Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective as of October
13, 2003 ("Effective Date") by and between TOTAL IDENTITY CORP., a Florida
corporation (the "Company") and XXXXXX XXXXX (the "Employee").
RECITALS:
Employee's participation in the business of the Company is critical to
the Company's success. The parties wish to provide for the employment of
Employee by the Company from and after the date hereof, all on the terms and
conditions herein set forth.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. EMPLOYMENT. Subject to Section 3 below, the Company hereby employs
Employee for a term of three years, renewable for additional annual terms unless
terminated by either party upon 30 days' written notice prior to the applicable
annual anniversary hereof (the "Employment Term"), commencing on the Effective
Date. Employee will serve as a Vice President of the Company, and will have the
responsibility of assisting the Chief Executive Officer of the Company or his
designee in connection with the operations of the Company's subsidiary, Total
Identity Systems Corp., a New York corporation ("TISC"), and in evaluating the
operations of other companies engaged in the business conducted by TISC. The
Employee shall report to the Chief Executive Officer of the Company. Employee
hereby accepts such employment. During the term of his employment hereunder,
Employee shall devote his time, attention, knowledge and skills faithfully,
diligently and to the best of his ability to perform his duties hereunder, and
Employee shall not engage in any venture or activity which materially interferes
with Employee's performance of his duties hereunder. The Employee agrees to
devote such time to the affairs of the Company as are necessary in order to
fulfill his obligations hereunder.
2. COMPENSATION. During the Employment Term, the Company shall pay
Employee the compensation and other amounts set forth below.
2.1. SALARY. The Company shall pay Employee an initial annual
base salary ("Salary") of $100,000. The Employee's Salary may be increased in
the discretion of the Board of Directors of the Company.
2.2. BONUS. The Employee shall be entitled to an annual
incentive bonus, payable within 30 days following completion of each annual
audit of the Company's financial statement, equal to 2% of the annual pre-tax
profits of TISC. For purposes of this Section 2.2, "pre-tax profits" shall mean
net profits of TISC, after deducting (a) all expenses including interest and
depreciation but excluding income tax obligations attributable to the Company,
(b) compensation paid to Employee for his services rendered to the Company, and
(c) an allocable portion, not exceeding $60,000 annually, of compensation paid
by the Company to its chief financial officer for services rendered to TISC, all
as determined by the Company's then current accountants in accordance with
generally accepted accounting principles applied on a consistent basis,
consistent with past practice.
2.3. BENEFITS. Employee shall be entitled to receive the
following benefits paid by the Company: (a) group health insurance under the
existing Blue Cross-Blue Shield health insurance plan maintained by the Company,
covering himself, his spouse and minor children; (b) a $400 per month automobile
allowance; (c) four weeks' paid vacation during each calendar year (which shall
not accrue from year to year), provided that Employee shall not take more than
two consecutive weeks' vacation at any time and that Employee shall provide
reasonable notice to the Company of his vacation plans; and (d) reimbursement
for reasonable and necessary out-of-pocket expenses incurred in the performance
of his duties hereunder (such expenses shall be reimbursed by the Company, from
time to time, upon presentation of appropriate receipts therefore, provided such
expenses are approved in advance by the Chief Financial Officer or the Board of
Directors).
3. TERMINATION.
3.1. The Employee's employment and the Company's obligation to
compensate Employee pursuant to this Agreement shall be terminated upon the
first to occur of the following events:
(a) The death of Employee.
(b) The Complete Disability of Employee. "Complete
Disability" as used herein shall mean the inability of Employee, due to illness,
accident, or any other physical or mental incapacity, to perform the services
contemplated by this Agreement for an aggregate of 90 days within any period of
12 consecutive months during the term hereof.
(c) The discharge of Employee by the Company for
Cause. "Cause" as used herein shall mean:
(i) Employee's conviction of a crime
involving illegal drug use or alcohol abuse by Employee;
(ii) improper or personal use of the
Company's property assets;
(iii) acts of fraud, dishonesty,
malfeasance, criminal activity, wrongful conduct, breach of fiduciary duty by
Employee against the Company or its affiliates, or in connection with the
performance of his duties hereunder; and
(iv) Employee's willful failure or refusal
to comply with the provisions of this Agreement, or failure (including as a
result of Employee's illegal drug use or alcohol abuse that does not involve a
criminal conviction) to perform Employee's duties and obligations under this
Agreement in any material respect following written notice of such failure or
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refusal and Employee's failure to cure same within 30 days following Employee's
receipt of such notice.
4. RELATED PARTY TRANSACTIONS. So long as Employee is employed by the
Company, he shall not, without the prior written consent of the Company, cause
or permit the Company, or any subsidiary to enter into or effect any agreement
or transaction, or provide or receive any service, between the Company or any
subsidiary on the one hand, and Employee or a Related Party (defined below), on
the other hand, except for the employment relationship contemplated hereby. In
any event, any such agreements, transactions or services shall be at prices and
terms which are equal to the prices and terms available for similar agreements,
transactions or services with unrelated third parties. As used herein, "Related
Party" means (a) any person related by blood, adoption, or marriage to Employee,
(b) any director or officer of the Company or any of its subsidiaries, (c) any
corporation or other entity in which Employee has, directly or indirectly, at
least 5% beneficial interest in the capital stock or other type of equity
interest in such corporation or other entity, or (d) any partnership in which
Employee is a general partner or a limited partner having a 5% or more interest
therein.
5. TREATMENT AND OWNERSHIP OF CONFIDENTIAL INFORMATION.
5.1 CONFIDENTIALITY. The parties hereto acknowledge that
Employee shall or may be provided access to, make use of, acquire and/or add to
Confidential Information (as that term is defined in Section 5.2 below).
Employee covenants and agrees that during the Employment Term and at all times
thereafter he shall not, except with the prior written consent of the Company,
or except if he is acting during the Employment Period solely for the benefit of
the Company or any of the affiliates, at any time, directly or indirectly,
disclose, divulge, report, transfer or use, for any purposes whatsoever, any
such Confidential Information, including Confidential Information obtained,
used, acquired or added by, or disclosed to, Employee prior to the date of this
Agreement. Employee further acknowledges that the Confidential Information
constitutes valuable, special and unique assets of the Company.
5.2 CONFIDENTIAL INFORMATION DEFINED. For purposes of this
Agreement, the term "Confidential Information" shall mean all of the following
materials and information which Employee receives, conceives or develops or has
received, conceived or developed, in whole or in part, in connection with
Employee's affiliation with the Company:
(a) The contents of any manuals or other written
materials of the Company or any of its affiliates;
(b) The names of actual or prospective clients,
customers, suppliers, or persons, firms, lenders, or persons, firms,
corporations, or other entities with whom Employee may have or has had contact
on behalf of the Company or any of its affiliates or to whom any other employee
of the Company or any of its affiliates has provided goods or services at any
time;
(c) The terms of agreements between the Company or
any of its affiliates, and any third parties;
(d) The contents of actual or prospective customer or
client records, which customer and client lists and records shall not only mean
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one or more of the names and addresses of the customers of the Company or any of
its affiliates, but shall also encompass any and all information whatsoever
regarding them;
(e) Any data or database, or other information
compiled by the Company or any of its affiliates, including, but without
limitation, information concerning the Company or any of its affiliates, or any
business in which the Company or any of its affiliates is engaged or
contemplates becoming engaged, any company which the Company or any of its
affiliates engages in business, any customer, prospective customer, or other
person, firm or corporation to whom or which the Company or any of its
affiliates has provided goods or services or to whom or which any employee of
the Company or any of its affiliates has provided goods or services on behalf of
the Company or any of its affiliates, or any compilation, analysis, evaluation
or report concerning or deriving from any data or database, or any other
information;
(f) All policies, procedures, strategies and
techniques regarding training, marketing and sales, either oral or written, and
assorted lists containing information pertaining to lenders, customers and/or
prospective customers; and
(g) Any other information, data, training methods,
formulae, technology, business methods, know-how, show-how, source code, subject
code, copyright, trademarks, patents or knowledge of a confidential or
proprietary nature observed, received, conceived or developed by Employee in
connection with Employee's affiliation with the Company.
5.3 EXCLUSIONS. Excluded from the Confidential Information and
therefore not subject to the provisions of this Agreement shall be any
information which (a) is or becomes generally available to the public through no
breach or fault of Employee; provided that this exception shall apply only from
and after the date the information became generally available to the public, and
(b) Employee can establish by Employee's written records was in Employee's
possession at the time of disclosure and was not previously acquired directly or
indirectly from the Company, provided that this exception shall apply only from
and after the date that the information is disclosed to Employee by a third
party or was in Employee's possession. Specific Confidential Information shall
not be deemed to be within the foregoing exceptions merely because it is
embraced by, or contained or referenced in, more general information in the
public domain. Additionally, any combination of features shall not be deemed to
be within the foregoing exceptions merely because individual features are in the
public domain. If Employee intends to avail himself of any of the foregoing
exceptions, Employee shall notify the Company in writing of his intention to do
so and the basis for claiming the exception.
5.4 OWNERSHIP. Employee covenants and agrees that all right,
title and interest in any Confidential Information shall be and shall remain the
exclusive property of the Company and its affiliates, as the case may be.
Employee agrees to promptly disclose to the Company all Confidential Information
hereafter developed in whole or in part by Employee within the scope of this
Agreement and to assign to the Company or any of the affiliates, as the Company
determines in its sole discretion, any right, title or interest Employee may
have in such Confidential Information.
6. INVENTIONS.
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6.1 Employee agrees to promptly inform and to disclose to the
Company, in writing, all inventions, concepts, developments, procedures, ideas,
innovations, systems, programs, techniques, processes, information, discoveries,
improvements and modifications and related documentations, other works of
authorship and the like (collectively the "Inventions"), which, during the
course of Employee's employment with the Company, Employee has created, made,
conceived, written either alone or with others, while in the Company's employ,
or while performing services for the Company or its affiliates, whether or not
during working hours, and at all times thereafter, whether or not such
Inventions are patentable, subject to copyright protection or susceptible to any
other form of protection which (a) related to the actual business or research of
development of the Company or its affiliates; or (b) was suggested by or
resulted from any task assigned or to be assigned to Employee or performed by
Employee for or on behalf of the Company or any of its affiliates. In the case
of any "other works of authorship", such assignment shall be limited to those
works of authorship meeting both conditions (a) and (b) above. Employee further
acknowledges and agrees that all copyright and any other intellectual property
right in Inventions and related documentation, and other works of authorship,
created within the scope of Employee's employment, are "works for hire" and are
the property of the Company or its affiliates, as the case may be.
6.2 In connection with any of the Inventions assigned by
Section 6.1, Employee shall, on the Company's request, promptly execute a
specific assignment of title to the Company or its designee, and do anything
else reasonably necessary to enable the Company or such designee to secure a
patent, copyright or other form of protection therefor in the United States and
in other countries.
6.3 Employee further acknowledges and agrees that the Company
and its affiliates, licensees, successors or assigns (direct or indirect) are
not required to designate Employee as an author of any Invention which is
subject to Section 6.1, when it is distributed, publicly or otherwise, or to
secure my permission to change or otherwise alter its integrity. Employee hereby
waives and releases, to the extent permitted by law, all rights in and to such
designation and any rights that Employee may have concerning modifications of
such Inventions.
6.4 Employee understands that any rights, waivers, releases
and assignments herein granted and made by Employee are freely assignable by the
Company and are for the benefit of the Company and its affiliates, licensees,
successors and assigns.
6.5 Employee affirms that Employee has not disclosed and will
not disclose to anyone outside of the Company and its affiliates, or has used,
or will use, any Confidential Information or material received in confidence
from third parties, such as customers, by the Company or any of its affiliates,
other than as permitted by a written agreement between the Company and the third
party.
6.6 Employee irrevocably appoints any Company-selected
designee to act as his agent and attorney-in-fact to perform all acts necessary
to obtain patents and/or copyrights as required by this Agreement if Employee
(a) refuses to perform those acts or (b) is unavailable, within the meaning of
the United States Patent and Copyright Laws. It is expressly intended by
Employee that the foregoing power of attorney is coupled with an interest.
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6.7 Employee shall keep complete, accurate and authentic
information and records on all Inventions in the manner and form reasonably
requested by the Company. Such information and records, and all copies thereof,
shall be the property of the Company as to any Inventions within the meaning of
this Agreement. In addition, Employee agrees to promptly surrender all such
original and copies of such information and records at the request of the
Company.
7. RESTRICTIVE COVENANTS.
7.1 ACKNOWLEDGMENTS. Employee agrees and acknowledges that in
order to protect the value of the Company and its business, it is necessary and
appropriate that Employee undertake not to utilize the special knowledge about
the business of the Company that Employee has acquired or may acquire and the
relationships with the Company's customers, suppliers and employees to compete
with the Company. Employee further acknowledges that:
(a) Employee is one of a limited number of persons
who will operate and develop the business of the Company;
(b) Employee will occupy a position of trust and
confidence with the Company during the course of Employee's employment under
this Agreement and Employee has and will continue to become familiar with the
proprietary and Confidential Information of the Company and its affiliates;
(c) The agreements and covenants contained in this
Section 7 are essential to protect the Company and the goodwill of its business
and are an express condition precedent to the willingness of the Company to sign
this Agreement;
(d) The Company would be irreparably damaged if
Employee were to provide services to any person or entity in violation of the
provisions of this Agreement;
(e) The scope and duration of the provisions of this
Section 7, and the provisions of Sections 5 and 6, are reasonably designed to
protect a valuable interest of the Company and are not excessive in light of the
circumstances; and
(f) Employee has a means to support Employee and
Employee's dependents, if any, other than engaging in the activities prohibited
by this Section 7.
7.2 NON-COMPETE. Employee hereby agrees that during the term
of Employee's employment by the Company and for the Post-Term Period (as
hereinafter defined) identified below (the "Non-Compete Period"), except on
behalf of the Company in accordance with this Agreement, Employee shall not,
directly or indirectly, as employee, agent, consultant, stockholder, director,
partner or in any other individual or representative capacity, own, operate,
manage, control, engage in, invest in or participate in any manner in, act as a
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consultant or advisor to, render services for (alone or in association with any
person, firm, corporation or entity), or otherwise assist any person or entity
that engages in or owns, invests in, operates, manages or controls any venture
or enterprise that directly or indirectly engages or proposes to engage in the
business now or hereafter conducted by the Company anywhere within the Rochester
and Buffalo, New York Metropolitan areas (collectively the "Territory");
provided however, that nothing contained herein shall be construed to prevent
the Employee from (a) investing in stock or other securities of any public or
private enterprise provided that such investment does not require active
participation by the Employee and such enterprise does not engage in any
activity competitive with the business now or hereafter conducted by the Company
("Permitted Investments"), or (b) attending to such charitable and/or civic
activities as are deemed appropriate by Employee; provided that such activities
shall not detract from Employee's duties and obligations under this Agreement.
For purposes of this Section 7.2, the Post-Term Period shall be five years.
7.3 NON-SOLICITATION. Without limiting the generality of the
provisions of Section 7.2 above, Employee hereby agrees that for a period
commencing on the date of this Agreement and ending upon expiration of the
Non-Compete Period, except on behalf of the Company in accordance with this
Agreement, Employee will not, directly or indirectly, as employee, agent,
consultant, principal or otherwise, (a) solicit any business from or in any way
transact or seek to transact any business with or otherwise seek to influence or
alter the relationship between the Company or any of its affiliates with any
person or entity to whom the Company or any of its affiliates provided
business-related services (i) at any time during the one year period preceding
the Termination Date or (ii) if there has been no Termination Date, at any time
during the Employment Period or (b) solicit for employment or other services or
otherwise seek to influence or alter the relationship between the Company or any
of its affiliates of any person who is or was an employee of the Company or any
of its affiliates (x) at any time during the one (1) year period preceding the
Termination Date or (xi) if there has been no Termination Date, at any time
during the Employment Period.
7.4 BLUE-PENCIL. If any court of competent jurisdiction shall
at any time deem the term of this Agreement or any particular Non-Compete Period
too lengthy or the Territory too extensive, the other provisions of this Section
7 shall nevertheless stand, the Non-Compete Period shall be reduced to be the
longest period permissible by law under the circumstances and the Territory
shall be comprised of the largest territory permissible by law under the
circumstances. The court in each case shall reduce the Non-Compete Period and/or
Territory to one of permissible duration or size.
8. REMEDIES. Employee acknowledges and agrees that the covenants set
forth in Section 5, 6 and 7 of this Agreement are reasonable and necessary for
the protection of the business interests of the Company and its affiliates, that
irreparable injury will result to the Company if Employee breaches any of the
terms of Sections 5, 6 or 7, and that in the event of Employee's actual or
threatened breach of any provisions of Section 5, 6 or 7, the Company and its
affiliates will have no adequate remedy at law. Employee accordingly agrees that
in the event of any actual or threatened breach by Employee of any of the
provisions of Section 5, 6 or 7, the Company and its affiliates shall be
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entitled to seek injunctive relief, specific performance and other equitable
relief from any court of competent jurisdiction or in connection with an
arbitration pursuant to Section 11.2, without bond and without the necessity of
showing actual monetary damages, subject to hearing as soon thereafter as
possible. Nothing contained herein shall be construed as prohibiting the Company
and its affiliates from pursuing any other remedies available to them for such
breach or threatened breach, including but not limited to the recovery of
damages.
9. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE.
9.1 Employee represents and warrants to the Company that:
(a) He is not and has not been subject to any
litigation or any regulatory or administrative proceeding that could reasonably
have an adverse impact on the ability of Employee to render services under this
Agreement;
(b) He is free of known physical and mental
disabilities that would, with or without reasonable accommodations create an
undue hardship for the Company or any of its affiliates, impair his performance
hereunder and he is fully empowered to enter and perform his obligations under
this Agreement;
(c) He is under no restrictive covenants to any
person or entity that will be violated by his entering into and performing this
Agreement; and
(d) He is not the subject of any event described in
Item 401(d)(1) through (4) of Regulation S-B [or Item 401(f) of Regulation S-K,
if then applicable to the Company], promulgated by the Securities and Exchange
Commission.
9.2 Employee shall indemnify the Company on demand for and
against any and all judgments, losses, claims, damages, expenses and costs
(including without limitation all legal fees and costs, even if incident to
appeals) incurred or suffered by the Company as a result of any breach by
Employee of any of these representations and warranties.
10. SUCCESSORS. This Agreement is personal to Employee and may not be
assigned by Employee. This Agreement is not assignable by the Company except in
connection with the sale of all or substantially all of the Company's assets or
stock or upon a merger or any similar transaction. Subject to the foregoing,
this Agreement shall inure to the benefit of and be binding upon the Company and
its successors and assigns.
11. MISCELLANEOUS.
11.1 MODIFICATION AND WAIVER. Any term or condition of this
Agreement may be waived at any time by the party hereto that is entitled to the
benefit thereof; provided, however, that any such waiver shall be in writing and
signed by the waiving party, and no such waiver of any breach or default
hereunder is to be implied from the omission of the other party to take any
action on account thereof. A waiver on one occasion shall not be deemed to be a
waiver of the same or of any other breach on a future occasion. This Agreement
may be modified or amended only by a writing signed by both parties hereto.
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11.2 GOVERNING LAW; ARBITRATION. This Agreement shall be
construed in accordance with, and all actions arising under or in connection
therewith shall be governed by, the internal laws of the State of Florida
without regard to the conflicts of laws provisions thereof. Each of the parties
irrevocably and unconditionally agrees that any suit, action or legal proceeding
arising out of or relating to this Agreement shall be settled by binding
arbitration conducted in accordance with the Commercial Rules of Arbitration of
the American Arbitration Association ("AAA"). The arbitration shall take place
in Palm Beach County, Florida, and shall be heard by three arbitrators selected
in accordance with AAA Rules of Commercial Arbitration. The Arbitrators shall
render a reasoned award and such award shall be signed and dated. The decision
of the arbitrators shall be final and binding upon the parties, and the
arbitration award may be entered in any court of competent jurisdiction.
Initially, each of the parties shall pay one-half of the fees of the AAA (other
than filing fees), including without limitation hearing and arbitrators' fees,
and the parties' obligation to pay such fees shall be enforceable in any court
of competent jurisdiction. The parties to any arbitration hereunder agree to
submit for determination by the arbitrators, the amount of fees and expenses,
including reasonable attorney's fees, to be borne by each party.
11.3 TAX WITHHOLDING. The Company may withhold from any
amounts payable under this Agreement such taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
11.4 SECTION CAPTIONS. Section and other captions contained in
this Agreement are for reference purposes only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
11.5 SEVERABILITY. Every provision of this Agreement is
intended to be severable. If any term or provision hereof is illegal or invalid
for any reason whatsoever, such illegality or invalidity shall not affect the
validity of the remainder of this Agreement.
11.6 INTEGRATED AGREEMENT. This Agreement constitutes the
entire understanding and agreement among the parties hereto with respect to the
subject matter hereof, and supersedes any other employment agreements executed
before the date hereof. There are no agreements, understandings, restrictions,
representations, or warranties among the parties other than those set forth
herein or herein provided for.
11.7 INTERPRETATION. No provision of this Agreement is to be
interpreted for or against any party because that party or that party's legal
representative drafted such provision. For purposes of this Agreement, "herein,"
"hereby," "hereunder," "herewith," "hereafter," and "hereinafter" refer to this
Agreement in its entirety, and not to any particular section or subsection. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, and all of which shall constitute one and the same
instrument.
11.8 NOTICES. All notices, requests, demands, or other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given upon receipt if delivered in person or by Federal
Express (or similar overnight courier service) to the parties at the following
addresses:
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If to Employee: Xxxxxx Xxxxx
0000 Xxxxxxxx-Xxxxxxxxx Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
If to the Company: 00000 Xxxxxx Xxxx Xxxx.
Xxxxx 00-000
Xxxxxxxxxx, XX 00000
Any party may change the address to which notices, requests, demands or other
communications to such party shall be delivered or mailed by giving notice
thereof to the other parties hereto in the manner provided herein. Any notice
may be given on behalf of a party by its counsel.
11.9 NO JURY TRIAL. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY PROCEEDING BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT AND ANY DOCUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES' ACCEPTANCE OF THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
COMPANY:
TOTAL IDENTITY CORP.
By: /S/XXXXXXX X. XXXXX
-----------------------
Xxxxxxx X. Xxxxx
President
EMPLOYEE:
/S/ XXXXXX XXXXX
----------------
Xxxxxx Xxxxx
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