FEDERAL SIGNAL CORPORATION 1415 W. 22nd Street, Oak Brook, Illinois 60523-2004 Phone 630-954-2026 Fax 630-954-2138 Jennifer Sherman General Counsel isherman@federalsignal.com
Exhibit
10.4
FEDERAL SIGNAL CORPORATION
0000 X. 00xx Xxxxxx, Xxx Xxxxx, Xxxxxxxx 00000-0000
Phone 000-000-0000 Fax 000-000-0000
0000 X. 00xx Xxxxxx, Xxx Xxxxx, Xxxxxxxx 00000-0000
Phone 000-000-0000 Fax 000-000-0000
Xxxxxxxx Xxxxxxx
General Counsel
xxxxxxxx@xxxxxxxxxxxxx.xxx
General Counsel
xxxxxxxx@xxxxxxxxxxxxx.xxx
Xx. Xxxx Xxxxxxxxx
0000 XX 00xx Xxxxxxx
Xxxxx, XX 00000
0000 XX 00xx Xxxxxxx
Xxxxx, XX 00000
Re: Agreement to Continue to Provide Assistance in Legal Matters
Dear Marc:
This letter will confirm the agreement between yourself, on the one hand, and Federal Signal
Corporation and its subsidiaries and affiliated companies (collectively “the Company”), on the
other hand, regarding your continuing to provide assistance with respect to certain matters that
arise from or relate to your former employment with the Company, including your knowledge of the
businesses and industries with which the Company is involved. This Agreement is in recognition of
the unique level and types of information and knowledge you possess regarding certain of the legal
and business activities of the Company by virtue of your positions, responsibilities, and
experience. You and the Company acknowledge and agree that there is no one else currently employed
by the Company who has the same level and types of information, knowledge, and experience you
possess, and that your continuing availability and involvement on behalf of the Company is
necessary and desirable to assist the Company in ongoing business or legal matters that might
relate to your areas of knowledge. Accordingly, it is the parties’ understanding and intent that
communications and dealings with you under this Agreement be conducted in the same manner and on
the same confidential terms as if you were still a senior executive employee of the Company.
This Agreement shall cover assistance provided by you beginning on July 17, 2007 and shall continue
for a period of one year from that date. This Agreement may be extended by mutual agreement of you
and the Company and on such terms as are appropriate given the status of any relevant business or
legal matters ongoing as of that time.
In consideration for the compensation and other benefits provided hereunder, you agree to make
yourself available as often and on such terms as might be reasonably requested by the Company and
its counsel to participate in and/or consult regarding any legal matters, and to make yourself
reasonably available to consult regarding relevant business matters. The Company will provide as
much advance notice as possible regarding activities in any legal matter that might require your
involvement, and the Company and its counsel will make reasonable efforts to accommodate your
schedule where possible consistent with deadlines and other requirements in any legal matter.
In consideration for your agreement to make yourself available to participate and consult in the
legal and/or business matters as described above, and subject to your compliance with the terms and
conditions of the Release and Severance Agreement executed by you and dated September 26,2007, the
Company shall: (1) pay you, upon execution of this Agreement, an initial retainer amount of
$10,000; (2) compensate you at the rate of $200 per hour for consulting time; and (3) reimburse you
for actual out-of-pocket expenses incurred by you in providing
services under this Agreement.
Guaranteed minimum total compensation, excluding expense reimbursement, but including the retainer,
shall be $20,000 (equal to 100 hours of consulting time which is charged first against the
retainer). The parties reasonably believe you will spend 100 hours during the contract period
assisting the Company with respect to such matters. However, if by July 17,2008 you have not
received payment of at least $20,000, excluding expense reimbursement, the Company shall pay you on
July 18,2008, the difference between the amount you have received and $20,000. This amount is based
on the following factors: (1) the uniqueness of your information, knowledge, and experience as
described above and the fact that there is no current employee of the Company who possesses the
same level and types of information, knowledge, and experience as you do; (2) the reasonable value
of your time based on that of persons with similar abilities and experience; (3) the parties’
reasonable anticipation as to the amount of time you will be called on to spend during the contract
period on such legal and/or business matters; and (4) in light of the anticipated time you will be
called on to spend during the contract period, the lost opportunity cost (based on the reasonable
value of your time and experience) that you reasonably estimate you will incur due to your
inability to commit to fulfill other opportunities that have been or are likely to be offered to
you.
This Agreement is not intended as being compensation for any testimony you might be asked or
required to provide in any legal matters, but rather is in
recognition of (1) the Company’s need
to maintain access to your unique information and knowledge as described above; (2) the
reasonable value of your time and expenses now that you are no longer an employee of the Company,
and (3) certain lost opportunity costs to you based on the amount of time it is anticipated you
will be called on to spend regarding legal matters during the Agreement period.
Based on the foregoing, the parties intend that their communications regarding any legal matters
shall be treated as if you were still a senior executive employee of the Company, and that all
applicable legal privileges shall apply to their communications regarding such legal matters.
Accordingly, you agree to keep all communications regarding such legal matters confidential and
not to disclose such communications except as the Company might expressly authorize you to do so
or as might be required by law or by court order. To the extent the Company provides or discloses
to you any confidential or proprietary business information and/or documents during the course of
the activities contemplated hereunder, you further agree to keep all such information and/or
documents confidential and not to disclose such information and/or documents to any third parties
except as the Company might expressly authorize you to do so or as might be required by law or by
court order.
Please signify your acceptance of the terms of this Agreement by signing in the space indicated
below. Thank you for your cooperation.
Sincerely,
Federal Signal Corporation
/s/ Xxxxxxxx Xxxxxxx
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Xxxxxxxx Xxxxxxx |
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General Counsel |
ACCEPTED AND AGREED TO BY:
/s/ Xxxx Xxxxxxxxx
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This Release and Severance Agreement (the “Agreement”) will confirm the understanding of Federal
Signal Corporation and Xxxx X. Xxxxxxxxx (“Employee”) in connection with the termination of
Employee’s employment with E-One, Inc. (“E-One”) (Federal Signal Corporation and E-One are
collectively referred to herein as the “Company”). We have reached Agreement upon the following
arrangements.
The effective date of Employee’s separation from employment with the Company will be July 17,
2007 (the “Separation Date”). The Company agrees to pay Employee the following severance
benefits (“Severance Benefits”) pursuant to the Company’s Executive General Severance Plan: (1)
the sum of $498,108, which is an amount equal to the sum of (i) the Employee’s Base Salary, and
(ii) the Employee’s target annual bonus; and (2) the sum of $95,880, which is an amount equal to
the Employee’s unpaid prorated target annual bonus for the plan year in which the Separation
Date occurs; in each case, less any applicable taxes including federal employment
withholding taxes that are payable in connection with this amount. In accordance with IRS Code
provision 409A final regulations, this amount will be paid to Employee as salary continuation
over 12 months as equal monthly payments of approximately $49,499 (less applicable taxes).
Employee understands that as a condition of receiving these Severance Benefits under the
Company’s Executive General Severance Plan, the Employee is required to sign the general waiver
and release in the form included in this Agreement. No Severance Benefits will be paid to the
Employee until the release contained herein becomes irrevocable in accordance with its terms.
Employee further understands that any vacation pay or other wages due to Employee will be paid
separately with appropriate employment taxes withheld and the receipt of such wages is in no way
contingent upon the signing of this Agreement. Nothing herein shall change or have an effect on
any wages, pension, retirement or other employee benefits Employee may be entitled to under any
Company retirement or benefit program. Any monies owed the Company by Employee may be deducted
from the monies and the Severance Benefits, in accordance with applicable law. The Severance
Benefits shall not be considered or counted as “compensation” for purposes of any of the
Company’s welfare or pension benefit plans which provide benefits based, in any part, on
compensation
As further Severance Benefits, the Company also agrees to continue any applicable welfare benefits
of medical insurance, dental insurance and group term life insurance that Employee receives for 18
months following the Separation Date at the same premium cost, and at the same coverage level, as
were in effect as of the Employee’s Separation Date, pursuant to the terms of the Company’s
Executive General Severance Plan and COBRA. Employee must complete all necessary paperwork within
the prescribed time period in order to receive this benefit. Employee shall make monthly COBRA
premium payments in advance and shall send them to the Federal Signal Corporation office in Oak
Brook, Illinois. If Employee fails to make such COBRA payments, Employee’s COBRA coverage will be
cancelled. However, during the eighteen (18) months the Company continues the welfare benefits at
the active employee rate, in the event the premium cost and/or level of coverage shall change for
all employees of the Company, the cost and or coverage level, likewise, shall change in a
corresponding manner for Employee. In addition, the continuation of these welfare benefits shall be
discontinued prior to the end of the period described above if any required premium is not paid in
full on time, the employee becomes covered under another group health plan, the employee becomes
entitled to Medicare benefits (under Part A, Part B, or both), or the company ceases to provide any
group health plan for its employees. Continuation may also be terminated for any reason the plan
providing such coverage would terminate coverage of a participant or an eligible dependent.
The Company makes this Agreement to avoid the cost of defending any possible lawsuit. Employee
acknowledges mat by making this Agreement the Company does not admit that it has done anything
wrong. Employee understands that he has a period of forty-five (45) days to review and consider
this
Agreement before signing it. He may use as much of this 45-day period as he wishes in making his
decision. Employee further acknowledges that he may revoke the signed Agreement within seven (7)
days after its signing. Any such revocation must be in writing and received by Xxxxxxxx Xxxxxxx
in the legal department at Federal Signal Corporation in Oak Brook, Illinois within the seven (7)
day period. Payment of the Severance Benefits described above will only begin after this
Agreement becomes binding which takes place when the revocation period runs out seven days after
the date of Employee’s signature.
Employee is strongly encouraged to consult with an attorney before signing this Agreement,
however, whether he does so or not is his decision. Employee acknowledges that he has been
advised that he should be represented by an attorney throughout the negotiation of the terms of
this Agreement.
(1) General Release. I, on behalf of myself and my heirs, executors, administrators,
attorneys and assigns, hereby waive, release and forever discharge the Company and its
subsidiaries, divisions and affiliates, whether direct or indirect, its and their joint ventures
and joint venturers (including its and their respective directors, officers, employees,
shareholders, partners and agents, past, present, and future), and each of its and their
respective successors and assigns (hereinafter collectively referred to as “Releasees”), from any
and all known or unknown actions, causes of action, claims or liabilities of any kind which have
been or could be asserted against the Releasees arising out of or related to my employment with
and/or separation from employment with the Company and/or any of the other Releasees and/or any
other occurrence up to and including the date of this Agreement, including but not limited to:
| (a) | claims, actions, causes of action or liabilities arising
under Title VII of the Civil
Rights Act, as amended, the Age Discrimination in Employment Act, as
amended
(“ADEA”), the Employee Retirement Income Security Act, as amended, the
Rehabilitation Act, as amended, the Americans with Disabilities Act, the
Family
and Medical Leave Act (to the extent permitted by law), and/or any other
federal,
state, municipal, or local employment discrimination statutes (including,
but not
limited to, claims based on age, sex, attainment of benefit plan rights,
race,
religion, national origin, marital status, sexual orientation, ancestry,
harassment,
parental status, handicap, disability, retaliation, and veteran status);
and/or |
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| (b) | claims, actions, causes of action or liabilities arising
under any other federal,
state, municipal, or local statute, law, ordinance or regulation; and/or |
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| (c) | any other claim whatsoever including, but not limited to,
claims for severance
pay under any voluntary or involuntary severance/separation plan, policy or
program maintained by the Releasees, claims for attorney’s fees, claims
based
upon breach of contract, wrongful termination, defamation, intentional
infliction
of emotional distress, tort, personal injury, invasion of privacy,
violation of
public policy, negligence and/or any other common law, statutory or other
claim
whatsoever arising out of or relating to my employment with and/or
separation
from employment with the Company and/or any of the other Releasees; |
but excluding claims which I may make under state workers’ compensation or unemployment laws,
and/or any claims which by law I cannot waive. Specifically excluded from this General Release is my
right to file a charge with an administrative agency or participate in any agency investigation.
I am,
however, waiving my right to recover money in connection with such a charge or investigation. I am
also
waiving my right to recover money in connection with a charge filed by any other individual or by
the
Equal Employment Opportunity Commission or any other federal or state agency.
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(2) Covenant Not To Xxx. In addition to and apart from the General Release contained
in paragraph (1) above, I also agree never to xxx any of the Releasees or become a party to a
lawsuit on the basis of any claim of any type whatsoever arising on or prior to the date of this Agreement
out of or related to my employment with and/or separation from employment with the Company and/or any of
the other Releasees, other than a lawsuit to challenge this Agreement under the ADEA.
(3) Further Release And Acknowledgment. To the extent permitted by law, I further
waive my right to any monetary recovery should any federal, state, or local administrative agency
pursue any claims on my behalf arising out of or related to my employment with and/or separation from
employment with the Company and/or any of the other Releasees. I also acknowledge that I have not
suffered any on-the-job injury for which I have not already filed a claim. I acknowledge and agree that the
Company’s provision of the Severance Benefits to me and my signing of the Agreement does not in any way
indicate that I have any viable claims against the Company or that the Company has or admits any
liability to me whatsoever.
(4) Reemployment/Consulting Arrangement.. To the extent permitted by law, I further
waive, release, and discharge Releasees from any reinstatement rights which I have or could
have. I
further acknowledge and agree that I will not seek employment with the Company and/or any
other of the
Releasees following the date of my separation from employment. Notwithstanding anything to
the
contrary stated above, simultaneous with the execution of this Agreement, the Company and I
are
entering into a consulting agreement for a one-year period, which is more specifically
described in
paragraph (5) below..
(5) Non-Disparagement,
Confidentiality, Cooperation, Non-Competition,
Non-Solicitation. I
promise that I shall not at any time or in any way disparage the Company and/or any of the
other
Releasees to any person, corporation, entity or other third party whatsoever. Also, the
Company and/or
any of the other Releasees promise, individually and in the aggregate, that they shall not at
any time
disparage the Employee to any person, corporation, entity, or other
third party whatsoever.
I agree from and after today to keep strictly confidential the existence and terms of this
Agreement, and I further agree that I will not disclose them to any
person or entity, other than to
my immediate family, my attorney, and my financial advisor, or except as may be required by law.
I acknowledge that after my Separation Date I shall not represent myself to be an employee of
the Company nor take any action which may bind the Company with regard to any customer, supplier,
vendor or any other party with whom I have had contact while performing my duties as an employee of
the Company.
I further agree that from and after today I shall not take any actions or make any statements
to the public, future employers, current, former or future Company employees, or any other third
party whatsoever that disparage or reflect negatively on the Company, and its affiliates, and its
and their officers, directors, or employees.
I further agree that for a period of one (1) year following the Separation Date, I will not, without
the prior written consent of the Company, engage directly or indirectly (as an employee, consultant,
independent contractor, officer, or in any other capacity) in any business or enterprise which is in
competition with the Company or its successors or assigns. A business or enterprise will be deemed
to be
in competition if it is engaged in any significant business activity of the Company or its
subsidiaries
within the United States of America. For a one (1) year period following the Separation Date, I
further
agree that I will not, directly or indirectly, hire away or participate or assist in the hiring
away of any
person employed by the Company or its affiliates on my Separation Date and I will not solicit nor
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encourage any person employed by the Company or its affiliates on or after my Separation Date to
leave the employ of the Company or its affiliates.
I further agree from and after today to make myself available to the Company and its legal
counsel to provide reasonable cooperation and assistance to the Company with respect to areas
and matters in which I was involved during my employment, including any threatened or actual
investigation, regulatory matter and/or litigation concerning the Company, and to provide to the
Company, if requested, information and counsel relating to ongoing matters of interest to the
Company. For the first year following the Separation Date hereunder, the terms of my assistance
will be governed by that certain letter agreement dated September 26, 2007, between myself and
the Company (“Consultant Letter Agreement”), and in the event of any conflict between the terms
of this paragraph and the Consultant Letter Agreement, the terms of the Consultant Letter
Agreement will control. The Company will, of course, take into consideration my personal and
business commitments, will give me as much advance notice as reasonably possible, and ask that I
be available at such time or times as are reasonably convenient to me and the Company. The
Company agrees to reimburse me for the actual out-of-pocket expenses I incur as a result of my
complying with this provision, subject to my submission to the Company of documentation
substantiating such expenses as the Company may require.
Proprietary information, confidential business information and trade secrets (hereinafter
collectively “Confidential Information”) which became known to me as an employee of the Company
remains the property of the Company. Such Confidential Information includes, but is not limited
to, materials, records, books, products, business plans, business proposals, software, personnel
information and data of the Company and its affiliates and its customers, but excludes
information which is generally known to the public or becomes known except through my actions. I
agree from and after today that I will not at any time, directly or indirectly, disclose
Confidential Information to any third party or otherwise use such Confidential Information for
my own benefit or the benefit of others. Also, I acknowledge that I remain bound by the terms
and conditions of the applicable provisions of the Company’s Code of Business Conduct.
I acknowledge that the provisions of this Paragraph 5 are reasonable and not unduly
restrictive of my rights as an individual and I warrant that as of the date I sign this Agreement
I have not breached any of the provisions of this Paragraph 5.
I further acknowledge that in the
event that I breach any of the provisions of this Paragraph 5, such breach will result in
immediate and irreparable harm to the business and goodwill of the Company and that damages, if
any, and remedies at law for such breach would be inadequate. The Company shall, therefore, be
entitled to apply without bond to any court of competent jurisdiction for an injunction to
restrain any violation of this Paragraph 5 by me and for such further relief as the court may
deem just and proper.
(6) Consequences
of Breach of Covenant Not To Xxx, Breach of Covenant Not To Seek
Reinstatement or Reemployment, or Breach of Non-Disparagement,
Confidentiality, Cooperation,
Non-Competition and Non-Solicitation Provisions. I further acknowledge and agree in the event
that I breach the provisions of paragraphs (2), (4) or (5) above, (a) the Company will be subject
to irreparable injury and shall be entitled to apply for without bond and receive an injunction to
restrain any such violation(s) and for such further relief as the courts may deem just and proper,
(b) the Company shall not be obligated to continue the availability or payment of Severance
Benefits to me, (c) I shall be obligated to pay to the Company its costs and expenses to enforce
my obligations and the Company’s rights under this Agreement (including court costs, expenses and
reasonable legal fees), and (d) as an alternative to (c), at the Company’s option, I shall be
obligated upon demand to repay to the Company all but $500.00 of the Severance Benefits paid or
provided to me, and the foregoing shall not affect the validity of this Agreement and shall not be
deemed to be a penalty nor a forfeiture. The Company agrees in the event that the Company and/or
any of the other Releasees breach the non-disparagement provision in paragraph
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(5) above, as adjudicated by a court of competent jurisdiction or an award of the arbitrator in
accordance with paragraph (13) below, the Company shall be obligated to pay to the Employee his
costs and expenses, including reasonable legal fees, incurred by Employee to enforce his rights
under paragraph (5) above.
Not withstanding the foregoing, the Company’s determination that Employee breached the provisions
of paragraphs (2), (4) or (5) above shall be communicated to Employee, by written Notice of
Breach, at least 6 business days prior to the date the Company takes any action under this
paragraph (6) (b) (c) and (d). The written Notice of Breach shall indicate the specific
provision(s) of paragraphs (2), (4) or (5) claimed to be breached and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for determination that a
breach has occurred.
(7) Company Property/Expenses. I agree to promptly return to the Company (as soon as
practicable following the Separation Date) all Company property, including, but not limited
to, Company
car, cell phone, information technology equipment, documents and records and other physical
or personal
property of the Company in my possession or control, and agree not to keep, transfer or use
copies or
excerpts of the foregoing items. I agree that all business expenses for which I am entitled
to
reimbursement are documented and submitted for approval on a timely basis and any final
expenses are
submitted within ten (10) days after the Separation Date.
(8) Time to Consider Agreement. I acknowledge that I have been given at least
forty-five
(45) days to consider this Agreement thoroughly and I was encouraged to consult with my
personal
attorney at my own expense, if desired, before signing below. I further agree that any
changes made to
this Agreement will not restart the running of the 45-day period referenced herein.
(9) Time
to Revoke Agreement. I understand that I may revoke this Agreement within
seven
(7) days after its signing and that any revocation must be made in writing and submitted
within such
seven day period to Xxxxxxxx Xxxxxxx, General Counsel,, Federal Signal Corporation, 0000 Xxxx
00xx
Xxxxxx, Xxxxx 0000, Xxx Xxxxx, XX 00000. I further understand that if I revoke this
Agreement, I shall
not receive the Severance Benefits.
(10) Consideration.
I also understand that the Severance Benefits which I will
receive in
exchange for signing and not later revoking this Agreement are in addition to anything of
value to which I
am already entitled.
(11) RELEASE INCLUDES UNKNOWN CLAIMS. I FURTHER UNDERSTAND THAT
THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS
ARISING ON OR PRIOR TO THE DATE OF THIS AGREEMENT. NOTHING CONTAINED
HEREIN SHALL BE CONSTRUED AS A WAIVER, RELEASE, BAR TO, AND/OR PROHIBITION
AGAINST ANY CLAIM BY ME TO ENFORCE THE TERMS OF THIS AGREEMENT.
(12) Severability. I acknowledge and agree that if any provision of this Agreement is
found,
held or deemed by a court of competent jurisdiction to be void, unlawful or unenforceable
under any
applicable statute or controlling law, the remainder of this Agreement shall continue in full
force and
effect.
(13) Governing
Law. This Agreement is deemed made and entered into in the State
of illinois, and in all respects shall be interpreted, enforced and governed under applicable federal
law and in
the event reference shall be made to State law the internal laws of the State of Delaware shall
apply,
without reference to its conflict of law provisions. Any dispute under this Agreement shall be
adjudicated
by a court of competent jurisdiction in the State of Illinois. Notwithstanding the foregoing, in
accordance
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with Article 6.2 of the Executive General Severance Plan dated November 2006 (the “Plan”), the
Parties shall have the right and option (in lieu of litigation) to have any dispute or controversy
arising under or in connection with the Plan settled by arbitration, subject to the limitations
set forth in Article 6.2.
(14) Knowing
And Voluntary Waiver and Release. I further acknowledge and agree
that I
have carefully read and fully understand all of the provisions of this Agreement and that I
voluntarily
enter into this Agreement by signing below. I am encouraged to consult with an attorney of my
choice at
my own expense prior to signing this Agreement.
(15) General Matters. I acknowledge and agree that in signing this Agreement I do not
rely
and have not relied on any representation or statement by the Company or by its employees,
agents,
representatives, or attorneys with regard to the subject matter, basis or effect of this
Agreement.
The language of all parts of this Agreement shall be construed according to its fair meaning,
and not strictly for or against either party. The provisions of this Agreement shall survive any
termination of this Agreement when necessary to effect the intent and terms of this Agreement
expressed herein.
No modification of any provision of this Agreement shall be effective unless made in writing
and
signed by me and a duly authorized senior executive of the Company. This Agreement shall not
be
assignable by me.
| /s/ Xxxx Xxxxxxxxx
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| 9/26/07 | ||||
| /s/ Xxxxxxx Xxxx
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| (Witness) | ||||
| /s/ Xxxxxxxx X. Xxxxxxx | ||||
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STATE OF
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Florida | ) | ss | |
COUNTY OF
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Xxxxxx
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The undersigned, notary public in and for the above county and state, certifies that
Xxxx Xxxxxxxxx, known to me to be the same person whose name is
subscribed to the foregoing Agreement, appeared before me in person and acknowledged signing and
delivering the instrument as his/her free and voluntary act, for the uses and purposes therein set
forth.
Dated:
9-26-2007
| /s/ Xxxxxxx Xxxxxx
|
Date
Commission Expires: 6-2-2011
| Notary Public
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| Residing in | Xxxxxx | County, | FL | |||||||
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