curm_ex1011.htm


EXHIBIT 10.11


 


EMPLOYMENT AGREEMENT


 


THIS EMPLOYMENT AGREEMENT (this “Agreement”) by and among CÜR Media, Inc., a Delaware corporation (the “Company”) and Gordon Mackenzie III (“Executive”) is entered into as of March 11, 2014 (the “Execution Date”).


 


W I T N E S S E T H:


 


WHEREAS, the Board of Directors of the Company (the “Board”) has determined that it is in the best interests of the Company and its shareholders to employ Executive as Chief Technology Officer of the Company pursuant to the terms of this Agreement; and


 


WHEREAS, the Executive desires to accept employment as the Chief Technology Officer of the Company pursuant to the terms of this Agreement.


 


NOW THEREFORE, the Parties agree as follows:


 


1. EMPLOYMENT; DUTIES


 


As of the Effective Date, the Company hereby agrees to employ Executive as the Chief Technology Officer of the Company and Executive hereby accepts such employment upon the terms and conditions set forth below.


 


2. TERM AND PLACE OF PERFORMANCE


 


The term of this Agreement shall begin on March 11, 2014 (the “Effective Date”), and, unless sooner terminated as provided herein, shall end on March 11, 2016 (the “Term”); provided that the Term shall automatically be extended for successive one-year periods unless either party gives at least three months’ advance written notice of its intention not to extend the Term (a “Non-Renewal Notice”). The Term may be sooner terminated by either party in accordance with the provisions of Section 5. The principal place of employment of Executive shall be at the Company’s headquarters in South Glastonbury, Connecticut; provided, that, Executive shall be required to travel from time to time during the Term.


 


3. POSITION AND DUTIES


 


3.1 Position and Duties.


 


(a) Executive shall serve as the Chief Technology Officer of the Company and shall report to the Chief Executive Officer of the Company (the “CEO”). Executive shall have responsibility for building and maintaining the technical infrastructure, including both hardware and software, of the Company.


 


3.2 Devotion of Time and Effort. Executive shall use Executive’s good faith, best efforts and judgment (a) in performing Executive’s duties required hereunder and (b) to act in the best interests of the Company. Executive shall devote his full time, attention and efforts to the business of the Company, but may participate in charitable and personal investment activities to a reasonable extent, as long as such activities do not, in the reasonable discretion of the Board, interfere or compete with the performance of his duties and responsibilities hereunder.


 




  





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4. COMPENSATION


 


4.1 Base Salary. For the services to be rendered by Executive under this Agreement, Executive shall be entitled to receive, commencing as of the Effective Date, salary at the annual rate of One Hundred and Seventy Five Thousand Dollars ($175,000) (the “Base Salary”), less all applicable tax withholdings and deductions by the Company. The Base Salary shall be payable in accordance with the Company’s customary payroll practices. The Chief Executive Officer of the Company (the “Committee”) shall review Executive’s Base Salary annually and may make adjustments to increase but not decrease such Base Salary, in accordance with the compensation practices and guidelines of the Company.


 


4.2 Vacation. During the Term, Executive shall be entitled to four (3) weeks of paid vacation per year to be used and accrued in accordance with the Company’s policy as it may be established from time to time. In addition, Executive shall receive other paid time-off in accordance with the Company’s policies for senior executives as such policies may exist from time to time.


 


4.3 Welfare, Pension and Incentive Benefit Plans. During the Term, the Company shall provide Executive with employee benefit plans, including, without limitation, company-paid medical benefits; provided, that if the provision of such company-paid medical benefits would cause the imposition of any tax under Section 4980D of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (the “Code”), the parties agree to negotiate in good faith an alternative arrangement for providing such benefits in an economically neutral manner which does not cause the imposition of such tax.


 


4.4 Business Expenses. Executive will be promptly reimbursed for all reasonable business expenses incurred by Executive in connection with Executive’s employment in accordance with the Company’s expense reimbursement policies.


 


5. TERMINATION; TERMINATION BENEFITS


 


5.1 Due to Death or Disability.


 


(a) If Executive dies during the Term, Executive’s employment and this Agreement shall terminate on the date of his death. The Company may terminate Executive’s employment if he becomes “Disabled,” as defined below, upon delivery of a Notice of Termination (as defined below) to Executive.


 


Upon termination of Executive’s employment due to Executive’s death or by the Company due to Executive’s Disability, Executive (or his estate, as applicable) shall be entitled to compensation and payment for any unreimbursed expenses incurred, accrued but unpaid then current Base Salary and other accrued but unpaid employee benefits as provided in this Agreement, in each case through the Date of Termination (as defined below) (the “Accrued Amounts”); provided, that the portion of such Accrued Amounts representing unreimbursed expenses shall be paid as soon as practicable following remittance of such expenses by Executive or its estate;


 




  





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(b) For purposes of this Agreement, the term “Disabled” or “Disability” shall mean a medically determined physical or mental incapacity as a result of which Executive cannot perform the functions and/or duties of his position for more than six months or becomes eligible to receive long term disability benefits under the Company’s long term disability policy, which shall be in effect as of the Effective Date, or if no such policy is in effect, entitles Executive to a Social Security disability award.


 


5.2 By the Company Without “Cause”.


 


(a) The Company may terminate Executive’s employment without “Cause” (as defined below) at any time following the Effective Date upon delivery of a Notice of Termination to Executive.


 


(b) Upon termination of Executive’s employment by the Company Without Cause, Executive shall be entitled to the Accrued Amounts, payable in accordance with Section 5.1(a).


 


5.3 By the Company For Cause.


 


(a) The Company may terminate Executive’s employment for “Cause” in accordance with the requirements of this Section 5.3.


 


(b) Upon termination of Executive’s employment by the Company for Cause, Executive shall be entitled to the Accrued Amounts.


 


(c) For purposes of this Agreement, “Cause” shall mean:


 


(i) continuing willful failure, neglect or refusal by Executive to perform his duties under this Agreement or to follow the lawful instructions of the Chief Executive which has not been cured by Executive (if curable) within ten (10) days after written notice thereof to Executive from the Company;


 


(ii) Executive’s commission of any material act of fraud or embezzlement against the Company;


 


(iii) any material breach of any covenant in Section 6, 7 or 8 of this Agreement, which breach has not been cured by Executive (if curable) within thirty (30) days after written notice thereof to Executive from the Company;


 


(iv) Executive’s conviction of (or pleading guilty or nolo contendere to) any felony.


 




  





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5.4 By Executive.


 


(a) Executive may terminate his employment without Good Reason by providing a Notice of Termination to the Company at least thirty (30) days prior to the Date of Termination.


 


(b) Upon termination by Executive of his employment, Executive shall be entitled to receive the Accrued Amounts payable in accordance with Section 5.1(a).


 


5.5 Non-Renewal of the Term.


 


(a) Upon termination of Executive’s employment as a result of non-renewal of the Term by the Executive, Executive will be entitled to the Accrued Amounts payable in accordance with Section 5.1(a).


 


5.6 Notice of Termination; Non-Renewal. Any termination of employment pursuant to Sections 5.1 through 5.5 shall be communicated by a Notice of Termination to the other party hereto given in accordance with Section 16.2.


 


(a) For purposes of this Agreement, a “Notice of Termination” means a written notice that (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive’s employment under the provision so indicated and (iii) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies the termination date.


 


(b) For purposes of this Agreement, “Date of Termination” means (i) if Executive’s employment is terminated pursuant to Section 5.1 through 5.5, the date of receipt of the Notice of Termination, (ii) if Executive’s employment is terminated by reason of death, the date of death, and (iii) the expiration of the Term.


 


(c) A termination of employment pursuant to Section 5.6 shall be communicated by a Notice of Non-Renewal to the other party hereto given in accordance with Section 2 and Section 16.2.


 


6. NON-SOLICITATION


 


Executive acknowledges that by virtue of Executive’s position as Chief Technology Officer and Executive’s employment hereunder, he will have advantageous familiarity with, and knowledge about, the Company and will be instrumental in establishing and maintaining goodwill between the Company and its employees and customers, which goodwill is the property of the Company. Therefore, Executive agrees as follows during the Term and for an twelve (12) month period following the Date of Termination: (a) Executive shall not on behalf of himself, or any other person or entity, solicit, take away, hire, employ or endeavor to employ any of the employees of the Company and/or (b) Executive shall not influence or attempt to influence vendors or business partners of the Company or any of its present or future subsidiaries or affiliates, either directly or indirectly, to divert their business to any individual, partnership, firm, corporation or other entity then in competition with the business of the Company, or any subsidiary or affiliate of the Company.


 




  





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7. NON-COMPETITION


 


Executive acknowledges and recognizes the highly competitive nature of the business of the Company and its affiliates and accordingly agrees as follows: During his employment and for a twelve (12) month period commencing from the Date of Termination (twelve (12) months in the case of a non-renewal of the Term), Executive will not, directly or indirectly, (a) engage in any business for Executive's own account that competes with the business of the Company or its affiliates (including, without limitation, businesses which the Company or its affiliates have specific plans to conduct in the future and as to which Executive is aware of such planning), (b) enter the employ of, or render any services to, any person engaged in any business that competes with the business of the Company or its affiliates, (c) acquire a financial interest in any person engaged in any business that competes with the business of the Company or its affiliates, directly or indirectly, as an individual, partner, stockholder, officer, director, principal, agent, trustee or consultant, or (d) interfere with business relationships (whether formed before or after the date of this Agreement) between the Company or any of its affiliates and customers, suppliers, partners, members or investors of the Company or its affiliates. Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly, own, solely as an investment, securities of any person engaged in the business of the Company or its affiliates which are publicly traded on a national or regional stock exchange or on an over-the-counter market if Executive (i) is not a controlling person of, or a member of a group which controls, such person and (ii) does not, directly or indirectly, own five percent (5%) or more of any class of securities of such person.


 


8. CONFIDENTIALITY/TRADE SECRETS


 


Executive specifically agrees that Executive will not at any time, whether during or subsequent to the Term, in any fashion, form or manner, except in furtherance of Executive’s duties at the Company or with the specific written consent of the Company, either directly or indirectly use, divulge, disclose or communicate to any person in any manner whatsoever, any confidential information or trade secrets of any kind, nature or description concerning any matters affecting or relating to the business of the Company (the “Proprietary Information”), including (a) all information, design or software programs (including object codes and source codes), techniques, drawings, plans, experimental and research work, inventions, patterns, processes and know-how, whether or not patentable, and whether or not at a commercial stage related to the Company or any subsidiary thereof, (b) buying habits or practices of any of its customers or vendors, (c) the Company’s marketing methods, sales activities, promotion, credit and financial data and related information, (d) the Company’s costs or sources of materials, (e) the prices it obtains or has obtained or at which it sells or has sold its products or services, (f) lists or other written records used in the Company’s business, (g) compensation paid to employees and other terms of employment, or (h) any other confidential information of, about or concerning the business of the Company, its manner of operation, or other confidential data of any kind, nature, or description (excluding any information that is or becomes publicly known or available for use through no fault of Executive or as directed by court order). The Parties hereto stipulate that as between them, Proprietary Information constitutes trade secrets that derive independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value or cause economic harm to the Company from its disclosure or use and that Proprietary Information is the subject of efforts which are reasonable under the circumstances to maintain its secrecy and of which this Section 8 is an example, and that any breach of this Section 8 shall be a material breach of this Agreement. All Proprietary Information shall be and remain the Company’s sole property.


 




  





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9. INJUNCTIVE RELIEF


 


Executive acknowledges that any violation of any provision of Sections 6 through 8 hereof by Executive will cause irreparable damage to the Company, that such damages will be incapable of precise measurement and that, as a result, the Company will not have an adequate remedy at law to redress the harm which such violations will cause. Therefore, in the event of any violation or threatened violation of any provision of Sections 6 through 8 by Executive, in addition to any other rights at law or in equity, Executive agrees that the Company will be entitled to seek injunctive relief including, but not limited to, temporary and/or permanent restraining orders to restrain any violation or threatened violation of such Sections by Executive.


 


10. BLUE PENCIL


 


It is the desire and intent of the Parties that the provisions of Section 6 through 8 hereof shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any portion of Sections 6 through 8 shall be adjudicated to be invalid or unenforceable, such provision shall be deemed amended either to conform to such restrictions as the court or arbitrator may allow, or to delete therefrom or reform the portion thus adjudicated to be invalid and unenforceable, such deletion or reformation to apply only with respect to the operation of such Section in the particular jurisdiction in which such adjudication is made. It is expressly agreed that any court or arbitrator shall have the authority to modify any provision of Sections 6 through 8 if necessary to render it enforceable, in such manner as to preserve as much as possible the Parties’ original intentions, as expressed therein, with respect to the scope thereof.


 


11. COMPANY’S AND EXECUTIVE’S DUTIES ON TERMINATION


 


In the event of termination of Executive’s employment pursuant to Section 5, Executive agrees to deliver promptly to the Company all Proprietary Information which is or has been in Executive’s possession or under Executive’s control. Upon termination of Executive’s employment by the Company for any reason whatsoever and at any earlier time the Company so requests, Executive will deliver to the custody of the person designated by the Company all originals and copies of such documents and other property of the Company in Executive’s possession, under Executive’s control or to which Executive may have access.


 


12. NON-DISPARAGEMENT


 


During the Term, for any reason, neither Executive nor his agents, on the one hand, nor the Company, or its senior executives or the Board, on the other hand, shall directly or indirectly issue or communicate any public statement, or statement likely to become public, that maligns, denigrates or disparages the other (including, in the case of communications by Executive or his agents, any of the Company’s officers, directors or employees). The foregoing shall not be violated by truthful responses to legal process or governmental inquiry or by private statements to any of the Company’s officers, directors or employees; provided, that, in the case of Executive, such statements are made in the course of carrying out his duties pursuant to this Agreement.


 




  





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13. INDEMNIFICATION


 


Except in the case of Executive’s bad faith or willful misconduct, the Company shall indemnify, defend and hold Executive harmless from and against any and all causes of action, claims, demands, liabilities, damages, costs and expenses of any nature whatsoever directly or indirectly arising out of or related to Executive’s discharging Executive’s duties hereunder on behalf of the Company and/or its respective subsidiaries and affiliates to the fullest extent permitted by law.


 


14. REPRESENTATIONS AND WARRANTIES


 


14.1 Executive hereby represents and warrants to the Company, and Executive acknowledges, that the Company has relied on such representations and warranties in employing Executive and entering into this Agreement, as follows:


 


(a) Executive has the legal capacity and right to execute and deliver this Agreement and to perform his obligations contemplated hereby, and this Agreement has been duly executed by Executive;


 


(b) the execution, delivery and performance of this Agreement by Executive does not and will not, with or without notice or the passage of time, conflict with, breach, violate or cause a default under any agreement, contract or instrument to which Executive is a party or any judgment, order or decree to which Executive is subject;


 


(c) Executive asserts that he can successfully perform the duties described herein at Section 3.1 without violating any employment, invention, non-disclosure, non-competition and/or non-solicitation agreement to which he may be bound;


 


(d) upon the execution and delivery of this Agreement by the Company and Executive, this Agreement will be a legal, valid and binding obligation of Executive, enforceable in accordance with its terms;


 


(e) Executive understands that the Company will rely upon the accuracy and truth of the representations and warranties of Executive set forth herein and Executive consents to such reliance.


 


14.2 The Company hereby represents and warrants to Executive, and the Company acknowledges that Executive has relied on such representations and warranties in entering into this Agreement, as follows:


 


(a) the Company has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and this Agreement has been duly executed by the Company;


 




  





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(b) the execution, delivery and performance of this Agreement by the Company does not and will not, with or without notice or the passage of time, conflict with, breach, violate or cause a default under any agreement, contract or instrument to which the Company is a party or any judgment, order or decree to which the Company is subject;


 


(c) upon the execution and delivery of this Agreement by the Company and Executive, this Agreement will be a legal, valid and binding obligation of the Company, enforceable in accordance with its terms; and


 


(d) the Company understands that Executive will rely upon the accuracy and truth of the representations and warranties of the Company set forth herein and the Company consents to such reliance.


 


15. ARBITRATION


 


Any controversy arising out of or relating to this Agreement, its enforcement or interpretation, or because of an alleged breach, default, or misrepresentation in connection with any of its provisions, or any other controversy arising out of Executive’s employment with the Company or the termination of Executive’s employment with the Company, including, but not limited to, any state or federal statutory claims, shall be submitted to arbitration in New York, New York, before a sole arbitrator selected from the American Arbitration Association,; provided, however, that provisional injunctive relief may, but need not, be sought by either party to this Agreement in a court of law while arbitration proceedings are pending, and any provisional injunctive relief granted by such court shall remain effective until the matter is finally determined by the arbitrator. Final resolution of any dispute through arbitration may include any remedy or relief which the arbitrator deems just and equitable, including any and all remedies provided by applicable state or federal statutes. The Company shall bear all administrative costs of any arbitration initiated under this Section 15, including any filing fees and arbitrator fees.


 


At the conclusion of the arbitration, the arbitrator shall issue a written decision that sets forth the essential findings and conclusions upon which the arbitrator's award or decision is based. Any award or relief granted by the arbitrator hereunder shall be final and binding on the Parties hereto and may be enforced by any court of competent jurisdiction. The Parties acknowledge and agree that they are hereby waiving any rights to trial by jury in any action, proceeding or counterclaim brought by either of the Parties against the other in connection with any matter whatsoever arising out of or in any way connected with this Agreement. The arbitrator shall award reasonable attorney’s fees (including reasonable disbursements) to the party that the arbitrator has determined to be the prevailing party in such arbitration. Except as may be necessary to enter judgment upon the award or to the extent required by applicable law, all claims, defenses and proceedings (including, without limiting the generality of the foregoing, the existence of the controversy and the fact that there is an arbitration proceeding) shall be treated in a confidential manner by the arbitrator, the Parties and their counsel, and each of their agents, employees and all others acting on behalf of or in concert with them. Without limiting the generality of the foregoing, no one shall divulge to any third party or person not directly involved in the arbitration the contents of the pleadings, papers, orders, hearings, trials, or awards in the arbitration, except as may be necessary to enter judgment upon an award as required by applicable law. Any court proceedings relating to the arbitration hereunder, including, without limiting the generality of the foregoing, to prevent or compel arbitration or to confirm, correct, vacate or otherwise enforce an arbitration award, shall be filed under seal with the court, to the extent permitted by law.


 




  





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16. GENERAL PROVISIONS


 


16.1 Assignment, Binding Effect. Neither the Company nor Executive may assign, delegate or otherwise transfer this Agreement or any of their respective rights or obligations hereunder without the prior written consent of the other party, except that the Company may assign this Agreement to its successors (including any purchaser of its assets), and affiliates, parent or subsidiary corporations. This Agreement shall be binding upon and inure to the benefit of any permitted successors or assigns of the Parties and the heirs, executors, administrators and/or personal representatives of Executive.


 


16.2 Notices.


 


(a) All notices, requests, demands or other communications that are required or may be given under this Agreement shall be in writing and shall be given by personal delivery, by certified or registered United States mail (postage prepaid, return receipt requested), by a nationally recognized overnight delivery service for next day delivery, or by facsimile transmission, as follows (or to such other address as any party may give in a notice given in accordance with the provisions hereof):


 


If to the Company,


 


CÜR Media, Inc.


2217 New London Turnpike


South Glastonbury, CT 06073


 


If to Executive,


 


2217 New London Turnpike


 


South Glastonbury, CT 06073


 


with a copy to,


 


Gordon Mackenzie III


 


(b) All notices, requests or other communications will be effective and deemed given only as follows: (i) if given by personal delivery, upon such personal delivery, (ii) if sent by certified or registered mail, on the fifth business day after being deposited in the United States mail, (iii) if sent for next day delivery by overnight delivery service, on the date of delivery as confirmed by written confirmation of delivery, (iv) if sent by facsimile, upon the transmitter’s confirmation of receipt of such facsimile transmission, except that if such confirmation is received after 5:00 p.m. (in the recipient’s time zone) on a business day, or is received on a day that is not a business day, then such notice, request or communication will not be deemed effective or given until the next succeeding business day. Notices, requests and other communications sent in any other manner, including by electronic mail, will not be effective.


 




  





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16.3 Governing Law. This Agreement is governed by, and is to be construed and enforced in accordance with, the laws of Connecticut without regard to principles of conflicts of laws.


 


16.4 Amendment. No provisions of this Agreement may be amended, modified or waived unless such amendment or modification is agreed to in writing signed by Executive and by the Chief Executive Officer, and such waiver is set forth in writing and signed by the party to be charged.


 


16.5 Entire Agreement. This Agreement sets forth the entire agreement of the Parties hereto in respect of the subject matter contained herein and shall supersede all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereto in respect of such subject matter. Any prior agreement of the parties hereto in respect of the subject matter contained herein is hereby terminated and canceled as of the date hereof.


 


16.6 Withholding. All payments hereunder shall be subject to any required withholding of federal, state and local taxes pursuant to any applicable law or regulation.


 


16.7 Severability. The paragraphs and provisions of this Agreement are severable. If any paragraph or provision is found to be unenforceable, the remaining paragraphs and provisions will remain in full force and effect.


 


16.8 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.


 


16.9 Section 409A. Notwithstanding anything herein to the contrary, this Agreement is intended to be interpreted and applied so that the payment of the benefits set forth herein either shall be exempt from the requirements of Section 409A of the Code, or shall comply with the requirements of such provision. Furthermore, the Company and its respective officers, directors, employees or agents make no guarantee that this Agreement complies with, or is exempt from, the provisions of Section 409A of the Code and none of the foregoing shall have any liability for the failure of this Agreement to comply with, or be exempt from, the provisions of Code Section 409A. The parties hereto agree to make such amendments from time to time to the terms and conditions of this Agreement as are necessary to ensure that this Agreement complies with the terms of and in a manner permitted by Section 409A of the Code and any regulation or other official guidance promulgated thereunder. Each payment due hereunder shall be treated as a separate payment under Section 409A of the Code. To the extent required by Code Section 409A, “termination of employment” (or any similar terms) shall mean “separation from service” (as defined in Treasury Regulations Section 1.409A-1(h) and the default presumptions thereof). With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense was incurred.


 


(signature page follows)


 




  





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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement effective as of the date first written above.


 


 




	 	THE COMPANY	 
	 	 	 	 
	
 

	
By: 

	/s/ Thomas Brophy	 
	 	Name:	Thomas Brophy	 
	 	Title:	Founder & CEO	 
	 	 	 	 
	 	 	 	 
	 	 	/s/ Gordon Mackenzie III	 
	 	 	Gordon Mackenzie III	 





 


 


 


 


 


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