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EXHIBIT 10.9
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FORM OF PERSONAL SERVICES AGREEMENT
This Personal Services Agreement (the "Agreement") is entered into this
1st day of December, 1998 by and between Atrix Laboratories, Inc., a Delaware
corporation (the "Company") with its principal place of business at 0000
Xxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxx 00000, and Xxxxx Xxxxxxx ("Employee")
with his address at 00 Xxxxx Xxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxx 00000 to be
effective as of December 1, 1998 (the "Effective Date").
PREMISES
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WHEREAS, the Company desires to employ Employee pursuant to
the terms and conditions and for the consideration set forth in this Agreement
and Employee desires to enter the employ of the Company pursuant to such terms
and conditions and for such consideration;
WHEREAS, the provisions of this Agreement are a condition of
Employee being employed by Company, of Employee's having access to confidential
business and technological information, and of Employee's being eligible to
receive certain benefits of the Company. This Agreement is entered into, and is
reasonably necessary, to protect confidential information and customer
relationships to which Employee may have access, and to protect the goodwill and
other business interests of the Company; and
WHEREAS, the provisions of this Agreement are also a condition
to Employee's agreement to provide personal services to Company.
NOW THEREFORE, in consideration of the mutual promises and covenants
agreed to herein, the receipt and sufficiency of which are hereby acknowledged,
Company and Employee agree as follows:
AGREEMENT
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1. Position, Term, Duties, Responsibilities
a. Position. Employee shall be employed by the Company as its
Vice President of Pharmacological Development at the Company's current place of
business in Fort Xxxxxxx, Colorado.
b. Duties. Employee shall faithfully and diligently render
such services and perform such related duties and responsibilities as are
customarily performed by a person holding such title and as otherwise may, from
time to time, be assigned to Employee by the Company's Chief Executive Officer,
or his designees. Employee shall comply with the provisions of this Agreement
and shall at all times be subject to such Company policies and procedures
including, but not limited to, a Company code of conduct, as the Company may
from time to time establish as pertaining to Employee.
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c. Term. This Agreement shall be for a term beginning on the
Effective Date and terminating the earlier of (i) twelve (12) months from the
Effective Date (the "Expiration Date"), or (ii) the date on which Employee's
employment is terminated pursuant to Section 3 of this Agreement (the "Term").
d. Other Activities. During Employee's employment with the
Company, Employee shall devote his entire business time, attention and energies
to the performance of his duties and functions under this Agreement and, except
upon the prior written consent of the Company, shall not (i) accept any other
employment, or (ii) directly or indirectly engage in any other business activity
(whether or not pursued for gain, profit or pecuniary advantage) that is or may
be in conflict with, or that might place Employee in a conflicting position to
that of the Company.
e. Proprietary Information. Employee agrees to comply with the
terms and conditions of the standard Company Employee Proprietary Information
and Inventions Agreement, which is annexed to this Agreement and referred to as
("Exhibit A") to this Agreement.
2. Compensation, Bonuses and Benefits
a. Base Salary. During Employee's employment with the Company,
the Company shall pay Employee a base annual salary, (the "Base Salary") which
at the time of the execution of this Agreement is One Hundred and Forty-Five
Thousand Dollars ($145,000). The Base Salary shall be payable in accordance with
the Company's normal payroll schedule, less all applicable tax withholdings for
state and federal income taxes, FICA and other deductions as required by law
and/or authorized by the Employee. The Employee's Base Salary shall be reviewed
no less frequently than annually to determine whether or not the same should be
increased in light of the duties and responsibilities of the Employee and the
performance thereof, and, if it is determined that an increase is merited in the
sole discretion of the Company, such increase shall be promptly put into effect
and the base salary of the Employee as so increased shall constitute the base
salary of the Employee for purposes of this Section 2.
b. Incentive Compensation Program. During Employee's
employment with the Company, Employee shall be entitled to participate in such
incentive compensation programs as are from time to time established and
approved by Company's Board of Directors in accordance with the Company's
practice for similarly situated employees.
c. Initial Stock Options. At the Effective Date, the Company
shall grant Employee stock options to purchase 30,000 shares of the Company's
$.001 par value common stock with the purchase price being the closing sales
price as listed on the Nasdaq National Market System on the Effective Date
("Initial Stock Options"). Subject to the provisions of Section 3 of this
Agreement, Employee's Initial Stock Options shall vest pro rata over three (3)
years from the date of the grant commencing on the anniversary date of
Employee's employment with the Company, provided Employee remains employed by
the Company. Subsequent grants may be awarded in the sole discretion of the
Company, based on Employee's performance and contributions to the business. Any
stock options are subject to the approval of the Company's Board of Directors.
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d. Benefits. Employee shall also be entitled to participate in
such employee benefit plans which the Company provides or may establish from
time to time for the benefit of employees, subject to the terms of each such
plan and subject to the right of the Company and the Company's Board of
Directors to modify, revise or eliminate such benefit plans from time to time in
their sole discretion. Employee shall pay for the portion of the cost of such
benefits as is from time-to-time established by Company as the portion of such
cost to be paid by employees of the Company.
e. Costs and Expenses. Employee shall be entitled to
reimbursement for all ordinary reasonable out-of-pocket business expenses which
are reasonably incurred by him in the furtherance of the Company's business, in
accordance with the policies adopted from time to time by the Company or the
Company's Board of Directors. Employee will comply with the Company's travel
policies as established from time to time by the Company or the Company's Board
of Directors.
f. Vacation. During the Term, Employee shall be entitled to
paid vacation in accordance with the Company's Earned Leave Day Policy.
g. Relocation Expenses. The Company shall provide Employee
with a relocation benefit of a lump sum of Twenty-Five Thousand Dollars
($25,000), less all applicable tax withholdings for state and federal income
taxes, FICA and other deductions as required by law, payable to Executive at the
time Executive physically relocates to the Fort Xxxxxxx, Colorado area on a
permanent basis.
3. Termination
a. For Cause by the Company. Employee's employment may be
terminated for "Cause." For purposes of this Agreement, "Cause" shall mean: (i)
the Employee's willful and continued failure substantially to perform his duties
hereunder (other than as a result of total or partial incapacity due to physical
or mental illness), (ii) the conviction of, or plea of guilty or nolo contendere
by the Employee to a charge of any felony under the laws of the United States or
any state thereof or crime involving moral turpitude, (iii) breach of any
covenants contained in this Agreement and/or (iv) the Employee's acting in a
manner which is reasonably likely to be detrimental or damaging to the Company's
reputation, business, operations or relations with employees, suppliers and
customers.
If Employee is terminated for Cause prior to the Expiration
Date, he shall be entitled to receive his then current Base Salary pursuant to
Section 2(a) through the date of termination. Thereafter, Employee shall not be
entitled to receive, and Company shall not be obligated to provide Employee with
any additional salary, payments or benefits of any kind.
b. Termination by Death of Employee. Employee's employment
with the Company shall terminate upon the death of the Employee. In the event
Employee's employment is terminated by death, Employee's designated beneficiary
shall be entitled to receive: (i) Employee's then current Base Salary pursuant
to Section 2(a) through the date of termination; (ii) the proceeds of any life
insurance policy offered by the Company; and (iii) the lump-sum payment of any
incentive compensation to which Employee was entitled and which Employee
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did not receive prior to his death. Such incentive compensation, if any, shall
be prorated through the date of termination and shall be payable to Employee's
designated beneficiary at the time the bonus for such calendar year would
normally be paid.
c. Termination by Disability of Employee. To the extent
allowable under existing law, Employee's employment with Company shall terminate
upon the Disability of the Employee. For the purposes of this Section 3(c),
Employee shall be considered "Disabled" if he becomes physically or mentally
incapacitated, such that for a period of three (3) consecutive months or for an
aggregate of six (6) months during a twelve (12) consecutive month period,
Employee is unable to perform the essential functions of his job without
reasonable accommodation. Any question as to the existence of the Disability of
the Employee shall be determined in writing by a qualified independent physician
chosen by the Company and reasonably satisfactory to Employee (or Employee's
legal representative) and such determination shall be conclusive. In the event
Employee's employment is terminated by Disability, Employee shall be entitled to
receive: (i) Employee's then current Base Salary pursuant to Section 2(a)
through the date of termination due to Disability (offset by any payments made
during such period under the Company's short-term and long-term disability
programs then in effect); and (ii) the lump-sum payment of any incentive
compensation to which Employee was entitled and which Employee did not receive
prior to the date of termination; such incentive compensation, if any, shall be
prorated through the date of termination. Thereafter, Employee shall not be
entitled to receive, and Company shall not be obligated to provide Employee with
any additional salary, payments or benefits of any kind.
d. Termination of Employee by Company Without Cause. Company
may terminate Employee's employment without cause at any time for any reason
prior to the Expiration Date without notice. In the event the Company terminates
Employee's employment under this Section 3(d), Employee shall be entitled to
receive: (i) in either a lump-sum or through salary continuation, at the
Company's sole discretion, the amount of Employee's then current Base Salary
pursuant to Section 2(a) until the first to occur of (A) the Expiration Date, or
(B) Employee is employed, as an employee, consultant or otherwise, by a third
party; and (ii) the lump-sum payment of any incentive compensation to which
Employee was entitled and which Employee did not receive prior to termination;
such incentive compensation, if any, shall be prorated through the date of
termination. Thereafter Employee shall not be entitled to receive, and the
Company shall not be obligated to provide Employee with any additional salary,
payments or benefits of any kind other than those specifically set forth in
Section 3(d) or 3(i).
e. Termination of Employee Upon Change of Control. In the
event Employee's employment is terminated prior to the Expiration Date by a
Change of Control of the Company, as defined below, Employee shall be entitled
to receive: (i) Employee's then current Base Salary pursuant to Section 2(a)
above through the date of termination and (ii) the lump-sum payment of any
incentive compensation to which Employee was entitled and which Employee did not
receive prior to the date of termination; such incentive compensation, if any,
shall be prorated through the date of termination. Thereafter Employee shall not
be entitled to receive, and the Company shall not be obligated to provide
Employee with any additional salary, payments or benefits of any kind other than
those specifically set forth in Section 3(e) or 3(i).
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For purposes of this Section 3(e), Change of Control shall
mean:
(i) any person (as defined in Sections 3(a)(9) and
13(d)(3) of the Securities Exchange Act of 1934) directly or indirectly becoming
the "beneficial owner" (as defined in Rule 13d-3 promulgated pursuant to such
Securities Exchange Act) of 50% or more of the combined voting power of
Company's then outstanding securities; or
(ii) the occurrence within any 12-month period of a
change in the membership of Company's Board of Directors such that the Incumbent
Members (as defined in the following sentence) do not constitute a majority of
the members of such Board of Directors. "Incumbent Members" shall mean, with
respect to any given 12-month period, the members of such Board of Directors on
the date immediately preceding the commencement of such given 12-month period;
provided, however, that any person who becomes a member of such Board of
Directors during such given 12-month period whose election or appointment to
such Board of Directors was approved by a vote of a majority of the members of
such Board of Directors who, on the date of such election or appointment,
comprised the Incumbent Members on the date of such vote shall be considered one
of the Incumbent Members with respect to such 12-month period.
f. Voluntary Termination by Employee. If Employee voluntarily
terminates his employment prior to the Expiration Date and prior to the
occurrence of a Change of Control, Employee shall receive his then current Base
Salary pursuant to Section 2(a) through the date of termination. Employee shall
not be entitled to receive, and Company shall have no obligation to provide
Employee with any additional pay, salary, bonuses or benefits of any kind.
g. Termination by Expiration Date. In the event Employee's
employment is terminated by the occurrence of the Expiration Date, the Company
shall have no obligation to pay Employee or provide Employee with benefits of
any kind beyond the Expiration Date. In the event that Employee remains employed
by Company beyond the Expiration Date, Employee shall be considered an at-will
employee.
h. Notice of Termination. With the exception of termination by
the Expiration Date, any purported termination of employment shall be
communicated through written notice indicating the specific provision in this
Agreement relied upon.
i. Stock Options Upon Termination. In the event that
Employee's employment is terminated under the provisions of Section 3(d) and/or
3(e) of this Agreement, all unvested stock options shall vest as of the date of
termination.
4. Noncompetition
a. Employee covenants and agrees with the Company that so long
as he is employed by the Company and for a period of twelve (12) months after
the termination of Employee's employment for any reason (the "Non-Competition
Period"), Employee will not engage or participate, directly or indirectly, as
principal, agent, employee, employer, consultant, advisor, sole proprietor,
stockholder, partner, independent contractor, trustee, joint venturer or in any
other individual or representative capacity whatever, in the conduct or
management of, or own any stock or other proprietary interest in, or debt of,
any business organization, person, firm
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partnership, association, corporation, enterprise or other entity that shall be
engaged in any business (whether in operation or in the planning, research or
development stage) that is a Competitive Business, unless Employee shall obtain
the prior written consent of the Company which consent shall make express
reference to this Agreement. Notwithstanding the foregoing, Employee may make
passive investments in any company whose stock is listed on a national
securities exchange or traded in the over-the-counter market so long as he does
not come to own, directly or indirectly, more than five percent (5%) of the
equity securities of such company. For purposes of this Agreement, a business
shall be considered a "Competitive Business" if it involves or relates to (i)
any business in which the Company is actively engaged on the date of termination
or any business in which during the twelve (12) months immediately preceding the
date of termination the Company actively contemplated engaging (as evidenced by
(x) discussions between Employee or any other officer of the Company, (y)
inclusion in a written business plan or proposal, or (z) discussions between
Employee or any other officer of the Company and any customer or prospective
customer of the Company) or (ii) any business in which an affiliate is actively
engaged on the date of termination or any business in which during the twelve
(12) months immediately preceding the date of termination an affiliate actively
contemplated engaging (as evidenced by (x) discussions between any officer of
any affiliate, (y) inclusion in a written business plan or proposal, or (z)
discussions between an officer of any affiliate and any customer or prospective
customer of any affiliate), provided, however, for purposes of this clause (ii),
such business involves or relates to the research, development, manufacturing,
production, marketing, selling or servicing of products or services for or
related to the drug delivery business.
b. During the Non-Competition Period, Employee will not
directly or indirectly solicit or induce, or aid any other entity or person in
soliciting or inducing, or knowingly permit any entity directly or indirectly
controlled by him to solicit or induce, any person who is, or during the last
six months of Employee's employment by the Company was, an officer, director,
executive, consultant or employee of the company or any of its affiliates or any
of its existing or future subsidiaries to leave the employment or association
with the Company, its affiliate or subsidiary, to become employed or retained by
any other entity or to participate in the establishment of any other business.
c. Employee agrees that in addition to the remedies the
Company may seek and obtain pursuant to this Agreement, the period during which
the covenants contained in this Section 4 apply shall be extended by any and all
periods during which Employee shall be found by a court possessing personal
jurisdiction over him to have been in violation of the covenants contained in
this Agreement.
d. Without limitation of any of the provisions of this Section
4, any payments to be made to Employee or for his benefit following termination
of his employment with the Company pursuant to Section 3 of this Agreement shall
be deemed to secure his agreements set forth in this Section 4 and such payments
may be terminated by the Company if he fails to observe the agreements set forth
in this Section 4.
e. Employee (i) acknowledges that his skills and experience
are such that he can anticipate finding employment at a senior level in his
profession, and (ii) represents and agrees
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that the restrictions imposed by this Section 4 on engaging in competitive
business activities are necessary for the protection of the legitimate interests
and competitive position of the Company and do not impose undue hardships on
him.
f. This Section 4 shall survive the termination of this
Agreement.
5. Termination Obligations of Employee
a. Return of the Company's Property. Employee hereby
acknowledges and agrees that all personal property, including, without
limitation, all books, manuals, records, reports, notes, contracts, lists,
blueprints, and other documents, or materials, or copies thereof, and equipment
furnished to or prepared by Employee in the course of or incident to Employee's
employment, belong to the Company and shall be promptly returned to the Company
upon termination of Employee's employment.
b. Representations, Obligations and Warranties Survive
Termination of Employment. The representations, obligations and warranties
contained in Sections 1(e), 4, 5, 6, 7, 10, 11, 12, 13, 14 and 15 of this
Agreement as well as the terms and conditions of Exhibit A of this Agreement
shall survive Employee's termination of employment with the Company.
c. Cooperation in Pending Work. Employee agrees to fully
cooperate with the Company in all matters relating to the winding up of pending
work on behalf of the Company and the orderly transfer of work to other
employees of the Company following any termination of Employee's employment.
Employee shall also cooperate in the resolution of any dispute, including
litigation of any action, involving the Company that relates in any way to
Employee's activities while employed by the Company.
6. Alternative Dispute Resolution
The Company and Employee mutually agree that any controversy
or claim arising out of or relating to this Agreement or the breach thereof, or
any other dispute between the parties relating in any way to Employee's
employment with the Company or the termination of that relationship, including
disputes arising under the common law and/or any federal or state statutes, laws
or regulations, shall be submitted to mediation before a mutually agreeable
mediator, which cost is to be borne equally by the parties. In the event
mediation is unsuccessful in resolving the claim or controversy, such claim or
controversy shall be resolved exclusively by arbitration. The claims covered by
this Agreement ("Arbitrable Claims") include, but are not limited to, claims for
wages or other compensation due; claims for breach of any contract (including
this Agreement) or covenant (express or implied); tort claims; claims for
discrimination (including, but not limited to, race, sex, religion, national
origin, age, marital status, medical condition, or disability); claims for
benefits (except where an employee benefit or pension plan specifies that its
claims procedure shall culminate in an arbitration procedure different from this
one), and claims for violation of any federal, state, or other law, statute,
regulation, or ordinance, except claims excluded in the following paragraph. The
parties hereby waive any rights they may have to trial by jury in regard to
Arbitrable Claims.
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Claims Employee or the Company may have regarding Workers'
Compensation or unemployment compensation benefits and the noncompetition
provisions of this Agreement are not covered by the arbitration and mediation
provisions of this Agreement. Claims Employee or the Company may have for
violation of the proprietary information provisions of this Agreement as well as
the terms and provisions of Exhibit A of this Agreement are not covered by the
arbitration and mediation provisions of this Section 6 of this Agreement.
Arbitration under this Agreement shall be the exclusive remedy
for all Arbitrable Claims. The Company and Employee agree that arbitration shall
be held in or near Denver, Colorado or Fort Xxxxxxx, Colorado and shall be in
accordance with the then-current Employment Dispute Resolution Rules of the
American Arbitration Association, before an arbitrator licensed to practice law
in Colorado. The arbitrator shall have authority to award or grant both legal,
equitable, and declaratory relief. Such arbitration shall be final and binding
on the parties. The Federal Arbitration Act shall govern the interpretation and
enforcement of this Section 6 pertaining to Alternative Dispute Resolution.
This Agreement to mediate and arbitrate survives termination
of Employee's employment.
7. Notices
All notices or other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given
if delivered by hand, overnight delivery or mailed, postage prepaid, by
certified or registered mail, return receipt requested, and addressed to the
Company:
Atrix Laboratories, Inc.
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Vice President, Finance
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to Employee at:
00 Xxxxx Xxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Employee and the Company shall be obligated to notify the
other party of any change in address. Notice of change of address shall be
effective only when made in accordance with this Section.
8. Entire Agreement
The terms of this Agreement, together with Exhibit A to this
Agreement are intended by the parties to be the final and exclusive expression
of their agreement with respect to the
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employment of Employee by the Company and may not be contradicted by evidence of
any prior or contemporaneous statements or agreements. The parties further
intend that this Agreement shall constitute the complete and exclusive statement
of its terms and that no extrinsic evidence whatsoever may be introduced in any
judicial, administrative, or other legal proceeding involving this Agreement.
9. Amendments, Waivers
This Agreement may not be modified, amended, or terminated
except by an instrument in writing, signed by Employee and by a duly authorized
representative of the Company other than Employee. No failure to exercise and no
delay in exercising any right, remedy, or power under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power under this Agreement preclude any other or further
exercise thereof, or the exercise of any other right, remedy, or power provided
herein or by law or in equity.
10. Assignment; Successors and Assigns
Employee agrees that Employee will not assign, sell, transfer, delegate
or otherwise dispose of, whether voluntarily or involuntarily, or by operation
of law, any rights or obligations under this Agreement, nor shall Employee's
rights be subject to encumbrance or the claims of creditors. Any purported
assignment, transfer, or delegation shall be null and void. Nothing in this
Agreement shall prevent the consolidation of the Company with, or its merger
into, any other corporation, or the sale by the Company of all or substantially
all of its properties or assets, or the assignment by the Company of this
Agreement and the performance of its obligations hereunder to any successor in
interest. Subject to the foregoing, this Agreement shall be binding upon
Employee and Company and shall inure to the benefit of the parties and their
respective heirs, legal representatives, successors, and permitted assigns, and
shall not benefit any person or entity other than those enumerated above.
11. Use of Employee's Likeness.
Employee authorizes the Company to use, reuse and to
reasonably grant others the right to use and reuse without additional
compensation, Employee's name, photograph, likeness (including caricature),
voice and biographical information and any reproduction or simulation thereof in
any media now known or hereafter developed, for valid business purposes of the
Company.
12. Exclusion of Property of Others.
Employee will not bring to the Company or use in the
performance of his duties any documents or materials of a former employer that
are not generally available to the public or that have not been legally
transferred to the Company.
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13. Employee's Authorization to Deduct Amounts Owed.
Upon Employee's separation from employment, Company is
authorized to deduct from Employee's final wages or other monies due Employee
any debts or amounts owed to Company by Employee.
14. Severability; Enforcement
If any provision of this Agreement, or the application thereof
to any person, place, or circumstance, shall be held by a court or arbitrator of
competent jurisdiction to be invalid, unenforceable, or void, the remainder of
this Agreement and such provisions as applied to other persons, places, and
circumstances shall remain in full force and effect.
15. Governing Law
The validity, interpretation, enforceability, and performance
of this Agreement shall be governed by and construed in accordance with the laws
of the United States and the Federal Arbitration Act to the extent applicable,
and otherwise by the laws of the State of Colorado.
16. Employee Acknowledgment
The parties acknowledge (a) that they have consulted with or
have had the opportunity to consult with independent counsel of their own choice
concerning this Agreement, and (b) that they have read and understand the
Agreement, are fully aware of its legal effect, and have entered into it freely
based on their own judgment and not on any representations or promises other
than those contained in this Agreement.
In Witness Whereof, the parties have duly executed this
Agreement as of the date first written above.
Company Employee
By: /s/ Xxxx X. Xxxxxx /s/ Xxxxx Xxxxxxx
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Xxxx X. Xxxxxx Xxxxx Xxxxxxx
Vice Chairman and Chief Executive Officer
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Vice President, Finance
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EXHIBIT A
