Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
as of this 25th day of July, 2000, by and between Classic Bancshares, Inc. (the
"Company") and Xxxxx X. Xxxxxxx (the "Employee").
WHEREAS, the Employee is currently serving as the Senior Vice President
and Chief Financial Officer of the Company and of its wholly-owned subsidiary,
Classic Bank (the "Bank"); and
WHEREAS, the Employee has an existing change in control severance
agreement with the Bank, dated as of December 27, 1995 (the "Severance
Agreement"), which the Employee is willing to terminate in consideration of
this Agreement becoming effective; and
WHEREAS, the board of directors of the Company (the "Board of
Directors") believes it is in the best interests of the Company and its
subsidiaries to enter into this Agreement with the Employee in order to assure
continuity of management and to reinforce and encourage the continued attention
and dedication of the Employee to her assigned duties without distraction in the
face of potentially disruptive circumstances arising from the possibility of a
change in control of the Company or the Bank, although no such change is now
contemplated; and
WHEREAS, the Board of Directors has approved and authorized the
execution of this Agreement with the Employee to take effect as stated in
Section 2 hereof;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein, it is AGREED as follows:
1. DEFINITIONS.
(a) The term "Change in Control" means the occurrence of any
one of the following events: (1) an event of a nature that results in an
acquisition of control of the Company or the Bank within the meaning of the Bank
Holding Company Act or the Change in Bank Control Act and applicable regulations
thereunder (or any successor statute or regulation); (2) an event with respect
to the Company that would be required to be reported in response to Item 1 of
the Current Report on Form 8-K, as in effect on the date of this Agreement,
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 0000 (xxx
"Xxxxxxxx Xxx"); (3) any person (as the term is used in Sections 13(d) and 14(d)
of the Exchange Act) is or becomes the beneficial owner (as defined in Rule
13d-3 under the Exchange Act) directly or indirectly of securities of the
Company or the Bank representing 20% or more of the combined voting power of the
Company's or the Bank's outstanding securities; (4) individuals who are members
of the Board of Directors of the Company as of the date of this Agreement (the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, PROVIDED THAT any person becoming a director subsequent to the date of
this Agreement whose election was approved by a vote of at least three-
quarters of the directors comprising the Incumbent Board, or whose nomination
for election by the Company's stockholders was approved by the nominating
committee serving under the Incumbent Board, shall be considered a member of the
Incumbent Board; (5) consummation of a reorganization, merger, consolidation or
similar transaction in which the Company is not the resulting entity; (6)
consummation of a reorganization, merger, consolidation or similar transaction
in which the Company is the resulting entity and at the completion of which the
stockholders of the Company who were stockholders of the Company immediately
prior to the transaction hold less than 60% of the outstanding stock of the
Company immediately after consummation of the transaction; or (7) a sale of all
or substantially all of the assets of the Company or a transaction or related
transactions at the conclusion of which all or substantially all of the assets
of the Bank (i) are not directly or indirectly held by the Company or (ii) are
directly or indirectly held by the Company but the stockholders of the Company
immediately prior to the transaction or related transactions hold less than 60%
of the outstanding stock of the Company immediately after the transaction or
related transactions; PROVIDED THAT the term "Change in Control" shall not
include an acquisition of securities by an employee benefit plan of the Company
or any of its subsidiaries. In the application of regulations under the Bank
Holding Company Act or the Change in Bank Control Act to a determination of a
Change in Control under this Agreement, determinations to be made by the
applicable federal banking regulator under such regulations shall be made by the
Board of Directors.
(b) The term "Consolidated Subsidiaries" means any subsidiary
or subsidiaries of the Company (or its successors) that are part of the
consolidated group of the Company (or its successors) for federal income tax
reporting (the "Consolidated Group").
(c) The term "Date of Termination" means the date upon which
the Employee's employment with the Company or the Bank or both ceases, as
specified in a notice of termination pursuant to Section 8 of this Agreement.
(d) The term "Effective Date" means April 1, 2000.
(e) The term "Involuntarily Termination" means the termination
of the employment of Employee (i) by either the Company or the Bank or both
without her express written consent; or (ii) by the Employee by reason of a
material diminution of or interference with her duties, responsibilities or
benefits, including (without limitation) any of the following actions unless
consented to in writing by the Employee: (1) a change in the principal workplace
of the Employee to a location outside of a 30 mile radius from the Bank's
headquarters as of the date hereof; (2) a material demotion of the Employee; (3)
a material reduction in the number or seniority of personnel reporting to the
Employee or a material reduction in the frequency with which, or in the nature
of the matters with respect to which, such personnel are to report to the
Employee, other than as part of a Bank- or Company-wide reduction in staff; (4)
a reduction in the Employee's salary or a material adverse change in the
Employee's perquisites, benefits, contingent benefits or vacation, other than as
part of an overall program applied uniformly and with equitable effect to all
members of the senior management of the Bank or the Company; (5) a material
permanent increase in the required hours of work or the workload of the
Employee; or (6) the failure of the Board of Directors (or a board of directors
of any successor of the
Company) to elect her as Senior Vice President and Chief Financial Officer of
the Company (or any successor of the Company) or any action by the Board of
Directors (or the board of directors of any successor of the Company) removing
her from any of such offices, or the failure of the board of directors of the
Bank (or any successor of the Bank) to elect her as Senior Vice President and
Chief Financial Officer of the Bank (or any successor of the Bank) or any action
by such board (or the board of any successor of the Bank) removing her from any
of such offices. The term "Involuntary Termination" does not include Termination
for Cause or termination of employment due to death or permanent disability or
suspension or temporary or permanent prohibition from participation in the
conduct of the affairs of a depository institution under Section 8 of the
Federal Deposit Insurance Act.
(f) The terms "Termination for Cause" and "Terminated For
Cause" mean termination of the employment of the Employee with either the
Company or the Bank, as the case may be, because of the Employee's personal
dishonesty, incompetence, willful misconduct, breach of a fiduciary duty
involving personal profit, intentional failure to perform stated duties, willful
violation of any law, rule, or regulation (excluding violations which do not
have a material adverse effect on the Company or the Bank) or final
cease-and-desist order, or material breach of any provision of this Agreement.
No act or failure to act by the Employee shall be considered willful unless the
Employee acted or failed to act with an absence of good faith and without a
reasonable belief that her action or failure to act was in the best interest of
the Company. The Employee shall not be deemed to have been Terminated for Cause
unless and until there shall have been delivered to the Employee a copy of a
resolution, duly adopted by the affirmative vote of not less than a majority of
the entire membership of the Board of Directors at a meeting of the Board duly
called and held for such purpose (after reasonable notice to the Employee and an
opportunity for the Employee, together with the Employee's counsel, to be heard
before the Board), stating that in the good faith opinion of the Board of
Directors the Employee has engaged in conduct described in the preceding
sentence and specifying the particulars thereof in detail.
2. TERM; TERMINATION OF SEVERANCE AGREEMENT. The term of this Agreement
shall be a period of three years commencing on the Effective Date, subject to
earlier termination as provided herein. Beginning on the first anniversary of
the Effective Date, and on each anniversary thereafter, the term of this
Agreement shall be extended for a period of one year in addition to the
then-remaining term, PROVIDED THAT the Company has not given notice to the
Employee in writing at least 90 days prior to such anniversary that the term of
this Agreement shall not be extended further, and PROVIDED FURTHER THAT the
Employee has not received an unsatisfactory performance review by either the
Board of Directors or the board of directors of the Bank. Reference herein to
the term of this Agreement shall refer to both such initial term and such
extended terms. The Employee's Severance Agreement shall terminate immediately
prior to the Effective Date.
3. EMPLOYMENT. The Employee is employed as Senior Vice President and
Chief Financial Officer of the Company and as Senior Vice President and Chief
Financial Officer of the Bank. As such, the Employee shall render such
administrative and management services as are customarily performed by persons
situated in similar executive capacities, and shall have
such other powers and duties as the Board of Directors or the board of directors
of the Bank may prescribe from time to time. The Employee shall also render
services to any subsidiary or subsidiaries of the Company or the Bank as
requested by the Company or the Bank from time to time consistent with her
executive position. The Employee shall devote her best efforts and reasonable
time and attention to the business and affairs of the Company and the Bank to
the extent necessary to discharge her responsibilities hereunder. The Employee
may (i) serve on corporate or charitable boards or committees and (ii) manage
personal investments, so long as such activities do not interfere materially
with performance of her responsibilities hereunder.
4. CASH COMPENSATION.
(a) SALARY. The Company agrees to pay the Employee during
the term of this Agreement a base salary (the "Company Salary") the annualized
amount of which shall be not less than the annualized aggregate amount of the
Employee's base salary from the Company and any Consolidated Subsidiaries in
effect at the Effective Date, PROVIDED THAT any amounts of salary actually paid
to the Employee by any Consolidated Subsidiaries shall reduce the amount to be
paid by the Company to the Employee. The Company Salary shall be paid no less
frequently than monthly and shall be subject to customary tax withholding. The
amount of the Employee's Company Salary shall be increased (but shall not be
decreased) from time to time in accordance with the amounts of salary approved
by the Board of Directors or the board of directors of any of the Consolidated
Subsidiaries after the Effective Date.
(b) BONUSES. The Employee shall be entitled to participate in
an equitable manner with all other executive officers of the Company and the
Bank in such performance-based and discretionary bonuses, if any, as are
authorized and declared by the Board of Directors for executive officers of the
Company and by the board of directors of the Bank for executive officers of the
Bank. No other compensation provided for in this Agreement shall be deemed a
substitute for the Employee's right to participate in such bonuses when and as
declared.
(c) EXPENSES. The Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Employee in performing
services under this Agreement in accordance with the policies and procedures
applicable to the executive officers of the Company and the Bank, PROVIDED THAT
the Employee accounts for such expenses as required under such policies and
procedures.
5. BENEFITS.
(a) PARTICIPATION IN BENEFIT PLANS. The Employee shall be
entitled to participate, to the same extent as executive officers of the Company
and the Bank generally, in all plans of the Company and the Bank relating to
pension, retirement, thrift, profit-sharing, savings, group or other life
insurance, hospitalization, medical and dental coverage, travel and accident
insurance, education, cash bonuses, and other retirement or employee benefits or
combinations thereof. In addition, the Employee shall be entitled to be
considered for benefits under all of the stock and stock option related plans in
which the Company's or the Bank's executive officers are
eligible or become eligible to participate.
(b) HEALTH BENEFITS. The Employee shall be entitled, for the
benefit of herself and her spouse, to the same group hospitalization, medical,
dental, prescription drug and other health benefits as are available to
executive officers of the Company and/or the Bank generally on terms as
favorable to her, including amounts of coverage and deductibles and other costs
to her, as apply to executive offices of the Company and/or the Bank generally,
PROVIDED THAT when the Employee or her spouse is eligible for Medicare coverage,
her coverage under this Section 5(b) shall be secondary to Medicare coverage
(the "Health Benefits").
(c) OTHER FRINGE BENEFITS. The Employee shall be eligible to
participate in, and receive benefits under, any other fringe benefit plans or
perquisites which are or may become generally available to the Company's or the
Bank's executive officers.
6. VACATIONS; LEAVE. The Employee shall be entitled to annual paid
vacation in accordance with the policies established by the Board of Directors
and the board of directors of the Bank for executive officers of the Company and
the Bank, and to voluntary leaves of absence, with or without pay, from time to
time at such times and upon such conditions as the Board of Directors may
determine in its discretion.
7. TERMINATION OF EMPLOYMENT.
(a) INVOLUNTARY TERMINATION. In the event of the Involuntary
Termination of the Employee, if the Employee has offered to continue to provide
services as contemplated by this Agreement, and such offer has been declined,
then, subject to Section 7(b) of this Agreement, the Company shall, as
liquidated damages:
(i) during the remaining term of this Agreement
following the Date of Termination (the "Remaining Term"), (A) pay to the
Employee in cash monthly one-twelfth of the Company Salary at the annual rate in
effect immediately prior to the Date of Termination and one-twelfth of the
average annual amount of cash bonus and cash incentive compensation of the
Employee, based on the average amounts of such compensation earned by the
Employee for the two full fiscal years preceding the Date of Termination,
PROVIDED THAT such payments shall be reduced by the amounts of cash
compensation, if any, actually paid to the Employee by the Consolidated
Subsidiaries for such period; and (B) continue to provide the benefits described
in Section 5(c) and Section 5(d) of this Agreement;
(ii) within 30 days following the date on which the
term of this Agreement expires (the "Expiration Date"), pay to the Employee in a
lump sum in cash an amount equal to the excess of (A) the present value of the
aggregate benefits to which she would be entitled under any and all qualified
and non-qualified defined benefit pension plans covering executive officers of
the Company or the Bank if she were 100% vested thereunder, had continued to be
employed by the Company and the Bank during the Remaining Term and had received
as covered
compensation during such period the amounts payable to her under Section 7(a)(i)
hereof, over (B) the present value of the benefits to which she is actually
entitled under such plans as of the Expiration Date;
(iii) within 30 days following the Expiration Date,
pay to the Employee in a lump sum in cash an amount equal to the present value
of the employer contributions to which she would have been entitled under any
and all qualified and non-qualified defined contribution plans maintained by or
covering executive officers of the Company or the Bank if she were 100% vested
thereunder, had continued to be employed by the Company and the Bank during the
Remaining Term and had received as covered compensation during such period the
amounts payable to her under Section 7(a)(i) hereof and assuming that she had
made during such period the maximum amount of employee contributions, if any,
required or permitted under such plans for an individual receiving such covered
compensation;
(iv) during the Remaining Term, the Company shall
provide the Health Benefits to the Employee on the same terms as if she had
continued to be employed under this Agreement; and
(v) following the expiration of the term of this
Agreement, the Company shall make the Health Benefits available to the Employee,
PROVIDED THAT the Employee reimburses the Company for the amount the Company
pays to third parties that is attributable to the Health Benefits for the
Employee and her spouse.
For purposes of this Section 7, present value shall be determined by
using the UP-1984 mortality table and the same discount rate as would apply to a
determination of present value under Section 280G of the Internal Revenue Code
of 1986, as amended (the "Code").
(b) REDUCTION OF THE COMPANY'S OBLIGATION UNDER SECTION 7(a)(i).
(i) The Company's obligations under Section 7(a)(i)
hereof (A) to pay cash compensation shall be reduced by the amount of the
Employee's cash income, if any, earned from providing services other than to the
Company (or its successors) or the Consolidated Subsidiaries during the
Remaining Term; and (B) to provide benefits described in Section 5(c) and
Section 5(d) shall be suspended during such time, if any, that an employer other
than the Company or its successors or the Consolidated Subsidiaries provides
comparable benefits during the Remaining Term. For purposes of this Section
7(b), the term "cash income" shall include amounts of salary, wages, bonuses,
incentive compensation and fees paid to the Employee in cash but shall not
include shares of stock, stock options, stock appreciation rights or other
earned income not paid to the Employee in cash.
(ii) The Employee agrees that in the event she
becomes entitled to liquidated damages pursuant to Section 7(a), throughout the
Remaining Term, she shall promptly inform the Company of the nature and amounts
of cash income and benefits comparable to those described in Section 5(c) and
Section 5(d) which she earns from providing services other than to the Company
(or its successors) or the Consolidated Subsidiaries, and the nature of benefits
she receives from another employer that are similar to the Health Benefits, and
shall provide such documentation of such cash income and benefits as the Company
may reasonably request. In the
event of changes to such cash income and benefits from time to time, the
Employee shall inform the Company of such changes, in each case within 30 days
after the change occurs, and shall provide such documentation concerning the
change as the Company may request.
(iii) To the extent, if any, that the Employee
receives from another employer following Involuntary Termination benefits
substantially similar to the Health Benefits on terms substantially as favorable
to her as the Health Benefits, the Company's obligation to provide the Health
Benefits under Section 7(a) shall be reduced so long as the Employee receives
such substantially similar benefits from another employer.
(c) CHANGE IN CONTROL. Subject to Section 7(d) below, if, in
connection with or within 18 months following a Change in Control, the Employee
experiences Involuntary Termination, the Company shall pay to the Employee (in
addition to any payments and benefits to which the Employee is entitled under
Section 7(a) hereof) within 30 days following the Date of Termination, in a lump
sum in cash, an amount equal to 299% of the Employee's "base amount" as defined
in Section 280G of the Code, PROVIDED THAT the sum of the payments to be made
under Section 7(a)(i)(A) and under this Section 7(c) shall not exceed three
times the sum of the Employee's annual salary as of immediately prior to such
Involuntary Termination and average annual amount of cash bonus and cash
incentive compensation of the Employee calculated as provided in Section
7(a)(i)(A).
(d) CERTAIN REDUCTION OF PAYMENTS. Notwithstanding any other
provisions of this Agreement, if payments and benefits under this Agreement,
together with any other payments and benefits received or to be received by the
Employee in connection with a change in control, would cause any amount to be
nondeductible by the Bank or the Company for federal income tax purposes
pursuant to Section 280G of the Code, then payments and benefits under this
Agreement shall be reduced (not less than zero) to the extent necessary so as to
maximize payments and benefits to the Employee without causing any amount to
become nondeductible by the Bank or the Company by reason of Section 280G of the
Code. The Employee shall determine the allocation of such reduction among
payments and benefits to the Employee.
(e) TERMINATION FOR CAUSE. In the event of Termination for
Cause, the Company shall pay the Employee her Company Salary through the Date of
Termination and the Company and its subsidiaries shall have no further
obligation to the Employee under this Agreement after the Date of Termination.
(f) VOLUNTARY TERMINATION. The Employee may terminate her
employment at any time by a notice pursuant to Section 8 of this Agreement. If
the Employee terminates her employment other than by reason of any of the
actions that constitute Involuntary Termination under Section 1(e)(ii) of this
Agreement, such termination of employment shall constitute a "Voluntary
Termination" and the Company shall be obligated to the Employee for the amount
of her Company Salary and benefits only through the Date of Termination, at the
time such payments are due, and shall have no further obligation to the Employee
under this Agreement except pursuant to Section 5(b) hereof.
(g) DEATH. In the event of the death of the Employee while
employed under this
Agreement and prior to any termination of employment, (i) the Company shall pay
to the Employee's estate, or such person as the Employee may have previously
designated in writing, the Company Salary which was not previously paid to the
Employee and which she would have earned if she had continued to be employed
under this Agreement through the last day of the calendar month in which the
Employee died and (ii) the Company shall pay to the Employee's estate, or such
person as the Employee may have previously designated in writing, the amounts of
any benefits or awards which, pursuant to the terms of any applicable plan or
plans, were earned with respect to the fiscal year in which the Employee died
and which the Employee would have been entitled to receive if she had continued
to be employed, and the amount of any bonus or incentive compensation for such
fiscal year which the Employee would have been entitled to receive if she had
continued to be employed, pro-rated in accordance with the portion of the fiscal
year prior to her death; PROVIDED THAT such amounts shall be payable when and as
ordinarily payable under the applicable plans.
(h) DISABILITY. If the Employee becomes disabled as defined in
the then current disability plan of the Company or the Bank, or if the Employee
is otherwise unable due to disability to serve in her present capacity, the
Employee shall be entitled to receive the group and other disability income
benefits, if any, of the type then provided by the Company and the Bank for
executive officers (the "Disability Benefits"). In the event of such disability,
this Agreement shall not be suspended. However, the Company shall be obligated
to pay the Employee compensation pursuant to Sections 4(a) and (b) hereof only
to the extent that such compensation, at the rate then in effect and in the
absence of such disability, would exceed (on an after tax basis) the Disability
Benefits she receives. In addition, the Company shall have the right, upon
resolution of the Board of Directors, to discontinue paying cash compensation
pursuant to Sections 4(a) and (b) beginning six months following a determination
that Employee qualifies for benefits under this Section 7(h).
8. NOTICE OF TERMINATION. In the event that the Company or the Bank, or
both, desire to terminate the employment of the Employee during the term of this
Agreement, the Company or the Bank, or both, shall deliver to the Employee a
written notice of termination, stating whether such termination constitutes
Termination for Cause or Involuntary Termination, setting forth in reasonable
detail the facts and circumstances that are the basis for the termination, and
specifying the date upon which employment shall terminate, which date shall be
at least 30 days after the date upon which the notice is delivered, except in
the case of Termination for Cause. In the event that the Employee determines in
good faith that she has experienced an Involuntary Termination of her
employment, she shall send a written notice to the Company stating the
circumstances that constitute such Involuntary Termination and the date upon
which her employment shall have ceased due to such Involuntary Termination. In
the event that the Employee desires to effect a Voluntary Termination, she shall
deliver a written notice to the Company, stating the date upon which employment
shall terminate, which date shall be at least 90 days after the date upon which
the notice is delivered, unless the Company and the Employee agree to a date
sooner.
9. ATTORNEYS'FEES. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by the
Employee as a result of (i) the
Employee's contesting or disputing any termination of employment or (ii) the
Employee's seeking to obtain or enforce any right or benefit provided by this
Agreement or by any other plan or arrangement maintained by the Company (or its
successors) or the Consolidated Subsidiaries under which the Employee is or may
be entitled to receive benefits; PROVIDED THAT the Company's obligation to pay
such fees and expenses is subject to the Employee's prevailing with respect to
the matters in dispute in any action initiated by the Employee or the Employee's
having been determined to have acted reasonably and in good faith with respect
to any action initiated by the Company or the Bank.
10. NO ASSIGNMENTS.
(a) This Agreement is personal to the parties hereto, and no
party may assign or delegate any of its rights or obligations hereunder without
first obtaining the written consent of the other party, PROVIDED, HOWEVER, THAT
the Company shall require any successor or assign (whether direct or indirect,
by purchase, merger, consolidation or otherwise) by an assumption agreement in
form and substance satisfactory to the Employee, to expressly assume 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 or assignment had
taken place. Failure of the Company to obtain such an assumption agreement prior
to the effectiveness of any such succession or assignment shall be a breach of
this Agreement and shall entitle the Employee to compensation and benefits from
the Company in the same amount and on the same terms as provided in Section 7
hereof in the event of Involuntary Termination in connection with a Change in
Control. For purposes of implementing the provisions of this Section 10(a), the
date on which any such succession becomes effective shall be deemed the Date of
Termination.
(b) This Agreement and all rights of the Employee hereunder
shall inure to the benefit of and be enforceable by the Employee's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
11. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, to the Company at its home
office, to the attention of the Board of Directors with a copy to the Secretary
of the Company, or, if to the Employee, to such home or other address as the
Employee has most recently provided in writing to the Company.
12. AMENDMENTS. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
13. HEADINGS. The headings used in this Agreement are included solely
for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
14. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
15. GOVERNING LAW. This Agreement shall be governed by the laws of the
Commonwealth of Kentucky.
16. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY
BE ENFORCED BY THE PARTIES.
Attest: CLASSIC BANCSHARES, INC.
/s/ C. XXXXX XXXXXXXX /s/ XXXXX X. XXXXXXX
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Secretary By: Xxxxx X. Xxxxxxx
Its: President and Chief Executive Officer
EMPLOYEE
/s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
