Alpha Natural Resources, Inc. (formerly Foundation Coal Holdings, Inc.) 2004 Stock Incentive Plan PERFORMANCE SHARE UNIT AWARD AGREEMENT FOR EMPLOYEES
EXHIBIT 10.67
This Performance Share Unit Award Agreement set forth below (this “Agreement”) is dated as of
the grant date (the “Grant Date”) set forth on Exhibit A and is between Alpha Natural
Resources, Inc., a Delaware corporation (the “Company”), and the eligible employee to whom the
Committee has made this performance Award (the “Award Recipient”).
The 2004 Stock Incentive Plan (as amended and restated, the “Plan”) was established to aid the
Company and its Affiliates in recruiting and retaining key employees, directors or consultants of
outstanding ability and to motivate such employees, directors or consultants to exert their best
efforts on behalf of the Company and its Affiliates by providing compensation and incentives
through the granting of Awards. All capitalized terms not otherwise defined in this Agreement have
the same meaning given such capitalized terms in the Plan.
Pursuant to the provisions of the Plan, the Committee has full power and authority to direct
the delivery of this Agreement in the name and on behalf of the Company, and has authorized the
delivery of this Agreement.
Agreement
The parties agree as follows:
Section 1. Performance Share Unit Award. Subject to and pursuant to all terms and conditions
stated in this Agreement and in the Plan, as of the Grant Date, the Company hereby makes an Award
to Award Recipient in the form of performance share units (“Performance Share Units”). Each
Performance Share Unit awarded under this Agreement shall represent a right to receive one Share of
the Company’s Common Stock, par value $0.01 per share (the “Common Stock”), to the extent such
Performance Share Unit is earned pursuant to the terms of this Agreement. The shares of Common
Stock to be issued and delivered to Award Recipient, if any, pursuant to the Performance Share
Units awarded under this Agreement, including shares of capital stock, if any, issued from time to
time with respect to such shares of Common Stock as a result of a stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger, consolidation or other
reorganization are referred to in this Agreement as the “Share(s).”
Section 2. Performance Share Units. The target number of Performance Share Units covered by
and subject to the terms of this Agreement (the “Target Award”) is set forth on Exhibit A.
Section 3. Performance Period. The “Performance Period” means the performance period as set
forth on Exhibit A.
Section 4. Performance Measures. Subject to the provisions of this Agreement, the Company
shall issue and deliver to the Award Recipient one (1) Share for each whole Performance Share Unit
that is earned in accordance with the performance measures set forth on Exhibit A;
provided, however, that the Committee may reduce the number of Performance Share Units earned under
this Award, but in no
event may the Committee increase the number of Performance Share Units earned under this Award
beyond the performance levels achieved.
Performance Share Unit Award Agreement
for Employees (Grades 22-30)
for Employees (Grades 22-30)
Section 5. Delivery of Shares. Except as otherwise provided in this Agreement and subject to
satisfaction of the applicable tax withholding requirements set forth in Section 9, the Company
shall cause stock certificate(s) or other evidence of ownership representing the number of Shares
earned and determined under Section 4 to be delivered to the Award Recipient in the first calendar
year immediately following the end of the Performance Period on or before March 15th of such
calendar year; provided, however, that: (i) except as provided below, no certificate(s) for, or
other evidence of ownership of, Shares shall be delivered with respect to Performance Share Units
unless the Committee has certified in writing that the applicable performance targets set forth on
Exhibit A and other material terms of this Agreement have been achieved; and (ii) the
Company shall not deliver stock certificate(s) or other evidence of ownership representing Shares
if the Committee or other authorized agent determines, in its or his sole discretion, that the
delivery of such certificate(s) or other evidence of ownership would violate the terms of the Plan,
this Agreement or applicable law.
Section 6. Separation from Service.
(a) Except as set forth in this Section 6 or as otherwise provided in a Company plan
applicable to Award Recipient or any agreement between the Award Recipient and the Company (or any
Affiliate), if (i) Award Recipient Separates from Service for any reason prior to the end of the
Performance Period, or (ii) Award Recipient breaches the confidentiality covenant as described in
Section 12, then effective at the close of business on the date the Award Recipient Separates from
Service, or the date the Award Recipient breaches the confidentiality covenant as described in
Section 12 hereof, as applicable, all of Award Recipient’s Performance Share Units covered by this
Agreement, whether earned or unearned, shall be automatically cancelled and forfeited in their
entirety without any further obligation on the part of the Company, such that the Company shall not
be obligated to issue any Shares or any other compensation to Award Recipient with respect to such
cancelled and forfeited Performance Share Units.
(b) Unless otherwise provided in a Company plan applicable to Award Recipient or any
agreement between the Award Recipient and the Company (or any Affiliate), if during the Performance
Period (i) the Award Recipient Separates from Service as a result of Award Recipient’s Permanent
Disability (as defined below) or death, (ii) the Award Recipient experiences an involuntary
Separation from Service by the Company and any Affiliate other than for Cause (as defined below),
or (iii) the Award Recipient Separates from Service as a result of Award Recipient’s Retirement (as
defined below), the Award Recipient shall be entitled to receive a prorated portion of the
Performance Share Units to the extent earned pursuant to Section 4 above, determined at the end of
the Performance Period and based on the ratio of the number of complete months the Award Recipient
is employed or serves during the Performance Period to the total number of months in the
Performance Period. Any Shares to which Award Recipient becomes entitled to receive pursuant to
the preceding sentence will be issued and delivered to Award Recipient in accordance with the
provisions of Section 5 of the Agreement; provided, that any payments due on the Award Recipient’s
death shall be paid to the Award Recipient’s estate.
(c) Unless otherwise provided in a Company plan applicable to Award Recipient or any
agreement between the Award Recipient and the Company (or any Affiliate), in the event that a
Change of Control occurs prior to the end of the Performance Period and the Award Recipient
experiences an involuntary Separation from Service by the Company and any Affiliate other than for
Cause (i) within the 90-day period immediately preceding a Change of Control, or (ii) prior to the
end of the Performance Period and on or within the one (1) year period following such Change of
Control, the Performance Share Units that have not been previously cancelled and forfeited shall
become fully vested and payable at the
Performance Share Unit Award Agreement
for Employees (Grades 22-30)
for Employees (Grades 22-30)
2
Target Award level (and the Performance Period shall thereafter be deemed to have terminated).
Any Shares to which Award Recipient becomes entitled to receive pursuant to the preceding sentence
will be issued and delivered to Award Recipient contemporaneous with the consummation of the Change
of Control or, if later, on or before the sixtieth (60th) day following the Award Recipient’s
Separation from Service (but, in each case, within the short-term deferral exception as specified
in Treas. Reg. § 1.409A-1(b)(4)).
(d) For purposes of this Agreement and unless otherwise defined in a Company plan
applicable to Award Recipient or an agreement between the Award Recipient and the Company, if any,
the following terms shall have the following meanings: (i) a “Change of Control” shall mean (A)
any merger, consolidation or business combination in which the stockholders of the Company
immediately prior to the merger, consolidation or business combination do not own at least a
majority of the outstanding equity interests of the surviving parent entity, (B) the sale of all or
substantially all of the Company’s and its Affiliates’ assets in a single transaction or a series
of related transactions, (C) the acquisition of beneficial ownership or control of (including,
without limitation, power to vote) a majority of the outstanding Common Stock by any person or
entity (including a “group” as defined by or under Section 13(d)(3) of the Exchange Act), (D) the
stockholders of the Company approve any plan for the dissolution or liquidation of the Company, or
(E) a contested election of directors, as a result of which or in connection with which the persons
who were directors of the Company before such election or their nominees cease to constitute a
majority of the Board; (ii) the term “Permanent Disability” shall mean Award Recipient’s physical
or mental incapacity to perform his or her usual duties with such condition likely to remain
continuously and permanently as determined by the Company and/or its Affiliates; (iii) the term
“Cause” shall mean “Employer Cause” as set forth in any employment agreement between the Award
Recipient and the Company and/or its Affiliates or, in the absence of such an agreement, “Cause” as
defined by the Company’s employment policies in effect at the time of Separation from Service; (iv)
the term “Retirement” shall mean (A) the date Award Recipient reaches the age of 62 with ten (10)
Years of Service, (B) the date the Award Recipient reaches the age of 65 or (C) a combination of
age and Years of Service which equals 80 (for example, an Award Recipient who reaches the age of 50
with thirty (30) Years of Service); (v) the term “Years of Service” shall mean the aggregate annual
periods of continuous employment or other service with the Company and any parent, affiliate or
subsidiary of the Company measured from the Award Recipient’s date of hire (or re-hire) and ending
on the date the Award Recipient Separates from Service, including employment or other service with
any affiliates or subsidiaries which become such after the Grant Date, including any predecessors
and any other entities for this purpose as approved by the Committee (or its delegatee(s)), and
provided that an absence or leave approved by the Company or an Affiliate, to the extent permitted
by applicable provisions of the Code, shall not be considered an interruption of employment or
performance of services for any purpose under this Agreement; and (vi) the term “Separation from
Service” or “Separates from Service” shall mean the Award Recipient’s death, retirement or other
termination of employment or service with the employer (including all persons treated as a single
employer under Sections 414(b) and 414(c)). For purposes hereof, the determination of controlled
group members shall be made pursuant to the provisions of Sections 414(b) and 414(c); provided that
the language “at least 50 percent” shall be used instead of “at least 80 percent” in each place
that it appears in Section 1563(a)(1), (2) and (3) and Treas. Reg. Section 1.414(c)-2; provided,
further, where legitimate business reasons exist (within the meaning of Treas. Reg. Section
1.409A-1(h)(3)), the language “at least 20 percent” shall be used instead of “at least 80 percent”
in each place it appears. Whether an Award Recipient has experienced a Separation from Service
will be determined based on all of the facts and circumstances in accordance with the guidance
issued under Section 409A and, to the extent not inconsistent therewith, the terms of the Plan.
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for Employees (Grades 22-30)
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Section 7. Clawback/Recoupment.
(a) The Committee may, to the extent permitted by governing law, require reimbursement of any
payment of Shares received in settlement of this Award if the Award Recipient is an employee of pay
grade 22 or higher as of the Grant Date where: (i) the payment was predicated upon the achievement
of certain financial results that were subsequently the subject of a restatement of the Company’s
financial statements filed with the Securities and Exchange Commission, which restatement occurs no
more than three years from the date of settlement of this Award, where the Committee reasonably
determines that any employee engaged in intentional misconduct that caused or partially caused the
need for the restatement, and a lower payment would have been made to the Award Recipient based
upon the restated financial results; provided, however, that the Committee reserves the discretion
to determine that any Award Recipient shall not be subject to this provision; or (ii) the Award
Recipient engaged in ethical misconduct in violation of the Company’s Code of Business Ethics,
which the Committee reasonably determines caused material business or reputational harm to the
Company and/or its Affiliates.
(b) If the Committee reasonably determines that any payment of Shares received in settlement
of this Award should be reimbursed under subsections (a)(i) or (a)(ii), then the following shall
apply: (i) in the event reimbursement is required under subsection (a)(i), the Award Recipient
shall be required to reimburse the Company in an amount equal to the dollar value of the Common
Stock the Award Recipient received in excess of what the Award Recipient would have received on
such date had the payment been based upon such restated financial results; or (ii) in the event
reimbursement is required under subsection (a)(ii), the Award Recipient shall be required to
promptly reimburse the Company in an amount the Committee reasonably determines to be appropriate,
which could equal the full value of the Common Stock the Award Recipient received during such
three-year period. Notwithstanding the foregoing, the Company shall not be required to make any
additional payment in the event that the restated financial results would have resulted in a
greater number of Shares upon payment of the Award to the Award Recipient.
(c) In the event the Award Recipient is obligated to reimburse the Company for amounts under
subsections (b)(i) or (b)(ii), the Company may, at its sole election: (i) require the Award
Recipient to pay the amount in a lump sum within 30 days of such determination; (ii) deduct the
amount from any other compensation owed to the Award Recipient (as a condition to receiving the
performance-based compensation under this Award, the Award Recipient agrees to permit the deduction
provided for by this subsection); or (iii) a combination of subsections (c)(i) and (c)(ii).
(d) By accepting this Award, the Award Recipient agrees that timely payment to the Company as
set forth in this Section 7 is reasonable and necessary, and that timely payment to the Company as
set forth in this Section 7 is not a penalty, and it does not preclude the Company from seeking all
other remedies that may be available to the Company. The Award Recipient further acknowledges and
agrees that the Award Recipient’s Performance Share Units shall be cancelled and forfeited without
payment by the Company if the Committee reasonably determines that the Award Recipient has engaged
in the conduct specified under subsection (a).
Section 8. Limitation of Rights; Investment Representation. Except as otherwise provided in
the Plan or this Agreement, no holder of Performance Share Units shall be, or have any of the
rights or privileges of, a stockholder of the Company with respect to any Shares unless and until
certificates or other evidence of ownership representing such Shares shall have been issued or
reflected in such person’s name. Prior to actual receipt of the Shares under this Award, Award
Recipient may not transfer any interest in the Award or the underlying Shares. Award Recipient
acknowledges and agrees that the Shares which Award Recipient acquires pursuant to this Agreement,
if any, shall not be sold, transferred, assigned, pledged or hypothecated in the absence of an
effective registration statement for the Shares under the Securities Act of 1933, as amended (the
“Securities Act”), and applicable state securities laws
Performance Share Unit Award Agreement
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for Employees (Grades 22-30)
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or an applicable exemption from the registration requirements of the Securities Act and any
applicable state securities laws, and shall not be sold or otherwise disposed of in any manner
which would constitute a violation of any applicable securities laws, whether federal or state. Any
attempt to transfer the Performance Share Units or Shares in violation of this Section or the Plan
shall render this Award of Performance Share Units null and void.
Section 9. Income Taxes. Award Recipient acknowledges that any income for federal, state or
local income tax purposes that Award Recipient is required to recognize on account of the issuance
and delivery of Shares to Award Recipient shall be subject to withholding of tax by the Company.
In accordance with administrative procedures established by the Company, Award Recipient may elect
to satisfy his or her minimum statutory withholding tax obligations, if any, on account of the
issuance of Shares or settlement of this Award in one or a combination of the following methods: in
cash or separate check made payable to the Company or by authorizing the Company to withhold from
the Shares to be issued to the Award Recipient hereunder a sufficient number of whole Shares
distributable in connection with this Award equal to the applicable minimum statutory withholding
tax obligation. In the event Award Recipient does not make such payment when requested, the Company
may refuse to issue or cause to be delivered any Shares under this Agreement or any other incentive
plan agreement entered into by Award Recipient and the Company until such payment has been made or
arrangements for such payment satisfactory to the Company have been made.
Section 10. Rights to Continued Employment. Neither the Plan nor this Agreement shall be
deemed to give Award Recipient any right to continue to be employed by, or provide services to, the
Company or any Affiliate, nor shall the Plan or the Agreement be deemed to limit in any way the
Company’s and/or any Affiliate’s right to terminate the employment or service of the Award
Recipient at any time.
Section 11. Further Assistance. Award Recipient will provide assistance reasonably requested
by the Company and its Affiliates in connection with actions taken by Award Recipient while
employed by the Company and/or its Affiliates, including, but not limited to, assistance in
connection with any lawsuits or other claims against the Company and/or its Affiliates arising from
events during the period in which Award Recipient was employed by the Company or any Affiliate.
Section 12. Confidentiality. Award Recipient acknowledges that the business of the Company
and its Affiliates is highly competitive and that the Company’s and its Affiliates’ strategies,
methods, books, records, and documents, technical information concerning their products, equipment,
services, and processes, procurement procedures and pricing techniques, the names of and other
information (such as credit and financial data) concerning former, present or prospective customers
and business affiliates, all comprise confidential business information and trade secrets which are
valuable, special, and unique assets which the Company and its Affiliates use in their business to
obtain a competitive advantage over competitors. Award Recipient further acknowledges that
protection of such confidential business information and trade secrets against unauthorized
disclosure and use is of critical importance to the Company and its Affiliates in maintaining their
competitive position. Award Recipient acknowledges that by reason of Award Recipient’s duties to
and association with the Company and its Affiliates, Award Recipient has had and will have access
to and has and will become informed of confidential business information which is a competitive
asset of the Company and its Affiliates. Award Recipient hereby agrees that Award Recipient will
not, at any time during or after employment, make any unauthorized disclosure of any confidential
business information or trade secrets of the Company and its Affiliates, or make any use thereof,
except in the carrying out of employment responsibilities. Award Recipient shall take all
necessary and appropriate steps to safeguard confidential business information and protect it
against disclosure, misappropriation, misuse, loss and theft. Confidential business information
shall not
Performance Share Unit Award Agreement
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for Employees (Grades 22-30)
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include information in the public domain (but only if the same becomes part of the public
domain through a means other than a disclosure prohibited hereunder). The above notwithstanding, a
disclosure shall not be unauthorized if (i) it is required by law or by a court of competent
jurisdiction or (ii) it is in connection with any judicial, arbitration, dispute resolution or
other legal proceeding in which Award Recipient’s legal rights and obligations as an employee or
under this Agreement are at issue; provided, however, that Award Recipient shall, to the extent
practicable and lawful in any such events, give prior notice to the Company of Award Recipient’s
intent to disclose any such confidential business information in such context so as to allow the
Company and its Affiliates an opportunity (which Award Recipient will not oppose) to obtain such
protective orders or similar relief with respect thereto as may be deemed appropriate. Any
information not specifically related to the Company and its Affiliates would not be considered
confidential to the Company and its Affiliates. In addition to any other remedy available at law
or in equity, in the event of any breach by Award Recipient of the provisions of this Section 12
which is not waived in writing by the Company and/or its Affiliates, all vesting of the Performance
Share Units shall cease effective upon the occurrence of the actions or inactions by Award
Recipient constituting a breach by Award Recipient of the provisions of this Section 12.
Section 13. Binding Effect; No Third Party Beneficiaries. This Agreement shall be binding
upon and inure to the benefit of the Company (including its Affiliates) and Award Recipient and
their respective heirs, representatives, successors and permitted assigns. This Agreement shall
not confer any rights or remedies upon any person other than the Company (including its Affiliates)
and the Award Recipient and their respective heirs, representatives, successors and permitted
assigns. The parties agree that this Agreement shall survive the issuance of the Shares.
Section 14. Agreement to Abide by Plan; Conflict between Plan and Agreement. The Plan is
hereby incorporated by reference into this Agreement and is made a part hereof as though fully set
forth in this Agreement. Award Recipient, by execution of this Agreement, (i) represents that he
or she is familiar with the terms and provisions of the Plan, and (ii) agrees to abide by all of
the terms and conditions of this Agreement and the Plan. Award Recipient accepts as binding,
conclusive and final all decisions or interpretations of the Committee (or its designee) upon any
question arising under the Plan, this Agreement (including, without limitation, the date of Award
Recipient’s Separation from Service). In the event of any conflict between the Plan and this
Agreement, the Plan shall control and this Agreement shall be deemed to be modified accordingly,
except to the extent that the Plan gives the Committee the express authority to vary the terms of
the Plan by means of this Agreement, in which case, this Agreement shall govern.
Section 15. Entire Agreement. Except as otherwise provided herein, in any Company plan
applicable to the Award Recipient, or in any other agreement between Award Recipient and the
Company (or any Affiliate), this Agreement and the Plan, each of which Award Recipient has reviewed
and accepted in connection with the grant of the Performance Share Units reflected by this
Agreement, constitutes the entire agreement between the parties and supersedes any prior
understandings, agreements, or representations by or between the parties, written or oral, to the
extent they related in any way to the subject matter of this Agreement.
Section 16. Choice of Law. To the extent not superseded by federal law, the laws of the
state of Delaware (without regard to the conflicts laws of Delaware) shall control in all matters
relating to this Agreement and any action relating to this Agreement must be brought in State and
Federal Courts located in the Commonwealth of Virginia.
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Section 17. Notice. All notices, requests, demands, claims, and other communications under
this Agreement shall be in writing. Any notice, request, demand, claim, or other communication
under this
Agreement shall be deemed duly given if (and then two business days after) it is sent by
registered or certified mail, return receipt requested, postage prepaid, and addressed to the
intended recipient and, if to the Company, at its address provided in Section 20, and, if to the
Award Recipient, the Award Recipient’s most recent address set forth in the Company’s and its
Affiliates’ records. Either party to this Agreement may send any notice, request, demand, claim,
or other communication under this Agreement to the intended recipient at such address using any
other means (including personal delivery, expedited courier, messenger service, telecopy, ordinary
mail, or electronic mail), but no such notice, request, demand, claim, or other communication shall
be deemed to have been duly given unless and until it actually is received by the intended
recipient. Either party to this Agreement may change the address to which notices, requests,
demands, claims, and other communications hereunder are to be delivered by giving the other party
notice in the manner set forth in this section.
Section 18. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together shall constitute one and the same
instrument.
Section 19. Amendments. This Agreement may be amended or modified at any time by an
instrument in writing signed by the parties hereto, or as otherwise provided under the Plan.
Notwithstanding, the Company may, in its sole discretion and subject to the terms of the Plan,
modify or amend the terms of this Agreement, impose conditions on the timing and effectiveness of
the issuance of the Shares, or take any other action it deems necessary or advisable, to cause this
Award to be excepted from Section 409A of the Code (or to comply therewith to the extent the
Company determines it is not excepted).
Section 20. Acknowledgements.
(a) By accepting this Award of Performance Share Units, the Award Recipient
acknowledges receipt of a copy of the Plan and the prospectus relating to this Award of Performance
Share Units, and agrees to be bound by the terms and conditions set forth in this Agreement and the
Plan, as in effect and/or amended from time to time.
(b) The Plan and related documents, which may include but do not necessarily include
the Plan prospectus, this Agreement and financial reports of the Company, may be delivered to you
electronically. Such means of delivery may include but do not necessarily include the delivery of
a link to a Company intranet site or the internet site of a third party involved in administering
the Plan, the delivery of the documents via e-mail or CD-ROM or such other delivery determined at
the Committee’s or other authorized agent’s discretion. Both Internet Email and the World Wide Web
are required in order to access documents electronically.
(c) This Award is intended to be excepted from coverage under Section 409A of the
Code and the regulations promulgated thereunder and shall be interpreted and construed accordingly.
Notwithstanding, Award Recipient recognizes and acknowledges that Section 409A of the Code may
impose upon the Award Recipient certain taxes or interest charges for which the Award Recipient is
and shall remain solely responsible.
(d) Award Recipient acknowledges that, by receipt of this Award, Award Recipient has
read this Section 20 and consents to the electronic delivery of the Plan and related documents, as
described in this Section 20. Award Recipient acknowledges that Award Recipient may receive from
the Company a paper copy of any documents delivered electronically at no cost if Award Recipient
contacts the Senior Vice President of Human Resources of the Company by telephone at (000) 000-0000
or by
mail to Xxx Xxxxx Xxxxx, X.X. Xxx 0000, Xxxxxxxx, XX 00000. Award Recipient further
acknowledges that Award Recipient will be provided with a paper copy of any documents delivered
electronically if electronic delivery fails.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of this
________, 2010.
| ALPHA NATURAL RESOURCES, INC. | ||||
By
|
||||
| Name: | ||||
| Title: | ||||
Address:
Alpha Natural Resources, Inc.
Xxx Xxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Attn: Senior Vice President of Human Resources
Xxx Xxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Attn: Senior Vice President of Human Resources
AWARD RECIPIENT
Performance Share Unit Award Agreement
for Employees (Grades 22-30)
for Employees (Grades 22-30)
EXHIBIT A
Name of Award Recipient:
Target Number of Performance Share Units:
Grant Date:
Performance Period:
Award Metrics
Performance Share Unit Award Agreement
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for Employees (Grades 22-30)
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