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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
this 1st day of January, 1997, by and between GUARDIAN TECHNOLOGIES
INTERNATIONAL, INC., a Delaware corporation (the "Employer") and XXXXXX X.
XXXXXXXXX, residing at 000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000 (the
"Employee").
RECITALS
WHEREAS, the Employer desires to employ the Employee as the Vice President
of the Employer; and
WHEREAS, the Employee desires to be employed by the Employer for the
compensation and on the terms provided herein; and
WHEREAS, the Employee acknowledges and understands that during the course
of his employment, the Employee will become familiar with certain confidential
information of the Employer which is exceptionally valuable to the Employer and
vital to the success of the Employer's business; and
WHEREAS, the Employer and the Employee desire to protect such confidential
information from disclosure to third parties or use of such information to the
detriment of the Employer; and
WHEREAS, the Employer desires to diminish the distractions the Employee
may suffer by virtue of the personal uncertainties and risks created by a
pending or threatened Change of Control (as defined below).
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties hereto acknowledge
and agree as follows:
TERMS
PART ONE
NATURE AND TERM OF EMPLOYMENT
1.01 Employment. The Employer hereby agrees to employ the Employee, and
the Employee hereby accepts such employment, as the Vice President of the
Employer.
1.02 Term of Employment. The term of the Employee's employment hereunder
shall be for a period of 48 months beginning on the date of this Agreement (the
"Term").
1.03 Duties. The duties of the Employee shall be as determined by the
Board of Directors of the Employer (the "Board") from time to time. Without
limiting the generality of the foregoing,
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the Employee shall be the chief operating officer of the Employer. Employee
shall be required to undertake such travel, including international travel, as
shall be necessary or appropriate. The Employee agrees to devote his full
business time and attention to and shall exert his best efforts in, the diligent
performance of his duties hereunder and will not, during the Term hereof (a)
engage in any activity which shall have an adverse effect on the Employer's
reputation, goodwill or business relationships or which results in economic harm
to the Employer, or (b) engage in, accept employment from or provide services to
any other person, firm, corporation, governmental agency or other entity that
engages in, any activities which, in the reasonable opinion of the Board, would
conflict with or detract from the Employee's performance of such duties.
PART TWO
COMPENSATION AND BENEFITS
2.01 Base Salary. During the Term of this Agreement, the Employee shall
receive base compensation at the rate of $150,000 per each twelve month period,
payable in equal bi-weekly installments (the "Base Salary"); provided that for
the periods set forth below, the Base Salary shall be payable at the rates set
forth opposite such respective periods:
Period Rate
January 1, 1997 to February 13, 1997 $100,000
February 14, 1997 to December 31, 1997 $ 75,000
The Base Salary may be increased, but not decreased, by the Board in its
discretion during the Term of this Agreement.
2.02 Bonus. During the Term of this Agreement, the Employee shall be
eligible to receive an annual bonus award at a target bonus level of not less
than 50% of the Base Salary (the "Bonus"). Except as otherwise provided in
this Agreement, the actual annual Bonus paid to the Employee, if any, shall be
determined by the Board or the Compensation Committee of the Board in its sole
discretion, based on such factors as it deems appropriate.
2.03 Benefits. During the Term of this Agreement, the Employer agrees to
provide to the Employee such benefits as are provided generally to other
comparable employees of the Employer from time to time, including but not
limited to, any health, disability, vacation, severance benefits, insurance,
deferred compensation, profit-sharing, pension, or other employee benefit
policies, programs or plans, including restricted stock plans or stock option
plans, which the Employer offers to such employees generally (collectively
referred to herein as the "Employee Benefits").
2.04 Expenses. During the Term of this Agreement, the Employee shall be
reimbursed by the Employer for all ordinary and necessary out-of-pocket
expenses for travel, lodging, meals, entertainment expenses, or any other
similar expenses incurred by the Employee in performing services for the
Employer, in accordance with policies established by the Employer.
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2.05 Vacations. The Employee shall be entitled to a vacation of 20
business days during each 12 month period during the Term of this Agreement,
provided, however, that the Employee's vacation shall be scheduled at such
times as shall not unduly interfere with the Employer's business. Unused
vacation time may be carried over from one 12 month period to the next 12 month
period, but not to any succeeding periods. Attendance at seminars,
professional meetings and holidays observed by the Employer shall not be
applied against the Employee's vacation time.
PART THREE
CONFIDENTIAL INFORMATION AND COMPETITION
3.01 Definition of Confidential Information. For the purposes of this
Agreement, the term "Confidential Information" shall mean, but shall not be
limited to, any technical or non-technical data, formulae, patterns,
compilations, programs, devices, methods, techniques, drawings, designs,
processes, procedures, improvements, models, manuals, financial data, lists of
actual or potential customers or suppliers of the Employer, and any information
regarding the Employer's marketing, sales or dealer network, which is not
generally known to the public through legitimate origins. The Employer and the
Employee acknowledge and agree that such Confidential Information is extremely
valuable to the Employer and shall be deemed to be a "Trade Secret" pursuant to
the Virginia Trade Secrets Act, Code of Virginia, 59.1-336 et seq. (the "Act").
For the purposes of this Section 3.01, such information is "not generally
known to the public through legitimate origins" if it is not generally known to
third parties who can obtain economic value from its disclosure and use and is
the subject of efforts that are reasonable under the circumstances to maintain
its secrecy or confidentiality. In the event that any part of the Confidential
Information becomes generally known to the public through legitimate origins
(other than by the breach of this Agreement by the Employee or by
"Misappropriation" as that term is defined in the Act), that part of the
Confidential Information shall no longer be deemed Confidential Information for
the purposes of this Agreement, but the Employee shall continue to be bound by
the terms of this Agreement as to all other Confidential Information.
3.02 Non-Disclosure of Confidential Information. The Employee will not
during, or after termination of, the Employee's employment by the Employer, in
any form or manner, directly or indirectly, divulge, disclose or communicate to
any person, entity, firm, corporation or any other third party, or utilize for
the Employee's personal benefit or for the benefit of any competitor of the
Employer, any Confidential Information.
3.03 Delivery Upon Termination. Upon termination of the Employee's
employment with the Employer for any reason, the Employee will promptly deliver
to the Employer all correspondence, drawings, blueprints, manuals, letters,
notes, notebooks, reports, programs, plans, proposals, financial documents, or
any other documents concerning the Employer's customers, dealer network,
marketing strategies, products or processes and/or which contains Confidential
Information.
3.04 Covenant-Not-To-Compete. The Employee will not during, or for a
period of two years after termination of, the Employee's employment with the
Employer, in any form or manner, directly or indirectly, on his own behalf or
in combination with others, engage in, become interested in (as an individual,
partner, stockholder, director, officer, principal, agent, independent
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contractor, employee, trustee, lender of money or in any other relation or
capacity whatsoever, except as a holder of securities of a corporation whose
securities are publicly traded and which is subject to the reporting
requirements of the Securities Exchange Act of 1934, and then only to the
extent of owning not more than two percent (2%) of the issued and outstanding
securities of such corporation), or solicit for, any business which renders
services or sells products, or proposes to render services or sell products, to
any customers or accounts of the Employer that compete with services or
products which were provided or sold by the Employer to any customer or account
of the Employer during the period the Employee was employed by the Employer.
3.05 Injunctive Relief. In the event that the Employee breaches any of
the terms of Part Three of this Agreement, the Employee stipulates that said
breach will result in immediate and irreparable harm to the business and
goodwill of the Employer and that damages, if any, and remedies at law for such
breach would be inadequate. The Employer shall therefore be entitled to apply
for and receive from any court of competent jurisdiction an injunction to
restrain any violation of Part Three of this Agreement and for such further
relief as the court may deem just and proper, and the Employee shall, in
addition, pay to the Employer the Employer's costs and expenses in enforcing
the terms of Part Three of this Agreement (including court costs and reasonable
attorneys' fees).
3.06 Continuing Obligations. The obligations, duties and liabilities of
the Employee pursuant to Part Three of this Agreement are continuing, absolute
and unconditional and shall remain in full force and effect as provided therein
despite any termination of the Employee's employment with the Employer for any
reason whatsoever, including, but not limited to, the expiration of the Term of
this Agreement.
PART FOUR
TERMINATION
4.01 Termination of Employment. If the Employer shall terminate the
Employee's employment pursuant to Section 4.02 or 4.03 below or if the
Employee's employment shall terminate pursuant to Section 4.04 below, the
Employer shall be obligated to pay to the Employee the Annual Salary then in
effect and the Employee Benefits payable to the Employee pursuant to this
Agreement, in each case accrued up to and including the date on which the
Employee's employment is so terminated. Thereafter, the Employer shall have no
further obligation whatsoever to the Employee.
4.02 Termination of Employee for Cause. The Employer shall have the right
to terminate the Employee's employment immediately at any time for "cause."
For purposes hereof, "cause" shall mean a good faith determination by the Board
that the Employee has:
(a) Committed a material breach of any covenant, provision, term,
condition, understanding or undertaking set forth in this Agreement, including,
without limitation, the provisions contained in Part Three herein; or
(b) Committed a felony or any crime involving moral turpitude; or
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(c) Committed any breach of fiduciary duty or act of theft, fraud or
defalcation; or
(d) In carrying out his duties under this Agreement, been guilty of gross
negligence or willful misconduct.
4.03 Termination of Employee Because of Employee's Disability, Injury or
Illness. The Employer shall have the right to terminate the Employee's
employment if the Employee is unable to perform the duties assigned to him by
the Employer because of the Employee's disability, injury or illness, provided
however, that in the event of such disability, injury or illness, the
Employee's inability to perform such duties must have existed for a total of
six months in any consecutive 12 month period before such termination can be
made effective.
4.04 Termination as a Result of Employee's Death. The obligations of the
Employer to the Employee pursuant to Part Two herein shall automatically
terminate upon the Employee's death. In the event of the Employee's death, any
payments due to the Employee as provided in Section 4.01 above shall be paid to
the Employee's estate.
4.05 Termination of Employment for Any Other Reason. Employee's
employment under this Agreement may be terminated by the Employer at any time,
with or without cause, upon 60 days prior written notice to Employee. If the
Employer shall terminate the employment of Employee prior to the end of the
Term, other than as permitted by Sections 4.02, 4.03 or 4.04, Employee shall be
entitled to receive, and the Employer shall be obligated to pay, the amounts
set forth below in this Section 4.05 as Base Salary and Bonus for the remainder
of the Term. The amount of Base Salary payable with respect to each fiscal
year during the Term shall be equal to the Base Salary in effect at the time of
termination of Employee's employment (without giving effect to the reduction
set forth in the proviso of Section 2.01), increased by 5% for each subsequent
year of the Term. The amount of Bonus payable with respect to each year during
the Term shall be 35% of the Base Salary paid to Employee for such year as
determined pursuant to the preceding sentence. Employer shall also pay to
Employee a lump sum amount equal to the sum of (i) the difference between the
Base Salary received by Employee pursuant to Section 2.01 hereof and the amount
of Base Salary that the Employer would have been obligated to pay to Employee
under said Section 2.01 if the reduction set forth in the proviso to Section
2.01 did not apply; and (ii) the difference between the Annual Salary paid to
Employee by Employer under the Employment Agreement dated as of May 30, 1996
and the amount of Annual Salary the Employer would have been obligated to pay
to Employee under such Employment Agreement if any reduction thereto agreed to
by Employee did not apply (the "Make-Whole Payment"). The Make-Whole Payment
shall be paid by Employer to Employee within five business days after
termination of Employee's employment. Employee shall also continue to
participate in all Employee Benefits to the extent that such continued
participation is possible under the general terms and provisions of the plans
or programs relating thereto. In the event that Employee's continued
participation in any such Employee Benefits is barred, in lieu thereof,
Employee shall be entitled to receive, and Employer shall be obligated to pay,
annually for the remainder of the Term, an amount equal to the sum of the
average annual contributions, payments, credits or allocations made by the
Employer to Employee, to his account, or on his behalf over the three fiscal
years of the Employer preceding the termination of his employment under such
Employee Benefits from which his continued participation is barred.
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4.06 Termination by Employee Following Demotion or Relocation. Employee
shall be considered to have been terminated by the Employer without cause and
shall be entitled to the payments and other benefits described in Section 4.05
above, if Employee voluntarily terminates his employment with the Employer
within 90 days after the occurrence of any of the following events without
Employee's consent:
(a) the Board shall fail to re-elect Employee as Vice President of the
Employer or shall remove him from such office;
(b) Employee shall fail to be vested with the power and authority of the
chief operating officer of the Employer;
(c) Employee is assigned on a regular basis any duties or responsibilities
that are inconsistent with his authority, duties and responsibilities as chief
operating officer of the Employer and that are normally assigned to an officer
of lesser rank than a chief operating officer, regardless of whether such
assignment is accompanied by a change in title or reporting responsibility;
(d) Employee is not elected a director of the Employer; or
(e) Employee is transferred to a location which is more than 25 miles from
his current principal work location.
4.07 Excess Parachute Payment. As a material part of the consideration
which has induced Employee to remain in the employ of the Employer, the
Employer agrees that, if any part of the payments being made to Employee under
the terms of this Agreement or any other agreement is determined to be an
"Excess Parachute Payment," as that term is defined in Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"), the Employer shall pay
to Employee an amount equal to the amount of the tax imposed against Employee
under Code Section 4999, together with the required amount of additional cash,
so that Employee receives from the Employer the tax imposed against Employee
under Code Section 4999 "Tax Free on a Grossed-Up Basis." For the purposes of
this Agreement, the phrase "Tax-Free on a Grossed-Up Basis" means that the
Employer will not only pay to Employee an amount equal to the amount of tax
imposed against Employee under Code Section 4999 but also the necessary amount
of additional cash, so that Employee shall have the exact amount of cash
required to pay the additional liabilities for Federal, state and local income
taxes arising by reason of (a) the payment by the Employer to Employee of the
amount needed to pay the tax under Code Section 4999 and (b) the payment by the
Employer to Employee of the additional amount of cash needed to pay the
additional Federal, state and local tax liabilities.
4.08 Termination by Employee. The Employee may resign and terminate his
employment by the Employer for any reason whatsoever upon 60 days prior written
notice to the Employer. If the Employee's employment is so terminated, except
as provided in Sections 4.06 or 4.09 hereof, the Employer shall be obligated to
continue to pay to the Employee the Annual Salary then in effect and the
Employee Benefits payable to the Employee pursuant to this Agreement, in each
case accrued up to and including the date on which the Employee's employment is
so terminated. Thereafter, the Employer shall have no further obligation
whatsoever to the Employee.
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4.09 Change of Control Payment. If a "Change in Control," as defined in
Section 4.10 shall have occurred and within three years after the occurrence
thereof, Employee shall be entitled to payment from the Employer under Section
4.05 or 4.06 hereof on account of termination of employment, Employee may elect
to receive, in lieu of the payments provided for under said Section 4.05 or
4.06, a lump-sum payment equal to 150% of the Base Salary in effect at the time
of termination of Employee's employment (without giving effect to the reduction
set forth in the proviso of Section 2.01), multiplied by three. The Employee
shall also pay to Employee the Make-Whole Payment. Such payments shall be made
by the Employer to the Employee within five business days after termination of
Employee's employment. Employee shall also be entitled to participate in all
Employee Benefits referred to in Section 2.03 hereof for the remainder of the
Term, or to receive an annual payment in lieu thereof, as provided in Section
4.05 hereof. Section 4.07 shall be applicable to any payments made under this
Section 4.09. Anything in this Agreement to the contrary notwithstanding, if a
Change of Control occurs and if the Employee's employment with the Employer is
terminated prior to the date on which the Change of Control occurs, and if it
is reasonably demonstrated by the Employee that such termination of employment
(i) was at the request of a third party who has taken steps reasonably
calculated to effect a Change of Control or (ii) otherwise arose in connection
with or anticipation of a Change of Control, then for all purposes of this
Agreement, such Change in Control shall be deemed to have occurred on the date
immediately preceding Employee's termination of employment.
4.10 Definition of Change of Control. For the purpose of this Agreement,
a Change of Control" shall mean:
(a) The acquisition by any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (a "Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (i) the then outstanding shares of common stock of the Employer (the
"Outstanding Employer Common Stock") or (ii) the combined voting power of the
then outstanding voting securities of the Employer entitled to vote generally
in the election of directors (the "Outstanding Employer Voting Securities");
provided, however, that for purposes of this subsection (a), the following
acquisitions shall not constitute a Change of Control: (i) any acquisition
directly from the Employer, (ii) any acquisition by the Employer, (iii) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Employer or any corporation controlled by the Employer, (iv)
any acquisition by Xxxxxx X. North or Xxxxxx X. Xxxxxxxxx or (v) any
acquisition by any corporation pursuant to a transaction which complies with
clauses (i), (ii) and (iii) of subsection (c) of this Section 4.10; or
(b) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of
the Board; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by the
Employer's stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board; or
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(c) Consummation of a reorganization, merger or consolidation or sale or
other disposition of all or substantially all of the assets of the Employer (a
"Business Combination"), in each case, unless, following such Business
Combination, (i) all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Employer Common
Stock and Outstanding Employer Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more than 50%
of, respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Employer or all or
substantially all of the Employer's assets either directly or through one or
more subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Employer
Common Stock and Outstanding Employer Voting Securities, as the case may be,
(ii) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the Employer or
such corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination and (iii) at least a majority of the members
of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for such
Business Combination; or
(d) Approval by the stockholders of the Employer of a complete liquidation
or dissolution of the Employer.
PART FIVE
MISCELLANEOUS
5.01 Assignment. The Employee and Employer acknowledge and agree that the
covenants, terms and provisions contained in this Agreement constitute a
personal employment contract and the rights of the parties thereunder cannot be
transferred, sold, assigned, pledged or hypothecated, excepting that (a) the
Employee's rights pursuant to Part Four of this Agreement may be transferred by
will or operation of law and the Employee's Employee Benefits may be assigned
or transferred in accordance with such policies, programs, plans or Employer
practices; and (b) the rights and obligations of the Employer under this
Agreement may be assigned or transferred by operation of law pursuant to a
merger, consolidation, share exchange, sale of substantially all of the
Employer's assets, or other reorganization described in Section 368 of the
Internal Revenue Code of 1986, as amended, or through liquidation, dissolution
or otherwise, whether or not the Employer is the continuing entity, provided
that the assignee or transferee is the successor to all or substantially all of
the assets of the Employer and such assignee or transferee assumes the rights
and duties of the Employer, if any, as contained in this Agreement, either
contractually or as a matter of law.
5.02 Capacity. The Employee hereby represents and warrants that, in
entering into this Agreement, he is not in violation of any contract or
agreement, whether written or oral, with any
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other person, firm, partnership, corporation or other entity to which he is a
party or by which he is bound and will not violate or interfere with the rights
of any other person, firm, partnership, corporation or other entity. In the
event that such a violation or interference does occur, or is alleged to occur,
notwithstanding the representation and warranty made hereunder, the Employee
shall indemnify the Employer from and against any and all manner of expenses and
liabilities incurred by the Employer or any affiliated company of the Employer
in connection with such violation or interference or alleged violation or
interference.
5.03 Entire Agreement. This Agreement contains the entire agreement
between the parties and shall not be modified except in writing by the parties
hereto. Furthermore, the parties hereto specifically agree that all prior
agreements, whether written or oral, relating to the Employee's employment by
the Employer shall be of no further force or effect from and after the date
hereof.
5.04 Severability. If any phrase, clause or provision of this Agreement
is declared invalid or unenforceable by a court or arbitrator of competent
jurisdiction, such phrase, clause or provision shall be deemed severed from
this Agreement, but will not affect any other provisions of this Agreement,
which shall otherwise remain in full force and effect. If any restriction or
limitation in this Agreement is deemed to be unreasonable, onerous and unduly
restrictive by a court or arbitrator of competent jurisdiction, it shall not be
stricken in its entirety and held totally void and unenforceable, but shall
remain effective to the maximum extent permissible within reasonable bounds.
5.05 Notices. Any notice, request or other communication required to be
given pursuant to the provisions hereof shall be in writing and shall be deemed
to have been given when delivered in person or five days after being deposited
in the United States mail, certified or registered, postage prepaid, return
receipt requested and addressed to the party at its or his last known address.
The address of any party may be changed by notice in writing to the other
parties duly served in accordance herewith.
5.06 Waiver. The waiver by the Employer or the Employee of any breach of
any term or condition of this Agreement shall not be deemed to constitute the
waiver of any other breach of the same or any other term or condition hereof.
5.07 Governing Law. This Agreement and the enforcement thereof shall be
governed and controlled in all respects by the laws of the Commonwealth of
Virginia.
5.08 Arbitration. Except as otherwise provided in Section 3.05 above, any
controversy or claim arising out of, or relating to, this Agreement or the
breach thereof shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association then in
effect in the Commonwealth of Virginia and judgment upon any arbitration award
may be entered into in any court having jurisdiction thereof. The arbitration
shall be held in Dulles, Virginia. The cost of the arbitration shall be borne
among the parties as determined by the arbitrator(s).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first hereinabove written.
EMPLOYER:
GUARDIAN TECHNOLOGIES INTERNATIONAL, INC.
By: /s/ Xxxxxx X. North
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Title: President
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EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxxxx
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XXXXXX X. XXXXXXXXX
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