Exhibit 10.9
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MID-WESTERN
AIRCRAFT SYSTEMS
HOLDINGS, INC.
SHORT-TERM
INCENTIVE PLAN
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June 16, 2005
MID-WESTERN AIRCRAFT SYSTEMS HOLDINGS, INC.
SHORT-TERM INCENTIVE PLAN
Table of Contents
ARTICLE I -- PURPOSE....................................................... 1
Section 1.01. Purpose................................................ 1
ARTICLE II -- DEFINITIONS.................................................. 1
Section 2.01. Beneficiary or Beneficiaries........................... 1
Section 2.02. Board of Directors..................................... 1
Section 2.03. Closing Date........................................... 1
Section 2.04. Code................................................... 1
Section 2.05. Committee.............................................. 2
Section 2.06. Company................................................ 2
Section 2.07. Employee............................................... 2
Section 2.08. Employer............................................... 2
Section 2.09. Participant............................................ 2
Section 2.10. Plan................................................... 2
Section 2.11. Plan Year.............................................. 2
Section 2.12. Separation from Service................................ 2
Section 2.13. Sole Discretion........................................ 2
ARTICLE III -- ELIGIBILITY................................................. 2
Section 3.01. Eligibility............................................ 2
ARTICLE IV -- BENEFITS..................................................... 3
Section 4.01. Benefits............................................... 3
Section 4.02. Grants of Shares....................................... 3
Section 4.03. Interest in Shares..................................... 3
Section 4.04. Conditions............................................. 4
Section 4.05. Restriction on Transfer of Shares...................... 4
Section 4.06. Dividends.............................................. 4
Section 4.07. No Rights of Stockholder............................... 4
ARTICLE V -- PAYMENT OF BENEFITS........................................... 4
Section 5.01. Payment of Cash Benefits............................... 4
Section 5.02. Payments in the Event of Death......................... 5
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ARTICLE VI -- SOURCE OF BENEFITS........................................... 5
Section 6.01. Source of Benefits..................................... 5
Section 6.02. Multiple Employers..................................... 5
ARTICLE VII -- ADMINISTRATION.............................................. 6
Section 7.01. Committee.............................................. 6
Section 7.02. Reliance on Certificates, etc.......................... 6
ARTICLE VIII -- AMENDMENT AND TERMINATION.................................. 6
Section 8.01. Amendment.............................................. 6
Section 8.02. Termination............................................ 7
ARTICLE IX -- RESTRICTIONS ON ALIENATION................................... 7
Section 9.01. Restrictions on Alienation............................. 7
ARTICLE X -- MISCELLANEOUS................................................. 8
Section 10.01. Effective Date......................................... 8
Section 10.02. Payments Net of Withholding............................ 8
Section 10.03. Binding on Successors.................................. 8
Section 10.04. Adoption by Other Employers............................ 8
Section 10.05. Minors and Incompetents................................ 8
Section 10.06. Erroneous Payments..................................... 8
Section 10.07. Headings............................................... 8
Section 10.08. Notices................................................ 9
Section 10.09. Severability........................................... 9
Section 10.10. No Contract of Employment.............................. 9
Section 10.11. Certain Limitations.................................... 9
Section 10.12. State Law.............................................. 9
Section 10.13. Government and Other Regulations....................... 9
Section 10.14. Nonexclusivity of the Plan............................. 10
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MID-WESTERN AIRCRAFT SYSTEMS HOLDINGS, INC.
SHORT-TERM INCENTIVE PLAN
WITNESSETH: THAT;
WHEREAS, the Company desires to provide specified incentive benefits to
Participants in the form of cash or shares of the Company's Class B Common
Stock, par value $0.01 per share ("Shares") or both, on the terms and conditions
set forth herein; and
WHEREAS, the Board of Directors of the Company has reviewed the terms and
provisions hereof and found them satisfactory.
NOW, THEREFORE, the Company hereby adopts the Plan on the terms and
conditions set forth herein, which Plan shall be known as the "Mid-Western
Aircraft Systems Holdings, Inc. Short-Term Incentive Plan."
ARTICLE I -- PURPOSE
Section 1.01. Purpose. The purpose of the Plan is to provide specified
incentive benefits, in the form of cash or Shares or both, to Employees who are
eligible to participate in the Plan, subject to certain conditions and
restrictions, as set forth in the Plan. The maximum aggregate number of Shares
that may be granted to Participants under the Plan shall be _________ Shares.
ARTICLE II -- DEFINITIONS
For purposes of the Plan, the following terms shall have the following
meanings, unless the context clearly indicates otherwise.
Section 2.01. Beneficiary or Beneficiaries means the person, persons,
entity, or entities entitled to receive any benefits under this Plan pursuant to
the designation of the Participant (or in default of such designation) as
provided in Section 5.02 hereof.
Section 2.02. Board of Directors means the Board of Directors of the
Company.
Section 2.03. Closing Date means June 16, 2005, being the closing date of
the sale of assets from The Boeing Company to Mid-Western Aircraft Systems,
Inc., pursuant to that certain Asset Purchase Agreement by and between The
Boeing Company and Mid-Western Aircraft Systems, Inc., dated as of February 22,
2005.
Section 2.04. Code means the Internal Revenue Code of 1986, as amended.
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Section 2.05. Committee means the Board of Directors or a committee
appointed by, and serving at the pleasure of, the Board of Directors for
purposes of administering the Plan, which committee shall operate under rules
and procedures established by the Board of Directors from time to time for such
purpose.
Section 2.06. Company means Mid-Western Aircraft Systems Holdings, Inc., a
Delaware corporation, or its successor.
Section 2.07. Employee means a consultant or independent contractor of the
Employer or any individual who is employed and compensated (by a payroll check
issued directly from the Employer or Employer agent to the Employee or direct
payroll deposit made to the Employee's account) by the Employer or Employer
agent.
Section 2.08. Employer means the Company, Mid-Western Aircraft Systems,
Inc. (or its successor), and any other entity that adopts this Plan with the
consent and approval of the Committee.
Section 2.09. Participant means an Employee who has been designated by the
Committee as eligible to participate in this Plan pursuant to Section 3.01.
Where the context requires, the term "Participant" also shall include a former
Participant.
Section 2.10. Plan means this Mid-Western Aircraft Systems Holdings, Inc.
Short-Term Incentive Plan, as amended.
Section 2.11. Plan Year means the 12-month period commencing January 1 each
year; provided, however, that the initial Plan Year shall be a short year
commencing on the Closing Date and ending on December 31, 2005.
Section 2.12. Separation from Service means the termination of employment
(including termination of a consulting or independent contractor arrangement)
with the Employer. The term includes, but is not limited to, a termination which
arises from a Participant's death, disability, discharge (with or without
cause), or voluntary termination. In the case of an employee, the term shall not
include any temporary absences due to vacation, sickness, or other leaves of
absence granted to a Participant by the Employer. A Separation from Service
shall not be deemed to occur, however, upon a transfer involving any combination
of any entity comprising the Employer.
Section 2.13. Sole Discretion means the right and power to decide a matter,
which right may be exercised arbitrarily at any time and from time to time.
ARTICLE III -- ELIGIBILITY
Section 3.01. Eligibility. The Committee shall have the unrestricted right
and power, which may be exercised in its Sole Discretion at any time and from
time to time, to designate Employees who are eligible to participate in this
Plan. The Committee also shall
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have the right, in its Sole Discretion, to terminate an individual's future
participation in this Plan.
ARTICLE IV -- BENEFITS
Section 4.01. Benefits. For each Plan Year, the Committee may, in its Sole
Discretion, establish an individual schedule or schedules for each Participant
setting forth certain performance targets or goals for such Participant and
corresponding incentive benefits available to such Participant under the Plan,
which schedule may be revised by the Committee at any time and from time to
time, in its Sole Discretion. Benefits may be offered under the Plan in the form
of cash, Shares, or both, in such amounts as the Committee may determine in its
Sole Discretion. No Participant shall have the right or be offered the
opportunity to elect the form or amount of the Participant's benefit under the
Plan, it being within the Sole Discretion of the Committee to determine the form
and amount of benefits to be offered under the Plan (if any).
Section 4.02. Grants of Shares. In the event Shares are granted to a
Participant under the Plan (which Shares shall be subject to the restrictions
contained in this Plan, "Restricted Shares"), the Committee shall have the
unrestricted right and power, in its Sole Discretion, to establish such terms,
conditions, restrictions, or procedures related to a grant of such Restricted
Shares as the Committee deems necessary or appropriate, including, but not
limited to, requiring, as a condition precedent to a grant of such Restricted
Shares under the Plan, that a Participant execute the Investor Stockholders
Agreement, dated as of June June 16, 2005, between the Company and its
shareholders (the "Stockholders Agreement"), and such other agreements with the
Company and/or other shareholders in the Company as the Committee deems
necessary or appropriate, in such form and substance as may be satisfactory to
the Committee in its Sole Discretion. Participation by a Participant in any
grant of Restricted Shares under the Plan shall neither limit nor require
participation by the Participant in any other benefits under Plan, it being
within the Sole Discretion of the Committee to determine the individuals
eligible to participate in the Plan and in a grant of benefits under the Plan.
The Restricted Shares may be either previously issued Shares that have been
reacquired by the Company or authorized but unissued Shares, as the Board of
Directors shall from time to time determine. If any Participant's interest in
Restricted Shares granted under the Plan terminates, any Shares in which the
Participant has no further interest shall again become available to be granted
under the Plan.
Section 4.03. Interest in Shares. A Participant granted Restricted Shares
shall have no interest in those Shares upon grant and shall only acquire an
interest in those Shares upon the Participant being credited with one year of
service after the date such Shares are granted to the Participant. A Participant
shall be credited with one year of service after the date Shares are granted to
the Participant if the Participant is continuously performing services (or
deemed to be continuously performing services) for the Employer for the 12-month
period ending on the anniversary of the date the Restricted Shares are granted
to the Participant. Restricted Shares granted to a Participant shall be deemed
to have been granted as of the date designated and prescribed by the Committee.
If a Separation from Service occurs during the
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12-month period following the grant of a Restricted Share, the Participant
interest in such Share shall automatically terminate and be of no further force
or effect.
Notwithstanding the foregoing, the Committee may at any time, in its Sole
Discretion, credit a Participant with a year of service after the date
Restricted Shares are granted to the Participant or otherwise increase the
number of, or any Participant's interest in, Restricted Shares granted under the
Plan if the Committee determines, in its Sole Discretion, it is in the best
interests of the Company to do so.
Section 4.04. Conditions. Shares acquired under the Plan shall be subject
to any and all terms, conditions, and restrictions set forth in the Company's
certificate of incorporation and bylaws, as well as the Stockholders Agreement
and any other agreement entered into with respect to such Shares.
Section 4.05. Restriction on Transfer of Shares. Shares acquired under this
Plan shall be subject to such conditions and restrictions on transfer as are set
forth in the Company's certificate of incorporation and bylaws, as well as the
Stockholders Agreement, and any other agreement entered into with respect to
such Shares. Any voluntary or involuntary sale, assignment, transfer, or
exchange of Shares acquired under the Plan that fails to satisfy or comply with
any applicable condition or restriction on such sale, assignment, transfer, or
exchange shall be void and of no effect and shall not bind or be recognized by
the Company. No Shares may be transferred unless the transferee first executes,
acknowledges, and delivers to the Company such instruments as the Company may
deem necessary or advisable to effect the transfer.
Section 4.06. Dividends. Dividends declared by the Board of Directors with
respect to Shares shall, with respect to any Restricted Shares, be cumulated and
paid to the Participant only if and at the time, and to the extent that, the
Participant acquires an interest in any such Restricted Shares in accordance
with this Article IV.
Section 4.07. No Rights of Stockholder. Restricted Shares shall not be
subject to transfer or assignment, and a Participant shall not have the rights
of a stockholder in the Company with respect to Restricted Shares unless and
until the Participant acquires an interest in such Restricted Shares in
accordance with this Article IV.
ARTICLE V -- PAYMENT OF BENEFITS
Section 5.01. Payment of Cash Benefits. To the extent a Participant is
entitled to receive a cash benefit under Section 4.01 hereof with respect to
services performed during a Plan Year, such benefit shall be payable in a lump
sum as soon as administratively practicable after the end of such Plan Year, but
in no event later than 2 1/2 months after the end of such Plan Year, subject to
any timely election to defer payment of all or part of such benefit in
accordance with the terms and provisions of the Mid-Western Aircraft Systems
Holdings, Inc. Deferred Compensation Plan.
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Section 5.02. Payments in the Event of Death. In the event a Participant
dies before receiving all benefits payable to Participant under the Plan,
payment of the remaining amounts shall be made to the Participant's Beneficiary.
The Beneficiary of a Participant shall be the person, persons, entity, or
entities designated by the Participant on a beneficiary designation form
provided by the Committee. A Participant shall have the right to change the
Participant's Beneficiary designation at any time; provided, however, that no
change of a beneficiary shall be effective until received and accepted by the
Committee. In the event a Participant dies without having a Beneficiary
designation in force, or in the event no designated Beneficiary is alive or in
being at the time of the Participant's death, the Participant's Beneficiary
shall be deemed to be the Participant's surviving spouse or, if the Participant
leaves no surviving spouse, the Participant's estate.
If the Committee has any doubt as to the proper person(s) or entity(ies) to
receive payments hereunder, it shall have the right to withhold payment until
the matter is finally adjudicated. Any payment made in good faith and in
accordance with the provisions of the Plan and a Participant's Beneficiary
designation form shall fully discharge the Employer from all further obligations
with respect to such payment.
ARTICLE VI -- SOURCE OF BENEFITS
Section 6.01. Source of Benefits. Amounts payable hereunder shall be paid
exclusively from the general assets of the Employer. The Employer's obligation
under this Plan shall constitute a mere promise to pay benefits in the future,
and no person entitled to payment hereunder shall have any claim, right,
security interest, or other interest in any fund, trust, account, insurance
contract, or other asset of Employer. The Employer is not obligated to invest in
any specific assets or fund, but it may invest in any asset or assets it deems
advisable in order to provide a means for the payment of any liabilities under
this Plan and may contribute amounts to a trust conforming to the requirements
of Revenue Procedure 92-64, as amended. With respect to cash benefits (if any),
each Participant shall be an unsecured general creditor of the Employer and
shall have no interest whatsoever in any such assets or fund. The Employer's
liability for the payment of benefits hereunder shall be evidenced only by this
Plan.
Section 6.02. Multiple Employers. In the event a Participant is or has been
employed by two or more Employers and is entitled to a benefit from more than
one Employer under this Plan, the liability for the payment of such
Participant's benefits under this Plan shall be apportioned among the Employers
based upon a determination made by the Committee in its Sole Discretion. A
Participant may only secure payment of benefits from the Employer to whom the
Committee has apportioned liability for the benefits.
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ARTICLE VII -- ADMINISTRATION
Section 7.01. Committee. The Committee shall have full power to administer
this Plan in all of its details, which powers shall include, but are not limited
to, the authority, in addition to all other powers provided by this Plan, to:
A. Determine in its Sole Discretion the eligibility of any individual to
participate in the Plan;
B. Make discretionary interpretations regarding the terms of the Plan and
make factual findings with respect to any issue arising under the
Plan, including, but not limited to, the power to determine whether an
individual is eligible to participate in the Plan or receive benefits
under the Plan and whether an individual has incurred a Separation
from Service, with its interpretation to be final and conclusive;
C. Compute the amounts payable for any Participant or other person in
accordance with the provisions of the Plan, determine the manner and
time for making such payments in accordance with the provisions of the
Plan, and determine and authorize the person or persons to whom such
payments will be paid;
D. Receive and review claims for benefits and render decisions respecting
such claims under the Plan;
E. Make and enforce such rules and regulations as it deems necessary or
proper for the efficient administration of this Plan;
F. Appoint such agents, specialists, legal counsel, accountants,
consultants, or other persons as the Committee deems advisable to
assist in administering the Plan; and
G. Maintain all records of the Plan.
Section 7.02. Reliance on Certificates, etc. The members of the Committee,
the Board of Directors, and the officers and employees of the Company shall be
entitled to rely on all certificates and reports made by any duly appointed
accountants and on all opinions given by any duly appointed legal counsel. Such
legal counsel may be counsel for the Employer.
ARTICLE VIII -- AMENDMENT AND TERMINATION
Section 8.01. Amendment. The Board of Directors reserves the right, at
will, at any time and from time to time, to modify, alter, or amend this Plan
(including without limitation a retroactive modification, alteration, or
amendment), in whole or in part, and any such
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modification, alteration, or amendment shall be binding upon the Company, the
Committee, each Participant, any adopting Employer, and all other persons;
provided, however, that no amendment shall, without the Participant's (or
present interest Beneficiary's) written consent, reduce the amount of the
benefit that a Participant (or present interest Beneficiary) is then entitled to
receive (the same as if the Participant had incurred a Separation from Service
as of such date), including, but not limited to, any interest in Shares the
Participant may have acquired under the Plan, subject to the terms and
conditions of the Company's certificate of incorporation and bylaws, the
Stockholders Agreement, and any other agreement entered into with respect to
such Shares. Notwithstanding the foregoing, no consent shall be required and the
Board of Directors shall have the right to modify, alter, or amend this Plan
(including a retroactive modification, alteration or amendment), at will and at
any time, if it determines, in its Sole Discretion, that such amendment is
necessary to comply with applicable law, which shall include, but shall not be
limited to, the right to retroactively apply any amendments necessary to comply
with any provision of the Code or any judicial or administrative guidance
interpreting such provision.
Section 8.02. Termination. The Company will have no obligation whatsoever
to maintain this Plan for any given length of time and may, at will and at any
time, discontinue or terminate this Plan in whole or in part. In addition, an
adopting Employer shall have the right to discontinue or terminate its
participation in this Plan as to its Employees. Upon a complete or partial
termination of the Plan, each affected Participant (and present interest
Beneficiary) shall be entitled to receive benefits in accordance with Article V.
Further, upon termination of the Plan, the rights of each Participant to acquire
an interest in the Shares granted to such Participant under the Plan shall
terminate.
ARTICLE IX -- RESTRICTIONS ON ALIENATION
Section 9.01. Restrictions on Alienation. Until the actual receipt of any
benefit under this Plan by a Participant or Beneficiary, no right or benefit
under the Plan shall be subject in any manner to anticipation, alienation, sale,
assignment, transfer, pledge, encumbrance, garnishment, execution, levy, or
charge of any kind, whether voluntary or involuntary, including assignment or
transfer to satisfy any liability for alimony or other payments for property
settlement or support of a spouse or former spouse or other relative of a
Participant or Beneficiary, whether upon divorce, legal separation, or
otherwise. Any attempt to anticipate, alienate, sell, assign, transfer, pledge,
encumber, garnish, execute upon, levy upon, or charge any right or benefit under
the Plan shall be void. No right or benefit hereunder shall in any manner be
liable for or subject to the debts, contracts, liabilities, engagements, or
torts of the person entitled to such benefit, and no right or benefit hereunder
shall be considered an asset of such person in the event of his or her divorce,
insolvency, or bankruptcy. The rights of a Participant or a Beneficiary
hereunder shall not be subject in any manner to attachment or other legal
process for the debts of the Participant or such Beneficiary.
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ARTICLE X -- MISCELLANEOUS
Section 10.01. Effective Date. The Plan shall be effective from and after
the date of its adoption and approval by the Board of Directors and the
stockholders of the Company.
Section 10.02. Payments Net of Withholding. Notwithstanding any other
provision of the Plan, all transfers or payments shall be net of any amount
sufficient to satisfy all federal, state, and local withholding tax
requirements, and shall also be net of all amounts owed by Participant to the
Employer.
Section 10.03. Binding on Successors. This Plan shall be binding upon all
Participants, their respective heirs, and personal representatives, and upon the
Employer, its successors, and assigns.
Section 10.04. Adoption by Other Employers. Any employer, corporation or
other entity with employees now in existence or hereafter formed or acquired,
which is not already an Employer under this Plan, and which is otherwise legally
eligible, may in the future, with the consent and approval of the Company, adopt
this Plan, and thereby, from and after the specified effective date, become an
Employer under this Plan. However, the sole and absolute right to amend the Plan
is reserved to the Company. It shall not be necessary for the adopting
corporation or entity to sign or execute the original or the amended Plan
documents. The administrative powers and control of the Company as provided in
the Plan, including the sole right of amendment and of appointment and removal
of the Committee, shall not be diminished by reason of the participation of any
such adopting entity in this Plan.
Section 10.05. Minors and Incompetents. If any person to whom a benefit is
payable under this Plan is legally incompetent, either by reason of age or by
reason of mental or physical disability, the Committee is authorized to cause
the payments becoming due to such person to be made to another for his or her
benefit without responsibility of the Company, the Employer, the Committee or
the Board of Directors to see to the application of such payments. Payments made
pursuant to this authority shall constitute a complete discharge of all
obligations hereunder.
Section 10.06. Erroneous Payments. If any person receives any amount of
benefits that the Committee in its Sole Discretion later determines that such
person was not entitled to receive under the terms of the Plan, such person
shall be required to immediately make reimbursement to the Employer. In
addition, the Committee shall have the right to offset any future claims for
benefits under the Plan against amounts that person was not otherwise entitled
to receive.
Section 10.07. Headings. The headings used in this Plan are inserted for
reference purposes only and shall not be deemed to limit or affect in any way
the meaning or interpretation of any of the terms or provisions herein.
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Section 10.08. Notices. Any notices or communications permitted or required
to be given herein by any Participant, the Company, the Committee, the Employer,
or any other person shall be deemed given either (i) when delivered, or (ii)
three days after being placed in the United States mail in an envelope addressed
to the last communicated address of the person to whom the notice is being
given, with adequate postage thereon prepaid.
Section 10.09. Severability. If any provision of this Plan shall be held
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provisions thereof, and the Plan shall be construed and enforced as if
such provisions had not been included.
Section 10.10. No Contract of Employment. Nothing contained herein shall be
construed to constitute a contract of employment between any employee and any
employer. Nothing herein contained shall be deemed to give any employee the
right to be retained in the employ of an employer or to interfere with the right
of the employer to discharge any employee at any time without regard to the
effect such discharge might have on the employee as a Participant under this
Plan.
Section 10.11. Certain Limitations. In the event the Employer is subject to
legal limitations on the payment of benefits, then benefit payments hereunder
shall be reduced or eliminated, as the case may be, to comply with such legal
limitations.
Section 10.12. State Law. This Plan and all agreements entered into under
the Plan shall be governed, construed, administered, and regulated in all
respects under the laws of the State of Delaware, without regard to the
principles of conflicts of law, to the extent such laws are not preempted by the
laws of the United States of America. Any action concerning the Plan or any
agreement entered into under the Plan shall be maintained exclusively in the
state or federal courts in Delaware.
Section 10.13. Government and Other Regulations. The obligation of the
Company to grant or sell and deliver Shares under the Plan shall be subject to
all applicable laws, rules, and regulations and such approvals by any
governmental agencies as may be required, including, but not limited to, the
effectiveness of a registration statement under the Securities Act of 1933, as
amended, as deemed necessary or appropriate by legal counsel for the Company.
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Section 10.14. Nonexclusivity of the Plan. The adoption of the Plan by the
Board of Directors shall not be construed as creating any limitations on the
power of the Board of Directors to adopt such other incentive arrangements as it
may deem desirable.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed by a
duly authorized officer as of the date first set forth above.
MID-WESTERN AIRCRAFT SYSTEMS HOLDINGS,
INC.
By: /s/ Nigel Wright
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Its: Vice President
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