WAIVER AND SEPARATION AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
Exhibit (e)(16)
THIS WAIVER AND SEPARATION AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS (“Agreement”) is entered into on April
28, 2023 by and between Xxxx Xxxxxxxx (“Employee”), Home Point Financial Corporation (“Home Point Financial” or “Employer”), and Home Point Capital Inc. (“Home Point Capital”). Such parties are
herein after referred to collectively as the “Parties”.
IN CONSIDERATION of the mutual promises contained herein and other good and valuable consideration described below, the parties agree as follows:
1.
Separation/Transition from Employment: Employee has agreed to voluntarily separate from his employment with Employer, including its predecessors, direct and
indirect parents and subsidiaries, affiliates, and related entities, and permanently end his employment relationship effective May 5, 2023 (the
“Separation Date”). Employee represents and freely acknowledges that he has not been coerced, forced, or otherwise required to resign from employment, and instead has done so of his own free will and deed.
2.
Consideration: In exchange for the agreements and obligations of Employee set forth in this Agreement, Employer shall provide Employee with
the following consideration, the sufficiency of which is hereby acknowledged:
a) |
Home Point Financial shall pay to Employee a one-time, lump sum severance payment in the gross amount of $30,769.23 (the “Separation Payment”), less applicable deductions and taxes, which is equal to four weeks
of Employee’s current base pay. This Separation Payment will be paid by Home Point Financial to Employee within fifteen (15) working days after the Effective Date of this Agreement. Employee agrees that he is not otherwise entitled to
the Separation Payment under any contract, agreement, practice, custom or usage of Home Point Financial, and understands that it is paid by Home Point Financial solely in light of business considerations and the desire to amicably resolve
and release all claims.
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b) |
(i) the terms of Employee’s Restricted Stock Unit Agreement (the “2021 RSU Agreement”) entered into by the Employee pursuant to the Home Point Capital Inc. 2021 Incentive Plan (the “Plan”) on May 4, 2021,
shall be modified, such that as of the Separation Date, the vesting of 35,311 restricted stock units (the “2021 Restricted Stock Units”) will be accelerated such that vesting will occur on the Separation Date; (ii) The terms of
Employee’s Restricted Stock Unit Agreement (the “2022 RSU Agreement”, together with the 2021 RSU Agreement, the “RSU Agreements”) entered into by the Employee pursuant to the Home Point Capital Inc. 2021 Incentive Plan (the “Plan”) on
February 10, 2022, shall be modified, such that as of the Separation Date, the vesting of 10,993 restricted stock units (the “2022 Restricted Stock Units”, together with the 2021 Restricted Stock Units, the “Restricted Stock Units”)
will be accelerated such that vesting will occur on the Separation Date; provided that, for the avoidance of doubt, the Restricted Stock Units shall otherwise maintain all terms, conditions, and restrictions applicable to such
Restricted Stock Units under the RSU Agreements. In addition, if Home Point Capital experiences a Change of Control (as defined under the 2022 RSU Agreement) on or before September 30, 2023, the vesting of an additional 10,993
restricted stock units will be accelerated such that vesting will occur upon such Change of Control. Other than the foregoing, following the Separation Date, any remaining stock units shall be forfeited immediately following the
Separation Date.
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Employee agrees and acknowledges that, except for any payments provided for herein, he has been paid or has received all wages, salary, unused accrued paid time off, bonuses,
expenses, commissions, and fringe benefits that are or will be due to him through and following the Separation Date. Employee further certifies that he has received written notice that all fringe benefits will cease on the Separation Date unless
otherwise provided by the applicable plan documents.
Employee agrees and acknowledges that the United States securities laws prohibit any person who has material non-public information about a company from purchasing or selling
securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.
1.
Release of All Claims: In exchange for the consideration contained in Paragraph 2 of this Agreement, Employee agrees for himself, his heirs, executors, administrators, successors and
assigns to release and discharge forever Employer and its successors, predecessors, direct and indirect parents (including, for the avoidance of doubt, Home Point Capital), subsidiaries, affiliates, related entities, past and current
officers, directors, members, board members, employees, direct and indirect equity holders, partners, agents, attorneys, and assigns in their official and individual capacities from any and all claims, debts, promises, agreements,
demands, causes of action, losses, and expenses of every nature whatsoever, known or unknown, suspected or unsuspected, filed or unfiled, arising prior to the Effective Date of this Agreement, or arising out of or in connection with his
voluntary departure from employment with Employer and any of its predecessors, successors, direct or indirect parents or subsidiaries, affiliates, or related entities. This total release applies to all claims, demands, actions and
causes of action of any kind or nature whatsoever, in law, in equity, or in administrative proceedings, based on anything that has previously occurred including, by way of illustration and not of any limitation; any claim of
discrimination or harassment of any kind; retaliation of any kind; breach of an express or implied contract; public policy discharge; Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the Americans With
Disabilities Act; the Employee Retirement Income Security Act of 1974; the Family and Medical Leave Act of 1993; the Equal Pay Act; the Age Discrimination in Employment Act; the Worker Adjustment and Retraining Notification Act; the
Michigan Xxxxxxx-Xxxxxx Civil Rights Act; the Michigan Persons With Disabilities Act; the Michigan Whistleblowers' Protection Act; the Michigan Wage and Hour laws; the Michigan Wage and Fringe Benefit Act; the Xxxxxxx-Xxxxxxxx Employee
Right to Know Act, the Michigan Workforce Opportunity Wage Act, the Michigan Occupational Safety and Health Act (MIOSHA), the Michigan Social Security Number Privacy Act, the Michigan Internet Privacy Protection Act; violation of any
state, federal or local laws, ordinances, statutes, regulations or constitutional provisions; violation of any civil rights, employment and/or labor laws or statutes in the state in which you are employed; fraud, deceit or
misrepresentation; breach of any fiduciary duty; intentional infliction of emotional distress; libel, slander and defamation; breach of any implied covenant of good faith or fair dealing; constructive, forced or coerced discharge;
promissory estoppel; intentional interference with an advantageous contractual or business relationship or expectancy; invasion of privacy; wrongful or retaliatory discharge; and all other claims of tortious conduct, statutory or
constitutional violations or breach of contract.
This release and waiver applies to all past, existing and accrued claims, known or unknown, asserted or unasserted, against Employer and its successors, predecessors, direct and
indirect parents (including, for the avoidance of doubt, Home Point Capital), subsidiaries, affiliates, related entities, past and current officers, directors, members, board members, employees, direct and indirect equity holders, partners,
agents, attorneys, and assigns in their official and individual capacities arising out of any relationship with Employee including, but not limited to, the employment relationship and in all matters of employment and terms and conditions of
employment, including, by way of illustration and not of limitation, all claims relative to recruitment, hiring, medical leaves, training, education, promotions, travel, vacations, testing, evaluations, pensions, reassignments, relocations,
re-hirings, resignations, job assignments, conferences, time off, scheduling, discharge, discipline, references, back pay or future wage loss, bonuses, benefits, compensation, lay off, equity compensation including the granting or vesting of
stock options, and all other terms and conditions of employment.
Without limiting the scope of Employee’s release of claims, Employee acknowledges that any right or claim which he may have arising under the Age Discrimination in Employment Act
(“ADEA”) or under the Michigan Xxxxxxx-Xxxxxx Civil Rights Act, whether known or unknown, arising out of Employee’s hire, employment with, or separation from Employer and any of its predecessors, successors, direct or indirect parents or
subsidiaries, affiliates, or related entities up to and including the Effective Date is hereby released and forever waived. Employee further specifically acknowledges that he waives and releases any claim of constructive discharge or similar
claim which challenges the voluntary nature of him resignation from employment with Employer and any of its predecessors, successors, direct or indirect parents or subsidiaries, affiliates, or related entities.
Nothing in this Agreement, including but not limited to the release of claims, confidential information, confidentiality, and non-disparagement
provisions, (i) limits or affects Employee’s right to challenge the validity of this Agreement under the ADEA or the Older Worker Benefit Protection Act, (“OWBPA”), (ii) prevents Employee from communicating with, filing a charge or
complaint with or from participating in an investigation or proceeding conducted by the Equal Employment Opportunity Commission (“EEOC”), National Labor Relations Board (“NLRB”), the Securities and Exchange Commission (“SEC”), or any other any
federal, state or local agency charged with the enforcement of any laws, including providing documents or any other information, or (iii) limits Employee from exercising rights under Section 7 of the National Labor Relations Act to engage in
protected, concerted activity with other employees. Although, by signing this Agreement, Employee is waiving rights to individual relief (including back pay, front pay, reinstatement or other legal or equitable relief) in any charge, complaint,
or lawsuit or other proceeding brought by Employee or on Employee’s behalf by any third party, except for any right Employee may have to receive a payment or award from a government agency (and not Employer) for information provided to the
government agency or otherwise where prohibited.
Similarly, nothing in this Agreement prohibits Employee from reporting an event that Employee reasonably and in good faith believes is a violation of law to the relevant
law-enforcement agency (such as the SEC, EEOC, or DOL), from testifying truthfully under oath in any court, arbitration or administrative agency proceeding, from providing truthful information in the course of a government investigation or from
cooperating in an investigation conducted by such a government agency. This may include disclosure of trade secret or confidential information within the limitations permitted by the 2016 Defend Trade Secrets Act (DTSA). Employee is hereby
provided notice that under the DTSA, (1) no individual will be held criminally or civilly liable under federal or state trade secret law for the disclosure of a trade secret (as defined in the Economic Espionage Act) that (A) is made in
confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and made solely for the purpose of reporting or investigating a suspected violation of law; or, (B) is made in a complaint or other
document filed in a lawsuit or other proceeding, if such filing is made under seal so that it is not made public; and, (2) an individual who pursues a lawsuit for retaliation by an employer for reporting a suspected violation of the law may
disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except
as permitted by court order.
Employee understands that this release does not apply to any claim or entitlement that Employee has to (i) workers’ compensation benefits; (ii) government-provided unemployment
benefits; (iii) any vested rights or benefits under any benefit plan; (iv) the consideration provided in Paragraph 2 of this Agreement; or (v) any other rights or claims under applicable federal, state or local law that cannot be waived or
released by private agreement.
Furthermore, in exchange for the consideration contained in Paragraph 2 of this Agreement, Employee agrees for himself, his heirs, executors, administrators, successors and
assigns to release and discharge forever Employer and its successors, predecessors, direct and indirect parents, subsidiaries, affiliates and related entities (including, for the avoidance of doubt, Home Point Capital), past and current officers,
directors, members, board members, employees, direct and indirect equity holders, partners, agents, attorneys, and assigns in their official and individual capacities from any and all claims, debts, promises, agreements, demands, causes of
action, losses, and expenses of every nature whatsoever, known or unknown, suspected or unsuspected, filed or unfiled, arising out of or in connection with the Substitute Option Agreement or the Plan, including any predecessor agreements and
plans.
Finally, in exchange for the consideration contained in Paragraph 2 of this Agreement, Employee agrees that any shares of Home Point Capital common stock held by Employee,
including any shares received in connection with the exercise of Performance-Based Substitute Options, will be held in book-entry form and Employee will not request certificated or physical shares from Employer or Home Point Capital or any
assistance therewith.
2.
Covenant Not To Xxx: Employee, for himself, his heirs, executors, administrators, successors and assigns agrees not to bring, file, charge, claim, sue or cause, assist, or permit to
be brought, filed, charged, or claimed any action, cause of action or proceeding regarding or in any way related to any of the claims released by his under Paragraph 3 hereof, and further agrees that this Agreement is, will
constitute and may be pleaded as, a bar to any such claim, action, cause of action or proceeding; provided, however, that Employee’s agreement not to sue and release of claims under Paragraph 3 hereof do not apply to those actions
or proceedings that are not waivable by law, nor shall it interfere with a protected right, if any, to file a charge with a federal administrative agency or to participate in an investigation or proceeding conducted by such agency.
Employee understands and agrees, however, that he has waived any right to recover any damages arising under such a charge as set forth in Paragraph 3 hereof.
3.
No Right to Re-employment: Employee acknowledges and agrees that his employment will permanently end as of the Separation Date;
that his employment relationship and all obligations of Employer and any of its predecessors, successors, direct or indirect parents or subsidiaries, affiliates, or related entities under the employment relationship will
cease as of said date; and that he has no rights to re-employment, rehire or recall with Employer or its predecessors, successors, direct or indirect parents, subsidiaries, affiliates, or related entities.
4.
Return of Property: Except for the Microsoft Surface laptop that the Employer provided to the Employee in connection with his employment, Employee agrees to return to
Employer all company sponsored credit cards, laptops, documents, reports, files, memoranda, records, keys, identification cards, computer access codes, software, computer files, company vehicles, cell phones, and/or any
other physical or personal property he received or prepared or helped to prepare in connection with his employment (“Company Property”) by no later than the Separation Date. By signing this Agreement, Employee represents
that he will return all Company Property and will not retain any copies, duplicates, reproductions, or excerpts of the Company Property. In the event Employee has lost, damaged, or otherwise failed to return any Company
Property, Employee agrees to pay Employer the replacement cost of such Company Property.
5.
Non-Disclosure; Confidentiality: Employee agrees that he will keep the terms and amounts set forth in this Agreement completely confidential and will not disclose any
information concerning these matters to any person or entity not a party hereto, except: (a) his attorneys, accountant, tax advisor, or to immediate family who agree to abide by this confidentiality provision; (b) to the
extent necessary to report income to appropriate taxing authorities as expressly required by law; or (c) in response to a specific court order, subpoena, or legal process signed by a judge with competent jurisdiction
which orders the disclosure of the nature, content, substance, conditions, or specific terms of the Agreement. Furthermore, Employee will not, without written permission of Employer, disclose any confidential information
or trade secrets of Employer, Home Point Capital, or any of their predecessors, direct or indirect parents or subsidiaries, affiliates, or related entities to anyone outside Employer or Home Point Capital, unless
required by subpoena. Confidential information and trade secrets include, but are not limited to, operations, results, products, business plans, strategies, methodologies, customer lists, product development information,
marketing and sales plans, pricing information, operating policies and manuals, and/or other confidential information related to the Employer, Home Point Capital, or any of their predecessors, direct or indirect parents
or subsidiaries, affiliates, or related entities.
6.
Non-Solicitation: Employee agrees that up until the Separation Date and continuing for twelve (12) months following that date, he will not, without prior written
approval from Employer’s Chief Executive Officer: (a) directly or indirectly solicit or encourage any person who is an employee of Employer, Home Point Capital, or any of their successors, direct or indirect parents
or subsidiaries, affiliates, or related entities to terminate his employment relationship with, or accept any other employment outside of, such entity; (b) directly hire, or recommend or cause to be hired by an
entity for which the Employee works, any person who is, or was within one year before or after the Separation Date, an employee of Employer, Home Point Capital, or any of their predecessors, direct or indirect
parents or subsidiaries, affiliates, or related entities; (c) provide any non-public information regarding an employee of Employer, Home Point Capital, or any of their predecessors, successors, direct or indirect
parents or subsidiaries, affiliates, or related entities to any external person in connection with employment outside such entities, including, but not limited to, recruiters and prospective employers; or (d)
directly or indirectly attempt to solicit the trade of any person or entity that is a customer of Employer or Home Point Capital or which Employer or Home Point Capital has been undertaking reasonable steps to
procure as a customer during the six (6) months preceding the Separation Date, for avoidance of doubt, a customer includes a broker; provided that the limitation in this clause (d) will only apply to products or
services in competition with a product or service of the Employer or Home Point Capital, and to customers with whom or which Employee had contact during employment.
7.
Non-Disparagement: Employee agrees that he shall not at any time make, publish, or communicate to any person or entity or in any public forum any defamatory,
maliciously false, or disparaging remarks, comments, or statements concerning Home Point Financial, its affiliates, employees, officers, or directors and its existing and prospective customers, investors, and or
associated third parties, now or in the future. This Section does not in any way restrict or impede the Employee from exercising protected rights to the extent that such rights cannot be waived by agreement or
from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the
law, regulation, or order. Employee shall promptly provide written notice of any such order to Home Point Financial at xxxxx@xxxx.xxx.
8.
Other Litigation: Employee agrees that he will not act in any manner that would damage the business or reputation of Employer and/or any of its related
companies, successors, assigns, directors, employees, and officers. Employee shall not encourage, counsel, or assist any attorneys, their clients or other individuals in the presentation or prosecution of any
disputes, differences, grievances, claims, changes or complaints against Employer and/or any of its related companies, successors, assigns, directors, employees, officers, or shareholders. Employee agrees
that he will not discuss or comment, or give or prepare any writing involving any issue arising out of any litigation, administrative proceeding or arbitration in which Employer is or shall become involved
without having been so authorized by Xxxxxxxx’s President and CEO, in writing, or by virtue of an order issued by a court of competent jurisdiction. If served with an order or valid subpoena, Employee agrees
to immediately inform Xxxxxxxx’s General Counsel in writing; provided however, that Employee may participate in any judgment or settlement payable by Employer pursuant to any class action litigation where
Employee is legitimately a member of such certified class and where such claims and/or causes of action arise from events following execution of this Agreement. Violation of this provision by Employee shall
constitute a material and actionable breach of this Agreement.
9.
No Admission of Liability/Complete Defense: Nothing contained in this Agreement shall be construed as an admission by either party of any wrongdoing
or liability of any kind to the other, such liability being expressly denied. Employee fully understands and agrees that this Agreement may be used by Employer and Home Point Capital as a complete
defense to any claim which hereafter may be asserted by Employee or other persons or agencies on behalf of Employee in any suit or claim against Employer or Home Point Capital for or on account of any
matter or thing whatsoever arising out of an employment or other relationship between Employee and Employer and any of its predecessors, successors, direct or indirect parents or subsidiaries,
affiliates, or related entities.
10.
Effective Date of This Agreement: This Agreement was presented to Employee for his review and consideration on
April 28, 2023 (“Review Date”). Employee is entitled to review and consider this Agreement for twenty-one (21) calendar days following the Review Date before signing and returning this
Agreement to Employer. Employee may voluntarily and knowingly sign and return this Agreement before the end of the twenty-one (21) day period. Employee acknowledges that Employer has made no
promises, inducements, representations, or threats to cause Employee to sign this Agreement before the end of the twenty-one (21) day period. The date the Employee signs this Agreement shall be
the "Effective Date" of this Agreement. For seven (7) calendar days following execution by Employee of this Agreement, Employee may unilaterally revoke this Agreement. Employee may revoke this
Agreement only by giving Employer formal written notice of his revocation of this Agreement, to be received by Employer no later than the end of the seventh day following his execution of this
Agreement. This Agreement shall not become effective in any respect until the revocation period has expired without timely notice of revocation. In the absence of Employee’s timely revocation of
this Agreement, the eighth day after the revocation election period of this Agreement shall be the "Effective Date" of this Agreement.
11.
Performance of This Agreement: Each of the parties signing this Agreement warrants and represents that he/it shall execute and deliver any
and all instruments, agreements, documents, or other writings and shall perform all other acts deemed necessary to effect the terms and purposes of this Agreement.
12.
Waiver: A waiver by Employer of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver or
estoppel of any subsequent breach by Employee. No waiver shall be valid unless in writing and signed by an authorized officer of Employer.
13.
Entire Agreement: This Agreement sets forth the entire agreement between the parties with respect to termination of the Employee’s
employment and supersedes all other agreements, understandings, and representations, oral or written, which heretofore may have been made with respect to Employee’s employment or the
termination of Employee's employment.
14.
Modification: No cancellation, modification, amendment, deletion, addition, or other changes in this Agreement or any provision
hereof or waiver of any right herein provided shall be effective for any purpose unless specifically set forth in writing and signed by both Employee and an authorized
representative of each of Employer and Home Point Capital.
15.
Severability: If any provision of this Agreement shall be found by a court to be invalid or unenforceable, in whole or in
part, then such provision shall be construed and/or modified or restricted to the extent and in the manner necessary to render the same valid and enforceable, or shall be
deemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if such provision had
not been originally incorporated herein, as the case may be. Upon a finding by a court, administrative agency, or other tribunal of competent jurisdiction that any release,
waiver, or covenant contained in this Agreement is void, illegal, or unenforceable, the Employee agrees to promptly execute a release, waiver, or covenant that is legal and
enforceable.
16.
Not Evidence: The parties agree that this Agreement is in settlement of any claims and may not be used as evidence in any
action, except an action to enforce this Agreement.
17.
No Assignment: Employee specifically represents that he has not assigned or purported to assign or transfer to any
third party any claim, known or unknown, past or present, against the other party or any portion of or any interest in any such claim, nor will he do so in the future.
18.
Successors and Assigns: This Agreement shall be binding upon and shall inure to the benefit of Employee, his
heirs, executors, administrators and beneficiaries, and shall be binding upon and inure to the benefit of Employer and Home Point Capital and their respective
successors and assigns.
19.
Attorneys’ Fees. If any party commences an action against the other party in order to enforce any provision
of this Agreement or to recover damages from the alleged breach of any provision of this Agreement, the prevailing party in such action shall be entitled to
recover from the non-prevailing party all reasonable costs incurred in connection with the action, including reasonable attorneys’ fees.
20.
Acknowledgement: Employee warrants and represents to Employer and Home Point Capital as follows:
a) |
He has had ample time to review all of the provisions of this Agreement and fully understands it and the choices with respect to the advisability of making the waiver and release contained herein.
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b) |
He has been advised in writing by Employer to review all of the provisions of this Agreement with independent legal counsel or other advisors and has had the opportunity to pursue such a review.
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c) |
He acknowledges that he has entered into this Agreement by his free will and choice without any compulsion, duress, or undue influence from anyone.
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d) |
He does not have any actions pending against Employer, Home Point Capital, or any of their predecessors, successors, direct or indirect parents or subsidiaries, affiliates, or related entities that address
claims that are released under the terms of this Agreement, and no such claim will be filed during the revocation period of this Agreement without the formal notification of Employee's revocation of this Agreement.
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e) |
He has been properly paid for all hours worked for the Employer.
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f) |
He has not made any claims or allegations to the Employer, Home Point Capital, or any of their predecessors, successors, direct or indirect parents or subsidiaries, affiliates, or related entities related to
sexual harassment or sexual abuse, and that none of the payments set forth in this Agreement are related to sexual harassment or abuse.
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g) |
He has not engaged in and is not aware of any unlawful conduct relating to the business of the Employer, Home Point Capital, or any of their predecessors, successors, direct or indirect parents or subsidiaries,
affiliates, or related entities.
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Home Point Financial Corporation
Attn: Xxxx Xxxx, General Counsel
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Ann Arbor, Michigan 48105
24.
Governing Law: This Agreement shall be construed and interpreted in accordance with the laws of the
State of Michigan.
The undersigned further state that they have carefully read this Agreement including the general release of claims, know and understand its contents, and that they execute it as their own free act and deed.
Home Point Financial Corporation
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Employee
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By |
/s/ Xxxxxxx X. Xxxxxx
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/s/ Xxxx Xxxxxxxx
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Title:
Date:
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President and Chief Executive Officer
May 5, 2023
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Xxxx Xxxxxxxx
Signed and printed employee name
Date: April 28, 2023
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By: |
/s/ Xxxxxxx X. Xxxxxx
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Title:
Date:
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President and Chief Executive Officer
May 5, 2023
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