FIRST FEDERAL BANK, A F.S.B. EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
Exhibit 10.12
FIRST FEDERAL BANK, A F.S.B.
EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
THIS EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT (the “AGREEMENT”), made and entered into this 1st day of October 1996, by and between FIRST FEDERAL BANK, A F.S.B., a banking corporation organized and existing under the laws of the state of Indiana (hereinafter referred to as “Bank”) and Xxxxxxx X. Xxxx, a key employee and executive (hereinafter referred to as “Executive”).
W I T N E S S E T H:
WHEREAS, the Executive is employed by the Bank; and
WHEREAS, the Bank recognizes the valuable services heretofore performed for it by the Executive and wishes to encourage continued employment; and
WHEREAS, the Executive wishes to be assured that he will be entitled to a certain amount of additional compensation for some definite period of time from and after his retirement from active service with the Bank or other termination of his employment and wishes to provide his beneficiary with benefits from and after his death; and
WHEREAS, the parties hereto wish to provide the terms and conditions upon which the Bank shall pay such additional compensation to the Executive after his retirement or other termination of his employment and/or death benefits to his beneficiary after his death; and
WHEREAS, the parties hereto intend that this Agreement be considered an unfunded arrangement, maintained primarily to provide supplemental retirement income for the Executive, a member of a select group of management or highly compensated employees of the Bank, for purposes of the Employee Retirement Income Security Act of 1975, as amended; and
WHEREAS, the Bank has adopted this Executive Supplemental Retirement Income Agreement which controls all issues relating to the Supplemental Retirement Income Benefit as described herein; and
NOW, THEREFORE, in consideration of the mutual promises herein contained, the parties hereto agree to the following terms and conditions:
SECTION I
DEFINITIONS
When used herein, the following words shall have the meanings below unless the context clearly indicates otherwise:
| 1.1 |
“Accrued Benefit” means that portion of the Supplemental
Retirement Income Benefit which is required to be expensed and accrued under
generally accepted accounting principles by any appropriate methodology which
the Board may require in the exercise of its sole discretion. Such Accrued
Benefit shall be annuitized and shall be paid to the Executive in one hundred
eighty (180) equal monthly installments. The interest factor used to annuitize
the Accrued Benefit shall be equal to the average cost of deposits of the Bank
(as determined by the Board) for the calendar year immediately preceding the
date on which the Accrued Benefit is annuitized. |
| 1.2 |
“Act” means the Employee Retirement Income Security Act of
1974, as now in effect and as it may be amended from time to time. |
| 1.3 |
“Bank” means FIRST FEDERAL BANK, A F.S.B. and any successor
thereto. |
| 1.4 |
“Beneficiary” means the person, persons (and their heirs) or
other entity designated as Beneficiary in writing to the Bank to whom the
benefit(s), the deceased Executive would have received had he lived, is (are)
payable. If no Beneficiary is so designated, then the Executive’s Spouse,
if living, will be deemed the Beneficiary. If the Executive’s Spouse is not
living, then the Children of the Executive will be deemed Beneficiary and take
on a per stirped basis. If there are no living Children, then the Estate of the
Executive will be deemed the Beneficiary. |
| 1.5 |
“Board” means the Board of Directors of the Bank. |
| 1.6 |
“Cause” means willful misconduct, willful malfeasance, breach
of fiduciary duty involving personal profit, intentional failure to perform
stated duties, willful violation of any law, rule, regulation (other than
traffic violations or similar offenses), or final cease-and-desist order,
material breach of any provision of this Agreement, or gross negligence in
matters of material importance to the Bank. Cause shall be determined by the
Board in its sole discretion within the parameters of this Section. |
| 1.7 |
“Children” means the Executive’s children, both natural
and adopted, then living at the time payments are due the Children under this
Agreement. |
| 1.8 |
“Code” means the Internal Revenue Code of 1986 as now in effect and as
amended from time to time. |
| 1.9 |
“Early Retirement Date” means retirement from service, upon
meeting certain conditions conditions as specified in this Agreement, which is
effective prior to the Normal Retirement Date. |
| 1.10 |
“Effective Date” shall be the effective date of this Agreement,
October 1, 1996. |
| 1.11 |
“Estate” means the estate (including, when applicable, any
irrevocable trust governing the transfer of non-probate assets) of the
Executive. |
| 1.12 |
“Normal Retirement Date” means the first day of the month
coincident with or next following the Executive’s sixty-fifth (65th)
birthday. |
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| 1.13 |
“Permanently and Totally Disabled” means the Executive has, for
at least six (6) months months, been unable to perform the services incident to
his position with the Bank as a result of accidental bodily injury or sickness
and that the status is likely to continue for an indefinite period, as
reasonably determined subsequent to the expiration of the six (6) month period
by a duly licensed physician selected in good faith by the Bank. |
| 1.14 |
“Postponed Retirement Date” means the first day of the month
coincident with or next following the Executive’s termination of employment
with the Bank after his Normal Retirement Date. |
| 1.15 |
“Spouse” means the individual to whom the Executive is legally
married at the time of the Executive's death. |
| 1.16 |
“Suicide” means the act of intentionally killing oneself. |
| 1.17 |
“Supplemental Retirement Income Benefit” means an annual amount
equal to Twenty-Six Thousand Three Hundred Forty Dollars ($26,340). This total
shall be divided by twelve (12) and paid in equal monthly installments for a
period of one hundred eighty (180) months. |
| 1.18 |
“Survivor’s Benefit” means Twenty-Six Thousand Three
Hundred Forty Dollars ($26,340) per year to be paid in one hundred eighty (180)
equal monthly installments. |
| 1.19 |
“Vested” means the non-forfeitable portion of the benefit
to which the Executive is entitled. |
| 1.20 |
“Vested Accrued Benefit” means that portion of the
Executive’s Accrued Benefit in which he is vested. It is computed by
multiplying the Accrued Benefit by the vesting percentage specified in
Subsection 3.5. Such Vested Accrued Benefit shall be paid to the Executive in
one hundred eighty (180) equal monthly installments. |
| 1.21 |
“Years of Service” means the total number of complete years of
employment (including employment before the Effective Date and authorized leaves
of absence). |
SECTION II
PRE-RETIREMENT AND POST RETIREMENT DEATH BENEFITS
| 2.1 |
Death Prior to Termination of Employment. It the Executive dies prior to
termination of employment with the Bank, his Beneficiary shall be entitled to be
paid the Survivor’s Benefit, commencing within thirty (30) days of the
Executive’s death. |
| 2.2 |
Death After Termination of Employment. In the event of the
Executive’s death after his termination of employment, the Executive’s
Beneficiary shall be paid a monthly benefit for a period of one hundred eighty
(180) months, commencing within thirty (30) days of the Executive’s death
and the benefit payment shall be determined as follows: |
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| (a) |
Voluntary or Involuntary Termination of Employment Prior to Normal Retirement
Date. In the event the Executive’s death occurs after his voluntary
termination of employment with the Bank but before his Normal Retirement Date,
the Executive’s Beneficiary shall be entitled to be paid the
Executive’s Vested Accrued Benefit in one hundred eighty (180) equal
monthly installments. If the Executive dies while he is receiving benefits, the
Executive’s Beneficiary shall be entitled to receive those benefits which
the Executive would have been paid had he lived the entire distribution
period. |
In the event the Executive’s death follows his involuntary termination (not
for Cause by the Board), the Executive’s Beneficiary shall be entitled to
receive the Executive’s Supplemental Retirement Income Benefit, with
payments commencing within thirty (30) days of the Executive’s death. In
the event the Executive dies while he is receiving his supplemental retirement
income benefits, the Executive’s Beneficiary shall be entitled to receive
the balance of payments that the Executive would have received had he lived.
|
| (b) |
Termination of Service at Normal Retirement Age. In the event of the
Executive’s death following the termination of service on or after his
Normal Retirement Date, the Executive’s Beneficiary shall be paid those
benefits which the Executive would have been paid had he lived for the entire
retirement distribution period. Benefits shall be paid to the Executive’s
Beneficiary in the same manner they would have been paid to the Executive had he
lived; that is, a total of one hundred eighty (180) equal monthly installments
shall be paid to the Executive and/or his Beneficiary. |
| 2.3 |
Death by Reason of Suicide. In the event the Executive dies by reason of
suicide within two (2) years of the date of execution of this Agreement, the
Bank shall be under no obligation to provide any benefits to the
Executive’s Beneficiary. |
| 2.4 |
Additional Death Benefit - Burial Expenses. In addition to the
above-described death benefits, upon his death, the Executive’s Beneficiary
shall be entitled to receive a one-time lump sum death benefit in the amount of
Ten Thousand ($10,000.00) Dollars; provided, however, that if the Executive
terminates his employment with the Bank before July 1, 1998 for reasons
other than his death or due to his becoming Permanently and Totally Disable, the
one-time lump sum death benefit otherwise provided in this Section shall not be
payable. |
SECTION III
SUPPLEMENTAL RETIREMENT INCOME BENEFIT
AND DISABILITY BENEFIT
| 3.1 |
Normal Retirement Benefit. If the Executive retires on his Normal
Retirement Date, the Bank shall commence payment of the Supplemental Retirement
Income Benefit. Such payments shall commence on the first day of the month next
following the Executive’s retirement date and shall be payable monthly
thereafter until all payments have been made. |
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| 3.2 |
Early Retirement Benefit. If the Executive terminates his employment with
the Bank on or after reaching age sixty (60) and if he remains in continuous
service from the date of this Agreement through his employment termination date,
the Executive shall be entitled to receive the Supplemental Retirement Income
Benefit specified in Subsection 1.17, reduced by six (6) percent per year for
each year (or fraction thereof) that the Early Retirement Date precedes the
Normal Retirement Date. Payment of this early retirement benefit shall commence
with thirty (30) days after Executive’s Early Retirement Date. |
| 3.3 | Postponed Retirement Benefit. If the Executive continues his employment with the Bank beyond his Normal Retirement Date, the postponed retirement benefit of the Executive shall be the Supplemental Retirement Income Benefit as set forth in Subsection 1.17. However, the Board, in the exercise of its sole discretion, may, but is not required to, increase benefits if retirement is postponed past the Normal Retirement Date. The postponed retirement benefit shall not commence until the Postponed Retirement Date. |
| 3.4 |
Disability. If the Executive becomes Permanently and Totally Disabled
prior to reaching his retirement, while covered by the provisions of this
Agreement, the Executive shall be entitled to his Accrued Benefit at the time he
becomes Permanently and Totally Disabled. Payments shall begin within thirty
(30) days after the Executive becomes Permanently and Totally Disabled. |
At the Executive’s death, if the total amount of disability payments
received under the provisions of this Subsection is less than the total amount
of payments that would have been received under the Survivor’s Benefit
section (had it applied instead), the Bank shall pay the Executive’s
Beneficiary a lump sum payment to make the total benefits equal to the amount
allowable under the Survivor’s Benefit section. Such a lump sum payment
would be in full satisfaction of the Bank’s obligations under this
Agreement. |
| 3.5 |
Vesting. Vested Accrued Benefits, as described in Subsection 1.20, shall
be determined according to the following schedule: |
|
Years of Service Less than 5 years 5 years or more |
Percentage of Total Benefit Vested
0%
100% |
SECTION IV
EXECUTIVE’S RIGHT TO ASSETS
The rights of the Executive, any Beneficiary of the Executive, or any other person claiming through the Executive under this Agreement, shall be solely those of an unsecured general creditor of the Bank. The Executive, the Beneficiary of the Executive, or any other person claiming through the Executive, shall only have the right to receive from the Bank those payments which are specified under this Agreement. The Executive agrees that he, his Beneficiary, or any other person claiming through him shall have no rights or interests whatsoever in any asset of the Bank, including any insurance policies or contracts which the Bank may possess or obtain to informally fund this Agreement. Any asset used or acquired by the Bank in connection with the liabilities it has assumed under this Agreement, except as expressly provided, shall not be deemed to be held under any trust for the benefit of the Executive or his Beneficiaries, nor shall it be considered security for the performance of the obligations of the Bank. It shall be and remain, a general, unpledged, and unrestricted asset of the Bank.
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SECTION V
RESTRICTIONS UPON FUNDING
The Bank shall have no obligation to set aside, earmark or entrust any fund or money with which to pay its obligations under this Agreement. The Executive, his Beneficiaries or any successor in interest to him, shall be and remain simply a general creditor of the Bank in the same manner as any other creditor having a general claim for matured and unpaid compensation. The Bank reserves the absolute right, at its sole discretion, to either fund the obligations undertaken by the Agreement or to refrain from funding the same and to determine the extent, nature, and method of such informal funding. Should the Bank elect to fund this Agreement, in whole or in part, through the purchase of life insurance, mutual funds, disability policies or annuities, the Bank reserves the absolute right, in its sole discretion, to terminate such funding at any time, in whole or in part. At no time shall the Executive be deemed to have any lien nor right, title or interest in or to any specific funding investment or to any assets of the Bank. If the Bank elects to invest in a life insurance, disability or annuity policy upon the life of the Executive, then the Executive shall assist the Bank by freely submitting to a physical examination and supplying such additional information necessary to obtain such insurance or annuities.
SECTION VI
ALIENABILITY AND ASSIGNMENT PROHIBITION
Neither the Executive nor any Beneficiary under this Agreement shall have any power or right to transfer, assign, anticipate, hypothecate, mortgage, commute, modify or otherwise encumber in advance any of the benefits payable hereunder, nor shall any of said benefits be subject to seizure for the payment of any debts, judgments, alimony or separate maintenance owed by the Executive or his Beneficiary, nor be transferable by operation of law in the event of bankruptcy, insolvency or otherwise.
SECTION VII
TERMINATION OF EMPLOYMENT
| 7.1 |
Termination of Service Prior to Retirement Date. If, prior to
Executive’s Early Retirement Date, the Executive is terminated without
Cause by the Bank, the Bank shall pay to the Executive an amount equal to the
Executive’s Supplemental Retirement Income Benefit, commencing within
thirty (30) days of the Executive’s Normal Retirement Date. However, it the
Executive’s termination of employment with the Bank before his Early
Retirement Date is voluntary, he shall only be entitled to his Vested Accrued
Benefit existing at the date of termination. Payment of the Vested Accrued
Benefit shall commence within thirty (30) days after his attainment of his
Normal Retirement Date. |
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| 7.2 |
Termination of Service for Cause. Should the Executive’s employment
by the Bank be terminated for Cause before his Normal Retirement Date, his
benefits, including any death benefits, under this Agreement shall be forfeited
and this Agreement shall become null and void. |
| 7.3 |
Termination or Suspension Resulting from Regulatory Actions. Pursuant to
12 X.X.X.xx. 563.39 (b), the following conditions shall apply to this Agreement:
|
| (1) |
The Board may terminate the Executive’s employment at any time, but any
termination by the Board other than termination for Cause, shall not prejudice
the Executive’s right to compensation or other benefits under the contract.
The Executive’s shall have no right to receive compensation or other
benefits for any period after termination for Cause. |
| (2) |
If the Executive is suspended and/or temporarily prohibited from participating
in the conduct of the Bank’s affairs by a notice served under Section 8 (e)
(3) or (g) (1) of (the) Federal Deposit Insurance Act (12 U.S.C. 1818 (e) (3)
and (g) (1)) the Bank’s obligations under the contract shall be suspended
as of the date of termination of service unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Bank may in its
discretion (i) pay the Executive all or part of the compensation withheld
while its contract obligations were suspended and (ii) reinstate (in whole
or in part) any of its obligations which were suspended. |
| (3) |
If the Executive is removed and/or permanently prohibited from participating in
the conduct of the Bank’s affairs by an order issued under Section 8 (3)
(4) or (g) (1) of the Federal Deposit Insurance Act (12 U.S.C. 1818 (e) (4) or
(g) (1)), all obligations of the Bank under the contract shall terminate as of
the effective date of the order, but vested rights of the contracting parties
shall not be affected. |
| (4) |
If the Bank is in default (as defined in Section 3 (x) (1) of the Federal
Deposit Insurance Act), all obligations under the contract shall terminate as of
the date of default, but this paragraph shall not affect any vested rights of
the contracting parties. |
| (5) |
All non-vested obligations under the contract shall be terminated, except to the
extent determined that continuation of the contract is necessary for the
continued operation of the Bank: |
| (i) |
by the Director or his designee at the time the Federal Deposit Insurance
Corporation or the Resolution Trust Corporation enters into an agreement to
provide assistance to or on behalf of the Bank under the authority contained in
§ 13 (c) of the Federal Deposit Insurance Act; or |
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| (ii) |
by the Director or his designee, at the time the Director or his designee
approves a supervisory merger to resolve problems related to operation of the
Bank or when the Bank is determined by the Director to be in an unsafe or
unsound condition. |
Any rights of the parties that have already vested, however, shall not be
affected by such action. |
SECTION VIII
ACT PROVISIONS
| 8.1 |
Named Fiduciary and Administrator. The Bank shall be the named fiduciary
and administrator of this Agreement. As administrator, the Bank shall be
responsible for the management, control and administration of the Agreement as
established herein. It may delegate to others certain aspects of the management
and operation responsibilities of the Agreement including the employment of
advisors and the delegation of ministerial duties to qualified individuals. |
| 8.2 |
Claims Procedure and Arbitration. In the event that benefits under this
Agreement are not paid to the Executive (or to his Beneficiary in the case of
the Executive’s death) and such claimants feel they are entitled to receive
such benefits, then a written claim must be made to the Bank within sixty (60)
days from the date payments are refused. The Bank shall review the written claim
and, if the claim is denied, in whole or in part, they shall provide in writing
within sixty (60) days of receipt of such claim their specific reasons for such
denial, reference to the provisions of this Agreement upon which the denial is
based and any additional material or information necessary to perfect the claim.
Such written notice shall further indicate the additional steps to be taken by
claimants if a further review of the claim denial is desired. |
If claimants desire a second review, they shall notify the Bank in writing
within sixty (60) days of the first claim denial. Claimants may review the
Agreement or any documents relating thereto and submit any written issues and
comments they may feel appropriate. In its sole discretion, the Bank shall then
review the second claim and provide a written decision within sixty (60) days of
receipt of such claim. This decision shall likewise state the specific reasons
for the decision and shall include reference to specific provisions of the
Agreement upon which the decision is based. If claimants disagree with the
decision of the Bank, nothing herein shall serve to preclude them from seeking
any and all remedies available at law. |
SECTION IX
MISCELLANEOUS
| 9.1 |
No Effect on Employment Rights. Nothing contained herein shall confer
upon the Executive the right to be retained in the service of the Bank nor limit
the right of the Bank to discharge or otherwise deal with the Executive without
regard to the existence of this Agreement. |
– 8 –
| 9.2 |
Disclosure. Each Executive shall receive a copy of his Agreement and the
Bank will make available, upon request, a copy of the rules and regulations that
govern this type of Agreement. |
| 9.3 |
State Law. The Agreement is established under, and will be construed
according to, the laws of the State of Indiana, to the extent that such laws are
not preempted by the Act and valid regulations published thereunder. |
| 9.4 |
Severability. In the event that any of the provisions of this Agreement
or portion thereof, are held to be inoperative or invalid by any court of
competent jurisdiction, then: (1) insofar as is reasonable, effect will be
given to the intent manifested in the provisions held invalid or inoperative,
and (2) the validity and enforceability of the remaining provisions will
not be affected thereby. |
| 9.5 |
Incapacity of Recipient. In the event the Executive is declared
incompetent and a conservator or other person legally charged with the care of
his person or of his estate is appointed, any benefits under the Agreement to
which such Executive is entitled shall be paid to such conservator or other
person legally charged with the care of his person or his Estate. |
| 9.6 |
Recovery of Estate Taxes. If the Executive’s gross Estate for
federal estate tax purposes includes any amount determined by reference to and
on account of this Executive Supplemental Retirement Income Agreement, and if
the Beneficiary is other than the Executive’s Estate, then the
Executive’s Estate shall be entitled to recover from the Beneficiary
receiving such benefit under the terms of the Deferred Compensation Benefit an
amount by which the total estate tax due by the Executive’s Estate, exceeds
the total estate tax which would have been payable if the value of such benefit
had not been included in the Executive’s gross Estate. If there is more
than one person receiving such benefit, the right of recovery shall be against
each such person in proportion to the benefits received by each such person. In
the event any Beneficiary has a liability hereunder, such Beneficiary may
petition the Bank for a lump sum payment in an amount not to exceed the
Beneficiary’s liability hereunder. |
| 9.7 |
Unclaimed Benefit. The Executive shall keep the Bank informed of his
current address and the current address of his Beneficiaries. The Bank shall not
be obligated to search for the whereabouts of any person. If within three years
after the actual death of the Executive the Bank is unable to locate any
Beneficiary of the Executive, then the Bank may fully discharge its obligation
by payment to the Estate. |
| 9.8 |
Limitations on Liability. Notwithstanding any of the preceding provisions
of the Agreement and except for the benefits otherwise payable under this
Agreement, neither the Bank, nor any individual acting as an employee or agent
of the Bank or as a member of the Board shall be liable to the Executive or any
other person for any claim, loss, liability or expense incurred in connection
with the Agreement. |
– 9 –
| 9.9 |
Gender. Whenever, in this Agreement, words are used in the masculine or
neuter gender, they shall be read and construed as in the masculine, feminine or
neuter gender, whenever they should so apply. |
| 9.10 |
Affect on Other Corporate Benefit Agreements. Nothing contained in this
Agreement shall affect the right of the Executive to participate in, or be
covered by, any qualified or non-qualified pension, profit sharing, group, bonus
or other supplemental compensation or fringe benefit agreement constituting a
part of the Bank’s existing or future compensation structure. |
| 9.11 |
Headings. Heading and sub-headings in this Agreement are inserted for
reference and convenience only and shall not be deemed a part of this Agreement. |
SECTION X
NON-COMPETITION
| 10.1 |
Non-Compete Clause. The Executive expressly agrees that, as consideration
for the agreements of the Bank contained herein and as a condition to the
performance by the Bank of its obligations hereunder, throughout the entire
period beginning at the time of termination of employment until the final
payment is made to Executive, as provided herein, he will not, without the prior
written consent of the Board, engage in, become interested, directly or
indirectly, as a sole proprietor, as a partner in a partnership, or as a 5% or
greater shareholder in a corporation, nor become associated with, in the
capacity of an employee, director, officer, principal, agent, trustee or in any
other capacity whatsoever, any enterprise conducted in the trading area of the
business of the Bank which may be deemed to be competitive with any business
earned on by the Bank as of the date of the termination of the Executive’s
employment or his retirement. |
| 10.2 |
Breach. In the event of any breach by the Executive of the agreements and
covenants contained herein, the Board shall direct that any unpaid balance of
any payments to the Executive under this Agreement be suspended, and shall
thereupon notify the Executive of such suspensions, in writing. Thereupon, if
the Board shall determine that said breach by the Executive has continued for a
period of one (1) month following notification of such suspension, all rights of
the Executive and his Beneficiaries under this Agreement, including rights to
further payments hereunder, shall thereupon terminate. |
SECTION XI
AMENDMENT/REVOCATION
This Agreement shall not be amended, modified, or revoked at any time, in whole or part, without the mutual written consent of the Executive and the Bank, and such mutual consent shall be required even if the Executive is no longer employed by the Bank.
– 10 –
ARTICLE XII
EXECUTION
| 11.1 |
This Agreement sets forth the entire understanding of the parties hereto with
respect to the transactions contemplated hereby, and any previous agreements or
understandings between the parties hereto regarding the subject matter hereof
are merged into and superseded by this Agreement. |
| 11.2 |
This agreement shall be executed in triplicate, each copy of which, when so
executed and delivered, shall be an original, but all three copies shall
together constitute one and the same instrument. |
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on this 2nd day of January, 1997.
|
/s/ Xxxxxxx X. Xxxx Xxxxxxx X. Xxxx, Executive FIRST FEDERAL BANK, A F.S.B. By: /s/ Xxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxxx President (Title) |
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