EXHIBIT 4.1
EMPLOYMENT, CONFIDENTIALITY AND NON-COMPETE AGREEMENT
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This Employment Agreement is made by and between Connect Paging, Inc., a Texas
corporation d/b/a Get A Phone, (the "Company"), and Xxxxxxx Xxxxx (the
"Employee"), and is effective as of May 1, 2004 (the "Effective Date").
WHEREAS, concurrently with the execution of this Agreement, USURF America,
Inc., a Nevada corporation ("USURF"), has acquired all of the issued and
outstanding common stock of the Company, pursuant to that certain Stock Purchase
Agreement, dated April 20, 2004 (the "Purchase Agreement");
WHEREAS, on the date of the Purchase Agreement, the Employee was a
stockholder of the Company, and, immediately prior to the execution of this
Agreement, was employed by, and a key executive of, the Company;
WHEREAS, the Company desires to retain Employee and the Employee is willing
to accept and continue his employment with the Company, under the terms and
conditions set forth in this Agreement;
THEREFORE, the parties agree as follows:
1. Employment; Term. The Company hereby employs the Employee as Secretary
on the terms set forth herein for a period of two (2) years from the Effective
Date, and the Employee hereby accepts such employment.
2. Duties. The Employee will render services to Company in such executive,
supervisory and general administrative capacities as the Board of Directors of
the Company shall from time to time determine. Without limiting the foregoing,
the Employee's duties will generally consist of the duties specified in the
Bylaws of the Company, which may be amended from time to time by the Company's
Board of Directors. The office of the Company, as identified above, will
constitute the Employee's base of operations; provided, however, that Employee
will render services away from the office on a temporary basis and travel on a
temporary basis but in no event more than three (3) days in any calendar month
wherever the Company may reasonably require. In connection with all such trips,
the Employee will be advanced or reimbursed for all reasonable travel and living
expenses provided the Employee submits appropriate documentation for such
expenses satisfactory to the Company. If elected a director or officer of the
Company or of any affiliate of the Company, the Employee will serve in that
capacity without compensation other than as expressly provided in this
Agreement. In no event will Company, without the written consent of Employee,
transfer Employee to USURF or any of its affiliates, parents or subsidiaries or
require Employee to provide the duties described herein to any other entity
other than Company. In no event shall Employer, without written consent of
Employee, require Employee to relocate outside the Dallas/Ft. Worth area.
3. Exclusivity. During the term of this Agreement, Employee will devote all
of his working time to performing his duties under this Agreement, and during
his employment with the Company, the Employee will not (i) act for his own
account in any manner which is Directly Competitive (as defined herein) with any
of the business of the Company or which would interfere with the performance of
his duties under this Agreement, or (ii) serve as an officer, director or
employee of or paid advisor to any other business entity with the exception of
Extel Enterprises Incorporated and Express Cash and Phone, Inc., or (iii) invest
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or have any financial interest, direct or indirect, in any business that is
Directly Competitive with any of the business of the Company, provided, however,
that notwithstanding the foregoing, the Employee may own up to 1% of the
outstanding equity securities of any company engaged in any such competitive
business whose shares are listed on a national securities exchange or regularly
quoted in an over-the-counter market by one or more members of a national or an
affiliated securities association. The Employee will be deemed to have an
indirect financial interest in any business in which any of the following has
any financial interest: the Employee's spouse; any lineal descendant or ancestor
of the Employee; any brother or sister of the Employee; and any child (but not
grandchild) of any such brother or sister. Notwithstanding the foregoing,
Employee is authorized to retain his ownership and position on the Board of
Directors and employment, as the case may be, in Extel Enterprises, Inc. and
Express Cash and Phone, Inc. (collectively, the "Excepted Entities") for the
sole purpose of maintaining the Excepted Entities in good standing under the
laws of the State of Texas; provided that Employee's continued involvement in
the Excepted Entities does not materially interfere with the performance of his
duties under this Agreement. For the purposes of this Section 3, the term
Directly Competitive shall mean engaging in any business in which the Company is
engaged at any time during the term of this Agreement.
4. Compensation.
4.1 Signing Bonus. In consideration of, and as an inducement for,
Employee's executing this Employment Agreement, USURF shall issue to Employee,
as a bonus, 1,000,000 shares of its $.0001 par value common stock. It is agreed
by Employer and Employee that such bonus shares shall be valued at $.09 per
share, or $90,000, in the aggregate.
USURF agrees that the shares to be issued to Employee pursuant to this
Employment Agreement shall be issued to Employee and registered under a Form S-8
Registration Statement filed in connection with this Employment Agreement. Upon
issuance, the shares shall be duly registered under the Securities Act of 1933,
as amended, and shall be freely tradable in the markets of the United States.
4.2 Salary. During the first two (2) years of his employment, the
Company will pay the Employee a salary at the rate of One Hundred Twenty
Thousand and No/100 Dollars ($120,000.00) per year in equal, semi-monthly
installments. Thereafter the Company will review the Employee's salary at least
annually, but, in any event, although the Company may increase, decrease or not
change the Employee's salary, his salary will not at any time be less than
$120,000.00 per year payable in equal, semi-monthly installments. The Employee
will not be entitled to overtime or other additional compensation as a result of
services performed during evenings, weekends, holidays or at other times.
4.3 Additional Compensation. Employee will be entitled to additional
compensation pursuant to the following ("Stock Compensation"):
(a) if, at any time during the term of this Agreement, the
Company maintains an aggregate average of 45,000 customers and maintains such
aggregate average for a period of ninety (90) consecutive days, Company shall
cause to be delivered to Employee 1,111,111 shares of $0.0001 par value common
stock of USURF; and
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(b) if, at any time during the term of this Agreement, the
Company maintains an aggregate average of 85,000 customers and maintains such
aggregate average for a period of ninety (90) consecutive days, Company shall
cause to be delivered to Employee 1,111,111 shares of $0.0001 par value common
stock of USURF;
provided, however, that no portion of the Stock Compensation
shall be payable to the Employee unless Employee is a fulltime employees of GAP
or other affiliate of Company at time each of the benchmark customer levels are
obtained; and provided further that any customers who receive service at a
discount rate shall not be counted in determining the benchmark customer levels
described in subparagraphs (i) and (ii) above, unless the discount rate has been
pre-approved in writing by the President of Company.
(c) Company agrees to execute a Registration Rights Agreement
with Employee granting Employee demand and piggyback registration rights in
connection with all Stock Compensation issued to Employee under the terms of
this Employment Agreement.
4.4 Deductions. The Company will deduct and withhold from any
compensation payable to the Employee under this Agreement such amounts as the
Company is required to deduct and withhold by federal or state law. The Company
may also deduct and withhold from any such compensation, to the extent permitted
by law, such amounts as the Employee may owe to the Company.
5. Expenses. The Company will reimburse the Employee for all proper, normal
and reasonable expenses incurred by the Employee in performing his obligations
under this Agreement upon the Employee's furnishing the Company with
satisfactory evidence of such expenditures. The Employee will not incur any
expenditures in excess of $2,000.00 without the Company's prior written
approval. Without limiting the foregoing, the Employee will not, without the
Company's prior written approval, incur any travel expenses (including the cost
of transportation, meals and lodging) in excess of $2,000.00 in the aggregate
for any one trip.
6. Benefits.
6.1 Insurance. The Company will provide the Employee, at the Company's
expense, with medical and other insurance which is not less favorable than that
which is provided to any other employee of the Company in a similarly situated
job position.
6.2 Vacation. The Employee will be entitled to three (3) weeks paid
vacation during each calendar year (January 1 to December 31) in addition to any
holidays which the Company observes. Vacation time must be used during each
calendar year; if it is not used, it will be forfeited. No payment will be made
for unused vacation time.
6.3 Absences. The Employee's salary and other rights and benefits
under this Agreement will not be suspended or terminated because the Employee is
absent from work due to illness, accident or other disability; but the Company
may deduct from the Employee's salary under Section 4.1 any payment received by
the Employee under any disability insurance which the Company provides the
Employee pursuant to Section 6.1. The provisions of this Section 6.3 will not
limit or affect the rights of the Company under Section 7.
7. Death and Disability.
7.1 Death. If the Employee dies prior to expiration of the term of his
employment, all obligations of the Company to the Employee will cease as of the
date of the Employee's death; provided, however, this Section shall not apply to
any amounts owed to Employee pursuant to Section 4.2 above.
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7.2 Disability. If the Employee is unable to perform substantially all
of his duties under this Agreement because of illness, accident or other
disability (collectively referred to as "Disability"), and the Disability
continues for more than three consecutive months or an aggregate of more than
six months during any twelve-month period, then the Company may suspend its
obligations to the Employee under Section 4.1 on or after the expiration of such
three or twelve-month period until the Company terminates such suspension as
hereinafter provided. The Company will terminate any such suspension after the
Disability has, in fact, ended and after it has received written notice from the
Employee that the Disability has ended and that he is ready, willing and able to
perform fully his services under this Agreement. Termination of such suspension
will be no later than one week after the Company has received such notice from
the Employee. If any one or more periods of suspension continue pursuant to the
provisions of this Section for three consecutive months or six months in the
aggregate, then the Company may at any time prior to termination of the then
current period of suspension, terminate the Employee's employment hereunder.
If the Employee or the Company asserts at any time that the Employee is
suffering a Disability, the Company may cause the Employee to be examined, at
the sole cost and expense of Company, by a doctor or doctors selected by the
Company, and the Employee will submit to all required examinations and will
cooperate fully with such doctor or doctors and, if requested to do so, will
make available to them his medical records.
8. Termination.
8.1 Just Cause. Company agrees not to terminate this Agreement except
for "just cause", and agrees to give Employee written notice of acts or events
constituting "just cause." Employee has the right to cure, if possible, within
thirty (30) days of Company's giving of such notice, the acts, events or
conditions which led to Company's notice. For purposes of this Agreement, "just
cause" shall mean (1) the willful failure or refusal of Employee to implement or
follow the written policies or directions of Company's Board of Directors,
provided that Employee's failure or refusal is not based upon Employee's belief
in good faith, as expressed to Company in writing, that the implementation
thereof would be unlawful, (2) conduct which is inconsistent with Employee's
position with Company or which results in an adverse effect (financial or
otherwise) or misappropriation of assets of Company, (3) conduct which violates
any provision of this Agreement, and (4) any act involving personal dishonesty
or criminal conduct against Company.
8.2 Employee Remedies. Although Company retains the right to terminate
Employee for any reason not specified above, Company agrees that if it
discharges Employee for any reason other than just cause, as defined above,
Employee will be entitled to full compensation under this Agreement, including
participation in all benefit programs, for one year or the remainder of the
current term, original or renewal, as the case may be, of employment, whichever
is greater and the Non-Compete restrictions contained in this Agreement shall be
null and void and of no force or effect whatsoever.
8.3 Voluntary Termination. If Employee should cease his employment
hereunder voluntarily for any reason, or is terminated for just cause, all
compensation and benefits payable to Employee shall thereupon, without any
further writing or act, cease, lapse and be terminated. However, all defined
compensation, benefits and reimbursements which accrued prior to Employee's
ceasing employment or termination, will become immediately due and payable to
Employee and shall be payable to Employee's estate should his employment cease
due to death. Should Employee voluntarily cease his employment, Employee retains
the right to participate for the period of this Agreement in Employee's medical
insurance plan and will be responsible for 100% of the cost of participation.
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9. Results of Employee's Services.
9.1 Company Ownership. The Company will be entitled to and will own
all the results and proceeds of the Employee's services under this Agreement,
including, without limitation, all rights throughout the world to any copyright,
patent, trademark or other right and to all ideas, inventions, products,
programs, procedures, formats and other materials of any kind created or
developed or worked on by the Employee during his employment by the Company; the
same shall be the sole and exclusive property of the Company; and the Employee
will not have any right, title or interest of any nature or kind therein.
Without limiting the foregoing, it will be presumed that any copyright, patent,
trademark or other right and any idea, invention, product, program, procedure,
format or material created, developed or worked on by the Employee at any time
during the term of his employment will be a result or proceed of the Employee's
services under this Agreement. The Employee will take such action and execute
such documents as the Company may request to warrant and confirm the Company's
title to and ownership of all such results and proceeds and to transfer and
assign to the Company any rights which the Employee may have therein. The
Employee's right to any compensation or other amounts under this Agreement will
not constitute a lien on any results or proceeds of the Employee's services
under this Agreement.
9.2 Right to Proceeds. The Company will also own, and promptly on
receipt thereof the Employee will pay to the Company, any monies and other
proceeds to which the Employee is entitled on account of rights pertaining to
any of the Company's products which the Employee acquired before the date of
this Agreement.
9.3 Remedies. The Employee acknowledges that the violation of any of
the provisions of Section 9.1 will cause irreparable loss and harm to the
Company which cannot be reasonably or adequately compensated by damages in an
action at law, and, accordingly, that the Company will be entitled to request in
accordance with state law injunctive and other equitable relief to enforce the
provisions of that Section; but no action for any such relief shall be deemed to
waive the right of the Company to an action for damages.
10. Use of Employee's Name, Etc. The Company is hereby granted the right,
upon written consent of Employee only, during the term of Employee's employment
to make use of and to permit others to make use of the Employee's name,
pictures, photographs, and other likenesses, and voice, in connection with the
advertising, publicity and exploitation of any products, or in connection with
the use or implementation of any of the Employee's services hereunder or the
proceeds thereof. This right shall continue in perpetuity as a non-exclusive and
non-compensable right after termination of his employment for any reason
whatsoever including, without limitation, termination by either party for cause
or wrongful termination by either party. In no event, however, shall the
Employee, directly or indirectly, be represented as endorsing any product or
commodity without the Employee's written consent.
11. Insurance. If the Company desires at any time or from time to time to
apply for, in its own name or otherwise, but at its expense, life, health,
accident or other insurance covering the Employee, the Company may do so and may
take out such insurance for any sum that it deems desirable. The Employee will
have no right, title or interest in or to such insurance. The Employee
nevertheless will assist the Company in procuring the same by submitting from
time to time to the customary medical, physical and other examinations, and by
signing such applications, statements and other instruments as any reputable
insurer may require.
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12. Uniqueness of Services. The Employee acknowledges that (i) USURF
acquired the stock of Company in reliance on the Employee entering into this
Agreement, and (ii) that Employee's services hereunder are of a special, unique,
unusual, extraordinary and intellectual character, the loss of which cannot be
reasonably or adequately compensated by damages in an action at law.
Accordingly, the Company will be entitled to request in accordance with state
law injunctive and other equitable relief to prevent or cure any breach or
threatened breach of this Agreement by the Employee, but no action for any such
relief shall be deemed to waive the right of the Company to an action for
damages.
13. Covenants.
13.1 Non-disclosure; Confidentiality. Employee acknowledges and agrees
as follows:
(a) In connection with his employment with the Company, Employee
may become aware of or familiar with processes, formulae, procedures,
information and materials which the Company has spent a great deal of time and
money to develop, which are essential to the business of the Company, and which
comprise confidential information and trade secrets of the Company (collectively
called "Trade Secrets"). The term "Trade Secret" does not include any process,
formula, procedure, information or material which is currently in the public
domain, currently known by Employee or which hereafter becomes public knowledge
in a way that does not involve a breach of an obligation of confidentiality.
Notwithstanding the foregoing, Employee acknowledges and agrees that any
process, formula, procedure, information or material of which he becomes aware
during his employment with the Company is presumed to be a Trade Secret unless
the Company advises Employee, in writing, that it is not a Trade Secret.
(b) Employee will not during the term of his employment with the
Company and at all times thereafter, either directly or indirectly, use or
disclose to anyone any Trade Secret, except that while Employee is employed by
the Company he may use Trade Secrets in the performance of his services for the
Company and may disclose Trade Secrets to employees of the Company who need to
know them in the performance of their services for the Company and who are bound
by confidentiality agreements.
13.2 Non-Solicitation. Employee will not for a period of one (1) year
following the termination of his employment with the Company:
(a) attempt to cause any person, corporation, partnership or
other entity which is a customer of or has a contractual relationship with the
Company at the time of the termination of his employment to terminate such
relationship with the Company, and this provision shall apply regardless of
whether such customer has a valid contractual arrangement with the Company;
(b) attempt to cause any employee of the Company to leave such
employment;
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(c) engage any person who was an employee of the Company at the
time of the termination of his employment or induce such person otherwise to
become associated with the Employee or with any other person, corporation,
partnership or other entity with which the Employee may thereafter become
associated; or
(d) engage in any activity or perform any services Directly
Competitive (as defined in Section 3 herein) with any business conducted by the
Company at the time of such termination.
13.3 Non-Compete.
(a) Employee agrees that for a period of one (1) year from the
date Employee's employment with Company is terminated, Employee will not
directly or indirectly engage (whether as an employee, consultant, proprietor,
partner, director or otherwise) in, or have any ownership interest in, or
participate in the financing, operation, management or control of, any person,
firm, corporation or business that engages in a "Restricted Business" in a
"Restricted Territory" (as such terms are defined below); provided, however,
that notwithstanding the foregoing, the Employee may own up to 1% of the
outstanding equity securities of any company engaged in a Restricted business
whose shares are listed on a national securities exchange or regularly quoted in
an over-the-counter market by one or more members of a national or an affiliated
securities association. This Section 13.3 shall not apply if the Employee's
termination of employment with Company is due to (i) a breach by Company of the
terms of this Agreement as adjudicated by a court of competent jurisdiction
(except for a failure of Company to pay Employee's salary as provided in Section
4.1 above which, for purposes of this Section 13.3, will not require such
adjudication) or (ii) a final adjudication of Company as bankrupt under any
federal or state law.
(b) For purposes of this Section 13.3, the following terms are
defined:
(i) "Restricted Business" shall mean any and all business
activity in which Company is engaged at the time of execution of this Employment
Agreement.
(ii) "Restricted Territory" shall mean any county,
regardless of the state, in which Company engages in a Restricted Business at
the time Employee's employment with the Company terminates.
In the event Company fails to make any payment due to Employee hereunder,
including any payment of Stock Compensation, the provisions of this Section 13.3
shall be null and void and of no further force or effect whatsoever.
13.4 Remedies. Employee acknowledges that the violation of any of the
provisions of this Section 13 will cause irreparable loss and harm to the
Company which cannot be reasonably or adequately compensated by damages in an
action at law, and, accordingly, that the Company will be entitled to request in
accordance with state law injunctive and other equitable relief to prevent or
cure any breach or threatened breach thereof, but no action for any such relief
shall be deemed to waive the right of the Company to an action for damages.
13.5 Survival of Covenants. The obligations of Employee and the rights
of the Company under this agreement will remain in full force and effect
regardless of the reason for or cause of the termination of Employee's
employment.
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14. Governing Law; Remedies
14.1 This Agreement shall be governed by and construed in all respects
in accordance with the laws of the State of Texas.
14.2 Except as otherwise expressly provided in this Agreement, any
dispute or claim arising under or with respect to this Agreement will be
resolved by arbitration in San Antonio, Texas, in accordance with the Rules for
the Resolution of Employment Disputes of the American Arbitration Association
before a panel of three (3) arbitrators, one appointed by the Employee, one
appointed by the Company, and the third appointed by said Association. The
decision or award of a majority of the arbitrators shall be final and binding
upon the parties. Any arbitral award may be entered as a judgment or order in
any court of competent jurisdiction.
14.3 Notwithstanding the provisions for arbitration contained in this
Agreement, the Company will be entitled to injunctive and other equitable relief
from the courts as provided in Sections 9.3, 12 and 13.4 and as the courts may
otherwise determine appropriate; and the Employee agrees that it will not be a
defense to any request for such relief that the Company has an adequate remedy
at law. For purposes of any such proceeding, the Company and the Employee submit
to the non-exclusive jurisdiction of the courts of the State of Texas and of the
United States located in the State of Texas, and each agrees not to raise, and
waives, any objection to or defense based on the venue of any such court or
forum non conveniens.
14.4 A court of competent jurisdiction, if it determines any provision
of this Agreement to be unreasonable in scope, time or geography, is hereby
authorized by the Employee and the Company to enforce the same in such narrower
scope, shorter time or lesser geography as such court determines to be
reasonable and proper under all the circumstances.
14.5 The Company will also have such other legal remedies as may be
appropriate under the circumstance including, but not limited to, recovery of
damages occasioned by a breach. The Company's rights and remedies are cumulative
and the exercise or enforcement of any one or more of them will not preclude the
Company from exercising or enforcing any other right or remedy.
15. Indemnity. To the extent permitted by law, the Company will indemnify
the Employee against any claim or liability and will hold the Employee harmless
from and pay any expenses (including, without limitation, legal fees and court
costs), judgments, fines, penalties, settlements and other amounts arising out
of or in connection with any act or omission of the Employee performed or made
in good faith on behalf of the Company pursuant to this Agreement, except for
any intentional unlawful or grossly negligent act or omission. The Company will
not be obligated to pay the Employee's legal fees and related charges of counsel
during any period that the Company furnishes, at its expense, counsel to defend
the Employee; but any counsel furnished by the Company must be reasonably
satisfactory to the Employee. The foregoing provisions will survive termination
of the Employee's employment with the Company for any reason whatsoever and
regardless of fault.
16. Severability of Provisions. If any provision of this Agreement or the
application of any such provision to any person or circumstance is held invalid,
the remainder of this Agreement, and the application of such provision other
than to the extent it is held invalid, will not be invalidated or affected
thereby.
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17. Waiver. No failure by Company or Employee to insist upon the strict
performance of any term or condition of this Agreement or to exercise any right
or remedy available to it will constitute a waiver. No breach or default of any
provision of this Agreement will be waived, altered or modified, and the neither
Company nor Employee may waive any of its rights, except by a written instrument
executed by the party to be bound. No waiver of any breach or default will
affect or alter any term or condition of this Agreement, and such term or
condition will continue in full force and effect with respect to any other then
existing or subsequent breach or default thereof.
18. Miscellaneous.
18.1 Amendment. This Agreement may be amended only by an instrument in
writing signed by the Company and the Employee.
18.2 Assignment. This Agreement shall be binding upon the parties and
their respective successors and assigns. The Company may not, without the
Employee's written consent (which consent shall not be unreasonably withheld),
transfer or assign any of its rights and obligations under this Agreement. In
the event Company, without Employee's prior written consent, transfers or
assigns any of its or his rights or obligations under this Agreement, any such
transfer or assignment or attempt thereat without such consent shall be null and
void.
18.3 Notice. All notices under or in connection with this Agreement
shall be in writing and may be delivered personally or sent by mail, courier,
fax, or other written means of communication to the parties at their addresses
and fax numbers set forth below or to such other addresses and fax numbers as to
which notice is given:
if to the Company: Connect Paging, Inc.
Attn: Xxx Xxxxxxx
0000 Xxxxxxxxx Xx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
if to the Employee:
---------------------------
---------------------------
---------------------------
Fax: ( )__________________
With a copy to: Xxxxxxx X. Xxxxxxxxx
J. Xxxxxxx Xxxxx
Xxxxxx Xxxxxxxx Xxxxxx & Pulman, P.C.
000 X. Xxxxx Xx. Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notice will be deemed given on receipt.
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18.4 Headings. Section headings are for purposes of convenient
reference only and will not affect the meaning or interpretation of any
provision of this Agreement.
18.5 Entire Agreement. This Agreement constitutes the entire agreement
of the parties and supersedes any and all prior agreements or understandings
between them.
[Signatures on next page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
COMPANY EMPLOYEE
CONNECT PAGING, INC.
BY: /S/ XXXXXXX X. XXXXXXXX /S/ XXXXXXX XXXXX
---------------------------- -----------------
XXXXXXX X. XXXXXXXX, CHAIRMAN XXXXXXX XXXXX
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