLIC with and into Ameritas Life
Insurance Corp. ("Ameritas"), with Ameritas as the surviving company (the
"Merger") is currently scheduled to occur after the close of business on April
30, 2007; It is therefore agreed:
1. Substitution of Party - The Agreement is amended to provide for Ameritas to
act as the issuer of the Contracts in substitution of AVLIC.
2. Performance of Duties - Ameritas hereby assumes and agrees to perform the
duties previously performed by AVLIC under the Agreement.
3. Assumption. of Rights - Ameritas hereby assumes the rights previously held
by AVLIC under the Agreement.
4. Effective Date - This Novation shall take effect as of the actual closing
date of the Merger, and such effectiveness is conditioned upon the closing
of the Merger. Ameritas will notify the other parties hereto of any change
in the scheduled closing date and of the actual closing date.
In witness whereof the parties have signed this instrument.
Executed this 24th day of April, 2007.
AMERITAS VARIABLE LIFE XXX XXX WORLDWIDE INSURANCE
INSURANCE COMPANY TRUST
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. XxXxxxx
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Print: Xxxxxx X. Xxxxx Print: Xxxxxx X. XxXxxxx
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Title: Sr. Vice President Title: Senior Vice President
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Date: April 24, 2007 Date: April 18, 2007
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AMERITAS LIFE INSURANCE CORP. XXX XXX ASSOCIATES CORPORATION
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxx X. XxXxxxx
-------------------------------- ---------------------------------
Print: Xxxxxx X. Xxxxx Print: Xxxxxx X. XxXxxxx
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Title: Sr. Vice President Title: Senior Vice President
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Date: April 24, 2007 Date: April 18, 2007
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FUND PARTICIPATION AGREEMENT
Ameritas Variable Life Insurance Company ("Insurance Company") and Xxx Xxx
Worldwide Insurance Trust ("Trust") hereby agree this15th day of October, 2002
that Xxx Xxx Worldwide Hard Assets Fund shall be made available to serve as an
underlying investment medium for individual Variable Life Insurance and Annuity
Contracts ("Contracts") to be offered by Insurance Company subject to the
following provisions:
1. Insurance Company represents that it has established the Ameritas Variable
Separate Account VA and Ameritas Variable Separate Account VL (the
"Variable Accounts"), separate accounts under Nebraska law, and has
registered each as a unit investment trust under the Investment Company Act
of 1940 (" 1940 Act") to serve as an investment vehicle for the applicable
Contracts. The Contracts provide for the allocation of net amounts received
by Insurance Company to separate series of the Variable Account for
investment in the shares of specified investment companies selected among
those companies available through the Variable Account to act as underlying
investment media. Selection of particular investment company is made by the
Contract owner who may change such selection from time to time in
accordance with the terms of the applicable Contract.
2. The Trust has received an order from the Commission dated September 19,
1990, (File No. 812-7451) granting participating insurance companies and
their separate accounts exemptions from the provisions of sections 9(a),
13(a), 15(a) and 15(b) of the 1940 Act, and Rules 6e- 2(b)(15) and
6e-3(T)(b)(15) thereunder to the extent necessary to permit shares of the
Portfolios of the Trust to be sold to and held by variable annuity and
variable life insurance, separate accounts of life insurance companies.
3. The Trust or the Adviser will provide closing net asset value, dividend and
capital gain information at the close of trading each business day to
Insurance Company or its designated Agent. Insurance Company will use this
data to calculate unit values, which will in turn be used to process that
same business day's Variable Account unit value. The Variable Account
processing will be done the same evening, and orders will be placed the
morning of the following business day. Orders will be sent directly to the
Trust or its specified agent, and payment for purchases will be wired to a
custodial account designated by the Trust or the Adviser, so as to coincide
with the order for Trust shares. The Trust will execute the orders at the
net asset value as determined as of the close of trading on the prior day.
Dividends and capital gains distributions shall be reinvested in additional
shares at the ex-date net asset value.
4. All expenses incident to the performance by the Trust under this Agreement
shall be paid by the Trust "The Trust" shall pay the cost of registration
of Trust shares with the Securities and Exchange Commission ("SEC") The
Trust shall distribute, to the Variable Account, proxy material, periodic
Trust reports to shareholders and other material the Trust may require to
be sent to Contract owners. The Trust shall pay the cost of qualifying
Trust shares in states where required. The Trust will provide Insurance
Company with a reasonable quantity of the Trust's Prospectus and the
reports to be used in contemplation of this Agreement. The Trust will
provide Insurance Company with a copy of the Statement of Additional
Information suitable for duplication.
5. Insurance Company and its agents shall make no representation concerning
the Trust or Trust shares except those contained in the then current
prospectuses of the Trust and in current printed sales literature of the
Trust.
6. Administrative services to Contract owners shall be the responsibility of
Insurance Company, and shall not be the responsibility of the Trust or the
Adviser.
7. The Trust shall comply with Sections 817(h) and 851 of the Internal Revenue
Code of 1986, if applicable, and the regulations thereunder, and the
applicable provisions of the 1940 Act relating to the diversification
requirements for variable annuity, endowment, and life insurance contracts.
Upon request, the Trust shall provide Insurance Company with a letter from
the appropriate Trust officer certifying the Trust's compliance with the
diversification requirements and qualification as a regulated investment
company.
8. Insurance Company agrees to inform the Board of Trustees of the Trust of
the existence of, or any potential for; any material irreconcilable
conflict of interest between the interests of the Contract owners of the
Variable Account investing in the Trust and/or any other separate account
or any other insurance company investing in the Trust. A material
irreconcilable conflict may arise for a variety of reasons, including:
(a) an action by any state insurance or other regulatory authority;
(b) a change in applicable federal or state insurance, tax or securities
laws or regulations, or a public ruling, private letter ruling, or any
similar action by insurance, tax or securities regulatory authorities;
(c) an administrative or judicial decision in any relevant proceeding;
(d) the manner in which the investments of any Portfolio are being
managed;
(e) a difference in voting instructions given by variable annuity contract
and variable life insurance contract owners or by variable annuity or
life insurance contract owners of different life insurance companies
utilizing the Trust;
(f) a decision by Insurance Company to disregard the voting instructions
of contract owners.
Insurance Company will be responsible for assisting the Board of Trustees
of the Trust in carrying out its responsibilities by providing the Board
with all information reasonably necessary for the Board to consider any
issue raised, including information as to a decision by Insurance Company
to disregard voting instructions of Contract owners. It is agreed that if
it is determined by a majority of the members of the Board of Trustees of
the Trust or a majority of its disinterested Trustees that a material
irreconcilable conflict exists affecting Insurance Company, Insurance
Company shall, at its own expense, take whatever steps are necessary to
remedy or eliminate the irreconcilable material conflict, which steps may
include, but are not limited to,
(a) withdrawing the assets allocable to some or all of the separate
accounts from the Trust or any Portfolio and reinvesting such assets
in a different investment medium, including another Portfolio of the
Trust or submitting the questions of whether such segregation should
be implemented to a vote of all affected Contract owners and, as
appropriate, segregating the assets of any particular group (i.e.,
annuity Contract owners, life insurance Contract owners or qualified
Contract owners) that votes in favor of such segregation, or offering
to the affected Contract owners the option of making such a change;
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(b) establishing a new registered management investment company or managed
separate account.
If a material irreconcilable conflict arises because of Insurance Company's
decision to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, Insurance
Company may be required, at the Trust's election, to withdraw the Variable
Account's investment in the Trust. No charge or penalty will be imposed against
the Variable Account as a result of such withdrawal. Insurance Company agrees
that any remedial action taken by it in resolving any material conflicts of
interest will be carried out with a view only to the interests of Contract
owners. For purposes hereof, a majority of the disinterested members of the
Board of Trustees of the Trust shall determine whether any proposed action
adequately remedies any material irreconcilable conflict. In no event will the
Trust be required to establish a new funding medium for any Contracts. Insurance
company shall not be required by the terms hereof to establish a new funding
medium for any Contracts if an offer to do so has been declined by vote of a
majority of affected Contract owners. The Trust will undertake to promptly make
known to Insurance Company the Board of Trustees' determination of the existence
of a material irreconcilable conflict and its implications.
9. This Agreement shall terminate as to the sale and issuance of new
contracts:
(a) at the option of any party upon 60 days advance written notice to the
other parties, unless a shorter time is agreed to by the parties;
(b) at the option of the Trust or the Trust Distributor ("Distributor") if
the Contracts issued by Insurance Company cease to qualify as annuity
contracts or life insurance contracts, as applicable, under the Code
or if the Contracts are not registered, issued or sold in accordance
with applicable state and/or federal law; or
(c) at the option of any party upon a determination by a majority of the
Trustees of the Trust or a majority of its disinterested Trustees,
that a material irreconcilable conflict exists; or
(d) at the option of Insurance Company upon institution of formal
proceedings against the Trust or the Distributor by the NASD, the SEC,
or any state securities or insurance department or any other
regulatory body regarding the Trust's or the Distributor's duties
under this Agreement or related to the sale of Portfolio shares or the
operation of the Portfolio; or
(e) at the option of Insurance Company if the Trust or a Portfolio fails
to meet the diversification requirements specified in Section 3.2{e)
hereof; or
(f) at the option of Insurance Company if shares of the Series are not
reasonably available to meet the requirements of the Variable
Contracts issued by Insurance Company; as determined by Insurance
Company, and upon prompt notice by Insurance Company to the other
parties; or
(g) at the option of Insurance Company in the event any of the shares of
the Portfolio are not registered, issued or sold in accordance with
applicable state and/or federal law, or such law precludes the use of
such shares as the underlying investment media of the Variable
Contracts issued or to be issued by Insurance Company; or
(h) at the option of Insurance Company, if the Portfolio fails to qualify
as a Regulated Investment Company under Subchapter M of the Code; or
(i) at the option of the
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Distributor if it shall determine in its sole judgment exercised in
good faith, that Insurance Company and/or its affiliated companies has
suffered a material adverse change in its business, operations,
financial condition or prospects since the date of this Agreement or
is the subject of material adverse publicity.
10. Termination as the result of any cause listed in the preceding paragraph
shall not affect the Trust's obligation to furnish Trust shares in respect
of dividends and capital gain distributions on existing shares for
Contracts then force for which the shares of the Trust serve or may serve
as an underlying medium, unless such further sale of Trust shares is
proscribed by law or the SEC or other regulatory body. The Trust shall not
be obligated to furnish Trust shares for purchases after termination. The
Trust reserves the right to reject any purchase order.
11. Each notice required by this Agreement shall be given by wire and confirmed
in writing to:
Van Eck Worldwide Insurance Trust Ameritas Variable Life Insurance Company
00 Xxxx Xxxxxx 5900 "O" Street
New York, New York 10016 Xxxxxxx, Xxxxxxxx 00000
Attention: President Attention: General Counsel
Xxx Xxx Associates Corp. Xxxx Xxxxxxx
00 Xxxx Xxxxxx Xxxxxxxxxx, Xxxxxx and Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Attn: President Xxxxxxxxxx, XX 00000-0000
12. Advertising and sales literature with respect to the Trust prepared by
Insurance Company or its agents for use in marketing its contracts will be
submitted to the Trust for review before such material is submitted to the
SEC or NASD for review.
13. Insurance Company will distribute all proxy material furnished by the Trust
and will vote Trust shares in accordance with instructions received from
the Contract owners of such Trust shares. Insurance Company shall vote the
Trust shares for which no instructions have been received in the same
proportion as Trust shares for which said instructions have been received
from Contract owners. Insurance Company and its agents will in no way
recommend action in connection with or oppose or interfere with the
solicitation of proxies for the Trust shares held for such Contract owners.
14. Insurance Company shall designate certain persons and entities which shall
have the requisite licenses to solicit applications for the sale of
Contracts. No representation is made as to the number of amount of
contracts that are to be sold by Insurance Company. Insurance Company shall
make reasonable efforts to market the Contracts and shall comply with all
applicable federal and state laws in connection therewith.
15. Issuance and transfer of the Trust's Portfolios shares will be by book
entry only. Stock certificates will not be issued to the Insurance Company
or the Accounts. Portfolio shares purchased from the Trust will be recorded
in the appropriate title for each Account or the appropriate subaccount of
each account.
The Trust shall furnish, on or before the ex-dividend date notice to the
Insurance Company of any income dividends or capital gain distributions
payable on the shares of any Portfolio of the Trust. The Company hereby
elects to receive all such income dividends and capital gain distributions
as are payable on a Portfolio's shares in additional shares of that
Portfolio. The Trust shall notify the
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Insurance Company of the number of shares so issued as payment of such
dividends and distributions.
16. Indemnification by the Insurance Company. The Company agrees to indemnify
and hold harmless the Advisor, the Trust and each of its Trustees,
officers, employees and agents and each person, if any, who controls the
Trust within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement
with the written consent of the Insurance Company, which consent shall not
be unreasonably withheld) or expenses (including the reasonable costs of
investigating or defending any alleged loss, claim, damage, liability or
expense and reasonable legal counsel fees incurred in connection therewith)
(collectively , "Losses"), to which the Indemnified Parties may become
subject under any statute or regulation, or at common law or otherwise,
insofar as such Losses are related to the sale or acquisition of the
Contracts or Trust shares and:
(i) arise out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in a registration statement
or prospectus for the Contracts or in the Contracts themselves or in
sales literature generated or approved by the Insurance Company on
behalf of the Contracts or Accounts (or any amendment or supplement to
any of the foregoing) or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, provided that this indemnity shall not apply as to any
Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and was accurately
derived from written information furnished to the Insurance Company by
or on behalf of the trust for use in Insurance Company Documents or
otherwise for use in connection with the sale of the Contracts of
Trust shares; or
(ii) arise out of or result from statements or representations (other than
statements or representations contained in and accurately derived from
Trust Documents) or wrongful conduct of the Insurance Company or
persons under its control, with respect to the sale or acquisition of
the Contracts or Trust shares; or
(iii) arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Trust Documents or the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading if such statement or omission was made in reliance upon and
accurately derived from written information furnished to the Trust by
or on behalf of the Insurance Company; or (iv) arise out of or result
from any failure by the Insurance Company to provide the services or
furnish the materials required under the terms of this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Insurance Company in this
Agreement or arise out of or result from any other material breach of
this Agreement by the Insurance Company; or
(vi) arise out or result from the provision by the Insurance Company to the
Trust of insufficient or incorrect information regarding the
purchasing or sale of shares of any Portfolio, or the failure of the
Company to provide such information on a timely basis.
17. Indemnification by the Trust The Trust agrees to indemnify and hold
harmless the Company and each of its directors, officers, employees, and
agents and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act against Losses, to which the
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Indemnified Parties may become subject under any statute or regulation, or
at common law or otherwise, insofar as such Losses are related to the sale
or. acquisition of the Contracts or Trust shares and:
(a) arise out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in the registration
statement or prospectus for the Trust (or any amendment or supplement
thereto), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, provided that this indemnity shall not apply as to any
Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and was accurately
derived from written information furnished to the Advisor or the Trust
by or on behalf of the Insurance Company for use in Trust Documents or
otherwise for use in connection with the sale of the Contracts or
Trust shares and; or
(b) arise out of or result from statements or representations (other than
statements or representations contained in and accurately derived from
Insurance Company Documents) or wrongful conduct of the Trust or
persons under its control, with respect to the sale or acquisition of
the Contracts or Portfolio shares; or
(c) arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Insurance Company Documents
or the omission or alleged omission to state therein or necessary to
make the statements therein not misleading if such statement or
omission was made in reliance upon and accurately derived from written
information furnished to the Insurance Company by or on behalf of the
Trust; or
(d) arise out of or result from any failure by the advisor or the Trust to
provide the services or furnish the materials required under the terms
of this Agreement; or
(e) arise out of or result from any material breach of any representation
and/or warranty made by the Advisor or the Trust in this Agreement or
arise out of a result from any other material breach of this Agreement
by the Advisor or the Trust.
18. None of the Insurance Company, the Trust or the Advisor shall be liable
under the indemnification provisions of Sections 16 and 17 with respect to
any Losses incurred or assessed against an Indemnified Party that arise
from such Indemnified Party's willful misfeasance, bad faith or negligence
in the performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations or duties under this
Agreement. Nothing herein shall entitle an indemnified party to punitive or
special, (excluding attorney fees and court costs as provided in Sections
16 and 17) consequential or exemplary damages or damages of like kind or
nature and with respect to an incorrect calculation on reporting or
untimely reporting of net asset value, dividend or capital gain
distribution rate, all liability, loss and damages shall be limited to the
amount required to correct the value of the Account as if there had been no
incorrect calculation or reporting or untimely reporting of net asset
value, dividend or capital gain rate.
19. None of the Insurance Company, the Trust or the Advisor shall be liable
under the indemnification provisions with respect to any claim made against
an Indemnified Party unless such Indemnified Party shall have notified the
other party in writing within a reasonable time after the summons, or other
first written notification, giving information of the nature of the claim
shall have been served upon or otherwise received by such Indemnified Party
(or after such
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Indemnified Party shall have received notice of service upon or other
notification to any designated agent), but failure to notify the party
against whom indemnification is sought of any such claim shall not relieve
that party from any liability which it may have to the Indemnified Party in
the absence of Sections 16 and 17.
20. In case any such action is brought against an Indemnified Party, the
indemnifying party shall be entitled to participate, at its own expense, in
the defense of such action. The indemnifying party also shall be entitled
to assume the defense thereof, with counsel reasonably satisfactory to the
party named in the action. After notice from the indemnifying party to the
Indemnified Party of an election to assume such defense, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained
by it, and the indemnifying party will not be liable to the Indemnified
Party under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense thereof
other than reasonable costs of investigation.
21. This Agreement may be executed in two or more counterparts, each of which
taken together shall constitute one and the same instrument.
22. If any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
23. This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Virginia. It shall
also be subject to the provisions of the federal securities laws and the
rules and regulations thereunder and to any orders of the Commission
granting exemptive relief therefrom and the conditions of such orders.
Copies of any such orders shall be promptly forwarded by the Trust to the
Company.
24. Each party shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the Commission, the
National Association of Securities Dealers, Inc. and state insurance
regulators) and shall permit such authorities reasonable access to its
books and records in connection with any investigation or inquiry relating
to this Agreement or the transactions contemplated hereby.
25. The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to
under state and federal laws .
26. This Agreement shall not be exclusive in any respect.
27. Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the prior written approval of the other
party.
28. No provisions of this Agreement may be amended or modified in any manner
except by a written agreement properly authorized and executed by both
parties.
29. Each party hereto shall, except as required by law or otherwise permitted
by this Agreement, treat as confidential the names and addresses of the
owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto, and shall not disclose
such confidential information without the written consent of the affected
party unless such information has become publicly available or is required
to be disclosed by, law, rule, regulation or court order.
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30. The Term "Xxx Xxx Worldwide Insurance Trust" means and refers to the
Trustees from time to time serving under the Master Trust Agreement of the
Trust dated January 7, 1986 as the same may subsequently thereto have been,
or subsequently hereto be amended. It is expressly agreed that the
obligations of the Trust hereunder shall not be binding upon any Trustees,
shareholders, nominees, officers, agents or employees or the Trust,
personally, but bind only the assets and property of the Trust, as provided
in the Master Trust Agreement of the Trust. The execution and delivery of
this Agreement have been authorized by the Trustees and the Trust, acting
as such, and neither such authorization by such officer shall be deemed to
have been made by any of them personally, but shall bind only the assets
and property of the Trust as provided in its Master Trust Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
duly executed as of the date first set forth above.
AMERITAS VARIABLE LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: President and COO
XXX XXX WORLDWIDE INSURANCE TRUST
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Secretary
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XXX XXX ASSOCIATES CORPORATION
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Secretary
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