EXHIBIT 10.12
EMPLOYMENT AND NON-COMPETITION AGREEMENT
Employment and Non-Competition Agreement dated as of July 19, 1999, between
Calton Homes of Florida, Inc., a Florida corporation (the "Employer"), Calton,
Inc., a New Jersey corporation ("Calton"), and Kenneth D. Hill, an individual
residing at 167 Anchor Drive, Vero Beach, Florida 32963 (the "Employee").
W I T N E S S E T H:
WHEREAS, pursuant to the Asset Purchase Agreement among Employer, Calton,
iAW, Inc. ("iAW"), Employee, Matthew Smith and Robert Hill dated as of July 19,
1999 (the "Asset Purchase Agreement"), Employer is acquiring substantially all
of the assets of iAW (the "Acquisition");
WHEREAS, the employment of the Employee by the Employer from and after the
Acquisition is a material inducement to Calton's willingness to acquire iAW
through the Acquisition;
WHEREAS, the Employee possesses valuable knowledge and skills that will
contribute to the successful operation of the Employer's business;
WHEREAS, the Employer and the Employee have agreed to execute and deliver
this Agreement in consideration of, among other things, (i) the access of the
Employee to confidential or proprietary information of the Employer and other
corporations, associations, partnerships, unincorporated organizations or other
similar entities that are presently or will be in the future directly or
indirectly owned or controlled by Calton (collectively, the "Calton Group"),
(ii) the access of the Employee to confidential or proprietary information to be
acquired hereafter by the Calton Group and (iii) the Employee's receipt of
compensation from time to time by the Employer; and
WHEREAS, the Employer desires that the Employee be employed by the Employer
in an executive capacity and the Employee desires to be so employed, on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
hereto agree as follows:
1. Employment. The Employer hereby employs the Employee, and the Employee
hereby accepts employment with the Employer, for the term set forth in Section
2, in the position and with the duties and responsibilities set forth in Section
3, and upon the other terms and subject to the conditions hereinafter stated.
2. Employment Period. This Agreement shall become effective and commence on
the date hereof and shall continue until June 30, 2002 (the "Employment Period")
or such earlier date as of which this Agreement shall be terminated in
accordance with the provisions of Section 6.
3. Position, Duties, Responsibilities. At all times during the Employment
Period, the Employee shall serve as Chief Executive Officer of the Employer with
responsibility for managing the affairs of the corporation or in such other
executive capacity as shall from time to time be assigned to him by the Board of
Directors of the Employer (the "Board"), provided that any such reassignment is
to a senior executive position. The Employee shall report to such person as the
Board may determine from time to time. The Employee agrees, during the
Employment Period, to endeavor to the best of his ability to promote the
interests of the Employer, and in particular, without limitation, to devote his
full time and best efforts and attention to the business of the Employer, and to
carry out such other duties and perform such other responsibilities as may from
time to time be assigned to him.
4. Remuneration. In consideration of all the services to be rendered by the
Employee, the Employee shall be paid an annual fixed salary (the "Base Salary")
as follows:
(a) During the period commencing on the date of this Agreement and
ending on the six month anniversary of the date of this Agreement, the
Employee's Base Salary shall be $75,000 per annum ($6,250 per month);
(b) During the period commencing on the day following the six month
anniversary of the date of this Agreement and ending on the 18 month anniversary
of the date of this Agreement, the Employee's Base Salary shall be $120,000 per
annum ($10,000 per month); and
(c) Prior to the 18 month anniversary of the date of this Agreement,
Employer and Employee shall negotiate, in good faith, based upon market rates,
the Employee's Base Salary for the remaining term of this Agreement, taking into
account, the performance of and prospects for the Company.
(d) Employee shall have the opportunity to earn a performance bonus as
determined in the discretion of the Board of Directors of Employer and
consistent with Calton's policies.
The Employer shall pay the Employee the Base Salary on such dates as employees
of the Employer are ordinarily paid, and shall deduct from the Base Salary
applicable withholding taxes.
5. Benefits.
(a) Calton agrees that during the Employment Period, the Employee shall
be eligible to participate in each benefit plan available, or hereafter made
available, to employees of Employer and shall be entitled to participate in an
incentive compensation program attributable to Employer's results that is
similar to Calton's Incentive Compensation Plan (a copy of which has been
delivered to Employee), subject, in the discretion of the Calton Board of
Directors, to adjustments to reflect the start-up nature of the Employer's
business. The Employer and/or Calton may amend or terminate any such plan in its
sole and absolute discretion.
(b) During the Employment Period, the Employee shall be entitled to
fifteen (15) days paid vacation per annum. Any unused vacation shall not carry
over to the succeeding year unless vacation is deferred at the request of the
Employer. Such vacation must be taken at times approved by Calton and the
Employer.
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(c) All expenses reasonably incurred by the Employee in the performance
of services to the Employer during the Employment Period shall be reimbursed
upon production of receipts for such expenses in accordance with Calton's
policies and procedures, as the same may be amended from time to time, and the
approval of the Employer, such approval not to be unreasonably withheld.
(d) Upon the execution and delivery of this Agreement, Employee shall be
granted options (the "Options") to acquire 600,000 shares of Calton Common
Stock. The Options shall have the following terms:
(i) the exercise price shall be $1.63 per share;
(ii) the Options shall vest in equal one-third (1/3) annual
installments on July 19, 2000, 2001 and 2002;
(iii) until July 19, 2001, Employee shall be prohibited from selling
more than 50% of the aggregate number of shares of Common Stock underlying the
Options without the written consent of Calton;
(iv) Calton shall register the shares of Common Stock underlying the
Options under the Securities Act of 1933, as amended, on Form S-8 or a similar
form;
(v) the terms of the Options shall be consistent with the terms of
Calton's 1996 Equity Incentive Plan;
provided, however, that if the rules of the American Stock Exchange, which
require shareholder approval of the grant of options with respect to more than
five percent (5%) of Calton's outstanding Common Stock in connection with
certain transactions (the "AMEX Rule"), would require shareholder approval of
the grant of any portion of the options granted to Employee pursuant to this
Agreement and/or the options granted Matthew Smith and Robert Hill pursuant to
employment agreements (the "Aggregate Options") with Employer as of even date
herewith, then
(i) the grant of a number of options equal to one-third (1/3) of the
Aggregate Options which require shareholder approval under the AMEX Rule shall
be subject to Calton shareholder approval;
(ii) Calton agrees to submit a proposal to obtain the required
shareholder approval at its next meeting of shareholders; and
(iii) in the event that the required shareholder approval is not
obtained, Calton and Employee agree to negotiate in good faith to develop an
equitable substitute for the Options forfeited by reason of the failure to
obtain shareholder approval.
6. Termination, Death and Disability.
(a) Termination for Cause. Notwithstanding anything herein to the
contrary, Calton and/or the Employer shall have the right to immediately
terminate the employment of the Employee at any time during the Employment
Period if (i) the Employee shall have materially violated any of the provisions
of this Agreement (including, without limitation, any action by the Employee
which results or is reasonably expected to result in a violation of Sections 3,
7, 8, 9,
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10, 11 or 12) (ii) the Employee shall have been guilty of any action during his
employment hereunder involving willful malfeasance or gross negligence; or (iii)
the Employee shall have been convicted of or entered a plea of nolo contendere
to any felony. In the event of the termination of the Employee's employment
pursuant to this Section 6(a) the Employee shall not be entitled to any
severance payments or benefits hereunder.
(b) Termination Without Cause. If the Employee's employment with the
Employer is terminated by Calton and/or the Employer prior to the expiration of
the Employment Period other than for (i) death, (ii) Disability, (iii)
retirement or (iv) termination pursuant to Section 6(a), the Employer shall pay
the Employee the severance amount as set forth in Section 6(d)(i) or 6(d)(ii),
as the case may be.
(c) Termination for Failure to Achieve Plan. Calton and/or the Employer
shall have the right to terminate the employment of Employee if during any
fiscal year, Employer's net operating profit (as determined in accordance with
generally accepted accounting principles) is less than 65% of the amount
forecast in the Business Plan which was delivered by Employer to Calton prior to
the execution and delivery of the Merger Agreement.
(d) Severance Amount.
(i) The severance amount payable in the event of a termination of
the Employee's employment by the Employer pursuant to Section 6(b) shall be an
amount equal to the Employee's Base Salary (as in effect immediately preceding
the Employee's termination) for the then remaining term of the Employment
Period. In addition, Employee shall be entitled to receive any (a) incentive or
bonus compensation that has been awarded but not paid and (b) any stock options
that have been awarded but not issued.
(ii) The severance amount payable in the event of a termination of
the Employee's employment by Calton and/or the Employer pursuant to Section 6(c)
shall be three month's Base Salary (as in effect at the time of termination).
(iii) In the event that Employee's employment with Employer is
extended beyond the Employment Agreement and such employment is subsequently
terminated by Calton and/or the Employer for any reason other than for (a)
death, (b) Disability, (c) retirement, or (d) a reason set forth in Section 6(a)
or 6(c), the severance amount shall be an amount equal to six month's Base
Salary (as in effect at the time of termination).
(iv) The severance amount shall be paid in approximately equal
installments on such dates as employees of the Employer are normally paid,
except that, (x) such installment payments shall cease if the Employee fails to
comply with any of the covenants contained in Sections 7, 8, 9, 10, 11 or 12 of
this Agreement and (y) the Employer may elect, at any time and in its
discretion, to pay the Employee the remaining severance amount payable hereunder
in a single lump sum amount.
(e) Death. In the event of the death of the Employee during the
Employment Period, the Employee's estate shall be entitled to receive the
payment of salary pursuant to Section 4 with respect to periods prior to such
death and all monies then due under any insurance, retirement or other benefit
plan of the Employer in which the Employee participated.
(f) Disability. The Employee's employment hereunder may, in the
discretion of Calton and/or the Employer, be terminated in the event of his
Disability, for a period of (i) three
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consecutive months or (ii) more than six months in any twelve-month period. For
purposes of this section, "Disability" shall mean any illness or injury or
physical or mental condition which shall prevent the Employee from performing
his usual duties and services for the Employer on substantially the same basis
under which he was performing or was obligated to perform them prior to the
occurrence or onset of such illness, injury or condition. In the event of the
termination of Employee's employment pursuant to this Section 6(f), the Employee
shall not be entitled to any severance payments or benefits hereunder.
(g) Continuation of Benefits. In the event of a termination of
Employee's employment by the Employer pursuant to Section 6(b) or 6(c), then, to
the extent the Employee is insurable, the Employer shall reimburse the Employer
the cost of COBRA benefits, other than long term disability coverage (if any),
for the Employee for a period equal to (i) the remaining term of the Employment
Period in the event of a termination pursuant to Section 6(b) or (ii) three
months in the event of a termination pursuant to Section 6(c), subject to any
limitation on the provision of such benefits established by then existing law.
(h) Full Discharge of Employer Obligations. The amounts payable and
benefits provided to Employee pursuant to this Section 6 following termination
of the Employee's employment (including (i) Base Salary payable pursuant to
Section 4 for services rendered by the Employee prior to the date of termination
of his employment, (ii) vested benefits and expense reimbursements payable to
the Employee in accordance with the terms of any benefit plan or policy in which
the Employee participated during the Employment Period pursuant to Section 5 and
(iii) incentive or bonus compensation that has been awarded but not paid and any
stock options that have been awarded but not issued as per Section 6(d)) shall
be in full and complete satisfaction of the Employee's rights under this
Agreement and any other claims with respect to compensation and benefits the
Employee may have in respect of the Employee's employment by the Employer,
including any claim for incentive compensation. Such amounts shall constitute
liquidated damages with respect to any and all such rights and claims and, upon
the Employee's receipt of such amounts, the Employer shall be forever released
and discharged from any and all liability to the Employee in connection with
this Agreement or otherwise in connection with the Employee's employment with
the Employer.
(i) Survival. The obligations of the Employee to the Employer under
Sections 7, 8, 9, 10, 11 or 12 and 16 shall in any event survive any termination
of the Employee under this Section 6 or any termination of this Agreement. The
delivery of a notice of termination under this Section 6 shall cause all
obligations of the Employer to the Employee hereunder to cease, except for the
following obligations which shall survive termination: (i) the payment of any
accrued but unpaid Base Salary as at the date of termination and (ii) the
payment of the severance compensation, if any, pursuant to Section 6(d).
7. Employee's Acknowledgements.
(a) The Employee acknowledges and agrees that: (i) in the course of the
Employee's employment by iAW he has acquired and developed confidential
information related to iAW and during the course of Employee's employment with
Employer, he will continue to acquire and develop confidential information
relating to the Employer, and will acquire and develop confidential information
relating to the Calton Group or individual members thereof and the businesses of
Employer, the Calton Group or individual members thereof, including but not
limited to information concerning the Employer's and other Calton Group member's
sales, sales volume, sales methods, sales proposals, trade secrets, customers
and prospective customers,
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identity of customers and prospective customers, identity of key purchasing
personnel or other decision-makers in the employ of customers and prospective
customers, amount or kind of customers' purchases from the Employer and such
members, knowledge of customers' specifications and requirements, confidential
information of customers, pricing information, the Employer's and other Calton
Group members' sources of supply and material specifications, the Employer's and
other Calton Group members' computer programs, system documentation, special
hardware, product hardware, related software development, manuals, formulations,
processes, methods, equipment, compositions, ideas, improvements, inventions or
other confidential or proprietary information belonging to the Employer, the
Calton Group or any member thereof, or relating to the Employer's, the Calton
Group's or any member's affairs (collectively referred to herein as the
"Confidential Information"); (ii) the Confidential Information (including
Confidential Information pertaining to iAW) is the property of the Employer, the
Calton Group or a member thereof; (iii) the use, misappropriation or disclosure
of the Confidential Information would constitute a breach of trust and could
cause irreparable injury to the Employer, the Calton Group or a member thereof;
(iv) it is essential to the protection of the Employer's and the other Calton
Group members' good will and to the maintenance of the Employer's and the other
Calton Group members' competitive position that the Confidential Information be
kept secret and that the Employee not disclose the Confidential Information to
others outside the Calton Group or use the Confidential Information to the
Employee's own advantage or the advantage of others outside the Calton Group;
and (v) the covenants in Sections 7, 8, 9, 10, 11, 12 and 16 are necessary to
protect the legitimate interests of the Employer and the Calton Group.
(b) The Employee further recognizes and agrees that the Employee's
duties for the Employer may include the preparation of materials, including
written or graphic materials for the Employer or another Calton Group member,
and that any such materials conceived or written by the Employee shall be done
within the scope of his employment as a "work made for hire", as defined and
used in the Copyright Act of 1976, as amended (17 U.S.C. ss.ss. 101 et seq.).
The Employee agrees that because any such work is a "work made for hire", the
Employer or such other Calton Group member will solely retain and own all rights
in said materials, including rights of copyright.
(c) The Employee represents and warrants to the Employer that the
Employee has no prior obligation or commitment, whether written or oral, to any
third party that (i) relates to the protection of confidential information, the
solicitation of customers, suppliers, employees or sales representatives, the
ownership of inventions or improvements made or conceived by the Employee acting
individually or jointly, or the restriction of the employee's future activities
or employment or (ii) restricts the Employee's ability to perform the duties of
his employment for the Employer or any other member of the Calton Group,
including but not limited to the performance of or compliance with any of the
covenants of the Employee contained in any of Sections 7, 8, 9, 10, 11 and 15 of
this Agreement. The Employee certifies that he has not, and covenants that he
will not, disclose or use during his employment with the Employer or any other
member of the Calton Group any confidential information which the Employee
acquired as a result of any previous employment.
8. Intellectual Property Rights. The Employee agrees to disclose and assign
to the Employer his entire right, title and interest in and to all inventions
and improvements related to the Employer's business (including but not limited
to all financial and sales information), whether patentable or not, whether made
or conceived by him individually or jointly with others at any time during his
employment with the Employer or any other member of the Calton Group
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hereunder or with iAW prior to the term hereof. Such inventions and improvements
are to become and remain the property of the Employer or such other Calton Group
member whether or not patent applications are filed thereon, and the Employee
agrees, upon request and at the expense of the Employer, to make and execute
applications for letters patent, in the United States and any other countries,
through attorneys designated by the Employer, and to assign all applications and
patents which may issue thereon to the Employer or such other Calton Group
member or their respective nominees and to make all such other applications and
execute all such documents as the Employer may reasonably request to effectuate
the purpose of this Section 8. The Employer shall determine, in its reasonable
judgment after consulting with the Employee, whether any invention or
improvement is related to the business of the Employer.
9. Non-Disclosure of Confidential Information. The Employee agrees to hold
and safeguard the Confidential Information in trust for the Employer or any
Calton Group Members and the Calton Group, their successors and assigns and
agrees that the Employee shall not, without the prior written consent of the
Employer, use for personal gain or private purposes or misappropriate or
disclose or make available to anyone for use outside the Employer's or any
Calton Group members' organization at any time, either during the Employee's
employment with the Employer or any other member of the Calton Group or
subsequent to the termination of such employment with the Employer for any
reason, including without limitation termination by the Employer for cause or
without cause, any of the Confidential Information, whether or not developed by
the Employee, except as required in the performance of the Employee's duties to
the Employer or any other member of the Calton Group.
10. Covenant Not To Compete. The Employee covenants and agrees that during
the Employee's employment with the Employer or any other member of the Calton
Group and until the later of the fourth anniversary (second anniversary in the
case of a termination pursuant to Section 6(c)) of the termination of the
Employee's employment with the Employer or the Calton Group by reason of
resignation or pursuant to Section 6(a) or 6(c) of this Agreement, Employee
shall not, directly or indirectly, have any ownership interest (as a
shareholder, partner or otherwise) in any Competing Business. For purposes of
this Agreement, the term "Competing Business" shall mean: (a) the business of
providing (i) Internet services that include the providing of Internet business
and E-commerce solutions, (ii) video conference services and the maintenance of
sites for the provisions of such services, (b) furnishing technical aid or
assistance to anyone who engages in a business described in clause (a) above or
(c) the sale or attempted sale of products or services, similar to products or
services sold by Employer; provided, however, that this Section 10 shall not be
deemed to prevent the Employee's ownership of 1% or less of the capital stock of
any publicly held entity.
11. Non-Solicitation of Customers. The Employee agrees that, during the
Employee's employment with the Employer or any other member of the Calton Group
and until the fourth anniversary (second anniversary in the event of a Section
6(c) Termination) of the termination of Employee's employment with the Company,
the Employee shall not, directly or indirectly (i) interfere with Employer's
business relationship with or solicit the trade of, or trade with, any customer
of the Employer or iAW for whom the Employer, iAW or any member of the Calton
Group in the same or similar business has provided products or services within
the prior two year period for any business purpose other than for the benefit of
the Employer or (ii) solicit the trade of, or trade with, any prospective
customer that was solicited by Employer or iAW or any member of the Calton Group
in the same or similar business within the prior two year period for any
business purpose other than for the benefit of Employer.
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12. Non-Solicitation of Employees and Former Employees. The Employee agrees
that, during the Employee's employment with the Employer or any other member of
the Calton Group and until the fourth anniversary of the termination of such
employment for any reason whatsoever, including without limitation termination
for cause or without cause, the Employee shall not, directly or indirectly,
solicit or induce, or attempt to solicit or induce, any employee of the Employer
or any other member of the Calton Group to leave the Employer or such other
member of the Calton Group for any reason whatsoever or hire any employee of the
Employer or any other member of the Calton Group or person who was employed by
the Employer or any other member of the Calton Group at any time during the two
year period preceding the date of the Employee's termination.
13. Effect of Employer or Calton Breach. In the event that Employer and/or
Calton breaches a material provision of this Agreement, then in such event
Employee shall cease to be bound by the provisions of Sections 10, 11 and 12 of
this Agreement.
14. Severability. The covenants contained herein shall be construed as a
series of separate and severable covenants which are identical in terms except
for subject matter and temporal duration. The Employee and the Employer agree
that if any court of competent jurisdiction determines that any such separate
covenant is not fully enforceable, such covenant shall be deemed modified or
severed and that the remainder of such covenant and of this Agreement shall be
enforced to the fullest extent permitted by applicable law.
15. Injunctive Relief. The Employee acknowledges and agrees that the
services to be rendered by the Employee to the Employer or any other member of
the Calton Group are of a special and unique character and that any breach of
the covenants herein would cause irreparable harm. The Employer shall have the
right to injunctive relief, in addition to all of its other rights and remedies
at law or in equity, to enforce the provisions of this Agreement. If the
Employer is awarded an injunction or other remedy in connection with the
enforcement of such provisions, the Employee further agrees to pay all costs and
expenses (including attorneys' fees) reasonably incurred by the Employer in such
enforcement effort.
16. Obligation to Inform Succeeding Employers. Until the fourth anniversary
of the termination of the Employee's employment with the Employer and the other
members of the Calton Group for any reason whatsoever, including, without
limitation, termination for cause or without cause, the Employee agrees (a) to
inform each of his subsequent employers, prior to accepting his employment, of
the existence of this Agreement and to provide such employer with a copy of this
Agreement and (b) to inform the Employer, upon the acceptance of employment, of
the identify of his new employer, the nature of such employer's business and the
Employee's new position, duties and responsibilities.
17. Assignment. The rights and duties of the parties to this Agreement
shall not be assignable by either party, except that this Agreement and all the
rights hereunder may be assigned by the Employer to any corporation or other
business entity that succeeds to all or substantially all of the Employer's
business through merger, consolidation, or corporate reorganization, or by
acquisition of all or substantially all of the assets of the Employer, and
assumes the Employer's obligations under this Agreement.
18. Notices. All notices, consents, requests, instructions, approvals and
other communications which may be or are required to be given, served or sent by
any party to any other party pursuant to this Agreement shall be in writing and
shall be mailed by first-class,
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registered or certified mail, return receipt requested, postage prepaid, or
transmitted by hand delivery, overnight courier or telecopy, addressed as
follows:
If to the Employer, to:
iAW, Inc.
333 17th Street, Suite D
Vero Beach, Florida 32969
Telecopy: (561) 569-6360
Attention: Kenneth D. Hill
with a copy to:
Calton, Inc.
125 Half Mile Road, Suite 206
Red Bank, New Jersey 07701
Telecopy: (732) 212-1290
Attention: Anthony J. Caldarone
If to the Employee, to:
Kenneth D. Hill
167 Anchor Drive
Vero Beach, Florida 32963
or, in each case, at such other address as may be specified in writing to the
other parties hereto. Any notice so addressed shall be deemed to be given (x)
three business days after being mailed by first-class, registered or certified
mail, return receipt requested, postage prepaid and (y) upon delivery, if
transmitted by hand delivery, overnight courier or telecopy.
19. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
20. Entire Agreement. This Agreement supersedes all prior agreements
whether written or oral and constitutes the entire agreement between the parties
with respect to the subject matter hereof. There shall be no modification,
amendment, waiver or alteration of this Agreement, except in writing and signed
by a duly authorized officer of the Employer and the Employee. Any waiver of any
terms or conditions hereof by the Employer shall not be construed as a
continuing waiver but shall only apply to the particular transaction involved.
21. Withholding. Any payments provided for herein shall be reduced by any
amounts required to be withheld by the Employer from time to time under
applicable Federal, State or local income or employment tax laws or similar
statutes or other provisions of law then in effect.
22. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
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Calton Homes of Florida, Inc.
By:
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Anthony J. Caldarone, President
Calton, Inc.
By:
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Anthony J. Caldarone, President
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Kenneth D. Hill
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