AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement is dated as of November
8, 2002, and is entered into between Renaissance Reinsurance Ltd., a Bermuda
company (the "Company"), and Xxxxx X. Xxxxxx ("Executive").
WHEREAS, the Company and Employee are presently parties to an
Employment Agreement, (the "Prior Agreement"), dated as of July 1, 1999; and
WHEREAS, the Company desires to enter into an amended and restated
agreement embodying the terms of Employee's continued employment (this
"Agreement new terms ") and the Employee desires to enter into this Agreement
and to accept such continued employment, subject to the terms and provisions of
this Agreement.
NOW, THEREFORE, the parties hereby agree:
ARTICLE I.
Employment, Duties and Responsibilities
1.01. Employment. During the Term (as defined below), Executive shall
serve as Executive Vice President and Chief Underwriting Officer of the Company.
Executive agrees to devote his full time and efforts to promote the interests of
the Company.
1.02. Duties and Responsibilities. Executive shall have such duties and
responsibilities as specified by the Company's Board of Directors (the
"Company's Board") from time to time and as are consistent with his position.
1.03. Base of Operation. Executive's principal base of operation for
the performance of his duties and responsibilities under this Agreement shall be
the offices of the Company in Hamilton, Bermuda; provided, however, that
Executive shall perform such duties and responsibilities outside of Bermuda as
shall from time to time be reasonably necessary to fulfill his obligations
hereunder. Executive's performance of any duties and responsibilities outside of
Bermuda shall be conducted in a manner consistent with any guidelines provided
to Executive by Holdings' Board of Directors (the "Holdings Board").
ARTICLE II.
Term
2.01. Term. Subject to Article V, the employment of Executive under
this Agreement shall be for a term (the "Term") which shall have deemed to have
commenced as of July 1, 1999 and shall continue until June 30, 2003, unless
sooner terminated as provided herein.
ARTICLE III.
Compensation and Expenses
3.01. Salary, Incentive Awards and Benefits. As compensation and
consideration for the performance by Executive of his obligations under this
Agreement, Executive shall be entitled, during the Term, to the following
(subject, in each case, to the provisions of Article V hereof):
(a) Salary; Bonus. The Company shall pay Executive a base salary at a
rate to be determined by the Company's Board, upon recommendation of the Chief
Executive Officer of the Company, payable in accordance with the normal payment
procedures of the Company and subject to such withholding and other normal
employee deductions as may be required by law. Bonuses shall be payable at the
discretion of the Company.
(b) Awards. Executive may participate in the Second Amended and
Restated 1993 Stock Incentive Plan of RenaissanceRe Holdings Ltd. (the "Plan").
Executive may receive grants from time to time as determined by the Compensation
Committee of the Holdings Board. Executive shall enter into separate award
agreements with respect to such awards granted to him ("Awards") under the Plan,
and his rights with respect to such Awards shall be governed by the Plan and
such award agreements.
(c) Restricted Stock. Pursuant to the Prior Agreement Executive has
been granted 75,000 shares (without giving effect to the Company's stock split)
of restricted common stock of Holdings (the "Restricted Stock") under the Plan.
The Restricted Stock shall vest at the rate of 20% per year on a cumulative
basis, commencing on May 14, 2000, and shall be subject to the terms of the Plan
and Restricted Stock Agreement with respect to the Restricted Stock entered into
on the date of grant.
(d) Benefits. Executive shall be eligible to participate in such life
insurance, health, disability and major medical insurance benefits, and in such
other employee benefit plans and programs for the benefit of the employees and
officers of the Company, as may be maintained from time to time during the Term,
in each case to the extent and in the manner available to other officers of the
Company and subject to the terms and provisions of such plan or program.
(e) Vacation. Executive shall be entitled to reasonable paid vacation
periods, not to exceed five weeks for each full year during the Term, to be
taken at his discretion, in a manner consistent with his obligations to the
Company under this Agreement, and subject, with respect to timing, to the
reasonable approval of the Chief Executive Officer of the Company.
3.02. Expenses; Perquisites. During the Term, the Company shall provide
Executive with the following expense reimbursements and perquisites:
(a) Business Expenses. The Company will reimburse Executive for
reasonable business-related expenses incurred by him in connection with the
performance of his duties hereunder, subject, however, to the Company's policies
relating to business-related expenses as in effect from time to time.
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(b) Housing. The Company shall reimburse Executive for all
reasonable expenses incurred in connection with Executive's maintenance of a
place of residence in Bermuda, as approved from time to time by the Board.
(c) Automobile. The Company shall provide Executive with an
automobile with a value comparable to automobiles customarily provided to
executive officers of comparable Bermuda-based companies.
(d) Tax Gross-Up. To the extent that benefits provided to
Executive under subsection 3.02(b) of this Agreement result in imputed income
and a resulting increased income tax liability to Executive, the Company shall
pay Executive a tax reimbursement benefit in an amount such that, after
deduction of all income taxes payable with respect to such tax reimbursement
benefit, the amount retained by Executive will be equal to the amount of such
increased income tax liability.
ARTICLE IV.
Exclusivity, Etc.
4.01. Exclusivity; Non-Competition. Executive agrees to perform his
duties, responsibilities and obligations hereunder efficiently and to the best
of his ability. Executive agrees that he will devote his entire working time,
care and attention and best efforts to such duties, responsibilities and
obligations throughout the Term. Executive also agrees that during the Term he
will not engage in any business activities that are competitive with the
business activities of the Company or any of its divisions, subsidiaries or
affiliates.
4.02. Other Business Ventures. Executive agrees that during the Term he
will not own, directly or indirectly, any controlling or substantial stock or
other beneficial interest in any business enterprise which is engaged in
business activities that are competitive with the business activities of the
Company or any of its divisions, subsidiaries or affiliates. The preceding
sentence notwithstanding, Executive may own, directly or indirectly, up to 1% of
the outstanding capital stock of any business having a class of capital stock
which is traded on any major stock exchange or in a national over-the-counter
market.
4.03. Confidential Information. Executive agrees that he will not, at
any time during or after the Term, make use of or divulge to any other person,
firm or corporation any trade or business secret, process, method or means, or
any other confidential information concerning the business or policies of the
Company or any of its divisions, subsidiaries or affiliates, which he may have
learned in connection with his employment hereunder. For purposes of this
Agreement, a "trade or business secret, process, method or means, or any other
confidential information" shall mean any information designated as confidential
by the Company's Board and as to which Executive receives notice, provided that
Executive shall be obligated to confer periodically with and assist the
Company's Board in determining which information should, in the best interests
of the Company, be so designated. Executive's obligation under this Section 4.03
shall not apply to any information which (i) is known publicly; (ii) is in the
public domain or hereafter enters the public domain without the fault of
Executive; (iii) is known to Executive prior to his receipt of such information
from the Company, as evidenced by written records of
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Executive or (iv) is hereafter disclosed to Executive by a third party not under
an obligation of confidence to the Company. Executive agrees not to remove from
the premises of the Company, except as an employee of the Company in pursuit of
the business of the Company or except as specifically permitted in writing by
the Company's Board, any document or other object containing or reflecting any
such confidential information. Executive recognizes that all such documents and
objects, whether developed by him or by someone else, will be the sole exclusive
property of the Company. Upon termination of his employment hereunder, Executive
shall forthwith deliver to the Company all such confidential information,
including without limitation all lists of customers, correspondence, accounts,
records and any other documents or property made or held by him or under his
control in relation to the business or affairs of the Company or its
subsidiaries or affiliates, and no copy of any such confidential information
shall be retained by him.
4.04. Non-Competition Obligations. During the Term and, other than in
the case of the death or disability of Executive, upon any termination of the
employment of Executive, Executive shall not, until the earlier of (x) two years
from the date of such termination or (y) June 30, 2004 (the "Non-Competition
Period"), directly or indirectly, whether as an employee consultant, independent
contractor, partner, joint venturer or otherwise, (A) engage in any business
activities reasonably determined by the Company's Board to be competitive, to a
material extent, with any substantial type or kind of business activities
conducted by the Company or any of its divisions, subsidiaries or affiliates at
the time of such termination; (B) on behalf of any person or entity engaged in
business activities competitive with the business activities of the Company or
any of its divisions, subsidiaries or affiliates, solicit or induce, or in any
manner attempt to solicit or induce, any person employed by, or as agent of, the
Company or any of its divisions, subsidiaries or affiliates to terminate such
person's contract of employment or agency, as the case may be, with the Company
or with any such division, subsidiary or affiliate or (C) divert, or attempt to
divert, any person, concern, or entity from doing business with the Company or
any of its divisions, subsidiaries or affiliates, nor will he attempt to induce
any such person, concern or entity to cease being a customer or supplier of the
Company or any of its divisions, subsidiaries or affiliates. The preceding
sentence notwithstanding, in the case of (i) a voluntary termination of
employment by Executive prior to a "Change in Control," or a voluntary
termination following a "Change in Control" which is not for "Good Reason" (each
as hereinafter defined), or (ii) a termination by the Company for Cause (as
hereinafter defined), the Company may elect, within 14 days after the date of
such termination, to waive Executive's non-competition obligations, in which
case it shall not be required to make payments to Executive during the
Non-Competition Period, as provided in Section 5.05(a).
4.05. Remedies. Executive acknowledges that the Company's remedy at law
for a breach by him of the provisions of this Article IV will be inadequate.
Accordingly, in the event of a breach or threatened breach by Executive of any
provision of this Article IV, the Company shall be entitled to injunctive relief
in addition to any other remedy it may have. If any of the provisions of, or
covenants contained in, this Article IV are hereafter construed to be invalid or
unenforceable in any jurisdiction, the same shall not affect the remainder of
the provisions or the enforceability thereof in any other jurisdiction, which
shall be given full effect, without regard to the invalidity or unenforceability
in such other jurisdiction. If any of the provisions of, or covenants contained
in, this Article IV are held to be unenforceable in any jurisdiction because of
the duration or geographical scope thereof, the parties agree that the court
making such
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determination shall have the power to reduce the duration or geographical scope
of such provision or covenant and, in its reduced form, such provision or
covenant shall be enforceable; provided, however, that the determination of such
court shall not affect the enforceability of this Article IV in any other
jurisdiction.
ARTICLE V.
Termination
5.01. Termination for Cause. The Company shall have the right to
terminate Executive's employment at any time for "Cause". For purposes of this
Agreement, "Cause" shall mean (a) Executive's failure to substantially perform
his duties under this Agreement, (b) the engaging by Executive in misconduct
which is injurious to the Company or any of its divisions, subsidiaries or
affiliates, monetarily or otherwise, (c) the commission by Executive of an act
of fraud or embezzlement against the Company or any of its divisions,
subsidiaries or affiliates, (d) the conviction of Executive of a felony, or (e)
Executive's material breach of the provisions of any of Sections 4.01, 4.02 or
4.03 of this Agreement, provided Executive has received prior written notice of
such breach.
5.02. Death. In the event Executive dies during the Term, Executive's
employment shall automatically terminate, such termination to be effective on
the date of Executive's death.
5.03. Disability. In the event that Executive suffers a disability
which prevents him from substantially performing his duties under this Agreement
for a period of at least 90 consecutive days, or 180 non-consecutive days within
any 365-day period, and Executive becomes eligible for the Company's long-term
disability plan, the Company shall have the right to terminate Executive's
employment, such termination to be effective upon the giving of notice to
Executive in accordance with Section 6.03 of this Agreement.
5.04. Termination Without Cause. The Company may at any time terminate
Executive's employment for reasons other than Cause.
5.05. Effect of Termination.
(a) Obligations of Company. In the event of any termination of
Executive's employment hereunder, the Company shall pay Executive any earned but
unpaid base salary. In addition, except as provided in Section 5.06, upon a
termination of Executive's employment for any reason other than Executive's
death or disability, the Company shall continue to pay Executive during the
Non-Competition Period, his then current base salary, and an amount equal to the
highest regular annual bonus paid or payable to Executive over the preceding
three fiscal years (excluding any extraordinary or non-recurring bonus), such
amounts to be payable in equal monthly installments commencing on the date which
is one month after the date of such termination. The preceding sentence
notwithstanding, in the event of a termination of employment described in the
last sentence of Section 4.04 of this Agreement, if the Company elects to waive
Executive's non-competition obligations within 14 days after the date of such
termination, the Company shall not be required to make such additional payments.
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(b) Restricted Stock. Except as otherwise provided in Section
5.06(b) hereof, Executive's rights with respect to Restricted Stock upon any
termination of his employment with the Company shall be governed exclusively by
the terms and conditions of the Plan and any agreements executed by Executive in
connection with the Restricted Stock.
(c) Obligations of Executive. Executive may terminate his
employment at any time by 10 days' written notice to the Company. Executive
shall have no obligations to the Company under this Agreement after the
termination of his employment, except and to the extent Sections 4.03, 4.04 or
4.05 shall apply.
5.06. Termination Following a Change in Control. In the event that a
Change in Control occurs (as hereinafter defined) and, on or within two years
following the date of such Change in Control, Executive's employment is
terminated by the Company without Cause, or Executive terminates his employment
voluntarily for "Good Reason" (as hereinafter defined), then
(A) in lieu of the payments described in the second sentence of
Section 5.05(a), the Company shall pay Executive, within fifteen days following
the date of such termination, a lump sum cash amount equal to two times the sum
of:
(i) Executive's annual base salary at the highest rate in effect
during the Term; and
(ii) the highest regular annual bonus paid or payable to Executive
over the preceding three fiscal years (excluding any extraordinary
or non-recurring bonus) and
(B) notwithstanding anything to the contrary in the Plan, the
portion of the Restricted Stock that had not yet vested shall not vest as of the
date of such Change in Control but shall become fully vested as of the date of
such termination.
For purposes of this Agreement, "Good Reason" means
(i) any action taken or failed to be taken by the Company
or any of its officers which, without Executive's prior written
consent, changes Executive's position (including titles), authority,
duties or responsibilities from those in effect prior to the Change in
Control, or reduces Executive's ability to carry out such duties and
responsibilities;
(ii) any failure by the Company to comply with any of the
provisions of Section 3 of this Agreement, other than an insubstantial
or inadvertent failure which is remedied by the Company promptly after
receipt of notice thereof from Executive;
(iii) the Company's requiring Executive to be employed at
any location more than 35 miles further from his current principal
residence than the location at which Executive was employed immediately
preceding the Change in Control; or
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(iv) any failure by the Company to obtain the assumption of
and agreement to perform this Agreement by a successor as contemplated
by Section 6.02(b) of this Agreement.
For purposes of this Agreement, "Change of Control" shall have the
meaning shall have the meaning ascribed thereto in the RenaissanceRe 2001 Stock
Incentive Plan..
Except as specifically provided in this Section 5.06, the effect of a
termination of Executive's employment following a Change in Control shall be
governed by the provisions of Section of 5.05.
ARTICLE VI.
Miscellaneous
6.01. Life Insurance. Executive agrees that the Company or any of its
divisions, subsidiaries or affiliates may apply for and secure and own insurance
on Executive's life (in amounts determined by the Company). Executive agrees to
cooperate fully in the application for and securing of such insurance, including
the submission by Executive to such physical and other examinations, and the
answering of such questions and furnishing of such information by Executive, as
may be required by the carrier(s) of such insurance. Notwithstanding anything to
the contrary contained herein, neither the Company nor any of its divisions,
subsidiaries or affiliates shall be required to obtain any insurance for or on
behalf of Executive.
6.02. Benefit of Agreement; Assignment; Beneficiary. (a) This Agreement
shall inure to the benefit of and be binding upon the Company and its successors
and assigns, including, without limitation, any corporation or person which may
acquire all or substantially all of the Company's assets or business, or with or
into which the Company may be consolidated or merged. This Agreement shall also
inure to the benefit of, and be enforceable by, Executive and his personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
(b) The Company shall require any successor (whether direct or
indirect, by operation of law, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of the Company 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 had taken place.
6.03. Notices. Any notice required or permitted hereunder shall be in
writing and shall be sufficiently given if personally delivered or if sent by
telegram or telex or by registered or certified mail, postage prepaid, with
return receipt requested, addressed: (a) in the case of the Company, to
Renaissance Reinsurance Ltd., Renaissance House, East Broadway, Hamilton,
Bermuda, Attention: Secretary, or to such other address and/or to the attention
of such other person as the Company shall designate by written notice to
Executive; and (b) in the case of Executive, to Executive at his then current
home address as shown on the Company's books, or to such other address as
Executive shall designate by written notice to the Company. Any notice
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given hereunder shall be deemed to have been given at the time of receipt
thereof by the person to whom such notice is given.
6.04. Entire Agreement; Amendment. This Agreement contains the entire
agreement of the parties hereto with respect to the terms and conditions of
Executive's employment and supersedes any and all prior agreements and
understandings, whether written or oral, between the parties hereto with respect
to compensation due for services rendered hereunder including, without
limitation, the Prior Agreement. This Agreement may not be changed or modified
except by an instrument in writing signed by both of the parties hereto.
6.05. Waiver. The waiver by either party of a breach of any provision
of this Agreement shall not operate or be construed as a continuing waiver or as
a consent to or waiver of any subsequent breach hereof.
6.06. Headings. The Article and Section headings herein are for
convenience of reference only, do not constitute a part of this Agreement and
shall not be deemed to limit or affect any of the provisions hereof.
6.07. Enforcement. If any action at law or in equity is brought by
either party hereto to enforce or interpret any of the terms of this Agreement,
the prevailing party shall be entitled to reimbursement by the other party of
the reasonable costs and expenses incurred in connection with such action
(including reasonable attorneys' fees), in addition to any other relief to which
such party may be entitled. Executive shall have no right to enforce any of his
rights hereunder by seeking or obtaining injunctive or other equitable relief
and acknowledges that damages are an adequate remedy for any breach by the
Company of this Agreement.
6.08. Governing Law. This Agreement shall be governed by, and construed
and interpreted in accordance with, the internal laws of Bermuda without
reference to the principles of conflict of laws. The parties submit to the
non-exclusive jurisdiction of the courts of Bermuda.
6.09. Agreement to Take Actions. Each party to this Agreement shall
execute and deliver such documents, certificates, agreements and other
instruments, and shall take such other actions, as may be reasonably necessary
or desirable in order to perform his or its obligations under this Agreement or
to effectuate the purposes hereof.
6.10. No Mitigation; No Offset. Executive shall not be required to
mitigate damages or the amount of any payment provided for under this Agreement
by seeking (and, without limiting the generality of this sentence, no payment
otherwise required under this Agreement shall be reduced on account of) other
employment or otherwise, and payments under this Agreement shall not be subject
to offset in respect of any claims which the Company may have against Executive.
6.11. Attorneys' Fees. Each party to this Agreement will bear its own
expenses in connection with any dispute or legal proceeding between the parties
arising out of the subject matter of this Agreement, including any proceeding to
enforce any right or provision under this Agreement.
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6.12. Termination; Survivorship. This Agreement shall terminate upon
termination of Executive's employment, except that the respective rights and
obligations of the parties under this Agreement as set forth herein shall
survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations.
6.13. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision or provisions of this Agreement, which shall remain in full
force and effect.
6.14. Other Agreements. Executive represents and warrants to the
Company that to the best of his knowledge, neither the execution and delivery of
this Agreement nor the performance of his duties hereunder violates or will
violate the provisions of any other agreement to which he is a party or by which
he is bound.
6.15. Subsidiaries, etc. (a) The obligations of the Company under this
Agreement may be satisfied by any subsidiary or affiliate of the Company for
which Executive serves as an employee under this Agreement, to the extent such
obligations relate to Executive's employment by such subsidiary or affiliate.
(b) The rights of the Company under this Agreement may be enforced
by any Subsidiary or affiliate of the Company for which Executive serves as an
employee under this Agreement, to the extent such rights relate to Executive's
employment by such subsidiary or affiliate.
6.16. 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
together will constitute one and the same instrument.
ARTICLE VII.
Indemnification of Executive
7.01. Indemnification. The Company shall defend, hold harmless and
indemnify Executive to the fullest extent permitted by Bermuda law, as currently
in effect or as it may hereafter be amended, from and against any and all
damages, losses, liabilities, obligations, claims of any kind, costs, interest
or expense (including, without limitation, reasonable attorneys' fees and
expenses) (collectively, "Losses") that may be incurred or suffered by Executive
in connection with or arising out of his service with the Company (whether prior
to or following the date hereof), subject only to the provisions of Section 7.02
below.
7.02. Exceptions to Right of Indemnification. No indemnification shall
be made under this Article VII in respect of the following:
(a) Losses relating to the disgorgement remedy contemplated by
Section 16 of the US Securities Exchange Act of 1934;
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(b) Losses arising out of a knowing violation by Executive of a
material provision of this Article VII or any other agreement to which Executive
is a party with the Company; and
(c) Losses arising out of a final, nonappealable conviction of
Executive by a court of competent jurisdiction for a knowing violation of
criminal law.
Moreover, the Company shall not effect any advances, or advance any costs,
relating to any proceeding (or part thereof) initiated by Executive unless the
initiation thereof was approved by the Board of Directors of the Company, or as
may be approved or ordered by a competent tribunal.
7.03. Prepayment of Expenses. Unless Executive otherwise elects via
written notice to the Company, expenses incurred in defending any civil or
criminal action, suit or proceeding shall be paid by the Company in advance of
the final disposition of such action, suit or proceeding upon receipt by the
Company of a written affirmation of Executive's good faith belief that his
conduct does not constitute the sort of behavior that would preclude his
indemnification under this Article VII and Executive furnishes the Company a
written undertaking, executed personally or on his behalf, to repay any advances
if it is ultimately determined that he is not entitled to be indemnified by the
Company under this Article VII.
7.04. Continuation of Indemnity. All agreements and obligations of the
Company contained in this Article VII shall continue during the period in which
Executive is employed the Company and shall continue thereafter so long as
Executive shall be subject to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, and
whether formal or informal, by reason of the fact that Executive was a employed
by the Company.
7.05. Indemnification Hereunder Not Exclusive. The indemnification and
prepayment of expenses provided by this Article VII is in addition to and shall
not be deemed exclusive of any other right to which Executive may be entitled
under the Company's Memorandum of Association, the Company's Bye-Laws, any
agreement, any vote of shareholders or disinterested directors, Bermuda law, any
other law (common or statutory) or otherwise. Nothing contained in this Article
VII shall be deemed to prohibit the Company from purchasing and maintaining
insurance, at its expense, to protect itself or Executive against any expense,
liability or loss incurred by it or him, whether or not Executive would be
indemnified against such expense, liability or loss under this Article VII;
provided that the Company shall not be liable under this Article VII to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent that
Executive has otherwise actually received such payment under any insurance
policy, contract, agreement or otherwise. In the event the Company makes any
indemnification payments to Executive and Executive is subsequently reimbursed
from the proceeds of insurance, Executive shall promptly refund such
indemnification payments to the Company to the extent of such insurance
reimbursement.
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IN WITNESS WHEREOF, the Company and Executive have duly executed this
Agreement as of the date first above written.
RENAISSANCE REINSURANCE LTD.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Executive Vice President
/s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
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