Exhibit 10.21
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of November 18, 1998, is by and between
INTERIM SERVICES INC., a Delaware corporation (hereinafter referred to as the
"Company"), and XXXXXX XXXXX (hereinafter the "Executive").
RECITALS
A. The Executive currently serves as the Company's Vice President
and Chief Information Officer, and his services and knowledge are valuable to
the Company in connection with the management of its business.
B. The Company desires to continue to employ the Executive and to
enter into a new agreement embodying the terms of such employment.
C. The Executive desires to continue the Executive's employment
and to enter into a new agreement embodying the terms of such employment.
AGREEMENTS
NOW, THEREFORE, to induce the Executive to remain in the employ of
the Company and its subsidiaries, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Company and the Executive agree as follows:
1. EMPLOYMENT.
During the Term of Employment (as defined in Section 2 hereof), the
Executive shall serve as Vice President and Chief Information Officer. The
Executive shall perform and assume all duties and responsibilities customary
to such position and shall devote all of his business time and energies
thereto. In carrying out such duties and responsibilities, the Executive
shall report to, and be subject to the direction of, the Chief Executive
Officer and the Board of Directors of the Company (the "Board").
2. TERM.
The Term of Employment under this Agreement shall commence as of
the date of this Agreement and shall continue at the will of the Company and
the Executive (the "Term of Employment"). Either party may terminate the
Executive's employment at any time and for any reason.
3. BASE SALARY.
The Company shall pay the Executive, in accordance with the
Company's regular payroll practices applicable to salaried employees, an
annualized base salary at the rate in effect on the date of this Agreement,
as the same may from time to time be increased or decreased at
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the sole discretion of the Compensation Committee of the Board (the
"Compensation Committee").
4. INCENTIVE AWARDS.
a) The Executive shall participate in the Company's annual
incentive plan for senior-level executives as in effect from time to time,
subject to the performance standards set by the Compensation Committee.
Payment of any annual incentive award shall be made at the same time that
such awards are paid to other senior-level executives of the Company. The
Executive's annual incentive award target shall be set by the Compensation
Committee.
b) The Executive shall be eligible to receive grants under the
Company's long-term incentive plan as in effect from time to time; provided,
however, that the size, type and other terms and conditions of any such grant
to the Executive shall be determined by the Compensation Committee.
5. BENEFITS, FRINGES AND PERQUISITES.
The Executive shall be entitled to participate in all employee
pension and welfare benefit, fringe benefit and perquisite plans and programs
made available to the Company's senior-level executives as in effect from
time to time.
6. VACATION.
The Executive shall be entitled to vacation in accordance with the
Company's vacation policy applicable to its senior-level executives.
Vacations shall be arranged in order that they not materially interfere with
the normal functioning of the Company's business activities or the
performance of the Executive's duties hereunder.
7. BUSINESS EXPENSES.
The Company shall reimburse the Executive for any ordinary,
necessary and reasonable business expenses that the Executive incurs in
connection with the performance of his duties under this Agreement, in
accordance with the Company's policy regarding the reimbursement of business
expenses.
8. TERMINATION OF EMPLOYMENT.
a) DEATH OR DISABILITY. The Executive's employment shall
terminate upon the Executive's Death, and Company may terminate the
Executive's employment due to Disability (as defined herein). If, during the
Term of Employment, the Executive's employment is terminated due to Death or
Disability, the Executive (or Executive's estate or legal representative, as
the case may be) shall be entitled to receive:
i) Executive's base salary through the date of such
termination of employment at the rate in effect at the time thereof;
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ii) an amount, payable at the same time that annual incentive
awards for the year in which the Executive's employment so terminates
are paid to senior-level executives of the Company, equal to the product
of the Executive's annual incentive award target for such year and a
fraction, the numerator of which is the number of days in such year
through the date of such termination of employment, and the denominator
of which is 365; provided, however, that no such amount shall be paid to
the Executive (or to Executive's estate or legal representative, as the
case may be) if annual incentive awards for such year are not paid to
senior-level executives of the Company generally;
iii) reimbursement for expenses incurred by the Executive in
accordance with the Company's policy but not reimbursed prior to the
date of such termination of employment;
iv) any vested deferred base salary and annual incentive
awards (including, without limitation, interest or other credits on such
deferred amounts); and
v) any other compensation or benefits that may be owed or
provided to the Executive in accordance with the terms and conditions of
any applicable plans and programs of the Company.
For purposes of this Agreement, "Disability" shall mean the Executive's
inability, by reason of illness or other physical or mental disability, to
perform the principal duties required by the position held by the Executive
at the inception of such illness or disability, for any consecutive 180-day
period. A determination of Disability shall be subject to the certification
of a qualified medical doctor agreed to by the Company and the Executive or,
in the Executive's incapacity to designate a doctor, the Executive's legal
representative. If the Company and the Executive cannot agree on the
designation of a doctor, then each party shall nominate a qualified medical
doctor and the two doctors shall select a third doctor, and the third doctor
shall make the determination as to Disability.
b) FOR CAUSE. The Company may terminate the Executive's
employment for Cause (as defined herein) if the Board determines that Cause
exists and serves written notice of such termination to the Executive. If,
during the Term of Employment, the Company terminates the Executive's
employment for Cause, all of the Executive's annual incentive awards,
long-term incentive awards, stock options and other stock or long-term
incentive grants which are not then vested or not then exercisable shall be
canceled as of the date of the Board's written notice of termination, and the
Executive shall be entitled to receive:
i) Executive's base salary through the date of such
termination of employment at the rate in effect at the time thereof;
ii) reimbursement for expenses incurred by the Executive in
accordance with the Company's policy but not reimbursed prior to the
date of such termination of employment;
iii) any vested deferred base salary and vested annual
incentive awards (including, without limitation, interest or other
credits on such deferred amounts but not
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including unvested bonuses or amounts payable for the year in which the
Board's written notice of termination for Cause is made, or unvested
bonuses or amounts payable after the Board's written notice of
termination for Cause is made); and
iv) any other compensation or benefits that may be owed or
provided to the Executive in accordance with the terms and conditions of
any applicable plans and programs of the Company.
The Executive shall be entitled to receive no other compensation or
benefits, whether pursuant to this Agreement or otherwise, except as and
to the extent required by law.
For purposes of this Agreement, "Cause" shall mean one or more of
the following:
(I) the material violation of any of the terms and conditions of
this Agreement or any written agreements the Executive may from time to
time have with the Company (after 30 days following written notice from
the Board specifying such material violation and Executive's failure to
cure or remedy such material violation within such 30-day period);
(II) inattention to or failure to perform Executive's assigned
duties and responsibilities competently for any reason other than due to
Disability (after 30 days following written notice from the Board
specifying such inattention or failure, and Executive's failure to cure
or remedy such inattention or failure within such 30-day period);
(III) engaging in activities or conduct injurious to the
reputation of the Company or its affiliates including, without
limitation, engaging in immoral acts which become public information or
repeatedly conveying to one person, or conveying to an assembled public
group, negative information concerning the Company or its affiliates;
(IV) commission of an act of dishonesty, including, but not limited
to, misappropriation of funds or any property of the Company;
(V) commission by the Executive of an act which constitutes a
misdemeanor (involving an act of moral turpitude) or a felony;
(VI) the material violation of any of the Policies referred to in
Section 9 hereof (after 30 days following written notice from the Board
specifying such failure, and the Executive's failure to cure or remedy
such inattention or failure within such 30-day period);
(VII) refusal to perform the Executive's assigned duties and
responsibilities or other insubordination (after 30 days following
written notice from the Board specifying such refusal or
insubordination, and the Executive's failure to cure or remedy such
refusal or insubordination within such 30-day period); or
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(VIII) unsatisfactory performance of duties by the Executive as
a result of alcohol or drug use by the Executive.
c) WITHOUT CAUSE. The Company may terminate the Executive's
employment without Cause. If, during the Term of Employment, the Company
terminates the Executive's employment without Cause, other than due to
Disability, then in lieu of any amount otherwise payable under this
Agreement, or as damages for termination of Executive's employment without
Cause, the Executive shall be entitled to receive:
i) Within thirty (30) days of the date of the Board's
written notice of termination without Cause, a lump sum cash severance
payment (reduced by any applicable payroll or other taxes required to be
withheld) equal to the sum of the Executive's annual salary for the
current year plus his target bonus for the current year (provided that
if the notice of termination is given prior to the determination of the
Executive's salary or target bonus for the year in which the notice of
termination is given, then the amounts shall be the annual salary for
the prior year and the greater of the target bonus for the prior year or
the actual bonus earned by the Executive for the prior year). The
current year shall be (A) for purposes of determining annual salary, the
year then generally used by the Company for setting salaries for
senior-level executives (currently April 1 through the following March
31), and (B) for purposes of determining target bonus, the fiscal year
then generally used by the Company for setting target bonuses for
senior-level executives, in which the Board gives the Executive written
notice of termination, and the prior year shall be the twelve-month
period immediately preceding the current year.
ii) Reimbursement for expenses incurred by the Executive in
accordance with the Company's policy but not reimbursed prior to the
date of such termination of employment.
iii) Any vested deferred base salary and annual incentive
awards (including, without limitation, interest or other credits on such
deferred amounts).
iv) Any other compensation or benefits that may be owed or
provided to the Executive in accordance with the terms and conditions of
any applicable plans and programs of the Company.
If the Company terminates Executive's employment without Cause, any
vesting or service requirements with respect to any employee stock
options granted to the Executive and then outstanding shall be deemed
satisfied.
d) VOLUNTARY TERMINATION. If, during the Term of Employment, the
Executive terminates his employment other than due to Retirement, the Executive
shall be entitled to receive:
i) Executive's base salary through the date of such
termination of employment at the rate in effect at the time thereof;
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ii) reimbursement for expenses incurred by the Executive in
accordance with the Company's policy but not reimbursed prior to the
date of such termination of employment;
iii) any vested deferred base salary and annual incentive
awards (including, without limitation, interest or other credits on such
deferred amounts); and
iv) no other compensation or benefits except as and to the
extent required by law.
e) INELIGIBILITY FOR SEVERANCE PLAN PAYMENTS. Anything in this
Agreement to the contrary notwithstanding, Executive shall not be entitled to
any payment under any of the Company's severance plans, programs or
arrangements.
9. COMPANY POLICIES.
The Executive shall strictly follow and adhere to all written
policies of the Company which are not inconsistent with this Agreement or
applicable law including, without limitation, securities laws compliance
(including, without limitation, use or disclosure of material nonpublic
information, restrictions on sales of Company stock, and reporting
requirements), conflicts of interest (including, without limitation, doing
business with the Company or its affiliates without the prior approval of the
Board), and employee harassment.
10. CONFIDENTIALITY.
The Executive will not at any time (whether during or after
Executive's employment with the Company) disclose or use for Executive's own
benefit or purposes, or for the benefit or purpose of any other person, firm,
partnership, joint venture, association, corporation or other business
organization, entity or enterprise, any trade secrets, information, data, or
other confidential information relating to customers, employees, job
applicants, services, development programs, prices, costs, marketing,
trading, investment, sales activities, promotion, processes, systems, credit
and financial data, financing methods, plans, proprietary computer software,
request for proposal documents, or the business and affairs of the Company
generally, or of any affiliate of the Company; provided, however, that the
foregoing shall not apply to information which is generally known to the
industry or the public other than as a result of the Executive's breach of
this covenant. The Executive agrees that upon termination of his employment
with the Company for any reason, he will return to the Company immediately
all memoranda, books, papers, plans, information, letters and other data, and
all copies thereof or therefrom (whether in written, printed or electronic
form), in any way relating to the business of the Company and its affiliates.
The Executive acknowledges and agrees that the Company's remedies at law
for a breach or threatened breach of any of the provisions of this Section
would be inadequate and, in recognition of this fact, the Executive agrees
that, in the event of such a breach or threatened breach, in addition to any
remedies at law, the Company, without posting any bond, shall be
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entitled to obtain equitable relief in the form of specific performance, a
temporary restraining order, a temporary or permanent injunction or any other
equitable remedy which may then be available.
11. COVENANT NOT TO COMPETE.
a) IN GENERAL. The Executive agrees that during Executive's
employment with the Company and for a period of one (1) year after the
termination of such employment for whatever reason (the "Non-Compete
Period"), he shall not, anywhere in the world:
i) engage in any business, whether as an employee,
consultant, partner, principal, agent, representative or stockholder
(other than as a stockholder of less than a one percent (1%) equity
interest) or in any other corporate or representative capacity with any
other business, whether in corporate, proprietorship, or partnership
form or otherwise, where such business is engaged in any activity which
competes with the business of the Company or its affiliates as conducted
on the date the Executive's employment terminated or during the 180 day
period prior thereto, or which will compete with any proposed business
activity of the Company in the planning stage on such date or during
such period;
ii) solicit business from, or perform services for, or induce
others to perform services for, any company or other business entity
which at any time during the one (1) year period immediately preceding
the Executive's termination of employment with the Company was a client
of the Company or its affiliates; or
iii) offer, or cause to be offered, employment with any
business, whether in corporate, proprietorship, or partnership form or
otherwise, either on a full-time, part-time or consulting basis, to any
person who was employed by the Company or its affiliates or for whom the
Company or its affiliates performed outplacement services, in either
case at any time during the one (1) year period immediately preceding
the date the Executive's termination of employment with the Company.
For purposes of this Agreement, affiliates of the Company include
subsidiaries 50% or more owned by the Company and the Company's
franchisees and licensees.
b) CONSIDERATION. The consideration for the foregoing covenant
not to compete, the sufficiency of which is hereby acknowledged, is the
Company's agreement to employ the Executive and provide compensation and
benefits pursuant to this Agreement.
c) EQUITABLE RELIEF AND OTHER REMEDIES. The Executive
acknowledges and agrees that the Company's remedies at law for a breach or
threatened breach of any of the provisions of this Section would be
inadequate and, in recognition of this fact, the Executive agrees that, in
the event of such a breach or threatened breach, in addition to any remedies
at law, the Company, without posting any bond, shall be entitled to obtain
equitable relief in the form of specific performance, temporary restraining
order, a temporary or permanent injunction or any other equitable remedy
which may then be available.
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d) REFORMATION. If the foregoing covenant not to compete would
otherwise be determined invalid or unenforceable by a court of competent
jurisdiction, such court shall exercise its discretion in reforming the
provisions of this Section to the end that the Executive be subject to a
covenant not to compete, reasonable under the circumstances, enforceable by
the Company.
12. COMPANY POLICIES, PLANS AND PROGRAMS.
Whenever any rights under this Agreement depend on the terms of a
policy, plan or program established or maintained by the Company, any
determination of these rights shall be made on the basis of the policy, plan
or program in effect at the time as of which the determination is made. No
reference in this Agreement to any policy, plan or program established or
maintained by the Company shall preclude the Company from prospectively or
retroactively changing or amending or terminating that policy, plan or
program or adopting a new policy, plan or program in lieu of the
then-existing policy, plan or program.
13. BINDING AGREEMENT; SUCCESSORS.
a) This Agreement shall be binding upon and shall inure to the
benefit of the Company and its successors and assigns. The Company shall
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to agree to all or substantially all of the
business and/or assets of the Company, by agreement to assume expressly and
agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession had
taken place. For purposes of this Agreement, "Company" shall mean the Company
as hereinbefore defined and any successor to its business and/or assets as
aforesaid.
b) This Agreement shall be binding up and shall inure to the
benefit of the Executive and the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
beneficiaries, devises and legatees. If the Executive should die while any
amounts are payable to him hereunder, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement
to the Executive's devisee, legatee, beneficiary or other designee or, if
there be no such designee, to the Executive's estate.
14. CHANGE IN CONTROL AGREEMENTS. Simultaneously with the
execution and delivery of this Agreement, the Company and the Executive have
executed and delivered a Change In Control Agreement ("C-I-C Agreement"),
which applies under the circumstances and during the period described
therein. If circumstances arise which cause both the C-I-C Agreement and
this Agreement to apply to the Company and the Executive, then, to the extent
of any inconsistency between the provisions of this Agreement and the C-I-C
Agreement, the terms of the C-I-C Agreement alone shall apply. However, if
the C-I-C Agreement does not apply (as, for example, if there is no Change in
Control as described therein, or the C-I-C Agreement has expired, or the
C-I-C Agreement simply does not apply), then the provisions of this Agreement
shall control and be unaffected by the C-I-C Agreement.
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15. NOTICES.
For the purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given (i) on the date of delivery if delivered by hand, (ii)
on the date of transmission, if delivered by confirmed facsimile, (iii) on
the first business day following the date of deposit if delivered by
guaranteed overnight delivery service, or (iv) on the third business day
following the date delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
Xxxxxx Xxxxx
000 XX Xxxxxx Xxxxxxxxx, #000
Xxxx Xxxxx, XX 00000
If to the Company:
Interim Services Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
16. GOVERNING LAW.
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Florida, without
regard to principles of conflicts of laws.
17. ENTIRE AGREEMENT; AMENDMENT.
This Agreement and the C-I-C Agreement contain the entire agreement
between the parties concerning the subject matter hereof and supersede all
prior agreements, understandings, discussions, negotiations and undertakings,
whether written or oral, between the parties with respect to the subject
matter hereof. No provisions of this Agreement may be amended, modified,
waived or discharged unless such amendment, waiver, modification or discharge
is agreed to in writing signed by the Executive and the Company. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement.
18. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which will constitute one
and the same instrument.
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19. NON-ASSIGNABILITY.
This Agreement is personal in nature and neither of the parties
hereto shall, without the consent of the other, assign, or transfer this
Agreement or any rights or obligations hereunder, except as provided in
Section 13. Without limiting the foregoing, the Executive's right to receive
payments hereunder shall not be assignable or transferable, whether by
pledge, creation of a security interest or otherwise, other than a transfer
by his will or trust or by the laws of descent or distribution, and in the
event of any attempted assignment or transfer contrary to this paragraph the
Company shall have no liability to pay any amount so attempted to be assigned
or transferred.
20. RESOLUTION OF DISPUTES.
a) The parties shall submit any claim, demand, dispute, charge or
cause of action (in any such case, a "Claim") arising out of, in connection
with, or relating to this Agreement to binding arbitration in conformance
with the J*A*M*S/ENDISPUTE Streamlined Arbitration Rules and Procedures or
the J*A*M*S/ENDISPUTE Comprehensive Arbitration Rules and Procedures, as
applicable, but expressly excluding Rule 28 of the J*A*M*S/ ENDISPUTE
Streamlined Rules and Rule 32 of the J*A*M*S/ENDISPUTE Comprehensive Rules,
as the case may be. All arbitration procedures shall be held in Fort
Lauderdale, Florida and shall be subject to the choice of law provisions set
forth in Section 16 of this Agreement.
b) In the event of any dispute arising out of or relating to this
Agreement for which any party is seeking injunctive relief, specific
performance or other equitable relief, such matter may be resolved by
litigation. Accordingly, the parties shall submit such matter to the
exclusive jurisdiction of the United States District Court for the Southern
District of Florida or, if jurisdiction is not available therein, any other
court located in Broward County, Florida, and hereby waive any and all
objections to such jurisdiction or venue that they may have. Each party
agrees that process may be served upon such party in any manner authorized
under the laws of the United States or Florida, and waives any objections
that such party may otherwise have to such process.
21. NO SETOFF.
The Company shall have no right of setoff or counterclaim in
respect of any claim, debt or obligation against any payment provided for in
this Agreement.
22. NON-EXCLUSIVITY OF RIGHTS.
Nothing in this Agreement shall prevent or limit the Executive's
continuing or future participation in any benefit, bonus, incentive or other
plan or program provided by the Company or any of its subsidiaries or
successors and for which the Executive may qualify, nor shall anything herein
limit or reduce such rights as the Executive may have under any other
agreements with the Company or any of its subsidiaries or successors.
Amounts which are vested benefits or which the Executive is otherwise
entitled to receive under any plan or program of the Company or any of its
subsidiaries shall be payable in accordance with such plan or program, except
as explicitly modified by this Agreement.
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23. WITHHOLDING.
The Company may withhold from any amounts payable under this
Agreement such federal, state and local taxes as are required to be withheld
(with respect to amounts payable hereunder or under any benefit plan or
arrangement maintained by the Company) pursuant to any applicable law or
regulation.
24. INVALIDITY OF PROVISIONS.
In the event that any provision of this Agreement is adjudicated to
be invalid or unenforceable under applicable law in any jurisdiction, the
validity or enforceability of the remaining provisions thereof shall be
unaffected as to such jurisdiction and such adjudication shall not affect the
validity or enforceability of such provision in any other jurisdiction. To
the extent that any provision of this Agreement is adjudicated to be invalid
or unenforceable because it is overbroad, that provision shall not be void
but rather shall be limited to the extent required by applicable law and
enforced as so limited. The parties expressly acknowledge and agree that
Sections 11 and 24 are reasonable in view of the parties' respective
interests.
25. NON-WAIVER OF RIGHTS.
The failure by the Company or the Executive to enforce at any time
any of the provisions of this Agreement or to require at any time performance
by the other party of any of the provisions hereof shall in no way be
construed to be a waiver of such provisions or to affect either the validity
of this Agreement, or any part hereof, or the right of the Company or the
Executive thereafter to enforce each and every provision in accordance with
the terms of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the day and year first above set forth.
PLEASE NOTE: BY SIGNING THIS AGREEMENT, THE EXECUTIVE IS HEREBY CERTIFYING
THAT THE EXECUTIVE (A) HAS RECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND
STUDY BEFORE EXECUTING IT; (B) HAS READ THIS AGREEMENT CAREFULLY BEFORE
SIGNING IT; (C) HAS HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE AGREEMENT
TO ASK ANY QUESTIONS THE EXECUTIVE HAS ABOUT THE AGREEMENT AND HAS RECEIVED
SATISFACTORY ANSWERS TO ALL SUCH QUESTIONS; AND (D) UNDERSTANDS THE
EXECUTIVE'S RIGHTS AND OBLIGATIONS UNDER THE AGREEMENT.
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THIS AGREEMENT IN SECTION 18 CONTAINS A BINDING ARBITRATION
PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.
INTERIM SERVICES INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Senior Vice President and Secretary
EXECUTIVE
By: /s/ Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxx
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