Exhibit 10.39
AT-WILL EMPLOYMENT AGREEMENT
It is understood and agreed that the employment by Stereotaxis, Inc., a
Delaware corporation (the "Company" or "Stereotaxis"), of the employee named
below ("Employee") shall be subject to the terms and conditions of this
At-Will Agreement ("Agreement").
1. Position; Base Salary; Incentive Compensation.
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Employee shall serve as the Vice President of Clinical Affairs and Chief
Medical Officer or in such other capacity or capacities as Stereotaxis may
from time to time direct. Employee shall report to Xxxxx X. Xxxx or such
other person as the Company may from time to time direct. Employee's
supervisor shall schedule employee's hours of work and Employee's position
with the Company is Exempt.
Employee shall be paid according to the terms of his or her offer letter.
Such payments shall be subject to applicable withholdings and deductions.
2. Vacation and Sick Leave Benefits.
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Company-paid vacation and sick leave will be governed by the Employee
Handbook.
3. Company Benefits.
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While employed by the Company, Employee shall be entitled to receive the
benefits of employment as the Company may offer from time to time. Employee
agrees that as a condition of Employee's employment by the Company that
Employee will be bound and subject to the terms and conditions of the
Company's Employee Handbook. The Employee Handbook may be revised from time
to time at the sole discretion of the Company with or without prior notice.
4. Attention to Duties; Conflict of Interest.
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While employed by the Company, Employee shall devote Employee's full
business time, energy and abilities exclusively to the business and
interests of Stereotaxis, and shall perform all duties and services in a
faithful and diligent manner and to the best of Employee's abilities.
Employee shall not, without the Company's prior written consent, render to
others, services of any kind for compensation, or engage in any other
business activity that would materially interfere with the performance of
Employee's duties under this Agreement. Employee represents that Employee
has no other outstanding commitments inconsistent with any of the terms of
this Agreement or the services to be rendered to Stereotaxis. While employed
by the Company, Employee shall not, directly or indirectly, whether as a
partner, employee, creditor, shareholder, or otherwise, promote, participate
or engage in any activity or other business competitive with the Company's
business. Employee shall not invest in any company or business, which
competes in any manner with the Company, except those companies whose
securities are listed on the national securities exchanges.
5. Proprietary Information.
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Employee agrees to be bound by the terms of the Confidentiality and
Noncompete Agreement and exhibits thereto, which are attached as Exhibit A
and incorporated by this reference ("Confidentiality and Noncompete
Agreement"), and, by the rules of confidentiality promulgated by Stereotaxis
from time to time.
At-Will employer.
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The Company is an "at-will" employer. This means that the Company may
terminate Employee's employment at any time, with or without cause, and that
Employee may terminate Employee's employment at any time, with our without
cause. Stereotaxis makes no promise that Employee's employment will continue
for a set period of time, nor is there any promise that it will be
terminated only under particular circumstances. No raise or bonus, if any,
shall alter Employee's status as an "at-will" employee or create any implied
contract of employment. Discussion of possible or potential benefits in
future years is not an express or implied promise of continued employment.
No manager, supervisor or officer of Stereotaxis has the authority to change
Employee's status as an "at-will" employee. The "at-will" nature of the
employment relationship with Employee can only be altered by a written
agreement signed by each member of the Board of Directors of Stereotaxis. No
position within Stereotaxis is considered permanent.
6. Binding Arbitration.
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Any dispute, claim or controversy with respect to Employee's termination of
employment with the Company (whether the termination of employment is
voluntary or involuntary), and any dispute, claim or controversy with
respect to incidents or events leading to such termination or the method or
manner of such termination, and any question of arbitrability hereunder,
shall be settled exclusively by arbitration.
Employee and Stereotaxis each waive their constitutional rights to have such
matters determined by a jury. Instead of a jury trial, Stereotaxis and
Employee shall choose an arbitrator. Arbitration is preferred because, among
other reasons, it is quicker, less expensive and less formal than litigation
in court. The provisions governing arbitration shall be described in detail
in Stereotaxis's Employee Handbook.
The arbitrator shall not have the authority to alter, amend, modify, add to
or eliminate any condition or provision of this Agreement, including, but
not limited to, the "at-will" nature of the employment relationship. The
arbitration shall be held in St. Louis, Missouri. The award of the
arbitrator shall be final and binding on the parties. Judgment upon the
arbitrator's award may be entered in any court, state or federal, having
jurisdiction over the parties. If a written request for arbitration is not
made within one (1) year of the date of the alleged wrong or violation, all
remedies regarding such alleged wrong or violation shall be waived.
Should any court determine that any provision(s) of this Agreement to
arbitrate is void or invalid, the parties specifically intend every other
provision of this Agreement to arbitrate to remain enforceable and intact.
The parties explicitly and definitely prefer arbitration to recourse to the
courts, for the reasons described above, and have prescribed arbitration as
their sole and exclusive method of dispute resolution.
7. No Inconsistent Obligations.
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Employee represents that Employee is not aware of any obligations, legal or
otherwise, inconsistent with the terms of this Agreement or Employee's
undertakings under this Agreement.
8. Miscellaneous.
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Stereotaxis may assign this Agreement and Employee's employment to an
affiliated entity to which the operations it currently manages are
transferred.
No promises or changes in Employee's status as an employee of the Company or
any of the terms and conditions of this Agreement can be made unless they
are made in writing and approved by the Board of Directors of Stereotaxis.
This Agreement and the terms and conditions described in it cannot be
changed orally or by any conduct of either Employee or Stereotaxis or any
course of dealings between Employee, or another person and Stereotaxis.
Unless otherwise agreed upon in writing by the parties, Employee, after
termination of any employment, shall not seek nor accept employment with the
Company in the future and the Company is entitled to
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reject without cause any application for employment with the Company made by
Employee, and not hire Employee. Employee agrees that Employee shall have no
cause of action against the Company arising out of any such rejection.
This agreement and performance under it, and any suits or special
proceedings brought under it, shall be construed in accordance with the laws
of the United States of America and the State of Missouri and any
arbitration, mediation or other proceeding arising hereunder shall be filed
and adjudicated in St. Louis, Missouri.
If any term or condition, or any part of a term or condition, of this
Agreement shall prove to be invalid, void or illegal, it shall in no way
affect, impair or invalidate any of the other terms or conditions of this
Agreement, which shall remain in full force and effect.
The failure of either party to enforce any provision of this Agreement shall
not be construed as a waiver of or acquiescence in or to such provision.
The Parties to this Agreement represent and acknowledge that in executing
this Agreement they do not rely and have not relied upon any representation
or statement made by the other party or the other party's agents, attorneys
or representatives regarding the subject matter, basis, or effect of this
Agreement or otherwise, other than those specifically stated in this written
Agreement. This Agreement shall be interpreted in accordance with the plain
meaning of its terms and not strictly for or against any party. This
Agreement shall be construed as if each party was its author and each party
hereby adopts the language of this Agreement as if it were his, her or its
own. The captions to this Agreement and its sections, subsections, tables
and exhibits are inserted only for convenience and shall not be construed as
part of this Agreement or as a limitation on or broadening of the scope of
this Agreement or any section, subsection, table or exhibit.
Employee and Stereotaxis have executed this Agreement and agree to enter
into and be bound by the provisions hereof as of February 22, 2005.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED
BY THE PARTIES.
STEREOTAXIS, INC.
By: /s/ Xxxxx X. Xxxxx
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Title: V.P. Administration/Controller
EMPLOYEE
By: /s/ Xxxxxx Xxxxx
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Employee: Xxxxxx Xxxxx
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EXHIBIT A
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CONFIDENTIALITY AND NONCOMPETE AGREEMENT
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This Confidentiality and Noncompete Agreement ("Agreement") is made and
entered into this 22nd day of February 2005, by and between Stereotaxis,
Inc., a Delaware corporation ("Company"), and Xxxxxx Xxxxx ("Employee").
WHEREAS, Company is engaged in, among other things, the business of
researching, marketing and selling medical devices. The Company is
headquartered and its principal place of business is located in St. Louis,
Missouri;
WHEREAS, Company has expended a great deal of time, money and effort to
develop and maintain its proprietary Confidential and Trade Secret
Information (as defined herein) which provides it with a significant
competitive advantage;
WHEREAS, the success of Company depends to a substantial extent upon the
protection of its Confidential and Trade Secret Information and customer
goodwill by all of its employees;
WHEREAS, Employee desires to be employed, or to continue to be employed, by
Company to provide managerial, administrative, technical and/or sales
services for Company; to be eligible for opportunities for advancement
within Company and/or compensation increases which otherwise would not be
available to Employee; and to be given access to Confidential and Trade
Secret Information of Company which is necessary for Employee to perform his
or her job, but which Company would not make available to Employee but for
Employee's signing and agreeing to abide by the terms of this Agreement as a
condition of Employee's employment and continued employment with Company.
Employee recognizes and acknowledges that Employee's position with Company
has provided and/or will continue to provide Employee with access to
Company's Confidential and Trade Secret Information;
WHEREAS, Company compensates its employees to, among other things, develop
and preserve goodwill with its customers on Company's behalf and business
information for Company's ownership and use;
WHEREAS, If Employee were to leave Company, Company, in all fairness, would
need certain protections in order to prevent competitors of Company from
gaining an unfair competitive advantage over Company and/or diverting
goodwill from Company, and to prevent misuse or misappropriation by Employee
of the Confidential and Trade Secret Information;
WHEREAS, Company desires to obtain the benefit of the services of Employee
and Employee is willing to render such services on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the compensation and other benefits of
Employee's employment by Company and the recitals, mutual covenants and
agreements hereinafter set forth, Employee and Company agrees as follows:
1. Employment Services.
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1.1 Employee agrees that throughout Employee's employment with
Company, Employee will (i) faithfully render such services as
may be delegated to Employee by Company, (ii) devote Employee's
entire business time, good faith, best efforts, ability, skill
and attention to Company's business, and (iii) follow and act in
accordance with all of Company's rules, policies and procedures
of Company, including, but not limited to, working hours, sales
and promotion policies and specific Company rules.
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1.2 "Company" means Stereotaxis, Inc. or one of its subsidiaries;
whichever is Employee's employer. The "Subsidiary" means any
corporation, joint venture or other business organization in
which Stereotaxis, Inc. now or hereafter, directly or
indirectly, owns or controls more than fifty percent (50%)
interest.
2. Confidential and Trade Secret Information.
-----------------------------------------
2.1 Employee agrees to keep secret and confidential, and not to use
or disclose to any third parties, except as directly required
for Employee to perform Employee's employment responsibilities
for Company, any of Company's proprietary Confidential and Trade
Secret Information.
2.2 "Confidential and Trade Secret Information" includes any
information pertaining to Company's business which is not
generally known in the medical devices industry, such as, but
not limited to, trade secrets, know-how, processes, designs,
products, documentation, quality control and assurance
inspection and test data, production schedules, research and
development plans and activities, equipment modifications,
product formulae and production and recycling records, standard
operating procedure and validation records, drawings, apparatus,
tools, techniques, software and computer programs and derivative
works, inventions (whether patentable or not), improvements,
copyrightable material, business and marketing plans,
projections, sales data and reports, confidential evaluations,
the confidential use, nonuse and compilation by the Company of
technical or business information in the public domain, margins,
customers, customer requirements, costs, profitability, sales
and marketing strategies, pricing policies, operational methods,
strategic plans, training materials, internal financial
information, operating and financial data and projections,
distribution or sales methods, prices charged by or to Company,
inventory lists, sources of supplies, supply lists, lists of
current or past employees, mailing lists and information
concerning relationships between Company and its employees or
customers.
2.3 During Employee's employment, Employee will not copy, reproduce
or otherwise duplicate, record, abstract, summarize or otherwise
use, any papers, records, reports, studies, computer printouts,
equipment, tools or other property owned by the Company, except
as expressly permitted or required for the proper performance of
his or her duties on behalf of the Company.
3. Post-Termination Restrictions.
-----------------------------
Employee recognizes that (i) Company has spent substantial money, time and
effort over the years in and in developing its Confidential and Trade Secret
Information; (ii) Company pays its employees to, among other things, develop
and preserve business information, customer goodwill, customer loyalty and
customer contacts for and on behalf of Company; and (iii) Company is hereby
agreeing to employ and pay Employee based upon Employee's assurances and
promises contained herein not to put himself or herself in a position
following Employee's employment with Company in which the confidentiality of
Company's information might somehow be compromised. Accordingly, Employee
agrees that during Employee's employment with Company, and for a period of
two years thereafter, regardless of how Employee's termination occurs and
regardless of whether it is with or without cause, Employee will not,
directly or indirectly (whether as owner, partner, consultant, employee or
otherwise):
3.1 engage in, assist or have an interest in, enter the employment
of, or act as an agent, advisor or consultant for, any person or
entity which is engaged, or will be engaged, in the development,
manufacture, supplying or sale of a product, process, apparatus,
service or development which is competitive with a product,
process, apparatus, service or development on which Employee
worked or with respect to which Employee has or had access to
Confidential or Trade Secret Information while at Company
("Competitive Work"), and which Employee seeks to serve in any
market which was being served by
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Employee at the time of Employee's termination or was served at
any time during Employee's last six (6) months of employment by
Company. Competitive Work shall be limited to the field of
computer controlled or magnetic instrument guidance and related
therapeutic devices or agents;
3.2 solicit, call on or in any manner cause or attempt to cause, or
provide any Competitive Work to any customer or active
prospective customer of the Company with whom Employee dealt, or
on whose account he or she worked for which Employee was
responsible, or with respect to which Employee was provided or
had access to Confidential and Trade Secret Information to
divert, terminate, limit, modify or fail to enter into any
existing or potential relationship with Company; and
3.3 induce or attempt to induce any other employee, consultant or
advisor of Company to accept employment or an affiliation with
any other person or entity.
4. Acknowledgment Regarding Restrictions.
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Employee recognizes and agrees that the restraints contained in Section 3
are reasonable and enforceable in view of Company's legitimate interests in
protecting its Confidential and Trade Secret Information and customer
goodwill. Employee understands that the post-employment restrictions
contained herein will preclude, for a time, Employee's employment with such
major competitors of Company in magnetic instrument guidance. Employee
understands that the restrictions of Section 3 are not limited
geographically in view of Company's nationwide operations and the
Confidential and Trade Secret Information and customers to which Employee
had access.
5. Inventions.
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5.1 Any and all ideas, inventions, discoveries, patents, patent
applications, continuation-in-part patent applications,
divisional patent applications, technology, copyrights,
derivative works, trademarks, service marks, improvements, trade
secrets and the like, which are developed, conceived, created,
discovered, learned, produced and/or otherwise generated by
Employee, whether individually or otherwise, during the time
that Employee is employed by Company, whether or not during
working hours, that relate to (i) current and anticipated
businesses and/or activities of Company, (ii) Company's current
and anticipated research or development, or (iii) any work
performed by Employee for Company, shall be the sole and
exclusive property of Company, and Company shall own any and all
right, title and interest to such. Employee assigns and agrees
to assign to Company any and all right, title and interest in
and to any such ideas, inventions, discoveries, patents, patent
applications, continuation-in-part patent applications,
divisional patent applications, technology, copyrights,
derivative works, trademarks, service marks, improvements, trade
secrets and the like, whenever requested to do so by Company, at
Company's expense, and Employee agrees to execute any and all
applications, assignments or other instruments which Company
deems desirable or necessary to protect such interests.
5.2 Paragraph 5(*.1) shall not apply to any invention for which no
equipment, supplies, facilities or Confidential and Trade Secret
Information of Company was used and which was developed entirely
on Employee's own time, unless (i) the invention relates to
Company's business or to Company's actual or
demonstrably-anticipated research or development, or (ii) the
invention results from any work performed by Employee for
Company.
6. Company Property.
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Employee acknowledges that any and all notes, records, sketches, computer
diskettes, training materials and other documents relating to the Company
obtained by or provided to Employee, or otherwise made,
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produced or compiled during the course of Employee's employment with Company
regardless of the type of medium in which they are preserved, are the sole
and exclusive property of Company and shall be surrendered to Company upon
Employee's termination of employment and on demand at any time by Company.
7. Non-Waiver of Rights.
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Company's failure to enforce at any time any of the provisions of this
Agreement or to require at any time performance by Employee of any of the
provisions hereof shall in no way be construed to be a waiver of such
provisions or to affect either the validity of this Agreement, or any part
hereof, or the right of Company thereafter to enforce each and every
provision in accordance with the terms of this Agreement.
8. Company's Right to Injunctive Relief.
------------------------------------
In the event of a breach or threatened breach of any of Employee's duties
and obligations under the terms and provisions of Sections 2, 3 and 5
hereof, Company shall be entitled, in addition to any other legal or
equitable remedies it may have in connection therewith (including any right
to damages that may suffer), to temporary, preliminary and permanent
injunctive relief restraining such breach or threatened breach. Employee
hereby expressly acknowledges that the harm which might result to Company's
business as a result of any noncompliance by Employee with any of the
provisions of Sections 2, 3 or 5 would be largely irreparable. Employee
specifically agrees that if there is a question as to the enforceability of
any of the provisions of Sections 2, 3 or 5 hereof, Employee will not engage
in any conduct inconsistent with or contrary to such Sections until after
the question has been resolved by a final judgement of a court of competent
jurisdiction.
9. Invalidity of Provisions.
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If any provision of this Agreement is adjudicated to be invalid or
unenforceable under applicable law in any jurisdiction, the validity or
enforceability of the remaining provisions thereof shall be unaffected as to
such jurisdiction and such adjudication shall not affect the validity or
enforceability of such provisions in any other jurisdiction. To the extent
that any provision of this Agreement is adjudicated to be invalid or
unenforceable because it is overbroad, that provision shall not be void, but
rather shall be limited only to the extent required by applicable law and
enforced as to limited. The parties expressly acknowledge and agree that
this Section is reasonable in view of the parties' respective interests.
10. Employee Representations.
------------------------
Employee represents that the execution and delivery of the Agreement and
Employee's employment with Company do not violate any previous employment
agreement or other contractual obligation of Employee.
11. Company's Right to Recover Costs and Fees.
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Employee agrees that if Employee breaches or threatens to breach this
Agreement, Employee shall be liable for any attorneys' fees and costs
incurred by the Company in enforcing its rights under this Agreement in the
event that a court determines that Employee has breached this Agreement or
if the Company obtains injunctive relief against the Employee and is
successful on the merits of its claim against employee.
12. Employment at Will.
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Employee acknowledges that employee is, and at all times will be, an
employee-at-will of Company and nothing contained herein shall be construed
to alter or affect such employee-at-will status.
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13. Exit Interview.
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To ensure a clear understanding of this Agreement, Employee agrees, at the
time of termination of Employee's employment, to engage in an exit interview
with Company at a time and place designated by Company and at Company's
expense. Employee understands and agrees that during said exit interview,
Employee may be required to confirm that Employee will comply with
Employee's obligations under Sections 2, 3 and 5 of this Agreement. Company
may elect, at its option, to conduct the exit interview by telephone.
14. Amendments.
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No modification, amendment or waiver of any of the provisions of this
Agreement shall be effective unless in writing specifically referring
hereto, and signed by the parties hereto. This Agreement supersedes all
prior agreements and understandings between Employee and Company to the
extent that any such agreements or understandings conflict with the terms of
this Agreement.
15. Assignments.
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This Agreement shall be freely assignable by Company to, and shall inure to
the benefit of, and be binding upon, Company, its successors and assigns
and/or any other entity which shall succeed to the business presently being
conducted by Company. Being a contract for personal services, neither this
Agreement nor any rights hereunder shall be assigned by Employee.
16. Choice of Forum and Governing Law.
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In light of Company's substantial contacts with the State of Missouri, the
parties' interests in ensuring that disputes regarding the interpretation,
validity and enforceability of this Agreement are resolved on a uniform
basis, and Company's execution of, and the making of this Agreement in
Missouri, the parties agree that: (i) any litigation involving any
noncompliance with or breach of the Agreement, or regarding the
interpretation, validity and/or enforceability of the Agreement, shall be
filed and conducted exclusively in the state or federal courts in St. Louis
County, Missouri; and (ii) the Agreement shall be interpreted in accordance
with and governed by the laws of the State of Missouri, with regard for any
conflict of law principles.
17. Headings.
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Section headings are provided in this Agreement for convenience only and
shall not be deemed to substantively alter the content of such sections.
PLEASE NOTE: BY SIGNING THIS AGREEMENT, EMPLOYEE IS HEREBY CERTIFYING THAT
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EMPLOYEE (A) HAS RECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY
BEFORE EXECUTING IT; (B) HAS READ THIS AGREEMENT CAREFULLY BEFORE SIGNING
IT; (C) HAS HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE AGREEMENT TO ASK
ANY QUESTIONS EMPLOYEE HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY
ANSWERS TO ALL SUCH QUESTIONS; AND (D) UNDERSTANDS EMPLOYEE'S RIGHTS AND
OBLIGATIONS UNDER THE AGREEMENT.
IN WITNESS WHEREOF, the parties hereof have caused this Agreement to be
executed as of the day and year first above written.
STEREOTAXIS, INC.
By: /s/ Xxxxx X. Xxxxx
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Title: V.P. Administration/Controller
EMPLOYEE
By: /s/ Xxxxxx Xxxxx
Employee: Xxxxxx Xxxxx
0
