EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT is entered into February 23, 1996, but
effective March 25, 1996, between Basin Exploration, Inc., a Delaware
Corporation (the "Corporation"), and Xxxxxx X. Xxxxxx (the "Officer").
RECITAL
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The Officer has accepted the Corporation's appointment as the
Corporation's Vice President - Engineering & Production, and the
Corporation and the Officer desire to set forth herein the terms and
conditions of his employment.
AGREEMENT
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The parties hereto agree as follows:
1. Agreement to Serve.
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a. Title. The Corporation shall employ the Officer and
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the Officer shall serve in the employ of the Corporation as
its Vice President - Engineering & Production and other
executive offices as shall be designated by the Board of
Directors during the term of the Officer's employment
hereunder.
b. Duties. The Officer shall assume and discharge the
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responsibilities of the Vice President - Engineering &
Production, as well as such other responsibilities as may be
assigned to him by the Board of Directors (the "Board") of
the Corporation and as are appropriate to the offices he
holds. Such responsibilities shall include, without
limitation, responsibility for overseeing the engineering,
operations and acquisition functions of the Corporation.
The Officer shall perform his responsibilities to the best
of his abilities and shall devote his entire business time
and attention to the good faith performance of his
responsibilities. The Officer shall report to the
Corporation's Chief Executive Officer unless otherwise
directed by the Chief Executive Officer. The Officer's
principal place of business with respect to his services to
the Corporation shall be at its offices located in Denver,
Colorado.
2. Terms of Employment.
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a. Basic Term. The term of the Officer's employment under
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this Agreement (the "Term") shall commence on March 25, 1996
and end on March 24, 1999. After the Term, if the Officer
continues as the Vice President - Engineering & Production
of the Corporation, the Corporation will enter into a
separate agreement to provide protection against termination
in the
event of a Change of Control, with compensation no less
favorable to the Officer than the compensation provided for
in Sections 2.g., 4.a.(1), 4.a.(3), 4.a.(4) and 4.a.(5) of
this Agreement or the compensation provided for in the
change of control agreements accorded other vice presidents
of the Corporation. The Officer has the right to elect
which arrangement shall apply.
b. Termination for Cause. The Corporation shall have the
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right to terminate the Officer for cause and said
termination shall be effected by written notification to
Officer. Grounds for termination for cause shall include
only, (i) the Officer's material breach of any terms of this
Agreement, if such material breach has not been
substantially cured within thirty (30) days following
written notice to the Officer from the Corporation of such
breach setting forth with specificity the nature of the
breach or, if cure cannot reasonably be effected within such
30-day period, if the Officer does not commence such cure
within such 30-day period and thereafter pursue such cure
continuously and with due diligence until cure has been
effected; (ii) the Officer's willful dishonesty towards,
fraud upon, felony crime against, deliberate material injury
or material bad faith action with respect to, or deliberate
or attempted injury to the Corporation; or (iii) the
Officer's conviction for any felony crime (whether in
connection with the Corporation's affairs or otherwise).
c. Termination without Cause. The Corporation shall have
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the right, upon 30 days written notification to the Officer,
to terminate the Officer's employment without cause. The
Officer shall have the right, upon 30 days written
notification to the Corporation, to terminate the Officer's
employment for Good Reason (as defined in Section 2.g.(a)).
Upon any termination by the Corporation without cause or
termination by the Officer for Good Reason in the absence of
a Change in Control, (i) the Officer shall be paid all
accrued salary, vested deferred compensation (other than
pension plan or profit-sharing plan benefits, which will be
paid in accordance with the applicable plan), any benefits
then due under any plans of the Corporation in which the
Officer is a participant, accrued vacation pay and any
appropriate business expenses incurred by the Officer in
connection with his duties hereunder, all to the effective
date of termination ("Accrued Compensation"), and all
compensation provided for in Section 4.a.(2) and (ii) the
Corporation shall accelerate the exercise dates of any
outstanding options of the Officer or make all of the
Officer's options fully vested and exercisable.
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d. Disability. If, during the Term of this Agreement, the
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Officer, in the reasonable judgment of the Chief Executive
Officer of the Corporation after consultation with an
independent physician selected by the Officer and the
Corporation, has failed to perform his duties under this
Agreement on account of illness or physical or mental
disability, which condition renders the Officer incapable of
performing the duties of his office, and such condition
continues for a period of more than six (6) consecutive
months or for a total of six months during any 12-month
period, the Corporation shall have the right to terminate
the Officer's employment hereunder by written notification
to the Officer and payment to the Officer of all Accrued
Compensation to the date of termination, but no other
compensation or reimbursement of any kind, without prejudice
to his claims for payments from any benefit plans.
e. Death. In the event of the Officer's death during the
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Term of this Agreement, the Officer's employment shall be
deemed to have terminated as of the last day of the month
during which his death occurs, and the Corporation shall pay
to his estate all Accrued Compensation to the date of
termination, but no other compensation or reimbursement of
any kind, unless provided by a welfare benefit plan for
which the Officer is eligible as an employee of the
Corporation or as otherwise provided by law (i.e. workers
compensation law).
f. Voluntary Termination. In the event Sections 2.b.,
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2.c., 2.g. and 2.h. are not applicable, the Officer may,
upon 30 days written notification to the Corporation,
voluntarily terminate his employment hereunder. Upon the
date of termination of his employment, the Corporation shall
immediately pay all Accrued Compensation to the date of
termination, but no other compensation or reimbursement of
any kind, including, without limitation, the compensation
contemplated by Article 4.
g. Termination upon a Change in Control. In the event of
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a Termination Upon a Change in Control, the Officer shall
immediately be paid all Accrued Compensation and the
severance compensation provided for in Section 4.a.(3).
"Termination Upon a Change in Control" shall mean a
termination by the Corporation without Cause or a
termination by the Officer for Good Reason (as defined
below) of the Officer's employment with the Corporation, in
each case following a "Change in Control" (as defined
below).
(a) For purposes of this Agreement "Good Reason" shall
include, but not be limited to, any of the following (without the
Officer's express written consent):
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i. the assignment to the Officer by the Corporation
of any duties inconsistent with, or a substantial
alteration in the nature or status of, the Officer's
responsibilities as contemplated by Section 1.b. of
this Agreement;
ii. a reduction by the Corporation in the Officer's
compensation, benefits or perquisites as in effect
during the Term of this Agreement;
iii. a relocation of the Corporation's principal
offices to a location outside Denver, Colorado, or the
Officer's relocation to any place other than the
offices of the Corporation located in Denver, Colorado,
except for reasonably required travel by the Officer on
the Corporation's business to an extent substantially
consistent with the Officer's business travel
obligations immediately preceding the Change of
Control;
iv. any material breach by the Corporation of any
provision of this Agreement, if such material breach
has not been cured within thirty (30) days following
written notice by the Officer to the Corporation of
such breach setting forth with specificity the nature
of the breach; or
v. any failure by the Corporation to obtain the
assumption and performance of this Agreement by any
successor (by merger, consolidation or otherwise) or
assign of the Corporation.
(b) For purposes of this Agreement, "Change in
Control" shall mean the following:
(i) Any "person" or "group" (within the meaning
of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "1934 Act")), other than a trustee or other
fiduciary holding securities under an employee benefit plan of
the Corporation or Mr. Xxxxxxx Xxxxx (or his affiliates or
associates) is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the 1934 Act), directly or indirectly, of more
than thirty-three and one-third percent (33-1/3%) of the then
outstanding voting stock of the Corporation; or
(ii) Individuals who, as of the date hereof,
constitute the Board (and any new director whose election
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by the Board or whose nomination for election by the
Corporation's stockholders is approved by a vote of at least
two-thirds of the directors then still in office who either were
directors as of the date hereof or whose election or nomination
for election is subsequently so approved) cease for any reason to
constitute a majority thereof; or
(iii) The stockholders of the Corporation
approve a merger or consolidation of the Corporation with any
other corporation, other than a merger or consolidation which
would result in the voting securities of the Corporation
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into
voting securities of the surviving entity) at least 51% of the
combined voting power of the voting securities of the Corporation
or such surviving entity outstanding immediately after such
merger or consolidation, or the stockholders approve a plan of
complete liquidation of the Corporation or an agreement for the
sale or disposition by the Corporation of all or substantially
all of the Corporation's assets; provided, however, that if the
merger, plan of liquidation or sale of substantially all assets
is not consummated following such stockholder approval and the
transaction is abandoned, then the Change of Control shall be
deemed not to have occurred.
(c) Notwithstanding anything else in this Agreement,
solely in the event of a Termination Upon a Change in Control pursuant
to Section 2.g., the aggregate of the amount of severance compensation
paid to the Officer under this Agreement or otherwise, but exclusive
of any payments to the Officer by virtue of the Officer's exercise of
any right or payment of any kind under the Equity Incentive Plan upon
a Change in Control, shall not include any amount that the Corporation
is prohibited from deducting for federal income tax purposes by virtue
of Section 280G of the Internal Revenue Code or any successor
provision.
h. Termination on Termination of Employment by Xxxxxxx X.
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Xxxxx as Chief Executive Officer. In the event of Xxxxxxx
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X. Xxxxx'x voluntary termination of his employment as Chief
Executive Officer or the termination of his employment as
Chief Executive Officer in the event of a Change of Control,
the Officer shall have the right to terminate his employment
for a period of 120 days from the date of termination of Xx.
Xxxxx'x employment as Chief Executive Officer, upon 30 days
written notification to the Corporation.
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3. Compensation.
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a. Base Salary. The Corporation agrees to pay the
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Officer for his services hereunder a salary at the rate of
$11,666.66 per month during the first 12 months of the Term;
$12,083.33 per month during the second 12 months of the
Term: and $12,500.00 per month during the balance of the
Term ("Base Salary") payable in equal semimonthly
installments until March 24, 1999.
b. Benefits. The Officer shall be entitled to participate
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in any of the Corporation's benefit and deferred
compensation plans as are from time to time available to the
officers of the Corporation, including the Corporation's
401(k) plan, medical and dental plans, and life and
disability insurance plans (provided, however, that the
Officer's benefits may be modified or the Officer may be
denied participation in any such plan because of a condition
or restriction imposed by law or regulation or third-party
insurer or other provider relating to participation of
officers).
c. Bonus. The Officer shall be entitled to participate in
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the Corporation's bonus program applicable to other officers
and employees of the Corporation. The parties intend and
anticipate that the Corporation will have a bonus program
based on the success of the Corporation in meeting its goals
for each year; however, nothing in this Section 3.c. shall
be construed as obligating the Corporation either to provide
a bonus program for any year or to award a bonus to the
Officer.
d. Stock Options. The Officer shall be granted an option
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under the Corporation's Equity Incentive Plan to purchase
60,000 shares of the Corporation's common stock, at a
purchase price equal to the fair market value of the common
stock on February 18, 1996 ($3.875), to vest in three equal
installments over the three year period commencing March 1,
1996, to be exercisable for the Term of this Agreement (to
the extent vested at termination) and to have a term of ten
years. The exercise price may be paid by delivery to the
Corporation of a properly executed notice of exercise
together with irrevocable instructions to a broker to
deliver to the Corporation the amount of the proceeds of the
sale of all or a portion of the shares of stock or of a loan
from the broker to the Officer necessary to pay the exercise
price. The Officer shall be eligible to receive additional
grants of options to purchase common stock under the Equity
Incentive Plan at the discretion of the Compensation and
Incentive Committee of the Board of Directors.
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e. Other Perquisites. The Officer shall be entitled to
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expense reimbursements, vacation and other benefits in
accordance with the practices of the Corporation.
4. Compensation Upon Termination.
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a. Calculation and Payment of Compensation.
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(1) In the event the Officer's employment is
terminated under Sections 2.c., 2.g. or 2.h., the
parties acknowledge that the Officer will sustain
actual damages, the amount of which is indefinite,
uncertain and difficult of exact ascertainment
because of the uncertainties of successfully
relocating and seeking a comparable position. In
order to avoid dispute as to the amount of such
damages and the mutual expense and inconvenience
such dispute would entail, the Corporation and the
Officer have agreed hereby that the Corporation
shall pay to the Officer compensation as provided
in Sections 4.a.(2) or 4.a.(3), as applicable. It
is hereby agreed that in the event of such
termination by the Corporation, the Officer shall
receive such amounts as herein provided, not as a
penalty, but as the Officer's agreed compensation
and sole damages for the termination of this
Agreement, in lieu of the Officer's proof of his
actual damages on that account. All such
compensation shall be without prejudice to the
Officer's right to receive all Accrued
Compensation (as defined in Section 2.c.) earned
and unpaid up to the time of termination.
(2) In the event the Corporation or the Officer
terminates the Officer's employment at any time
prior to the end of the Term pursuant to Section
2.c. or 2.h., then the Corporation shall pay
compensation in an amount equal to the Officer's
Base Salary (at the rate payable at the time of
such termination) for the balance of the Term on
the dates specified in Section 3.a., plus a bonus
for each year (or pro rata part thereof) remaining
in the Term equal to the average annualized bonus
received by the Officer prior to termination (or
pro rata portion thereof).
(3) In the event the Officer's employment is
terminated at any time prior to the end of the
Term pursuant to
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Section 2.g., then the Corporation (i) shall pay
to the Officer in a lump sum in cash within five
(5) days of the date of termination an amount
equal to three times the sum of (x) the Officer's
Base Salary (calculated at the rate of his Base
Salary for the 12 months preceding the date of
termination) plus (y) a bonus equal to the average
annualized bonus received by the Officer prior to
termination and (ii) shall accelerate the exercise
dates of any outstanding options of the Officer or
make all of the Officer's options fully vested and
exercisable.
(4) Following a termination under Sections 2.c.
or 2.h., the Officer may in the Officer's sole
discretion, by delivery of a notice to the
Corporation within thirty (30) days following such
termination, elect to receive from the Corporation
a lump sum payment by bank cashier's check equal
to the present value of the flow of cash payments
that would otherwise be paid to the Officer
pursuant to Section 4.a. Such present value shall
be determined as of the date of delivery of the
notice of election of the Officer and shall be
based on a discount rate equal to the interest
rate on 90-day U.S. Treasury Bills, as reported in
the Wall Street Journal (or similar publication)
on the date of delivery of the election notice.
If the Officer elects to receive a lump sum
payment pursuant to this Section 4.a.(4), the
Corporation shall make such payment to the Officer
within sixty (60) days following the date on which
the Officer notifies the Corporation of the
Officer's election.
(5) No deduction shall be made by the Corporation
under this Section 4.a. for any compensation
earned by the Officer from any other employment or
for any other monies otherwise received by the
Officer from any third parties subsequent to
termination of employment hereunder.
5. Protection for Corporation.
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5.1 Confidentiality. The Officer shall not, during his
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employment by the Corporation or at any time thereafter, directly or
indirectly use, divulge, furnish or make accessible to anyone other
than the Corporation, its directors or officers (otherwise than in the
regular course of the business of the Corporation), any knowledge or
information regarding any confidential or secret activities,
prospects, technical data, analyses or interpretations, projects,
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plans, reports, customer names or lists, financial or marketing
information or documentary material relating to the existing or
planned business or activities of the Corporation, including, without
limitation, any information which is a trade secret. The Officer,
upon leaving the employ of the Corporation, shall not take with him or
retain any books, records, data, reports, letters, memoranda, notes or
other writings or documents whatsoever, or copies thereof, which
reflect or deal with any secret, proprietary or confidential
information or material relating to the business or activities of the
Corporation. The obligations of the Officer under this Section 5.1
shall not apply to (i) information which at the time of disclosure is
readily available to the public; (ii) information which is or becomes
available to the general public other than through acts or omissions
attributable to the Officer; or (iii) information obtained from a
third party who is lawfully in possession of the same other than
through a breach of a confidentiality or nonuse obligation owed to the
Corporation or others with respect to that information.
5.2 Non-Interference.
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(a) During his employment hereunder the Officer shall
not directly or indirectly, unless the Corporation gives its prior
written consent:
(i) consult with, act as agent for, or otherwise
assist any Competitor to compete or prepare to compete with the
Corporation in any of the Corporation's then businesses;
(ii) own any interest (other than a passive
investment interest of not more than 5% of the voting securities)
in any Competitor; or
(iii) take any action specifically intended to
divert from the Corporation to any Competitor any opportunity
which would be within the scope of the Corporation's then
business.
(b) For purposes of this Agreement, a "Competitor"
means any entity which at relevant times engages or is making plans to
engage, in whole or in part, in the oil and gas business.
5.3 Remedies. The Officer acknowledges that the
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Corporation would be greatly injured by, and have no adequate remedy
at law for, breach of the duties set forth in Article 5 duties. The
Officer therefore consents that if such breach occurs or is
threatened, whether before or after termination of his employment, the
Corporation may, as appropriate and in addition to all other then
available remedies, enjoin him (together with all persons acting in
concert with him) from such breach or threatened breach. If the
Corporation prevails in such litigation, the Corporation shall also be
entitled to collect from the Officer the court costs,
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attorneys' and experts' fees and other expenses of enforcing this
Agreement and obtaining such other relief as the court may grant.
5.4 Post-Employment Right to Compete. If the Officer
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terminates his employment pursuant to Section 2.f., he shall not
compete with the Corporation in pursuit of any corporate opportunity
of which the Officer became aware during his employment with the
Corporation, or assist a Competitor in so competing, for a period of
two years following the Officer's termination. The Officer agrees
that this provision is reasonable in scope and term and that it is
necessary to protect the Corporation.
6. Miscellaneous.
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6.1 Severability. Should a court or other body of
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competent jurisdiction determine that any provision of this Agreement
is excessive in scope or otherwise invalid or unenforceable, such
provision shall be adjusted rather than voided, if possible, so that
it is enforceable to the maximum extent possible, and all other
provisions of the Agreement shall be deemed valid and enforceable to
the extent possible.
6.2 Withholdings. All compensation and benefits to the
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Officer hereunder, including, without limitation, those payments
contemplated by Article 4, shall be reduced by all federal, state,
local and other withholdings and similar taxes and payments required
by applicable law.
6.3 Arbitration. Except as provided in Section 5.3, the
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parties hereby submit all controversies, claims and matters of
difference in any way related to this Agreement or the performance or
breach of the whole or any part hereof to arbitration by three
arbitrators in Denver, Colorado, according to the rules and practices
of the American Arbitration Association from time to time in force.
If such rules and practices shall conflict with the Colorado Rules of
Civil Procedure or any other provisions of Colorado law then in force,
such Colorado rules and provisions shall govern. Arbitration of any
such controversy, claim or matter of difference shall be a condition
precedent to any legal action thereon. This submission and agreement
to arbitration shall be specifically enforceable.
Within 30 days of the receipt by one party of a written notice to
arbitrate delivered by the other party, each party shall select one
arbitrator by written notice to the other party. Within 30 days of
the delivery of both notices, the two arbitrators will select a third
arbitrator. If the two cannot agree on such third arbitrator, the
selection of a third arbitrator shall be made by the Chief Judge of
the U.S. District Court for the District of Colorado or, if such judge
refuses to act, such selection shall be made in accordance with the
procedures of the American Arbitration Association.
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Awards shall be final and binding on all parties to the
extent and in the manner provided by Colorado law. Each award shall
expressly entitle the prevailing party to recover such party's
attorneys' fees and costs, and the award shall specifically allocate
such fees and costs between the parties. All awards may be filed by
any party with the Clerk of the District Court in the City and County
of Denver, Colorado, and an appropriate judgment entered thereon and
execution issued therefor. At the election of any party, said award
may also be filed, and judgment entered thereon and execution issued
therefor, with the clerk of one or more other courts, state or
federal, having jurisdiction over the party against whom such an award
is rendered or its property.
6.4 Entire Agreement; Modifications. This Agreement
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represents the entire agreement between the parties and may be
amended, modified, superseded, or cancelled, and any of the terms
hereof may be waived, only by a written instrument executed by each
party hereto or, in the case of a waiver, by the party waiving
compliance. The failure of any party at any time or times to require
performance of any provisions hereof shall not affect the right at a
latter time to enforce the same. No waiver by any party of the breach
of any provision contained in this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be or
construed as a further or continuing waiver of any such breach or of
any other term of this Agreement.
6.5 Applicable Law. This Agreement shall be construed
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under and governed by the laws of the State of Colorado.
IN WITNESS WHEREOF, the parties have executed this Agreement
as first set forth above.
BASIN EXPLORATION, INC.
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By: Xxxxxxx X. Xxxxx
Title: President and C.E.O.
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Xxxxxx X. Xxxxxx
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