EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of January 13,
1998, between J. Xxxxxxx Xxxxxx, Ph.D. ("Employee") and Epitope, Inc., an Oregon
corporation (the "Company").
1. SERVICES.
1.1 EMPLOYMENT. The Company agrees to employ Employee
as Chief Scientific Officer, and Employee hereby accepts such employment, in
accordance with the terms and conditions of this Agreement. Employment shall
continue until terminated pursuant to the terms of this Agreement.
1.2 DUTIES. Employee shall have the position named in
Section 1.1 with such powers and duties appropriate to that office (a) as may be
provided by the bylaws of the Company, (b) as otherwise set forth in Exhibit A
attached to this Agreement, and (c) as determined from time to time by the
President and Chief Executive Officer or the board of directors of the Company.
Employee's position and duties may be changed from time to time during the term
of this Agreement, and Employee's place of work may be relocated at the sole
discretion of the President and Chief Executive Officer or the board of
directors.
1.3 OUTSIDE ACTIVITIES. Employee shall obtain the
consent of the President and Chief Executive Officer or the board of directors
before he engages, either directly or indirectly, in any other professional or
business activities that may require an appreciable portion of Employee's time
or effort to the detriment of the Company's business.
1.4 DIRECTION OF SERVICES. Employee shall at all
times discharge his duties in consultation with and under the supervision and
direction of the President and Chief Executive Officer of the Company.
2. COMPENSATION AND EXPENSES.
2.1 SALARY. As compensation for services under this
Agreement, the Company shall pay to Employee a regular salary established by the
President and Chief Executive Officer or the board of directors. Such salary may
be adjusted from time to time in the discretion of the President and Chief
Executive Officer or the board of directors. Payment shall be made on a
bi-weekly basis, less all amounts required by law or authorized by Employee to
be withheld or deducted, at such times as shall be determined by the Company.
2.2 ADDITIONAL EMPLOYEE BENEFITS. To the extent
otherwise eligible, Employee shall also be entitled to receive or participate in
any additional benefits, including without limitation insurance programs, profit
sharing or pension plans, and medical reimbursement plans, which may from time
to time be made available by the Company to
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corporate officers. The Company may change or discontinue such benefits at any
time in its sole discretion.
2.3 EXPENSES. The Company shall reimburse Employee
for all reasonable and necessary expenses incurred in carrying out his duties
under this Agreement. Employee shall present to the Company from time to time an
itemized account of such expenses in such form as may be required by the
Company.
2.4 FEES. All compensation earned by Employee, other
than pursuant to this Agreement, as a result of services performed on behalf of
the Company or as a result of or arising out of any work done by Employee in any
way related to the scientific or business activities of the Company shall belong
to the Company. Employee shall pay or deliver such compensation to the Company
promptly upon receipt. For the purposes of this provision, "compensation" shall
include, but is not limited to, all professional and nonprofessional fees,
lecture fees, expert testimony fees, publishing fees, royalties, and any related
income, earnings, or other things of value; and "scientific or business
activities of the Company" shall include, but not be limited to, any project or
projects in which the Company is involved and any subject matter that is
directly or indirectly researched, tested, developed, promoted, or marketed by
the Company.
3. STOCK OPTIONS. The Company shall grant Employee an option
to purchase 30,000 shares of common stock of the Company at an exercise price
equal to the fair market value of the stock on the date of grant.
4. CONFIDENTIAL INFORMATION.
4.1 DEFINED. "Confidential Information" is all
nonpublic information relating to the Company or its business that is disclosed
to Employee, that Employee produces, or that Employee otherwise obtains during
employment. "Confidential Information" also includes information received from
third parties that the Company has agreed to treat as confidential. Examples of
Confidential Information are:
4.1.1 Marketing plans.
4.1.2 Customer lists.
4.1.3 Product design and manufacturing information.
4.1.4 Financial information.
4.2 ACCESS TO INFORMATION. Employee acknowledges that
in the course of his employment he will have access to Confidential Information,
that such information is a valuable asset of the Company, and that its
disclosure or unauthorized use will cause the Company substantial harm.
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4.3 OWNERSHIP. Employee acknowledges that all
Confidential Information shall continue to be the exclusive property of the
Company (or the third party that disclosed it to the Company), whether or not
prepared in whole or in part by Employee and whether or not disclosed to
Employee or entrusted to his custody in connection with his employment by the
Company.
4.4 NONDISCLOSURE AND NONUSE. Unless authorized or
instructed in writing by the Company, or required by legally constituted
authority, Employee will not, except as required in the course of the Company's
business, during or after his employment, disclose to others or use any
Confidential Information, unless and until, and then only to the extent that,
such items become available to the public through no fault of Employee.
4.5 RETURN OF CONFIDENTIAL INFORMATION. Upon request
by the Company during or after his employment, and without request upon
termination of employment pursuant to this Agreement, Employee will deliver
immediately to the Company all written or tangible materials containing
Confidential Information without retaining any excerpts or copies.
4.6 DURATION. The obligations set forth in this
Section 4 will continue beyond the term of employment of Employee by the Company
and for so long as Employee possesses Confidential Information.
5. MATERIALS PREPARED AND INVENTIONS MADE DURING EMPLOYMENT.
The Company shall be the exclusive owner of all materials, concepts, and
inventions Employee prepares, develops, or makes (whether alone or jointly with
others) within the scope of his employment, and of all related rights (including
copyrights, trademarks, and patents) and proceeds. Without limitation,
materials, concepts, and inventions that (a) relate to the Company's business or
actual or demonstrably anticipated research or development, or (b) result from
any work performed by Employee for the Company, shall be considered within the
scope of Employee's employment. Employee shall promptly disclose all such
materials, concepts, and inventions to the Company. Employee shall take all
action reasonably requested by the Company to vest ownership of such materials,
consents, and inventions in the Company and to permit the Company to obtain
copyright, trademark, patent, or similar protection in its name.
6. TERMINATION.
6.1 TERMINATION UPON DEATH. This Agreement shall
terminate immediately upon Employee's death.
6.2 TERMINATION BY EMPLOYEE. Employee may terminate
his employment under this Agreement by 90 days' written notice to the Company.
6.3 TERMINATION BY THE COMPANY FOR CAUSE. The Company
may terminate Employee's employment under this Agreement for cause at any time,
with or without advance notice. "Cause" includes, but is not limited to: (a) a
material breach of this Agreement by Employee; (b) Employee's refusal, failure,
or inability to comply with any policies or
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standards of the Company or to perform any job duties of Employee; (c) any act
of fraud, dishonesty, or misconduct by Employee; (d) the commission of any act
in direct competition with or materially detrimental to the best interests of
the Company; or (e) Employee's failure to otherwise comply with the
standards of behavior that an employer has the right to expect of an employee.
The Company reserves the right to determine the facts giving rise to cause for
termination and whether those facts constitute cause for termination.
6.4 TERMINATION BY THE COMPANY WITHOUT CAUSE. The
Company may terminate Employee's employment under this Agreement without cause
by written notice to Employee.
6.5 COMPENSATION UPON TERMINATION.
6.5.1 TERMINATION UNDER SECTION 6.1, 6.2, OR
6.3. In the event of a termination of Employee's employment under Section 6.1,
6.2, or 6.3, Employee's regular compensation pursuant to Section 2.1 shall be
prorated and payable until the date of termination.
6.5.2 TERMINATION UNDER SECTION 6.4. In the
event of a termination of Employee's employment by the Company without cause as
provided in Section 6.4, Employee shall continue to be paid the salary provided
in Section 2.1 for 12 months from the date of notice of such termination of
employment, in the manner and at the times at which regular compensation was
paid to Employee during the term of his employment under this Agreement. As a
condition to receipt of the compensation described in the preceding sentence,
Employee shall sign, deliver, and abide by a Separation Agreement and Release,
substantially in the form attached as Exhibit B to this Agreement. The Company's
obligation to pay the amounts stated in this section shall terminate if Employee
either individually or as a director, officer, partner, employee, agent,
representative, or consultant with any business, directly or indirectly anywhere
in the United States within one year after termination of employment (a) engages
or prepares to engage in any business that competes with the Company; (b)
induces or attempts to induce any person who is an employee of the Company to
leave the employ of the Company; or (c) solicits, diverts, or accepts orders for
products or services that are substantially competitive with the products or
services sold by the Company from any customer of the Company.
7. REMEDIES. The respective rights and duties of the Company
and Employee under this Agreement are in addition to, and not in lieu of, those
rights and duties afforded to and imposed upon them by law or at equity.
Employee acknowledges that breach of Section 4 of this Agreement will cause
irreparable harm to the Company and agrees to the entry of a temporary
restraining order and permanent injunction by any court of competent
jurisdiction to prevent breach or further breach of this Agreement. Such remedy
shall be in addition to any other remedy available to the Company at law or in
equity.
8. SEVERABILITY OF PROVISIONS. The provisions of this
Agreement are severable, and if any provision hereof is held invalid or
unenforceable, it shall be enforced to
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the maximum extent permissible, and the remaining provisions of the Agreement
shall continue in full force and effect.
9. ATTORNEY FEES. In the event a suit or action is filed to
enforce Section 4 of this Agreement, the prevailing party shall be reimbursed by
the other party for all costs and expenses incurred in connection with the suit
or action, including without limitation reasonable attorney fees at trial or on
appeal.
10. NONWAIVER. Failure of the Company at any time to require
performance of any provision of this Agreement shall not limit the right of the
Company to enforce the provision. No provision of this Agreement or breach
thereof may be waived by either party except by a writing signed by that party.
A waiver of any breach of a provision of this Agreement shall be construed
narrowly and shall not be deemed to be a waiver of any succeeding breach of that
provision or a waiver of that provision itself or of any other provision.
11. ARBITRATION.
11.1 CLAIMS COVERED. All claims or controversies,
except for those excluded by Section 11.2 ("claims"), whether or not arising out
of Employee's employment (or its termination), that the Company may have against
Employee or that Employee may have against the Company or against its officers,
directors, employees or agents, in their capacity as such or otherwise, shall be
resolved as provided in this Section 11. Claims covered by this Section 11
include, but are not limited to, claims for wages or other compensation due;
claims for breach of any contract or covenant (express or implied); tort claims;
claims for discrimination (including, but not limited to, race, sex, sexual
orientation, religion, national origin, age, marital status, 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
governmental law, statute, regulation, or ordinance, except as provided in
Section 11.2.
11.2 NON-COVERED CLAIMS. Claims arising out of
Section 4 of this Agreement and workers' compensation or unemployment
compensation benefits are not covered by this Section 11. Non-covered claims
include but are not limited to claims by the Company for injunctive and/or other
equitable relief for unfair competition and/or the use and/or unauthorized
disclosure of trade secrets or confidential information, as to which Employee
understands and agrees that the Company may seek and obtain relief from a court
of competent jurisdiction.
11.3 REQUIRED NOTICE OF ALL CLAIMS AND STATUTE OF
LIMITATIONS. Company and Employee agree that the aggrieved party must give
written notice of any claim to the other party within one year of the date the
aggrieved party first has knowledge of the event giving rise to the claim;
otherwise the claim shall be void and deemed waived even if there is a federal
or state statute of limitations which would have given more time to pursue the
claim. The written notice shall identify and describe the nature of all claims
asserted and the facts upon which such claims are based.
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11.4 HEARING OR MEDIATION. Prior to any arbitration
proceeding taking place pursuant to this section, Company or Employee may, at
its respective option, elect to submit the claim to non-binding mediation before
a mutually agreeable mediation tribunal or mediator, in which event both parties
shall execute a suitable confidentiality agreement and abide by the procedures
specified by the mediation tribunal or mediator.
11.5 ARBITRATION PROCEDURES. Any arbitration shall be
conducted in accordance with the then-current Model Employment Arbitration
Procedures of the American Arbitration Association ("AAA"), modified to
substitute for AAA actions, the United States Arbitration and Mediation Service
("USA&MS"), before an arbitrator who is licensed to practice law in the state of
Oregon (the "Arbitrator"). The arbitration shall take place in or near Portland,
Oregon.
11.5.1 SELECTION OF ARBITRATOR. The USA&MS
shall give each party a list of 11 arbitrators drawn from its panel of
labor-management dispute arbitrators. Each party may strike all names on the
list it deems unacceptable. If only one common name remains on the lists of all
parties, that individual shall be designated as the Arbitrator. If more than one
common name remains on the lists of all parties, the parties shall strike names
alternately until only one remains. The party who did not initiate the claim
shall strike first. If no common name remains on the lists of all parties, the
USA&MS shall furnish an additional list or lists until an Arbitrator is
selected.
11.5.2 APPLICABLE LAW. The Arbitrator shall
apply the substantive law (and the law of remedies, if applicable) specified in
this Agreement or federal law, or both, as applicable to the claim(s) asserted.
The Oregon Rules of Evidence shall apply. The Arbitrator, and not any federal,
state, or local court or agency, shall have exclusive authority to resolve any
dispute relating to the interpretation, applicability, enforceability or
formation of this Agreement, including but not limited to any claim that all or
any part of this Agreement is void or voidable. The arbitration shall be final
and binding upon the parties, except as provided in this Agreement.
11.5.3 AUTHORITY. The Arbitrator shall have
jurisdiction to hear and rule on pre-hearing disputes and is authorized to hold
pre-hearing conferences by telephone or in person as the Arbitrator deems
necessary. The Arbitrator shall have the authority to entertain a motion to
dismiss and/or a motion for summary judgment by any party and shall apply the
standards governing such motions under the Federal Rules of Civil Procedure. The
Arbitrator shall render an award and opinion in the form typically rendered in
labor arbitrations.
11.5.4 REPRESENTATION. Any party may be
represented by an attorney or other representative selected by the party.
11.5.5 DISCOVERY. Each party shall have the
right to take the deposition of one individual and any expert witness designated
by another party. Each party also shall have the right to make requests for
production of documents to any party. The
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subpoena right specified below shall be applicable to discovery pursuant to this
paragraph. Additional discovery may be had only where the Arbitrator selected
pursuant to this Agreement so orders, upon a showing of substantial need. At
least 30 days before the arbitration, the parties must exchange lists of
witnesses, including any experts, and copies of all exhibits intended to be used
at the arbitration. Each party shall have the right to subpoena witnesses and
documents for the arbitration.
11.5.6 REPORTER. Either party, at its
expense, may arrange for and pay the cost of a court reporter to provide a
stenographic record of proceedings.
11.5.7 POST-HEARING BRIEFS. Either party,
upon request at the close of hearing, shall be given leave to file a
post-hearing brief. The time for filing such a brief shall be set by the
Arbitrator.
11.6 ENFORCEMENT. Either party may bring an action in
any court of competent jurisdiction to compel arbitration under this Agreement
and to enforce an arbitration award. Except as otherwise provided in this
Agreement, both the Company and Employee agree that neither shall initiate or
prosecute any lawsuit (other than for a non-covered claim) in any way related to
any claim covered by this Agreement. A party opposing enforcement of an award
may not do so in an enforcement proceeding, but must bring a separate action in
any court of competent jurisdiction to set aside the award, where the standard
of review will be the same as that applied by an appellate court reviewing a
decision of a trial court sitting without a jury.
11.7 ARBITRATION FEES AND COSTS. Company and Employee
shall equally share the fees and costs of the Arbitrator. Each party will
deposit funds or post other appropriate security for its share of the
Arbitrator's fee, in an amount and manner determined by the Arbitrator, 10 days
before the first day of hearing. Each party shall pay for its own costs and
attorneys' fees, if any, provided that the Arbitrator, in its sole discretion,
may award reasonable fees to the prevailing party in a proceeding.
12. GENERAL TERMS AND CONDITIONS. This Agreement constitutes
the entire understanding of the parties relating to the employment of Employee
by the Company, and supersedes and replaces all written and oral agreements
heretofore made or existing by and between the parties relating thereto. This
Agreement shall be construed in accordance with the laws of the state of Oregon,
without regard to any conflicts of laws rules thereof. This Agreement shall
inure to the benefit of any successors or assigns of the Company. All captions
used herein are intended solely for convenience of reference and shall in no way
limit any of the provisions of this Agreement.
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The parties have executed this Employment Agreement as of the
date stated above.
EPITOPE, INC.
/s/ J. Xxxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx
J. Xxxxxxx Xxxxxx, Ph.D.
Title: President and C.E.O.
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EXHIBIT A TO EMPLOYMENT AGREEMENT
SPECIFIC DUTIES OF EMPLOYEE AS VICE PRESIDENT OF
SCIENTIFIC AFFAIRS - EPITOPE MEDICAL PRODUCTS
Responsible for Research and Development efforts and Product Development; other
duties and responsibilities as assigned by the President and Chief Executive
Officer.
EXHIBIT B TO EMPLOYMENT AGREEMENT
SEPARATION AGREEMENT AND RELEASE
A. This Separation Agreement and Release ("Agreement") is made and
entered into as of this ----- day of --------------, -----, by and between
Company, Inc., an Oregon corporation ("Company"), and ----------------------
("--------------") in order to provide the terms and conditions of
--------------'s termination of employment, to fully and completely resolve any
and all issues that -------------- may have in connection with his employment
with Company or the termination of that employment, and to promote an amicable
long-term relationship between Company and --------------.
B. In consideration of the mutual promises and conditions contained
herein, the parties agree as follows:
1. SEPARATION. -------------- has been [is currently] employed
at Company as --------------. -------------- shall have no further job
responsibilities at Company after --------------, and his employment shall be
terminated effective as of such date.
2. PAYMENT TO --------------. Pursuant to the Employment
Agreement entered into between the parties, Company agrees to provide additional
compensation to -------------- in the amount of --------------- provided
-------------- executes and does not revoke this Agreement.
3. RELEASE OF CLAIMS. In return for the benefits conferred by
this Agreement (and described in the Employment Agreement), which --------------
acknowledges Company has no legal obligation to provide if -------------- does
not enter into this Agreement, --------------, on behalf of himself and his
heirs, executors, administrators, successors and assigns, hereby releases and
forever discharges Company and its past, present and future affiliates,
subsidiaries, predecessors, successors and assigns, and each of their past,
present and future shareholders, officers, directors, employees, agents and
insurers, from any and all claims, actions, causes of action, disputes,
liabilities or damages, of any kind, which may now exist or hereafter may be
discovered, specifically including, but not limited to, any and all claims,
disputes, actions, causes of action, liabilities or damages, arising from or
relating to --------------'s employment with Company, or the termination of
such employment, except for any claim for payment or performance pursuant to the
terms of this Agreement. This release includes, but is not limited to, any
claims that -------------- might have for reemployment or reinstatement or for
additional compensation or benefits and applies to claims that he might have
under either federal, state or local law dealing with employment, contract,
tort, wage and hour, or civil rights matters, including, but not limited to,
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment
Act, the Americans with Disabilities Act, the Family and Medical Leave Act,
similar state laws, and any regulations under such laws. This release shall not
affect any accrued rights -------------- may have under any medical insurance,
workers' compensation or retirement plan because of his prior employment
with
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Company. -------------- ACKNOWLEDGES AND AGREES THAT THROUGH THIS RELEASE HE IS
GIVING UP ALL RIGHTS AND CLAIMS OF EVERY KIND AND NATURE WHATSOEVER, KNOWN OR
UNKNOWN, CONTINGENT OR LIQUIDATED, THAT HE MAY HAVE AGAINST Company AND THE
OTHER PERSONS NAMED ABOVE, EXCEPT FOR THE RIGHTS SPECIFICALLY EXCLUDED ABOVE.
4. CONFIDENTIALITY. -------------- agrees to keep this
Agreement and each of its terms, specifically including without limitation the
amount of the payment described in this Agreement, and the fact that he has
received payment, strictly confidential. -------------- may disclose the terms
of this Agreement only to his attorney or accountant, or as required by law.
--------------- understands that Company may be required to publicly disclose
the terms of this Agreement.
5. NON-DISPARAGEMENT. -------------- shall not make any
disparaging or derogatory remarks of any nature whatsoever about Company, its
officers, directors or employees, or its products, either publicly or privately,
unless required by law.
6. NON-ADMISSION OF LIABILITY. This Agreement shall not be
construed as an admission of liability or wrongdoing by Company. Neither this
Agreement nor any of its terms, provisions, or conditions constitute an
admission of liability or wrongdoing or may be offered or received in evidence
in any action or proceeding as evidence of an admission of liability or
wrongdoing.
7. EMPLOYMENT AGREEMENT. -------------- acknowledges and
reaffirms his obligations under Section 4 of the Employment Agreement executed
by him in conjunction with his employment at Company. The terms of such
Employment Agreement are hereby incorporated herein and made a part of this
Agreement. -------------- agrees to strictly comply with such terms of the
Employment Agreement.
8. RETURN OF PROPERTY. -------------- agrees to and hereby
represents that he has returned to Company all of Company's property and all
materials containing confidential information of Company, that were in his
possession or under his control.
9. MISCELLANEOUS.
9.1 ENTIRE AGREEMENT. This document constitutes the
entire, final, and complete agreement and understanding of the parties with
respect to the subject matter hereof and supersedes and replaces all written and
oral agreements and understandings heretofore made or existing by and between
the parties or their representatives with respect thereto, other than the
Employment Agreement executed between the parties. There have been no
representations or commitments by Company to make any payment or perform any act
other than those expressly stated herein.
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9.2 WAIVER. No waiver of any provision of this
Agreement shall be deemed, or shall constitute a wavier of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver. No
waiver shall be binding unless executed in writing by the parties making the
waiver.
9.3 BINDING EFFECT. All rights, remedies, and
liabilities herein given to or imposed upon the parties shall extend to, inure
to the benefit of and bind, as the circumstances may require, the parties and
their representative heirs, personal representatives, administrators, successors
and assigns.
9.4 AMENDMENT. No supplement, modification or
amendment of this Agreement shall be valid, unless the same is in writing and
signed by both parties.
9.5 RECOVERY OF ATTORNEY FEES BY PREVAILING PARTY. If
it becomes necessary to enforce this Agreement, or any part hereof, the
prevailing party shall be entitled to recover its reasonable attorney fees and
costs incurred therein, including all attorney fees and costs on appeal.
9.6 GOVERNING LAW. This Agreement and the rights of
the parties hereunder shall be governed, construed and enforced in accordance
with the laws of the state of Oregon, without regard to its conflict of law
principles. Any suit or action arising out of or in connection with this
Agreement, or any breach hereof, shall be brought and maintained in the Circuit
Court of the State of Oregon for the County of Multnomah. The parties hereby
irrevocably submit to the jurisdiction of such court for the purpose of such
suit or action and hereby expressly and irrevocably waive, to the fullest extent
permitted by law, any claim that any such suit or action has been brought in an
inconvenient forum.
9.7 -------------- GIVEN 21 DAYS TO CONSIDER
AGREEMENT. -------------- acknowledges that Company advised him in writing to
consult with an attorney before signing this Agreement and that he has had at
least 21 days to consider whether to execute this Agreement.
9.8 REVOCATION. -------------- may revoke this
Agreement by written notice delivered to the President and Chief Executive
Officer of the Company within seven days following the date he signed the
Agreement. If not revoked under the preceding sentence, this Agreement becomes
effective and enforceable after the seven-day period has expired.
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9.9 MISCELLANEOUS. -------------- acknowledges that
he has freely and voluntarily executed this Agreement, with a complete
understanding of its terms and present and future effects.
[NAME OF EMPLOYEE] EPITOPE, INC.
By: ------------------------------------
/s/ J. Xxxxxxx Xxxxxx
Date: Jan. 13, 1998 Title: ---------------------------------
Date: ----------------------------------
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