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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is entered into as of March
17th, 2000, by and between THE WACKENHUT CORPORATION, a Florida corporation, its
successor or successors (the "COMPANY"), and XXXXXXX X. XXXXXXXXX (the
"EXECUTIVE").
The Executive is presently an executive officer of the Company and the
parties wish to continue their employment relationship in the future on the
terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements contained in this Agreement, the parties
hereto agree as follows:
1. EMPLOYMENT.
a. RETENTION. The Company agrees to employ the Executive as Chief
Executive Officer of the Company, and the Executive agrees to
accept such employment and serve in such position, subject to
the terms and conditions of this Agreement.
b. EMPLOYMENT TERM. The period during which the Executive shall
serve as an Executive of the Company shall commence on the
date hereof and, subject to the terms and conditions set forth
herein and unless sooner terminated as hereinafter provided,
shall expire on the tenth anniversary of the date hereof (the
"Employment Term"); provided, however, that the Employment
Term shall be automatically extended for an additional one
year period on each anniversary date of this Agreement, in
perpetuity, such that the number of years remaining under the
Employment Term as of each such anniversary date shall be ten
years, unless either party shall deliver a written notice to
the other party during any thirty-day period ending on any
anniversary date of this Agreement advising the other party
that the Employment Term shall not continue be extended for
one additional year.
c. DUTIES AND RESPONSIBILITIES. During the Employment Term, the
Executive shall have such authority and responsibility and
perform such duties as may be assigned to him from time to
time at the direction of the Board of Directors of the Company
(the "Board") and in the absence of such assignment, such
duties customary to office of Chief Executive Officer as are
necessary to the business and operations of the Company.
2. LOYALTY. Executive agrees that during the Employment Term, he will
devote his full time and attention during regular business hours to the
business and affairs of the Company. It shall not be a violation of
this Agreement for the Executive to (i) serve on corporate, civil or
charitable boards or committees, (ii) deliver lectures, fulfill
speaking engagements or teach at educational institutions and (iii)
manage personal investment so long as such activities do not
significantly interfere with the performance of the Executive's duties
in accordance with this Agreement.
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3. COMPENSATION. During the Employment Term, the Company agrees to pay,
and Executive agrees to accept, the amounts set forth below:
a. BASE SALARY; BONUS. As compensation for all future services
rendered by Executive in performance of his future duties or
obligations under this Agreement, Company shall pay Executive
an annual base salary of one million fifty thousand dollars
($1,050,000) (the "Base Salary"). Such base salary shall be
increased (but not decreased) from time to time in the sole
discretion of the Board or the Compensation Committee of the
Board. Such base salary shall be payable in equal
installments, no less frequently than monthly, pursuant to the
Company's customary payroll policies in force at the time of
payment, less any required or authorized withholding or
payroll deductions. In addition, the Executive shall be
eligible to receive, on an annual basis a bonus (the "Bonus")
in such amounts and subject to such targets and incentives as
set forth in the Designated Executive Officer Bonus Plan. In
no event shall any such Bonus be less than thirty five percent
(35%) of the Executive's Base Salary, subject to satisfaction
of applicable targets and incentives.
b. EXECUTIVE BENEFITS. In addition to receiving the Base Salary
provided for in Section a, Executive, in consideration for all
future services to be rendered, shall be entitled during the
Employment Term to participate in all retirement (subject to
any eligibility requirements with respect to any tax-qualified
retirement plans), deferred compensation, health, dental,
disability, life insurance and fringe benefits or programs now
or hereafter established by the Company which cover the
Company's executives or its employees (the "Executive
Benefits").
c. VACATION. Executive shall be entitled to receive six weeks of
paid vacation for each year during the Employment Term and
shall be entitled to receive paid holidays as enjoyed by all
other employees of the Company.
d. EXPENSES. The Company agrees to reimburse Executive for all
reasonable expenses incurred by him in providing services
under this Agreement in accordance with its policies and
practices regarding expense reimbursement then in effect.
e. AUTOMOBILE ALLOWANCE. Executive shall be entitled to receive
an automobile allowance in accordance with The Wackenhut
Corporation Executive Automobile Policy (the " Executive
Automobile Policy") as in effect on the date hereof. Both the
Company and Executive shall be responsible for paying the
costs related to Executive's automobile in accordance with the
terms of the Executive Automobile Policy.
f. CLUB MEMBERSHIP. The Company will provide Executive with a
corporate membership to a country club mutually acceptable to
Executive and to the Company, including initiation fees and
monthly dues.
4. TERMINATION FOR DEATH. In the event the Executive's employment is
terminated due to his death, this Agreement shall automatically
terminate as of the date of the death. At such time, the Company shall
have the following obligations to the Executive's estate (but no other
obligations to the Executive's estate pursuant to this Agreement): (i)
the payment of
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Executive's earned and unpaid base salary and (ii) the payment of the
Special Termination Payment (as defined in Section 8 below). Such
payments shall be made within 30 days after the date of the Executive's
death
5. TERMINATION BY THE COMPANY. In the event the Company terminates
Executive's employment for any reason other than death, the Company
shall pay the Special Termination Payment (as defined in Section 8
below) to the Executive within ten days after said termination. In
addition, (i) the Company shall continue to provide the Executive with
the Executive Benefits (as described in Section 3.b) at no cost the
Executive in no less than the same amounts and on the same terms and
conditions that would have applied had he remained employed by the
Company for the remainder of the Employment Term, (ii) all awards
granted pursuant to The Wackenhut Corporation Employee Long-Term
Incentive Stock Plan and any other unvested stock options or other
interests the Executive holds in the Company's stock or the stock of a
subsidiary of the Company shall become fully vested, all restrictions
on restricted stock units shall lapse, and all performance targets with
respect to performance units or shares will be deemed to have been met
as of the date the Executive's employment is terminated, (iii) the
Company shall transfer all of its interest in any automobile used by
the Executive pursuant to the Executive Automobile Policy and shall pay
the balance of any outstanding loans or leases on such automobile
(whether such obligations are those of the Executive or the Company) so
that the Executive owns the automobile outright (in the event such
automobile is leased, the Company shall pay the residual cost of such
lease), (iv) the Company shall pay to the Executive, within ten days
after said termination, the present value of all cash payments pursuant
to the Amended and Restated Deferred Compensation Agreement entered
into between the Company and the Executive (the "Deferred Compensation
Agreement") as if the Executive had remained employed with the Company
through the Retirement Date defined therein (the "Deferred Compensation
Payoff"), and (v) the Company shall pay to the Executive, within 10
days after said termination, an amount equal to the sum of (a) the
dollar value of vacation time that would have been credited to the
Executive pursuant to the Company's Vacation Policy dated August 1,
1997, Number XX 000 (the "Vacation Policy") if the Executive had
remained employed by the Company through the "Anniversary Date" (as
defined in the Vacation Policy) immediately following his termination
of employment, multiplied by a fraction, the numerator of which is the
number of days which elapsed from the Executive's Anniversary Date
immediately preceding the date of termination through the date of such
termination, and the numerator of which is 365, plus (b) the dollar
value of vacation time which the Executive was entitled to have taken
immediately prior to the Executive's termination, which was not in fact
taken by the Executive; the dollar value of vacation time referred to
above shall be equal to the amount which would have been paid to the
Executive by the Company during such vacation time had the vacation
time in fact been taken by the Executive immediately prior to the
Executive's termination.The present value represented by the Deferred
Compensation Payoff referred to above shall be calculated (i) using a
discount rate equal to the lower of the rate provided for in Code
Section 280G(d)(4), or six and one-half percent (6.5%), and (ii)
without regard to any mortality factors or related probabilities.
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6. TERMINATION BY EXECUTIVE WITHOUT GOOD REASON. Executive may terminate
his employment hereunder without Good Reason (as defined below) at any
time during the Employment Term (a "Resignation"). Upon such
termination, the Company shall have no obligation to the Executive
pursuant to this Agreement other than the payment of Executive's earned
and unpaid base salary, and payment of expenses pursuant to Section 17
below incurred by the Executive prior to such termination.
7. TERMINATION BY EXECUTIVE FOR GOOD REASON. If Executive terminates his
employment for Good Reason (as defined below), the Company shall pay
the Special Termination Payment (as defined in Section 8 below) to the
Executive within ten days after said termination. In addition to the
Special Termination Payment, upon such a termination, the Company shall
pay or provide to the Executive all of the payments and benefits
described in Section 5 in the same amounts and manner as provided in
Section 5.
a. TERMINATION FOR GOOD REASON. Termination by Executive of his
employment for "Good Reason" shall mean a termination by
Executive upon:
(i) A material reduction is Executive's title or
responsibilities as set forth in Section 1;
(ii) A material breach or violation by the Company of
any provision of this Agreement;
(iii) Any reduction in Executive's Base Salary;
(iv) The Executive's Disability (as defined below);
(v) Any termination by the Executive which occurs
more than 18 months after the occurrence of a Change in
Control (as defined below);
(vi) A diminution in the Executive's eligibility to
participate in bonus, stock options, incentive awards and
other compensation plans or a diminution in Executive
Benefits; or
(vii) A change in the location of the Executive's
principal place of employment by the Company of more than 50
miles from the location which he was principally employed
immediately prior to a Change in Control.
b. CHANGE IN CONTROL. For purposes of this Agreement, a "Change
in Control" shall be deemed to have occurred as of the first
day that any one or more of the following conditions shall
have been satisfied:
(i) any "person" as such term is used in Section
13(d) and 14(d) of the Securities Exchange Act of 1934, (the
"Exchange Act") (other than members of the Controlling
Shareholder Group, the Company, any trustee or other fiduciary
holding securities under any employee benefit plan of the
Company, or any company owned, directly or indirectly, by the
shareholders of the Company in substantially the same
proportions as their ownership of stock of the Company), is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under
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the Exchange Act), directly or indirectly, of securities of
the Company representing 30% or more of the combined voting
power of the Company's then outstanding securities;
(ii) the shareholders of the Company approve a merger
or consolidation of the Company with any other corporation or
entity, OTHER THAN a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving entity) more than 80% of the
combined voting power of the voting securities of the Company
or such surviving entity outstanding immediately after such
merger or consolidation; or
(iii) the shareholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all
of the Company's assets; or
(iv) the total combined voting power of the Company
(or any successor entity) represented by shares of voting
stock owned by members of the Controlling Shareholder Group is
reduced to 30 percent or less.
Notwithstanding the foregoing, in no event shall a Change in
Control be deemed to have occurred, with respect to the Executive, if
the Executive is part of a purchasing group which consummates a
transaction causing a Change in Control. The Executive shall be deemed
"part of a purchasing group" for purposes of the preceding sentence if
the Executive is a direct or indirect equity participant in the
purchasing company or group.
The "Controlling Shareholder Group" includes (i) Xxxxxx X.
Xxxxxxxxx, (ii) the spouse and lineal descendants of Xxxxxx X.
Xxxxxxxxx, (iii) any trust whose only beneficiaries are persons
described in the foregoing clauses (i) and (ii), and (iv) Affiliates of
the persons described in the foregoing clauses (i), (ii) and (iii). An
"Affiliate" of a person includes only a corporation, limited liability
company, partnership, or similar entity where all of the voting
securities or ownership interests of said entity are directly owned by
such person. A "person" includes any natural person and any
corporation, limited liability company, partnership, trust or other
entity.
c. DISABILITY. For purposes of this Agreement, a "Disability"
shall occur if (i) Executive becomes incapacitated by bodily
injury or disease (including as a result of mental illness) so
as to be unable to perform the duties of his position for a
period in excess of 180 days in any twelve-month period or
(ii) a qualified independent physician determines that
Executive is mentally or physically disabled so as to be
unable to perform the duties of his position and such
condition is expected to be of a permanent duration.
The Executive's employment shall be deemed terminated for Good
Reason upon delivery to the Company of a written notice by the
Executive or his representative notifying the Company of such
termination, and specifying why such termination is for Good Reason
under this Agreement.
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8. SPECIAL TERMINATION PAYMENT. For purposes of this Agreement, the
"Special Termination Payment" shall mean an aggregate amount of money
equal to the product of the number of years (including fractional
years) remaining in the Employment Term (assuming that this Agreement
had not been terminated), multiplied by the sum of the Executive's
annual Base Salary as in effect at the time of the termination giving
rise to the Special Termination Payment, or if greater, the annual Base
Salary in effect for the calendar year prior to the date of
termination, plus the greater of (i) the annual Bonus the Executive
received during the preceding calendar year or (ii) the largest annual
Bonus the Executive would have received if his employment had not been
terminated in the calendar year in which his employment was terminated
assuming that all targets and incentives are met (regardless of actual
results and criteria). In the event that the Company does not pay the
Special Termination Payment or the Gross-Up Payment (as defined below)
by the due date specified in this Agreement, then the unpaid amount
shall bear interest at the rate of 18 percent per annum, compounded
monthly, until it is paid. In the event that the Special Termination
Payment is made on account of the Executive's employment being
terminated (i) by the Executive for Good Reason, pursuant to Section 7
of this Agreement, or (ii) by the Company for any reason other than
death, pursuant to Section 5 of this Agreement, then the Company shall
continue to provide the Executive with the Executive Benefits (as
described in Section 3.b) at no cost to the Executive in no less than
the same amounts and on the same terms and conditions that would have
applied had he remained employed by of the Company for the remainder of
the Employment Term and such continuation should be considered to be an
additional Special Termination Payment.
a. EQUALIZATION PAYMENT. If any of the Special Termination
Payment will be subject to the tax (the "Excise Tax") imposed
by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code") (or any similar tax that may hereafter be
imposed), the Company shall pay to the Executive in cash an
additional amount (the "Gross-Up Payment") such that the net
amount retained by the Executive after deduction from the
Special Termination Payment and the Gross-Up Payment of any
Excise Tax imposed upon the Special Termination Payment and
any federal, state and local income tax and Excise Tax imposed
upon the Gross-Up Payment shall be equal to the original
amount of the Special Termination Payment, prior to deduction
of any Excise Tax imposed with respect to the Special
Termination Payment. The Gross-Up Payment is intended to place
the Executive in the same economic position he would have been
in if the Excise Tax did not apply. The Gross-Up Payment shall
be paid to the Executive in full, at the time the Special
Termination Payment is paid pursuant to Section 7 hereof. For
purposes of determining the Gross-Up Payment pursuant to this
Section 8.a, the Special Termination Payment shall also
include any amounts which would be considered "Parachute
Payments" (within the meaning of Section 280G(b)(2) of the
Code) to the Executive, including, but not limited to, the
value of any Executive Benefits to be provided to the
Executive.
b. TAX RATES. For purposes of determining the amount of the
Gross-Up Payment, the Executive shall be deemed to pay Federal
income taxes at the highest marginal rate of Federal income
taxation in the calendar year in which the Gross-Up Payment is
to be made, and state and local income taxes at the highest
marginal rate of taxation in the state and locality of the
Executive's residence on the date of termination, net
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of the maximum reduction in Federal income taxes which could
be obtained from deduction of such state and local taxes.
c. TAX CALCULATION. Simultaneously with the Company's payment of
the Special Termination Payment, the Company shall deliver to
the Executive a written statement specifying the total amount
of the Special Termination Payment and the Gross-Up Payment,
together with all supporting calculations. If the Executive
disagrees with the Company's calculation of either of said
payments, the Executive shall submit to the Company, no later
than 30 days after receipt of the Company's calculations, a
written notice advising the Company of the disagreement and
setting forth his calculation of said payments. The
Executive's failure to submit such notice within such period
shall be conclusively deemed to be an agreement by the
Executive as to the amount of the Special Termination Payment
and the Gross-Up Payment. If the Company agrees with the
Executive's calculations, it shall pay any shortfall to the
Executive within 20 days after receipt of such a notice from
the Executive, together with interest thereon accruing at the
rate of 18 percent per annum, compounded monthly, from the
original due date of the Special Termination Payment through
the actual date of payment of said shortfall. If the Company
does not agree with the Executive's calculations, it shall
provide the Executive with a written notice within 20 days
after the receipt of the Executive's calculations advising the
Executive that the disagreement is to be referred to an
independent accounting firm for resolution. Such disagreement
shall be referred to an independent "Big 5" accounting firm
which is not the regular accounting firm of the Company and
which is agreed to by the Company and the Executive within 10
days after issuance of the Company's notice of disagreement
(if the parties cannot agree on the identity of the accounting
firm which is to resolve the dispute, the accounting firm
shall be selected by means of a coin toss conducted in Palm
Beach County, Florida by counsel to the Executive on the first
business day after such 10 day period in such manner as such
counsel may specify). The accounting firm shall review all
information provided to it by the parties and submit a written
report setting forth its calculation of the Special
Termination Payment and the Gross-Up Payment within 15 days
after submission of the matter to it, and such decision shall
be final and binding on all of the parties. The fees and
expenses charged by said accounting firm shall be paid by the
Company. If the amount of the Special Termination Payment or
Gross-Up Payment actually paid by the Company was less than
the amount calculated by the accounting firm, the Company
shall pay the shortfall to the Executive within 5 days after
the accounting firm submits its written report, together with
interest thereon accruing at the rate of 18 percent per annum,
compounded monthly, from the original due date of the Special
Termination Payment through the actual date of payment of said
shortfall.
d. SUBSEQUENT RECALCULATION. In the event the Internal Revenue
Service imposes an Excise Tax with respect to the Special
Termination Payment that is greater than the Excise Tax
calculated hereunder, the Company shall reimburse the
Executive for the full amount necessary to make the Executive
whole in accordance with the principles set forth above,
including any interest and penalties which may be imposed.
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9. NO MITIGATION AND REEMPLOYMENT. Executive shall not be required to
mitigate the amount of any payment or benefit contemplated by this
Agreement upon his termination of employment (whether by seeking new
employment or in any other manner), nor shall any such payment or
benefit be reduced by any earnings or benefits that Executive may
receive from any other source. Notwithstanding anything else in this
Agreement to the contrary, subsequent reemployment of the Executive by
the Company or any successor of the Company following a Change in
Control will not cause the Executive to forfeit any payment or benefit
contemplated by this Agreement upon his termination of employment
10. RELEASE AND INDEMNITY. The Company hereby fully and forever releases,
acquits, discharges and holds the Executive harmless from any and all,
and all manner of, actions and causes of action, claims, suits, costs,
debts, sums of money, claims and demands, presently known or unknown,
whatsoever in law or equity or otherwise, which the Company ever had,
now has or may now have, or will have in the future, by reason of any
matter, cause or thing whatsoever, from the beginning of the world and
all times thereafter. The preceding sentence does not apply to any
matters, events, actions, claims, damages or losses arising from, in
connection with or relating to (i) any intentional illegal conduct of
the Executive, or (ii) conduct of the Executive after the Executive
ceases to be employed by the Company. The Company at all times shall
indemnify, save harmless and reimburse the Executive, from and against
any and all demands, claims, liabilities, losses, actions, suits or
proceedings, or other expenses, fees, or charges of any character or
nature, which the Executive may incur or with which they may be
threatened with, arising from, in connection with, relating to or
arising as a result of Executive's employment by the Company or any
other relationship that the Executive has with the Company as an
officer, director, agent shareholder or otherwise, including without
limitation settlement costs and attorneys' fees and court costs at
trial and appellate levels which the Executive may incur in connection
with settling, defending against or resisting any of the foregoing. The
Company shall pay to the Executive any amounts due with respect to said
indemnity within 5 business days after the Executive issues a written
demand therefor to the Company. The provisions of this section are an
expansion of any rights that the Executive may have with respect to the
subject matter, and no other agreement or arrangement which the Company
may have that benefits the Executive with respect to the subject matter
hereof shall be superseded or limited in any way as a result of the
parties entering into this Agreement.
11. NOTICES. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly
given when received at the address specified herein. In the case of
Executive, notices shall be delivered to him at the home address which
he has most recently communicated to the Company in writing. In the
case of the Company, notices shall be delivered to the Company's
corporate headquarters, and all notices shall be directed to the
attention of the Company's Secretary, with a copy to the Company's
General Counsel.
12. MODIFICATION AND WAIVER. This Agreement shall not be canceled,
rescinded or revoked, nor may any provision of this Agreement be
modified, waived or discharged unless the cancellation, rescission,
revocation, modification, waiver or discharge is agreed to in writing
and signed by Executive and by the President or Chairman of the Board
of the Company. No waiver by either party of any breach of, or of
compliance with, any condition or provision
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of this Agreement by the other party shall be considered a waiver of
any other condition or provision or of the same condition or provision
at another time.
13. COMPLETE AGREEMENT. No agreements or representations, oral or
otherwise, express or implied, have been made by either party hereto
which are not set forth expressly in this Agreement. This Agreement
supersedes all previous employment agreements entered into by Executive
and the Company. Except as specifically provided in Sections 5, 7 and 9
of this Agreement, this Agreement does not affect any deferred
compensation agreements, nonqualified retirement plans or any other
agreements (other than employment agreements) entered into by the
parties.
14. NO ASSIGNMENT. No right, benefit or interest hereunder, shall be
subject to anticipation, alienation, sale, assignment, encumbrance,
charge, pledge, hypothecation, or set-off in respect of any claim, debt
or obligation, or to execution, attachment, levy or similar process, or
assignment by operation of law. Any attempt, voluntary or involuntary,
to effect any action specified in the immediately preceding sentence
shall, to the full extent permitted by law, be null, void and of no
effect. This Agreement is binding on all successors of the Company,
whether by merger, consolidation, purchase or otherwise, and all
references to the Company shall also include references to any such
successor.
15. GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with and subject to, the laws of the State of
Florida applicable to Agreements made and to be performed entirely
within such State, as to all matters governed by state law or, if
controlling, by applicable federal law.
16. SEVERABILITY. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in
full force and effect.
17. LITIGATION; VENUE. Any action at law or in equity under this Agreement
shall be brought in the courts of Palm Beach County, Florida, and in no
other court (whether or not jurisdiction can be established in another
court). Each party hereto waives the right to argue that venue is not
appropriate in the courts of Palm Beach County, Florida. THE PARTIES
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THAT
THEY MAY HAVE TO A TRIAL BY JURY, THIS WAIVER BEING A MATERIAL
INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.
18. EXPENSES. The Company shall reimburse the Executive for all legal
and/or accounting expenses he incurs in connection with the execution,
delivery and enforcement of his rights under this Agreement.
19. WITHHOLDING. All payments made pursuant to this Agreement will be
subject to withholding of applicable taxes.
20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all
of which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the date first above written.
SIGNED, SEALED AND DELIVERED EXECUTIVE:
IN THE PRESENCE OF:
/s/ Xxxxxxxx Xxxxxxxx /s/ XXXXXXX X. XXXXXXXXX
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PRINT NAME OF WITNESS BELOW: XXXXXXX X. XXXXXXXXX
Xxxxxxxx Xxxxxxxx Date: 3/17/00
--------------------------------- -------------------------
/s/ X.X. Tissot
---------------------------------
PRINT NAME OF WITNESS BELOW:
X.X. Tissot
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THE WACKENHUT CORPORATION
/s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxxx
--------------------------------- -----------------------------
PRINT NAME OF WITNESS BELOW:
Xxxx X. Xxxxxx Name: Xxxx X. Xxxxxxxx
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Title: Executive Vice President
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Date: 3/17/00
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/s/ Xxxxx X. XxXxxx
---------------------------------
PRINT NAME OF WITNESS BELOW:
Xxxxx X. XxXxxx
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