EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") dated and effective as of
September 26, 2003 (the "Effective Date") is by and between US DATAWORKS, INC.,
a Nevada corporation (the "Company"), and XXXX X. XXXXXX ("Xxxxxx"). In
consideration of the mutual covenants and promises contained herein, the parties
agree as follows.
WHEREAS, the Company deems it essential that it have the advantage of
the services of Xxxxxx and desires to enter into a continuing agreement of
employment with him, and to provide Xxxxxx with compensation, including stock
options.
ARTICLE 1
GENERAL PROVISIONS
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Section 1.1 EMPLOYMENT. The Company hereby employs Xxxxxx, and Xxxxxx
accepts such employment by the Company upon the terms and conditions hereof.
Section 1.2 TERM. Subject to earlier termination as specifically set
forth herein, the initial term of this Agreement shall be three (3) years (the
"Term") commencing on the Effective Date. The Term shall be extended
automatically without further action by either party for successive one (1) year
terms, unless either party shall have served ninety (90) days prior written
notice upon the other party that this Agreement shall terminate.
Section 1.3 TERMINATION. Xxxxxx'x employment and this Agreement shall
terminate upon the earliest to occur of any of the following events (the actual
date of such termination being referred to herein as the "Termination Date"):
(a) Pursuant to Section 1.2.
(b) In the event of Xxxxxx'x death or disability as set forth in
Section 3.7.
(c) Termination of Xxxxxx'x employment by the Company for cause without
any prior notice (except as specifically set forth below), upon the occurrence
of any of the following events (each of which shall constitute "Cause"):
(i) any embezzlement or wrongful diversion of funds of the
Company or any affiliate of the Company by Xxxxxx;
(ii) gross malfeasance by Xxxxxx in the conduct of Xxxxxx'x
duties;
(iii) breach of this Agreement and, if such breach is capable
of being cured, as determined by the Board of Directors of the Company (the
"Board of Directors"), failure of Xxxxxx to cure such breach after notice and
reasonable opportunity to cure such breach;
(iv) gross neglect by Xxxxxx in carrying out Xxxxxx'x duties;
or
(v) willful violation by Xxxxxx of any applicable federal or
state securities laws or regulations.
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(d) Termination of Xxxxxx'x employment by the Company at any
time without Cause.
(e) Termination by Xxxxxx of his employment at any time.
Section 1.4 TERMINATION OBLIGATIONS: RETURN OF COMPANY PROPERTY. Upon
termination of this Agreement, Xxxxxx shall promptly return all Company
property.
ARTICLE 2
POSITION AND DUTIES; OTHER BUSINESS ACTIVITIES
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Section 2.1 POSITION. Xxxxxx shall be employed as Vice President
Business Development and General Counsel. Xxxxxx shall also serve as Secretary
of the Company. Xxxxxx shall report to the Chief Executive Officer of the
Company.
Section 2.2 DUTIES: FULL ATTENTION TO BUSINESS. Xxxxxx shall perform
such services for the Company, that reasonably serve the purpose of this
Agreement and/or meet the needs of the Company, and that are consistent with the
position Xxxxxx holds. Xxxxxx shall devote his full business time, energies,
interest, abilities, and productive efforts to the business of the Company.
Except as may be approved by the Company's Board of Directors (with Xxxxxx
abstaining there from), Xxxxxx shall not render any kind of employee-type or
consulting services to others for compensation and, in addition, shall not
engage in any activity which conflicts or interferes with his performance of
duties hereunder. Notwithstanding the provisions of this Section 2.2, Xxxxxx
may, with the prior written consent of the Board of Directors, engage in civic,
charitable, or educational activities, provided that such service and activities
do not, individually or in the aggregate, interfere with the performance of
Xxxxxx'x duties under the Agreement.
Section 2.3 COVENANT NOT TO COMPETE DURING TERM. During the Term,
Xxxxxx shall comply in all respects with the Company's written policies with
respect to conflicts of interest. Except as may be approved by the Company's
Board of Directors (with Xxxxxx abstaining therefrom), Xxxxxx shall not engage
in or be interested, directly or indirectly, in any business or operation
competitive with the Company. For the purpose of this paragraph, Xxxxxx shall be
deemed to be interested in a business or operation which is competitive with the
Company if Xxxxxx is a holder of five percent (5%) or more of the issued and
outstanding ownership interests in such business or operation, or serves as a
director, officer, employee, agent, partner, individual proprietor, lender,
consultant, or independent contractor of such business or operation.
Notwithstanding the provisions of this Section 2.3.
Section 2.4 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Xxxxxx
acknowledges that in connection with his employment by the Company or its
affiliates, he has and may acquire or learn "Confidential Information" of the
Company by virtue of a relationship of trust and confidence between Xxxxxx and
the Company. Xxxxxx warrants and agrees that during the Term he shall not
disclose to anyone (other than to officers of the Company or to such other
persons as such officers may designate), or use, except in the course of his
employment with the Company or its affiliates, any Confidential Information
acquired by him in the course of or in connection with his employment. As used
herein, the term "Confidential Information" shall include, but not be limited
to: all information of any type or kind, whether or not reduced to a writing and
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whether or not conceived, originated, discovered or developed in whole or in
part by Xxxxxx, which is directly related to the Company, its operations,
policies, agreements with third parties, its financial affairs and related
matters, including business plans, strategic planning information, product
information, purchase and sales information and terms, supplier negotiation
points, styles and strategies, contents and terms of contracts between the
Company and suppliers, advertisers, vendors, contact persons, terms of supplier
and/or vendor contracts or particular transactions, potential supplies and/or
vendors, or other related data; marketing information such as but not limited
to, prior, ongoing or proposed marketing programs, presentations, or agreements
by or on behalf of the Company, pricing information, customer bonus programs,
marketing tests and/or results of marketing efforts, computer files, lists and
reports, manuals and memos pertaining to the business of the Company, lists or
compilations of vendor and/or supplier names, addresses, phone numbers,
requirements and descriptions, contract information sheets, compensation
requirements or terms, benefits, policies, and any other financial information
whether about the Company, entities related or affiliated with the Company or
other key information pertaining to the business of the Company, including but
not limited to all information which is not generally available to or known in
the information services industry (or is available only as a result of an
unauthorized disclosure) and is treated by the Company as "Confidential
Information" during the term of this Agreement, regardless of whether or not
such Information is a "trade secret" as otherwise defined by applicable law
unless such information is in the public domain.
Section 2.5 NO SOLICITATION OF EMPLOYEES. Xxxxxx specifically agrees
that during the Term and for a period of two (2) years after his termination of
employment with the Company, Xxxxxx shall not, directly or indirectly, either
for himself or for any other person, firm, corporation, or legal entity, solicit
any individual, then employed by the Company to leave the employment of the
Company.
Section 2.6 OWNERSHIP OF WORK PRODUCT AND IDEAS. Any discoveries,
inventions, patents, materials, licenses and ideas applicable to the industry or
relating to Xxxxxx'x services for the Company or its affiliates, whether or not
patentable or copyrightable, created by Xxxxxx during his employment by the
Company or its affiliates ("Work Product") and all business opportunities within
the industry ("Opportunities") introduced to Xxxxxx by the Company or its
affiliates will be owned by the Company, and Xxxxxx will have no personal
interest in such, except to the extent that the Company allows Xxxxxx to invest
or participate in or have other rights to such Work Product or Opportunities.
Xxxxxx will, in such connection, promptly disclose any such Work Product and
Opportunities to the Company and, upon request of the Company, will assign to
the Company all right in such Work Product and Opportunities.
ARTICLE 3
COMPENSATION; BENEFITS
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Section 3.1 SALARY. The Company shall pay Xxxxxx Six Thousand Two
Hundred Fifty Dollars ($6,250.00) on a semi-monthly basis, for an annualized
base salary ("Base Salary") of One Hundred Fifty Thousand and NO/100 Dollars
($150,000.00). Beginning with the first anniversary of the date of the Agreement
and for each subsequent year of employment (or any
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portion of any such year), Xxxxxx shall be entitled to a base salary review by
the Company to determine if any increase to base salary is warranted as a result
of performance.
Section 3.2 BONUS. The Company may pay Executive a performance bonus of
up to thirty three percent (33%) of the base salary based upon achievement by
the Company of its corporate goals as established and determined by the Board
annually and for other achievements by the Company or the Executive during the
year as approved by the Compensation Committee of the Board. The Board or
Compensation Committee, as applicable, shall, in their respective sole
discretion, determine whether such corporate or other goals have been attained
or other achievements have occurred and whether any performance bonus is to be
paid.
Section 3.3 PAID VACATION. Xxxxxx shall be entitled to be paid vacation
time under the Company's policies applicable to other senior executives of the
Company's policies, but in no event shall Xxxxxx accrue less than three (3)
weeks of paid vacation per calendar year.
Section 3.4 STOCK OPTIONS.
(a) Subject to approval of the Compensation Committee of the Board of
Directors, the Company will grant to Xxxxxx an option (the "First Option") to
purchase 2,000,000 shares of common stock of the Company under the Company's
2000 Stock Option Plan (the "Plan"), which shall be intended to qualify as a
nonqualified stock option to the maximum extent permitted under Section 422 of
the Internal Revenue Code of 1986, as amended. Subject to approval of the
Compensation Committee, the Company will also grant to Xxxxxx an option to
purchase an additional 2,000,000 shares under the Plan (the "Second Option").
The Second Option will be granted on September 26, 2006. All such options will
have an exercise price per share equal to the fair market value of the Company's
common stock as of the date of grant. Each option shall be subject to the terms
and conditions of the Plan and an option agreement to be entered into between
the Company and Xxxxxx, in a form approved by the Compensation Committee of the
Board of Directors, which option agreement shall provide that such option shall
have a ten (10) year term (subject to earlier termination in connection with
termination of employment).
(b) The options shall vest and become exercisable, subject to continued
employment, as follows:
(i) in the case of the First Option, 500,000 shares shall vest
on September 26, 2004, 750,000 shares vest on September 26, 2005, and
750,000 vest on September 26, 2006. and
(ii) in the case of the Second Option, 1,000,000 shares shall
vest on September 26, 2007 and 1,000,000 vest on September 26, 2008.
(iii) in each case to become fully vested and exercisable upon
a Change in Control as defined in the Plan (a "Change in Control").
(c) Xxxxxx shall be eligible to receive additional grants of options
pursuant to the Plan in the sole discretion of the Compensation Committee of the
Board of Directors.
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(d) If the Company is subject to a Change in Control as defined in the
Plan during the Term but prior to the grant of the Second Option described in
Section 3.4(a), Xxxxxx shall be entitled to a cash bonus equal to the excess of
the fair market value of the shares for which such options were not granted as
of the date of the Change in Control, over the fair market value of such shares
as of September 26, 2003. Any payments due hereunder shall be paid within sixty
(60) days of the date of the Change in Control.
Section 3.5 OTHER BENEFITS. During the Term, Xxxxxx shall be entitled
to participate in present and future employee benefit plans which are available
to the Company's employees, subject to eligibility requirements thereunder.
Section 3.6 REIMBURSEMENT OF EXPENSES; ACCRUED COMPENSATION. The
Company shall provide Xxxxxx with a corporate charge card to be used for
reasonable business purposes only and shall promptly reimburse Xxxxxx for all
reasonable business expenses incurred by him in the performance of his duties
hereunder subject to and in accordance with the Company's business expense
reimbursement policies as in effect from time to time. In the event the Company
is subject to a Change in Control, and to the extent not paid prior to the date
thereof, the Company shall pay Xxxxxx an amount in cash equal to all such
unreimbursed business expenses plus accrued unpaid compensation.
Section 3.7 DISABILITY OR DEATH. If the Board of Directors determines,
on the basis of professional medical advice, that Xxxxxx has become unable to
substantially perform his duties under this Agreement due to illness or mental
or physical disability, and that such failure or inability has continued or is
reasonably expected to continue for any consecutive six-month period, the
Company shall have the option to terminate this Agreement by giving written
notice to Xxxxxx thereof and the basis therefor at least thirty (30) days prior
to the effective date of termination. This Agreement shall also terminate
immediately upon Xxxxxx'x death. If Xxxxxx'x employment with the Company is
terminated pursuant to this Section 3.7, the Company shall pay Xxxxxx the
salary, bonuses, and commissions which are earned but unpaid as of the date of
termination. The Board of Directors shall have discretion to determine the
amount, if any, of Bonus which Xxxxxx has earned prior to termination of
employment during a fiscal year.
Section 3.8 SEVERANCE.
(a) If the Company terminates Xxxxxx'x employment other than for Cause
pursuant to Section 1.3(d), and other than by reason of death or Disability
pursuant to Section 3.7, or if Xxxxxx resigns within ten (10) days following a
material diminution in his title within six (6) months following a Change in
Control then subject to Xxxxxx'x continuing obligations under Section 2.4 and
Section 2.5 and in consideration of the execution, delivery and effectiveness of
a general release of claims in a standard form approved by the Company, the
Company shall pay to Xxxxxx a lump sum of two (2) times Xxxxxx'x current Base
Salary in cash within fifteen (15) days after the date of termination (or, if
later, upon the effectiveness of the general release following any applicable
revocation period) and shall vest one hundred percent (100%) of Xxxxxx'x then
remaining unvested portion of the options granted in accordance with this
Agreement, in addition to other amounts payable from qualified plans,
nonqualified retirement plans, and deferred compensation plans, which amounts
shall be paid in accordance with the terms of such plans.
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(b) If Xxxxxx resigns within ten (10) days following a material
diminution in his title by the Board of Directors of the Company, other than in
connection with a Change in Control or a termination of his employment for Cause
or as a result of death or Disability pursuant to Section 3.7, then subject to
Xxxxxx'x continuing obligations under Section 2.4 and Section 2.5 and in
consideration of the execution, delivery and effectiveness of a general release
of claims in a standard form approved by the Company, the Company shall vest
fifty percent (50%) of Xxxxxx'x then remaining unvested portion of the options
granted in accordance with this Agreement, and Xxxxxx'x entitlement to other
amounts payable from qualified plans, nonqualified retirement plans, and
deferred compensation plans shall be determined in accordance with the terms of
such plans.
(c) If the Company terminates Xxxxxx'x employment for Cause, or if
Xxxxxx resigns (other than pursuant to Section 3.8(b) above), then Xxxxxx shall
only be entitled to be paid his accrued, unpaid Base Salary through the
effective date of his termination of employment and his entitlement to other
amounts payable from qualified plans, nonqualified retirement plans, and
deferred compensation plans shall be determined in accordance with the terms of
such plans.
(d) No severance benefits shall be provided pursuant to Section 3.8(a)
or Section 3.8(b) if Xxxxxx'x employment is terminated by reason of expiration
or non-renewal of this Agreement for any reason.
Section 3.9 EXCESS PARACHUTE PAYMENTS.
(a) If there is a "change in control" of the Company within the meaning
of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), a
portion of the benefits to which Xxxxxx is entitled under this Agreement could
be characterized as "excess parachute payments" within the meaning of Section
280G of the Code. The parties hereto acknowledge that the protections set forth
in this Section 3.9 are important, and it is agreed that Xxxxxx should not have
to bear the full burden of the excise tax that might be levied under Section
4999 of the Code or any similar provision of federal, state of local law, in the
event that any portion of the benefits payable to Xxxxxx pursuant to this
Agreement or the other incentive plans of the Company are treated as an excess
parachute payment. The parties, therefore, have agreed as set forth in this
Section 3.9.
(b) Anything in this Agreement to the contrary notwithstanding, if it
shall be determined that any payment or distribution (including income
recognized by Xxxxxx upon the early vesting of restricted property or upon the
exercise of options whose exercise date has been accelerated) by the Company or
any other Person to or for the benefit of Xxxxxx (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required
under this Section 3.9 (a "Payment") would be subject to the excise tax imposed
by Section 4999 of the Code or any similar provision of any federal, state or
local law or any interest or penalties are incurred by Xxxxxx with respect to
such excise tax (such excise tax, together with any such interest and penalties,
are hereinafter collectively referred to as the "Excise Tax"), then the Company
shall pay an additional payment, not to exceed the amount of Xxxxxx'x then
current Base Salary in the aggregate (a "Gross-Up Payment"), in an amount such
that after payment by Xxxxxx of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without
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limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed on the Gross-Up Payment, Xxxxxx retains
an amount of the Gross-Up Payment equal to fifty percent (50%) of the Excise Tax
imposed on the Payments. Xxxxxx will bear the cost of the remaining fifty
percent (50%) until the aggregate Gross-Up Payments from the Company have
reached the amount of Xxxxxx'x then current Base Salary, and will thereafter
bear all additional taxes, interest or penalties.
(c) In the event of any dispute as to the applicability or amount of
any Gross-Up Payment, all determinations required to be made under this Section
3.9, including whether and when a Gross-Up Payment is required and the amount of
such Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, shall be made by the independent public accounting firm regularly
employed by the Company (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and to Xxxxxx within fifteen (15)
business days after the receipt of notice from Xxxxxx that there has been a
Payment, or such earlier time as is requested by the Company. All fees and
expenses of the Accounting Firm will be borne by the Company. If the Accounting
Firm determines that no Excise Tax is payable by Xxxxxx, it shall furnish Xxxxxx
with a written statement that failure to report the Excise Tax on Xxxxxx'x
applicable federal income tax return would not result in the imposition of a
negligence or similar penalty. Any determination by the Accounting Firm shall be
binding on the Company and Xxxxxx unless and until a final determination is
received from the Internal Revenue Service indicating a contrary result. As a
result of uncertainty in the application of Section 4999 of the Code at the time
of the initial determination by the Accounting Firm hereunder, it is possible
that Gross-Up Payments may not have been made by the Company that should have
been made ("Underpayment"), consistent with the calculations required to be made
hereunder. If Xxxxxx thereafter is required to make a payment of any Excise Tax,
the Accounting Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by the Company to or
for the benefit of Xxxxxx, consistent with the maximum limitation stated in this
Section 3.9. In the event it is determined by the Accounting Firm that the Gross
Payments previously made by the Company exceeded the limitations stated in this
Section 3.9, upon written notice from the Company, accompanied by a copy of the
Accounting Firm's calculation of same, the amount of such overpayment shall be
promptly paid by Xxxxxx to the Company.
ARTICLE 4
MISCELLANEOUS PROVISIONS
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Section 4.1 ENTIRE AGREEMENT. This Agreement contains the entire
Agreement between the Parties and supersedes all prior oral and written
Agreements, understandings, commitments, or practices between the Parties with
respect to the subject matter hereof. Other than as expressly set forth herein,
Xxxxxx and the Company acknowledge and represent that there are no other
promises, terms, conditions or representations (verbal or written) regarding any
matter relevant hereto. No supplement, modification, or amendment of any term,
provision or condition of this Agreement shall be binding or enforceable unless
evidenced in writing and executed by the parties. The provisions of Sections
2.3, 2.4, 2.5 and 2.6 shall survive termination of this Agreement.
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Section 4.2 APPLICABLE LAW. This Agreement shall be governed
exclusively by and construed in accordance with the laws of the State of Texas,
notwithstanding choice of law provisions thereof; and the venue of any
litigation commenced hereunder shall be Houston, Texas.
Section 4.3 INJUNCTIVE RELIEF. Xxxxxx acknowledges that his services
are of a special, unique, unusual, extraordinary and intellectual character,
which gives them a peculiar value, the loss of which cannot be reasonably or
adequately compensated in damages in an action at law. If he should breach this
Agreement, in addition to its rights and remedies under general law, the Company
shall be entitled to seek equitable relief by way of injunction or otherwise.
Section 4.4 PARTIAL INVALIDITY. If the application of any provision of
this Agreement, or any section, subsection, subdivision, sentence, clause,
phrase, word or portion of this Agreement should be held invalid or
unenforceable, the remaining provisions thereof shall not be affected thereby,
but shall continue to be given full force and effect as if the invalid or
unenforceable provision had not been included herein.
Section 4.5 NOTICES. Notices given under this Agreement shall be given
by registered or certified mail, postage prepaid, return receipt requested, or
by personal delivery to the respective addresses of the parties. Notices to
Xxxxxx shall be sent to 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000,
Attn: Xxxx X. Xxxxxx. Notices to the Company shall be sent to 0000 Xxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attn: Board of Directors. A mailed
first-class notice shall be deemed given two (2) business days after deposit
with U.S. Postal Service.
Section 4.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
Section 4.7 ASSIGNMENT. This Agreement may not be assigned or
encumbered in any way by Xxxxxx. The Company may assign this Agreement to any
successor (whether by merger, consolidation, or purchase of the Company's stock)
to all or a controlling interest in the Company's business, in which case this
Agreement shall be binding upon and inure to the benefit of such successor(s)
and assign(s).
Section 4.8 LIMITATION ON WAIVER. A waiver of any term, provision, or
condition of this Agreement shall not be deemed to be, or constitute a waiver of
any other term, provision or condition herein, whether or not similar. No waiver
shall be binding unless in writing and signed by the waiving party.
Section 4.9 ATTORNEY'S FEES. In the event that any proceeding is
commenced involving the interpretation or enforcement of the provisions of this
Agreement, the Party prevailing in such proceeding shall be entitled to recover
its reasonable costs and attorneys' fees.
Section 4.10 ARBITRATION. If a dispute or claim shall arise with
respect to any of the terms or provisions of this Agreement, or with respect to
the performance by either of the parties under this Agreement, other than in
connection with the Company's enforcement of the provisions of Sections 2.3,
2.4, 2.5, and 2.6 or pursuant to Section 4.3, then either party may, by notice
as herein provided, require that the dispute be submitted under the Commercial
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Arbitration Rules of the American Arbitration Association to an arbitrator in
good standing with the American Arbitration Association within fifteen (15) days
after such notice is given. The written decision of the single arbitrator
ultimately appointed by or for both parties shall be binding and conclusive on
the parties, including with respect to any award of attorneys' fees or costs.
Judgment may be entered on such written decision by the single arbitrator in any
court having jurisdiction and the parties consent to the jurisdiction of the
courts of the State of Texas for this purpose. Any arbitration undertaken
pursuant to the terms of this Section shall occur in the State of Texas.
Section 4.11 TAXES. All payments made pursuant to the provisions of
this Agreement shall be subject to the withholding of applicable taxes.
Section 4.12 NOT FOR THE BENEFIT OF CREDITORS OR THIRD PARTIES. The
provisions of this Agreement are intended only for the regulation of relations
among the parties. This Agreement is not intended for the benefit of creditors
of the parties or other third parties and no rights are granted to creditors of
the parties or other third parties under this Agreement.
IN WITNESS WHEREOF, this Agreement is executed as of the Effective
Date.
US DATAWORKS, INC.
By /S/ XXXXXXX X. XXXXX
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Name XXXXXXX X. XXXXX
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Title CHIEF EXECUTIVE OFFICER
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/S/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
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