EXHIBIT 99.1
AMERICAN RIVER BANKSHARES
DEFERRED FEE AGREEMENT
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THIS AGREEMENT is made as of _______________ 20__, by and between
AMERICAN RIVER BANKSHARES (the "Company"), and ______________ (the "Director").
RECITALS
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WHEREAS, to encourage the Director to remain a member of the Company's
Board of Directors, the Company desires to provide to the Director an
opportunity to defer fees and obtain certain benefits related thereto.
NOW, THEREFORE, in consideration of the services to be rendered by the
Director to the Company in the future and for other good and valuable
consideration, receipt of which is hereby acknowledged, the parties agree as
follows:
AGREEMENT
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Article 1. Definitions.
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Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.1 Change in Control. To constitute a "Change in Control" as to
the Director, a "Change in Control Event" described in Section 1.1.1 must relate
to a corporation that is a "Service Recipient" as defined in Section 1.1.4. The
term "Change in Control" as defined in this section 1.1 is intended to comply
with all relevant provisions of Proposed Treasury Regulation Section
1.409A-3(g)(5) relating to changes in the ownership or effective control of a
corporation and changes in the ownership of a substantial portion of the assets
of a corporation.
1.1.1 A "Change in Control Event" occurs on the date any of
the following events occur:
(i) Any one person, or more than one person
acting as a group ("Person"), acquires ownership of stock of a corporation that,
together with stock previously held by such Person, raises the total ownership
from less than 50 percent of the total fair market value or total voting power
of such corporation to more than 50 percent of such value or power.
(ii) Any Person acquires, during the 12-month
period ending on the date of the most recent acquisition, ownership of 35
percent or more of the total voting power of the stock of a corporation, without
regard to the stock owned by the Person before the commencement of the 12-month
period.
(iii) A majority of the members of a corporation's
board of directors is replaced in a 12-month period by directors who were not
endorsed by a majority of the board prior to the election or appointment of each
director.
(iv) Any Person acquires, during the 12-month
period ending on the date of the most recent acquisition, assets from a
corporation with a gross fair market value equal to or more than 40 percent of
the total gross fair market value of all the assets of such corporation prior to
such acquisition or acquisitions. Gross fair market value shall be determined
without regard to any liabilities associated with the assets. However, this
subsection (iv) shall not apply to the transfer of assets: (i) to an entity that
is controlled by the shareholders of such corporation immediately after the
transfer; (ii) to a shareholder of such corporation with respect to the
shareholder's stock or in exchange for more stock; (iii) to an entity of which
such corporation owns 50 percent or more of the total value or voting power
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immediately after the transaction; (iv) to a Person that owns, directly or
indirectly, 50 percent or more of the total value or voting power of all the
outstanding stock of such corporation immediately following the transaction; or
(v) to an entity, at least 50 percent of the total value or voting power of
which is owned immediately following the transaction, directly or indirectly, by
a Person which owns directly or indirectly, 50 percent or more of the total
value or voting power of all the outstanding stock of such corporation.
1.1.2 If any Person controls a corporation under subsection
(i) or (ii) of Section 1.1.1, the acquisition of additional control by the same
Person shall not cause a Change in Control.
1.1.3 Persons will be considered to be acting as a group in
accordance with the provisions of Proposed Treasury Regulation Section
1.409A-3(g)(5)(vii)(C). For example, Persons will not be considered to be acting
as a group solely because they purchase or own stock of a corporation at the
same time, or as a result of the same public offering. However, Persons will be
considered to be acting as a group if they are owners of a corporation that
enters into a merger, consolidation, purchase or acquisition of stock, or
similar business transaction with a Service Recipient. Furthermore, if a person,
including an entity, owns stock in both corporations that enter into a merger,
consolidation, purchase or acquisition of stock, or similar transaction, such
shareholder is considered to be acting as a group with other shareholders in
each corporation prior to the transaction giving rise to the change and not with
respect to the ownership interest in the merged corporation.
1.1.4 The term "Service Recipient" includes all of the
following: (i) the corporation for which the Director performs services
(relating to the compensation deferred under this Agreement) at the time of a
Change in Control Event; (ii) any corporation liable to pay deferred
compensation under this Agreement; (iii) any corporation which owns more than 50
percent of the total fair market value and total voting power of any corporation
described in clause (i) or (ii); and (iv) any corporation in a chain of
corporations in which each corporation owns more than 50 percent of the total
fair market value and total voting power of another corporation in the chain
ending in a corporation described in clause (i) or (ii).
1.2 Code. The term "Code" shall mean the Internal Revenue Code of
1986, as amended. References to a Code section shall be deemed to be to that
section as it now exists and to any successor provision.
1.3 Distribution Date. The term "Distribution Date" means the date
of the Director's Termination of Service as defined below.
1.4 Deferral Account. The term "Deferral Account" means the
account described in Article 3 of this Agreement, established by the Company on
its books to record the amount of fees deferred by the Director under this
Agreement (and under any previous version of this Agreement) and interest
accrued thereon.
1.5 Deferral Period. The term "Deferral Period" means the period
of time beginning with the date of this Agreement and ending with the
Distribution Date.
1.6 Benefit Period. The term "Benefit Period" means the period of
time beginning with the Distribution Date and ending with payment in full of the
Director's Deferral Account balance.
1.7 Election Form. The term "Election Form" means the Form
attached as Exhibit A.
1.8 Fees. The term "Fees" means the total fees payable to the
Director.
1.9 Termination of Service. The term "Termination of Service"
means the Director ceasing to be a member of the Company's Board of Directors
for any reason whatsoever.
1.10 Unforeseeable Emergency. The term "Unforeseeable Emergency"
means a severe financial hardship of the Director, or of a named beneficiary of
the Director, resulting from (i) an illness or accident of the Director or his
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named beneficiary, of a spouse of the Director or named beneficiary, or of a
dependent (as defined by Code ss. 152(a)) of the Director or named beneficiary;
(ii) the loss of property of the Director or of his named beneficiary due to
casualty; or (iii) any other similar extraordinary and unforeseeable
circumstance arising as a result of an event or events beyond the control of the
Director or of his named beneficiary. The Company, it its sole discretion, shall
determine whether a hardship constitutes an Unforeseeable Emergency based on all
relevant facts and circumstances. By way of example and not limitation, an
Unforeseeable Emergency shall include, but not be limited to (i) the need to pay
funeral expenses of a spouse or dependent, (ii) the need to pay expenses for
medical care for the Director, the Director's spouse, or any dependent of the
Director, or (iii) payments necessary to prevent the eviction of the Director
from the Director's principal residence or foreclosure on the mortgage on that
residence.
Article 2. Deferral Election.
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2.1 Initial Deferral Election. The Director shall make an initial
deferral election under this Agreement by completion and delivery to the Company
of the Election Form attached hereto as Exhibit A. The Election Form shall set
forth the amount of Fees to be deferred, the form of benefit payment, and shall
designate a beneficiary. The Election Form shall be delivered to the Company not
later than twenty (20) days after the date this Agreement is entered into and
effective to defer only those Fees earned for services performed after the date
of delivery of the Election Form.
2.2 Deferral Election Changes.
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2.2.1 Generally. The Director may modify the amount of Fees
to be deferred by filing a subsequent signed Election Form with the Company
within twenty (20) days prior to the end of a calendar year preceding the
calendar year in which the Fees are to be deferred. Such modified Election Form
shall not be effective until the calendar year following the year in which the
subsequent Election Form is received by the Company.
2.2.2 Modification of Benefit Payment Form. The Director
may not modify the benefit payment form for deferrals from the current or prior
years. However, the Director may modify the benefit payment form for deferrals
in future calendar years by filing a new Election Form in accordance with
Section 2.2.1.
2.2.3 Hardship. If an Unforeseeable Emergency occurs, the
Director, by written instructions to the Company, may reduce and/or cease future
deferrals under this Agreement at any time. Deferrals may resume only by filing
a new Election Form in accordance with Section 2.2.1.
Article 3. Deferral Account.
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3.1 Deferral Account. The Company shall establish a Deferral
Account on its books for the Director, and shall credit to the Deferral Account
the following amounts:
3.1.1 Deferrals. The Fees deferred by the Director on the
first day of the month following the month in which the Fees were earned.
3.1.2 Interest. On the last day of each calendar month
during the Deferral Period only, and immediately prior to the payment of any
benefits, the Deferral Account will be credited with interest earned during that
month. Interest shall accrue at the rate equal to four percent (4%) greater than
the yield on a five (5) year United States Treasury Bond per annum through
December 31, 1998, and, thereafter, at the same rate per annum until changed by
resolution of the Company's Board of Directors, in its sole discretion. Interest
earned will be calculated by taking the applicable rate of interest multiplied
by the principal balance on the last day of each month, divided by 365 days,
multiplied by the number of days in the month. At the end of each calendar year,
the interest earned during the year will be posted to the account and only then
become principal and entitled to future interest accrual.
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3.2 Statement of Accounts. The Company shall provide to the
Director as soon as practicable following the end of each year, a statement
setting forth the Deferral Account balance.
3.3 Unsecured Creditor Status. The Deferral Account is solely an
accounting device for measuring amounts to be paid under this Agreement. The
Deferral Account is not a trust fund of any kind and the Director has no rights
greater than those of a general unsecured creditor of the Company for purposes
of the payment of benefits under this Agreement. The Director's rights are not
subject in any manner to the anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by the Director or
the Director's creditors or beneficiaries.
Article 4. Deferral Benefits.
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4.1 Termination of Service Benefit. Except as provided in Section
4.5, within thirty (30) days of the Distribution Date, the Company shall pay to
the Director the balance in the Deferral Account in the benefit payment form
elected by the Director on applicable Election Form or Forms.
4.2 Change in Control Benefit. Upon Termination of Service of the
Director in connection with and within 60 (sixty) days before or after a Change
in Control, the Company shall pay to the Director the balance in the Deferral
Account within ninety (90) days after the Change in Control.
4.3 Hardship Distribution. Upon the Company's determination
(following petition by the Director) that the Director has suffered an
Unforeseeable Emergency:
4.3.1 The Company shall distribute to the Director that
portion of the Deferral Account balance that is reasonably necessary to satisfy
the severe financial need and to pay taxes reasonably expected as a result of
the distribution. The Company shall take into account the extent the hardship
could be relieved through (i) compensation from insurance; (ii) cancellation of
further deferrals under this Agreement and any other deferred compensation plan
in which the Director participates (whether maintained by the Company or any
other employer); (iii) distributions or loans available without tax penalty from
any benefit plan in which the Director participates (whether maintained by the
Company or any other employer); (iv) loans from commercial sources on reasonable
commercial terms; and (v) liquidation of the Director's assets (to the extent
such liquidation would not in itself cause severe financial hardship). For
purposes of this paragraph, the Director's assets shall be deemed to include
those assets of the Director's spouse and minor children that are reasonably
available to the Director.
4.3.2 The Director's deferral election shall be canceled
with respect to all Fees earned after the date of the Unforeseeable Emergency.
The Director shall be ineligible to defer any additional Fees under this
Agreement until the first day of the calendar year following the second
anniversary of the Distribution Date. To resume deferrals, the Director must
submit a new deferral election meeting the requirements of Section 2.2.1.
4.4 Death of Director. If the Director dies during the Deferral
Period or after benefit payments have commenced under this Agreement but before
receiving all such payments, then the Company shall pay to the Director's
beneficiary the balance in the Deferral Account at the same time, in the same
amounts, and in the same form that would have been paid to the Director had the
Director survived.
4.5 Payments to Key Employees.
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4.5.1 If (i) any stock of the Company is traded on an
established securities market, (ii) the Director is considered a Key Employee
and (iii) the Director receives a distribution because of a Termination of
Service; then (a) the Director shall not receive any distribution until the date
which is six months after the date of Termination of Service and (b) each
scheduled distribution that becomes payable because of the Termination of
Service shall be delayed six months.
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4.5.2 Each year on December 31 the Company shall designate
the Director as Key Employee if, at any time during the year, the Director
satisfied the definition of Key Employee set forth in Code ss. 416(i), without
regard to ss. 416(i)(5). Designation as a Key Employee shall apply for the 12
month period beginning April 1 after the designation. For example, designation
as a Key Employee on December 31, 2005 would apply from April 1, 2006 to March
31, 2007.
4.5.3 Compensation for determining Key Employee status
shall include all annual compensation from the Company, including salary, bonus,
and/or incentive payments, determined before any deductions under any qualified
or nonqualified plan of the Employer.
4.5.4 For purposes of determining Key Employee status, (i)
an Employee's percentage ownership in the Company is the greater of his or her
percentage ownership of the outstanding stock of the Company and the percent of
combined voting power of all stock of the Company he or she possesses, and (ii)
the constructive ownership rules of Code ss. 318 apply. For purposes of
attribution from corporations, Code ss. 318(a)(2)(C) is applied by substituting
5 percent for 50 percent.
Article 5. Beneficiaries.
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5.1 Beneficiary Designations. The Director shall designate a
beneficiary by filing a written designation with the Company in the form
attached as Exhibit A. The Director may revoke or modify the designation at any
time by filing a new designation. However, designations will only be effective
if signed by the Director and accepted by the Company during the Director's
lifetime. The Director's beneficiary designation shall be deemed automatically
revoked if the beneficiary predeceases the Director, or if the Director names a
spouse as beneficiary and the marriage is subsequently dissolved. If the
Director dies without a valid beneficiary designation, all payments shall be
made to the Director's surviving spouse, if any, and if none, to the Director's
surviving children and the descendants of any deceased child by right of
representation, and if no children or descendants survive, to the Director's
estate.
5.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Company may pay such benefit to the
guardian, legal representative or person having the care or custody of such
minor, incompetent person or incapable person. The Company may require proof of
incompetence, minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge the
Company from all liability with respect to such benefit.
Article 6. Claims and Review Procedures.
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6.1 Claims Procedure. The Company shall notify the Director's
beneficiary in writing, within ninety (90) days of his or her written
application for benefits, of his or her eligibility or non-eligibility for
benefits under the Agreement. If the Company determines that the beneficiary is
not eligible for benefits or full benefits, the notice shall set forth (i) the
specific reasons for such denial, (ii) a specific reference to the provisions of
the Agreement on which the denial is based, (iii) a description of any
additional information or material necessary for the claimant to perfect his or
her claim, and a description of why it is needed, and (v) an explanation of the
Agreement's claims review procedure and other appropriate information as to the
steps to be taken if the beneficiary wishes to have the claim reviewed. If the
Company determines that there are special circumstances requiring additional
time to make a decision, the Company shall notify the beneficiary of the special
circumstances and the date by which a decision is expected to be made, and may
extend the time for up to an additional ninety (90) day period.
6.2 Review Procedure. If the beneficiary is determined by the
Company not to be eligible for benefits, or if the beneficiary believes that he
or she is entitled to greater or different benefits, the beneficiary shall have
the opportunity to have such claim reviewed by the Company by filing a petition
for review with the Company within sixty (60) days after receipt of the notice
issued by the Company. Such petition shall state the specific reasons which the
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beneficiary believes entitle him or her to benefits or to greater or different
benefits. Within sixty (60) days after receipt by the Company of the petition,
the Company shall afford the beneficiary (and counsel, if any) an opportunity to
present his or her position to the Company orally or in writing, and the
beneficiary (or counsel) shall have the right to review the pertinent documents.
The Company shall notify the beneficiary of its decision in writing within the
sixty (60) day period, stating specifically the basis of its decision, written
in a manner calculated to be understood by the beneficiary and the specific
provisions of the Agreement on which the decision is based. If, because of the
need for a hearing, the sixty (60) day period is not sufficient, the decision
may be deferred for up to another sixty (60) day period at the election of the
Company, but notice of this deferral shall be given to the beneficiary.
Article 7. Amendment and Termination.
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7.1 At-will Termination. The Company may amend or terminate this
Agreement at-will at any time prior to the Director's Termination of Service by
written notice to the Director.
7.1.1 At-will termination of this Agreement shall cease all
future deferrals, but shall not accelerate the payment of benefits unless the
requirements of Section 7.1.2 are satisfied.
7.1.2 The following conditions must be satisfied in order
to accelerate the payment of benefits upon the Company's at-will termination of
this Agreement:
(1) All other arrangements sponsored by the
Company that would be aggregated with this Agreement under Prop. Reg. ss.
1.409A-1(c) if the Director participated in each other arrangement must also be
terminated;
(2) No payment of benefits may occur within 12
months of the termination of this Agreement and all other arrangements (other
than benefit payments that would be payable without regard to the termination);
(3) The entire Deferral Account must be paid to
the Director within 24 months of the termination; and
(4) For the five-year period following the date
of termination, the Company may not adopt a new arrangement that would be
aggregated as provided in condition (1) with any terminated arrangement.
7.2 Plan Termination Upon Dissolution or Bankruptcy. If the
Company terminates this Agreement within 12 months of a corporate dissolution
taxed under Code ss. 331, or at any time with the approval of a U.S. Bankruptcy
Court pursuant to 11 U.S.C. ss. 503(b)(1)(A), then the Director's Deferral
Account shall be paid to the Director and included in his gross income in the
latest of (i) the calendar year in which the plan termination occurs, (ii) the
calendar year in which the amount is no longer subject to a substantial risk of
forfeiture or (iii) the first calendar year in which the payment is
administratively practicable.
7.3 Plan Termination Upon a Change in Control. If the Company
terminates this Agreement within the 30 days preceding or the 12 months
following a Change in Control, then the Director's Deferral Account shall be
paid to the Director within 12 months of the date of termination. This Agreement
shall be treated as terminated under this Section 7.3 only if all substantially
similar arrangements sponsored by the Company are terminated, so that the
Director and all participants under substantially similar arrangements are
required to receive all amounts of compensation deferred under the terminated
arrangements within 12 months of the date of termination of the arrangements.
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Article 8. Miscellaneous.
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8.1 Binding Effect. This Agreement shall be binding upon the
Director and the Company, and their beneficiaries, survivors, executors,
administrators and transferees.
8.2 No Guaranty of Employment. This Agreement is not a contract
for services. It does not (i) give the Director the right to remain a director
of the Company, (ii) require the Director to remain a director, (iii) interfere
with the shareholders' rights to replace the Director, or (iv) interfere with
the Director's rights to terminate services at any time.
8.3 Non-Transferability. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any manner.
8.4 Tax Withholding. The Company shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
8.5 Governing Law. The Agreement and all rights hereunder shall be
governed by the laws of California and by applicable federal tax law.
8.6 Unfunded Arrangement. The Director and beneficiary are general
unsecured creditors of the Company for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Company to pay such
benefits. The rights to benefits are not subject to any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by creditors or beneficiaries of the Director. Any insurance on the
Director's life is a general asset of the Company to which the Director and
beneficiary have no preferred or secured claim.
8.7 Entire Agreement. This Agreement constitutes the entire
agreement between the Company and the Director as to the subject matter hereof.
This Agreement is intended to supersede any and all prior agreements between the
parties relating the subject matter hereof. No rights are granted to the
Director by virtue of this Agreement other than those specifically set forth
herein.
IN WITNESS WHEREOF, the Director and a duly authorized Company officer
have signed this Agreement as of the above written date.
AMERICAN RIVER BANKSHARES DIRECTOR
By
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Xxxxxxx X. Xxxx
Chairman of the
Board of Directors
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EXHIBIT A
TO
DEFERRED FEE AGREEMENT
Deferral Election
I elect to defer fees under my Deferred Fee Agreement with the American River
Bankshares, as follows:
======================================== ===================================== ==================================
Amount of Deferral Frequency of Deferral Duration
---------------------------------------- ------------------------------------- ----------------------------------
[Initial and Complete One] [Initial One] [Initial and Complete One]
________ I elect to defer ________ Beginning of Year ________ This Year Only
________ % of Fees
________ I elect to defer ________ Each fee period ________ For _____ years (not to
$_______ of Fees exceed 5 years) from the date of
the Agreement
________ I elect not to ________ End of Year
defer Fees
======================================== ===================================== ==================================
I understand that I may change the amount, frequency and duration of my
deferrals by filing a new election form with American River Bankshares;
provided, however, that any subsequent election will not be effective until the
calendar year following the year in which the new election is received by the
Company.
Form of Benefit
I elect to receive benefits under the Agreement in the following form: [Initial
One]
_____ Lump sum
Substantially equal monthly installments for:
_____ thirty-six (36) monthly installments with the amount of each
installment determined as of each installment date by dividing the
entire amount in my Deferral Account by the number of installments then
remaining to be paid, with the final installment to be the entire
remaining balance in the Deferral Account.
_____ sixty (60) monthly installments with the amount of each installment
determined as of each installment date by dividing the entire amount in
my Deferral Account by the number of installments then remaining to be
paid, with the final installment to be the entire remaining balance in
the Deferral Account.
_____ one hundred twenty (120) monthly installments with the amount of each
installment determined as of each installment date by dividing the
entire amount in my Deferral Account by the number of installments then
remaining to be paid, with the final installment to be the entire
remaining balance in the Deferral Account.
_____ one hundred eighty (180) monthly installments with the amount of each
installment determined as of each installment date by dividing the
entire amount in my Deferral Account by the number of installments then
remaining to be paid, with the final installment to be the entire
remaining balance in the Deferral Account.
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I understand that I may not change the form of benefit elected, even if I later
change the amount of my deferrals under the Agreement without written approval
of the Board of Directors of American River Bankshares.
Beneficiary Designation
I designate the following as beneficiary of benefits under the Deferred Fee
Agreement payable following my death:
Primary: _________________________________________
Contingent: ______________________________________
NOTE: To name a trust as beneficiary, please provide the name of the
trustee and the exact date of the trust agreement.
I understand that I may change these beneficiary designations by filing a new
written designation with American River Bankshares. I further understand that
the designations will be automatically revoked if the beneficiary predeceases
me, or, if I have named my spouse as beneficiary, in the event of the
dissolution of our marriage.
Signature: ________________________________
As of __________, 20__
Accepted by the American River Bankshares as of _________, 20__.
AMERICAN RIVER BANKSHARES
By:
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Xxxxxxx X. Xxxx
Chairman of the
Board of Directors
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