Exhibit 10.9
EMPLOYMENT AGREEMENT - TIER A
AGREEMENT made as of the 1st day of May, 2000 (the "Effective
Date"), by and between Consolidated Delivery & Logistics, Inc., a corporation
formed under the laws of the State of Delaware (the "Company"), and Xxxxxxx X.
Xxxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company and Executive have entered into an
employment agreement that expires as of November 27, 2000 (the "Prior
Agreement"); and
WHEREAS, the Company wishes to ensure the continued employment
of the Executive with the Company and the Executive wishes to accept such
continued employment upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1. Employment
The Company agrees to employ the Executive during the Term
specified in Section 2, and the Executive agrees to accept such employment, upon
the terms and conditions hereinafter set forth.
2. Term
(a) Except as otherwise provided in this Section 2, the
Executive's employment by the Company shall commence on the Effective Date and
expire on the close of business on May 1, 2005 (the "Term").
(b) Notwithstanding Section 2(a) above, the Term and
Executive's employment hereunder may terminate prior to the end thereof pursuant
to this Section 2(b) as set forth below, subject to the applicable provisions of
Section 6 of this Agreement with respect to post-termination payments and
benefits:
(i) Either party shall have the right
to terminate the Term and Executive's employment hereunder for any reason
whatsoever, with or without Cause (as hereinafter defined), by providing the
other party hereto with ninety (90) days' advance written notice of such
termination.
(ii) The Company shall have the right to
terminate the Term and Executive's employment hereunder for Cause (as
hereinafter defined) by giving written notice to Executive. For purposes of this
Agreement, the term "Cause" shall mean the Executive's commission or omission of
any act which materially and adversely affects the Company and which
constitutes: (a) a material breach or material failure to perform his duties
under applicable law and such breach or failure to perform constitutes
self-dealing, willful misconduct or recklessness, (b) commission of an act of
dishonesty in the performance of his duties hereunder or engagement in conduct
materially detrimental to the business of the Company, (c) conviction of a
felony involving moral turpitude, (d) a material breach or material failure to
perform his obligations and duties hereunder, which breach or failure the
Executive shall fail to remedy within 20 days after written demand from the
Company, or (e) violation in any material respect of the representations made in
Section 17 below or the provisions of Sections 7 below.
(iii) The Executive shall be entitled to terminate
the Term and Executive's employment hereunder in the event that the Company is
in default of a material term of this Agreement, which default remains uncured
for a period of thirty (30) days after written notice of such default from the
Executive to the Company, such notice to specify the specific nature of the
claimed default and the manner in which the Executive requires such default to
be cured.
(iv) The Term and Executive's employment
hereunder shall automatically terminate in the event Executive shall have become
Disabled (as hereinafter defined). For the purposes of this Agreement, the term
"Disabled" as used herein shall have the same meaning as that term, or such
substantially equivalent term, has in any applicable group disability policy
carried by the Company. If no such policy exists, the term "Disabled" shall mean
the occurrence of any physical or mental condition which materially interferes
with the performance of Executive's customary duties in his capacity as an
employee where such disability has been in effect for a period of six (6) months
(excluding permitted vacation time), which need not be consecutive, during any
single twelve (12) month period.
(v) The Term and Executive's employment
hereunder shall automatically terminate in the event of Executive's death.
The effective date of the termination of the Executive's
employment with the Company, regardless of the reason therefor, is referred to
in this Agreement as the "Date of Termination". If the Executive terminates
their employment for any reason other than Section 2(b)(iii) or Section 6(c),
then the Date of Termination for purposes of Section 7 and 8 shall be May 1,
2005 regardless of when the Executive terminates their employment.
3. Duties and Responsibilities
(a) During the Term, the Executive shall have the position of
President and Chief Operating Officer and/or such other title or titles as may
be granted by the Company. The Executive shall perform such duties and
responsibilities as may reasonably be
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assigned to him from time to time consistent with his position, and in the
absence of such assignment, such duties as are customary and commensurate with
such position. It is understood and agreed that Executive shall not be required
to perform his duties outside of the New York metropolitan area except for
commercially and reasonably necessary temporary or emergency assignments.
(b) The Executive agrees that he will (i) devote his best
efforts, and all his skill and ability to promote the interests of the Company;
(ii) carry out his duties in a competent and professional manner; (iii) work
with other employees of the Company in a competent and professional manner; and
(iv) generally promote the interests of the Company.
4. Compensation
(a) As compensation for all services rendered by the Executive
pursuant to Section 3 above, the Company shall pay the Executive, in accordance
with the Company's normal payroll periods and practices, base salary
compensation during the first year of the Term at an annual rate of $216,750 per
annum for the period commencing May 1, 2000 until June 30, 2000 and at an annual
rate of $255,000 for the period commencing July 1, 2000 until the end of the
Term ("Base Salary"). The Base Salary shall be subject to periodic increases
based on the Company's merit increase procedures and practices for similar
executives.
(b) During the Term, the Company shall, in accordance with the
Company's executive bonus program, pay the Executive, in addition to Base
Salary, a bonus based on the Company's reported net income, as typically defined
by GAAP, for each fiscal year of the Term, hereinafter referred to as the "Bonus
Measurement Period", compared to the corresponding fiscal year business plan
approved by the Company's Board, hereinafter referred to as the "Target". In no
event shall the Executive's annual bonus exceed 100% of the Executive's Base
Salary for such year.
(c) On the Effective Date, the Executive shall be granted
stock options to purchase 150,000 shares of the Company's common stock, $.001
par value per share, at an exercise price equal to the fair market value of the
Company's common stock as of the respective date of grant. The date of grant
will be that date that the shareholders approve the Executive Stock Plan. Such
options shall be subject to the terms of the applicable stock option plan of the
Company under which such options are granted, except that the first 50,000
options once granted shall be fully vested, the second 50,000 options will be
fully vested one year from the Effective Date and the last 50,000 options will
be fully vested two years from the Effective Date. The term of each option shall
be ten (10) years from the date of grant unless:
(i) Executive's employment is terminated by Company for Cause
under Section 2(b)(ii); or
(ii) Executive's employment is terminated by Executive for any
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reason other than those set forth in Section 2(b)(iii), Section 2(b)(iv),
Section 2(b)(v) or Section 6(c) hereof.
In the event Executive's employment is terminated as set forth
in Section 4(c)(i) or (ii) above any vested options will terminate thirty (30)
days after said termination and any unvested options will be voided.
(d) All compensation paid to the Executive shall be subject to
applicable tax withholding requirements.
5. Expenses; Fringe Benefits
(a) The Company agrees to pay or to reimburse the Executive
during the Term for all reasonable, ordinary and necessary vouchered business or
entertainment expenses incurred in the performance of his services hereunder in
accordance with the policy of the Company as from time to time in effect.
(b) During the Term, the Executive and, to the extent
eligible, his dependents, shall be entitled to participate in and receive all
benefits under any employee benefit plans and programs provided by the Company
(including without limitation, medical, dental, disability, group life
(including accidental death and dismemberment) and business travel insurance
plans and programs) applicable generally to executive officers of the Company,
subject, however, to the terms and conditions of the various plans and programs
in effect from time to time.
(c) During the Term, the Company will provide the Executive
with an automobile allowance not to exceed $7,200 per year (or that amount equal
to what other executives of the Company of similar position are provided) to
cover his costs of leasing, insuring, garaging and maintaining an automobile for
use in the business of the Company.
(d) The Executive shall be entitled to paid vacation during
the Term of 4 weeks per year or otherwise in accordance with the vacation policy
of the Company applicable generally to executive officers of the Company in
effect from time to time, to be taken at such time(s) as shall not materially
interfere with the Executive's fulfillment of his duties hereunder, and shall be
entitled to as many holidays, sick days and personal days as are in accordance
with the Company's policy then in effect for its executive officers generally.
6. Termination
(a) Upon Executive's termination of employment for any reason,
the Company shall pay the Executive (or Executive's estate in the event of his
death), within five (5) business days following such termination, any accrued
but unpaid compensation as defined in Section 4(a) and (b) (including any unused
accrued vacation pay), any accrued but unpaid automobile allowances, any unpaid
reimbursement expenses outstanding as of the Date of Termination, and Executive
and/or his beneficiaries shall be entitled to any benefits to which he or they
may be
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entitled to under the plans and programs described in Section 5(b), or any
other applicable plans and programs, as of the Date of Termination in
accordance with the terms of such plans and programs. In addition, Executive
shall be entitled to the applicable payments and benefits set forth below.
(b)(i) If, during the Term, the Executive's employment
hereunder is terminated (i) by the Company for any reason other than Cause,
Disability or Death then Executive shall receive from the Company as liquidated
damages (A) his then applicable Base Salary compensation (including scheduled
increases pursuant to Section 4(a)) which would otherwise have been payable
through the remainder of the Term had the Executive's employment not been
terminated, and (B) bonuses for the remainder of the Term as if the Executive
was still employed in an amount equal to the highest rate of bonus (determined
as a percentage of Base Salary) paid the Executive during the Term (or, if
termination as used in this Section 6(b)(i) is prior to the end of the first
Bonus Measurement Period, then the percentage shall be assumed to be 100%). In
addition, the Company shall continue to provide Executive with the benefits and
perquisites set forth under Section 5(b) and (c) for the remainder of the Term.
For purposes of this Section 6(b)(i), the Term will be deemed to be two (2)
years from the date of termination (as used in this Section 6(b)(i)) or one year
after termination if termination occurs within the twelve (12) months preceding
May 1, 2005.
(ii) If, during the Term, the Executive's employment hereunder
is terminated by the Executive pursuant to Section 2(b)(iii) then the Executive
shall receive as liquidated damages (A) his then applicable Base Salary
compensation (including scheduled increases pursuant to Section 4(a)) which
would otherwise have been payable through the remainder of the Term had the
Executive's employment not been terminated, and (B) bonuses for the remainder of
the Term as if the Executive was still employed in an amount equal to the
highest rate of bonus (determined as a percentage of Base Salary) paid the
Executive during the Term (or, if termination as used in this Section 6(b)(ii)
is prior to the end of the first Bonus Measurement Period, then the percentage
shall be assumed to be 100%). In addition, the Company shall continue to provide
Executive with the benefits and perquisites set forth under Section 5(b) and (c)
for the remainder of the Term. For purposes of this Section 6(b)(ii), the Term
will be deemed to commence on the Effective Date and expire on the close of
business May 1, 2005 or one year after termination if termination occurs in the
last 12 months of the Term.
(c) If the Executive's employment with the Company terminates
for any reason by either party within 180 days following a Change of Control,
the Company shall, within twenty (20) days of Executive's Date of Termination,
pay Executive (or his estate in the event of his death) (A) a lump sum amount in
cash equal to two (2) times the sum of (i) the per annum Base Salary in effect
on the Date of Termination, and (ii) the highest annual bonus compensation
earned by Executive during his employment with the Company (or, if termination
is prior to the end of the first Bonus Measurement Period, then the percentage
shall be assumed to be 100%), and (B) any unpaid reimbursable expenses
outstanding, and any unused accrued vacation, as of the Date of Termination. In
addition, the Company shall continue to provide Executive with the
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benefits and perquisites set forth under Section 5(b) and (c) for two years
from the Date of Termination, as though the Executive had not terminated
employment.
For purposes of this Agreement, the term "Change in Control"
shall have the same meaning assigned such term under the terms of the stock
option plan of the Company in effect on the Effective Date or as amended or
modified from time to time and any related terms set forth in such plan used in
defining Change in Control are hereby incorporated by reference. If Executive's
employment is terminated by the Company without Cause prior to the date of a
Change in Control, but Executive reasonably demonstrates that the termination
(A) was at the request of a third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in Control or (B) otherwise arose
in connection with, or in anticipation of, a Change in Control which has been
threatened or proposed, such termination shall be deemed to have occurred after
a Change in Control for purposes of this Agreement provided a Change in Control
shall actually have occurred.
Notwithstanding anything contained herein to the contrary, the
aggregate amount payable to the Executive (or his estate in the event of his
death) pursuant to this Section 6(c) shall be limited, if necessary, to an
amount that is no more than the maximum amount which can be paid to Executive
(or his estate) without causing any portion of such payment to be nondeductible
by the Company solely because of Section 280G of the Internal Revenue Code of
1986, as amended.
7. Confidential Information In consideration of the payments
made to the Executive herein, the Executive agrees as follows:
(a) The Executive hereby agrees and acknowledges that he has
and has had access to or is aware of Confidential Information. The Executive
hereby agrees that he shall keep strictly confidential and will not during and
after the Term, without the Company's express written consent, divulge, furnish
or make accessible to any person or entity, or make use of for the benefit of
himself or others, any Confidential Information obtained, possessed, or known by
him except as required in the regular course of performing the duties and
responsibilities of his employment by the Company while in the employ of the
Company, and that he will, prior to or upon his Date of Termination deliver or
return to the Company all such Confidential Information that is in written or
other physical or recorded form or which has been reduced to written or other
physical or recorded form, and all copies thereof, in his possession, custody or
control. The foregoing covenant shall not apply to (i) any Confidential
Information that becomes generally known or available to the public other than
as a result of a breach of the agreements of the Executive contained herein,
(ii) any disclosure of Confidential Information by the Executive that is
expressly required by judicial or administrative order; provided however that
the Executive shall have (x) notified the Company as promptly as possible of the
existence, terms and circumstances of any notice, subpoena or other process or
order issued by a court or administrative authority that may require him to
disclose any Confidential Information, and (y) cooperated with the Company, at
the Company's request, in taking legally available steps to resist or narrow
such process or order and to obtain an order or other reliable assurance that
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confidential treatment will be given to such Confidential Information as is
required to be disclosed.
(b) For purposes of this Agreement, "Confidential Information"
means all non-public or proprietary information, data, trade secrets,
"know-how", or technology with respect to any products, designs, improvements,
research, styles, techniques, suppliers, clients, markets, methods of
distribution, accounting, advertising and promotion, pricing, sales, finances,
costs, profits, financial condition, organization, personnel, business systems
(including without limitation computer systems, software and programs), business
activities, operations, budgets, plans, prospects, objectives or strategies of
the Company.
8. Post-Employment Obligations In consideration of the payments
made to the Executive herein, the Executive agrees as follows:
(a) The Executive agrees that his services hereunder are of a
special, unique, extraordinary and intellectual character, and his position with
the Company places him in a position of confidence and trust with employees,
suppliers and clients of the Company. The Executive further agrees and
acknowledges that in the course of the Executive's employment with the Company,
the Executive has been and will be privy to Confidential Information. The
Executive consequently agrees that it is reasonable and necessary for the
protection of the trade secrets, goodwill and business of the Company that the
Executive make the covenants contained herein. Accordingly, the Executive agrees
that he shall not, without the prior written consent of the Company, directly or
indirectly, and regardless of the reason for his ceasing to be employed by the
Company (other than a termination by the Executive pursuant to Section 2(b)(iii)
or by the Company for any reason other than Cause):
(i) for a period of two years from the Date of Termination,
hereinafter referred to as the "Restrictive Period",
own or hold any proprietary interest in, or be employed
by or receive remuneration from, any corporation,
partnership, sole proprietorship or other entity
engaged in competition with the Company or any of the
Company's subsidiaries or affiliates (hereinafter
referred to as a "Competitor") in the "Territory",
other than severance-type or retirement-type benefits
from entities constituting prior employers of the
Executive. The Executive agrees that during such
Restrictive Period he will not solicit the account of
any Competitor, any customer or client of the Company
or its subsidiaries or affiliates, or any entity or
individual that was such a customer or client during
the twenty four (24) month period immediately
proceeding the Restrictive period.
(ii) during the Restrictive Period act on behalf of any
Competitor to interfere with the relationship between
the Company or their subsidiaries or affiliates and
their employees.
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(iii) during the Restrictive Period hire, solicit nor induce
to leave any employee or consultant of the Company or
any employee or consultant of the Company who was an
employee or consultant of the Company during the twelve
(12) month period immediately proceeding the
Restrictive Period.
For purposes of this Agreement, Territory shall mean (a) an
area within 100 miles of any place of business, office, warehouse or other
facility where the Company, or any of its subsidiaries or affiliates, or any of
its agents, licensees, or franchisees conducts business. For purposes of the
proceeding paragraph, (i) the term "proprietary interest" means legal or
equitable ownership, whether through stock holding or otherwise, of an equity
interest in a business, firm or entity other than ownership of less than one
percent of any class of equity interest in a publicly held business, firm or
entity and (ii) an entity shall be considered to be "engaged in competition", if
such entity is, or is a holding company for, a company engaged in the provision
of delivery, courier, or logistics services, or other transportation services
competitive with the business of the Company, its subsidiaries or affiliates in
the Territory.
(b) If the Executive commits a breach or is about to commit a
breach, of any of the provisions of sections 7 or 8 hereof, the Company shall
have the right to have the provisions of this Agreement specifically enforced by
any court having equity jurisdiction without being required to post bond or
other security and without having to prove the inadequacy of the available
remedies at law, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Company and that money
damages will not provide an adequate remedy to the Company. In addition, the
Company may take all such other actions and remedies available to them under law
or in equity and shall be entitled to such damages as they can show they have
sustained by reason of such breach.
(c) The parties acknowledge that the type and periods of
restriction imposed in the provisions of Sections 7 and 8 hereof are fair and
reasonable and are reasonably required for the protection of the Company and the
goodwill associated with the business of the Company; and that the time, scope,
geographic area and other provisions of Sections 7 and 8 have been specifically
negotiated by sophisticated parties and are given as an integral part of this
Agreement. If any of the covenants in Sections 7 and 8 hereof, or any part
thereof, is hereafter construed to be invalid or unenforceable, the same shall
not affect the remainder of the covenants or covenants, which shall be given
full effect, without regard to the invalid portions. If any of the covenants
contained in Sections 7 and 8 hereof, or any part thereof, is held to be
unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination shall have
the power to reduce the duration and/or areas of such provision and, in its
reduced form, such provision shall then be enforceable. The parties hereto
intend to and hereby confer jurisdiction to enforce the covenants contained in
Sections 7 and 8 hereof above upon the courts of any state or other jurisdiction
within the geographical scope of such covenants. In the event that the courts of
any one or more of such states or other jurisdictions shall hold such covenants
wholly unenforceable by reason of the breadth of such scope or otherwise, it is
the intention of the parties hereto that such determination not bar or in any
way affect the right of the Company to the relief provided above
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in the courts of any other states or other jurisdictions within the
geographical scope of such covenants, as to breaches of such covenants in such
other respective states or other jurisdictions, the above covenants as they
relate to each state or other jurisdiction being, for this purpose, severable
into diverse and independent covenants.
9. Intellectual Property
During the Term, the Executive will disclose to the Company
all ideas, inventions and business plans developed by him during such period
which relate directly or indirectly to the business of the Company, including
without limitation, any design, logo, slogan or campaign or any process,
operation, product or improvement which may be patentable or copyrightable. The
Executive agrees that all patents, licenses, copyrights, tradenames, trademarks,
service marks, advertising campaigns, promotional campaigns, designs, logos,
slogans and business plans developed or created by the Executive in the course
of his employment hereunder, either individually or in collaboration with
others, will be deemed works for hire and the sole and absolute property of the
Company. The Executive agrees, that at the Company's request, he will take all
steps necessary to secure the rights thereto to the Company by patent, copyright
or otherwise.
10. Enforceability
The failure of any party at any time to require performance by
another party of any provision hereunder shall in no way affect the right of
that party thereafter to enforce the same, nor shall it affect any other party's
right to enforce the same, or to enforce any of the other provisions in this
Agreement; nor shall the waiver by any party of the breach of any provision
hereof be taken or held to be a waiver of any subsequent breach of such
provision or as a waiver of the provision itself.
11. Assignment
This Agreement is a personal contract and the Executive's
rights and obligations hereunder may not be sold, transferred, assigned, pledged
or hypothecated by the Executive. The rights and obligation of the Company
hereunder shall be binding upon and run in favor of the successors and assigns
of the Company; provided, however, the Company may not assign or transfer its
rights or obligations under this Agreement unless such assignee or transferee
assumes the liabilities, obligations and duties of the Company, as contained in
this Agreement, either contractually or as a matter of law.
12. Modification
This Agreement may not be orally canceled, changed, modified
or amended, and no cancellation, change, modification or amendment shall be
effective or binding, unless in writing and signed by the parties to this
Agreement.
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13. Severability; Survival
In the event any provision or portion of this Agreement is
determined to be invalid or unenforceable for any reason, in whole or in part,
the remaining provisions of this Agreement shall nevertheless be binding upon
the parties with the same effect as though the invalid or unenforceable part had
been severed and deleted. The respective rights and obligations of the parties
hereunder shall survive the termination of the Executive's employment to the
extent necessary to the intended preservation of such rights and obligations.
14. Life Insurance
During the term hereof the Company shall at Company's expense,
provide Executive life insurance at a face amount equal to three (3) times
Executive's Base Salary as of May 1, 2000. Executive shall be responsible for
any and all income taxes due on any premiums paid by the Company for such
insurance.
15. Notice
Any notice, request, instruction or other document to be given
hereunder by any party hereto to another party shall be in writing and shall be
deemed effective (a) upon person delivery, if delivered by hand, or (b) three
days after the date of deposit in the mails, postage prepaid if mailed by
certified or registered mail, or (c) on the next business day, if sent by
facsimile transmission or prepaid overnight courier service, and in each case,
addressed as follows:
If to the Executive:
Xxxxxxx X. Xxxxxxx
0 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
If to the Company:
Consolidated Delivery & Logistics, Inc.
00 Xxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx, XX 00000
Attn: General Counsel
Any party may change the address to which notices are to be sent by giving
notice of such change of address to the other party in the manner herein
provided for giving notice.
16. Applicable Law
The validity, interpretation, performance, and enforcement of
this Agreement shall be governed by the laws of the State of New Jersey. In
addition, the Executive, and the
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Company irrevocably submit to the exclusive jurisdiction of the courts of the
State of New Jersey and the United States District Court for the District of
New Jersey for the purpose of any suit, action, proceeding or judgment relating
to or arising out of this Agreement and the transactions contemplated hereby.
Service of process in connection with any such suit, action or proceeding may
be served on the Executive anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement. The Executive
irrevocably consents to the jurisdiction of any such court in any such suit,
action or proceeding and to the laying of venue in such court. The Executive
irrevocably waives any objection to the laying of venue of any such suit,
action or proceeding brought in such courts and irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum.
17. No Conflict
The Executive represents and warrants that he is not subject
to any agreement, instrument, order, judgment or decree of any kind, or any
other restrictive agreement of any character, which would prevent him from
entering into this Agreement or which would be breached by the Executive upon
his performance of his duties pursuant to this Agreement.
18. Entire Agreement
This Agreement represents the entire agreement between the
Company and the Executive with respect to the subject matter hereof, and all
prior agreements, plans and arrangements relating to the employment of the
Executive by the Company (including without limitation the Prior Agreement) are
nullified and superseded hereby.
19. Headings
The headings contained in this Agreement are for reference
purposes only, and shall not affect the meaning or interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
CONSOLIDATED DELIVERY & LOGISTICS, INC.
By:
---------------------------------
Name: Xxxxxx X. Xxx Xxxx, Xx.
Title: Chairman of the Board and
Chief Executive Officer
By:
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief
Operating Officer
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