ACQUISITION AGREEMENT
EXHIBIT
10.1
THIS
ACQUISITION AGREEMENT is entered into as of this 25th day of
March, 2008, by and between RENEWABLE ENERGY RESOURCES, INC. (hereafter "RENW"),
a Florida Corporation, whose address is 000 X. Xxxx Xxxx Xxx. Xxxxx, Xxxxxxx
00000 and World Environmental Services, Inc. (hereafter WESCO), a
subsidiary of EarthFirst Technologies, Inc., a Florida Corporation, whose
address is 0000 Xxxxxxx Xxxxx Xxx., 000 , Xxxxx, Xxxxxxx 00000. The Parties
hereby agree to the following, and those matters in the attached
Schedules:
Whereas
WESCO, is the owner of certain technologies, hereby referred to as the CAVD
technology, related assets to those technologies, assets and property related to
CAVD, its uses, intellectual property, except those related to tires,
and
Whereas
WESCO seeks to achieve the sale of the described CAVD technologies, assets,
patents, and other intellectual property related to CAVD, and other processes
related to pyrolisis developed by WESCO. WESCO accepts these
conditions, in order to receive an issuance of common shares from RENW in
exchange for this sale of CAVD related assets, and
NOW
THEREFORE in consideration of the foregoing recitals, the mutual
representations, warranties and covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
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a.
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On
the Closing Date RENW shall deliver to WESCO, in the name of EarthFirst
Technologies, Inc., an amount of shares which shall be equal to three
million five hundred thousand (3,500,000) shares or approximately thirty
three and one third (33 and 1/3%) percent of the then outstanding shares
of common stock, then outstanding at the time of the closing, whichever is
numerically equivalent of one third of the outstanding shares after
issuance for this acquisition after
closing.
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b.
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WESCO
shall deliver, or assign through this Agreement, all matters related to
the CAVD or pyrolitic technology, which shall be set forth in Schedule A
of this Agreement. Said items shall include the following types of
matters: all patents, patents pending, work product on improvements, all
uses for the CAVD, all laboratory and engineering work, all client
materials, all potential client list, sales lists, pro-formas, business
plans, etc. such uses, plans, patents, improvements, and all business
opportunities shall include Distiller’s Dry Grain (DDG), carpet waste,
municipal waste, algae use, and all other uses for CAVD, subject to the
exclusions set forth herein.
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c.
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WESCO
shall assign all interest for all intellectual property for all uses of
the CAVD and pyrolisis systems, exclusive of only those that are contained
at the time of closing in RCT, LLC, to
RENW.
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d.
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WESCO
shall deliver an indemnification or some form of release or assurance that
there shall be no claim now pending, or which could exist as to any claim
against WESCO from Laurus Funds, or the now existing lawsuit in the middle
district of Florida. Such release, indemnification, and assurance shall be
attached as Schedule B at time of closing, to the satisfaction of
RENW.
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e.
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Both
Parties hereby acknowledge that RENW had previously paid an amount of one
hundred thousand dollars ($100,000.00) for the licensing of rights to the
CAVD technology to WESCO, and a later payment of two hundred thousand
dollars ($200,000.00) to a related party, for similar licensing of use of
the CAVD process which is subject to a civil suit by RENW in the
Thirteenth Judicial Circuit in and for Hillsborough County, Florida at
this time. RENW acknowledges that it will relieve and dismiss any claim
against that third party if all rights to such technologies are delivered
under this agreement. WESCO shall assist RENW in any claim by any third
party for the two hundred thousand dollars ($200,000) under the earlier
agreement by RENW and such third
party.
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RENW shall make an additional payment
to WESCO in common shares after one year, and no later than two years after
closing, which shall consist of ten percent (10%) of then outstanding shares at
the time of closing of this acquisition if the following achievements are
made.
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a.
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There
are two (2) plant sales made or two equivalent plant build outs which
cause revenue to RENW, which are not for tire use of the CAVD or excluded
related process, if realized within twelve months of closing,
or
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b.
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There
are revenues over $1 million dollars ($1,000,000.00) realized by RENW
related to the acquired technologies, within twelve months of closing,
or
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c.
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Any combination
of revenue from 1.2 a. and 1.2 b. above during the first twelve months
after
closing which totals in the aggregate one million dollars
($1,000,000.00).
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1.3
Closing. The
closing of the Acquisition and exchange contemplated and provided for in
this Agreement (the "Closing") shall take place at a time and place to be
mutually agreed upon by the Parties, following the satisfaction or waiver of all
conditions to the obligations of the Parties to consummate the subject
acquisition and exchange (other than the conditions with respect to actions the
respective Parties will take at the Closing itself) or such other date as the
Parties may mutually determine (the "Closing Date"). It is the Parties intention
to close this transaction as soon as practicable; however, the Closing Date
shall occur no later than February 28, 2008, absent regulatory delays, consent
or breach.
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a.
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The
Common Stock of RENW which shall initially be issued shall be held by
WESCO under a “lock up” Agreement, whereby the stock shall be held by
WESCO for a period of twelve months from the date of issuance or closing,
whichever is later. Such stock shall be held regardless of regulatory
changes to the transferability of such shares. Such stock shall not be
alienated, transferred, leined, or otherwise hypothecated during such a
period, without the approval of the Board of Directors of RENW upon
written request made to the Board which decision shall be rendered by the
Board within three (3) working days of receipt of the request from
WESCO.
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b.
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The
Common Stock of RENW which is issued under this Agreement shall have all
voting rights assigned to the Board of Directors of RENW for a period of
six (6) months from the date or issuance or closing, whichever is later.
Such voting proxy shall be automatically alienable and cancellable based
upon paragraph 1.4 a. above if such stock is approved for transfer based
upon those conditions and approval.
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2.1
Representations and Warranties of both Parties. Both
Parties hereby represents and warrants
to the other that the statements contained in this Agreement are correct and
complete as of the date of this Agreement and will be correct and complete as of
the Closing Date.
b.
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Outstanding
Options, Warrants or Other Rights. RENW has or will have
no outstanding warrants, options or similar rights whereby any person may
subscribe for or purchase shares of its common stock, nor are there any
other securities outstanding which are convertible into or exchangeable
for its common stock, and there are no contracts or commitments pursuant
to which any person may acquire or RENW may become bound to issue any
shares of such common stock which are related to this transaction which
would affect the structure of the issuance to be achieved for the
technology.
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f.
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Laws
and Regulations. Both Parties have complied with all
laws, rules, regulations and ordinances relating to or affecting the
conduct of this Agreement, and further, WESCO has represented compliance
with all laws, rules and regulations as to it’s entitlement to, ownership
of, operation of, and ability to transact the CAVD business and
operations. WESCO further asserts that they are compliant and possess all
necessary licenses and permits required in its business by federal, state
or local authorities for the intent and transaction of this Agreement to
occur.
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g.
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Full
Disclosure. Neither this Agreement nor any other
instrument furnished to WESCO or RENW by or on behalf of either party
contains any untrue statement of a material fact or omits to state a
material fact necessary to make any statements made not misleading, and
there is no fact that materially and adversely affects, or foreseeably may
materially and adversely affect, the intent or subjects of this
Agreement.
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i.
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No
Material Adverse Change, Etc.
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1)
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By
RENW: At the time of the execution of this Agreement and at the time of
closing (if different), there has not been, other than as contemplated or
caused by this Agreement any (i) material adverse change in the
business, condition(financial or otherwise), operations, or prospects
of RENW which would affect business operations with the CAVD
technology; (ii) any damage, destruction, or loss, whether covered by
insurance or not, having a material adverse effect on the business,
condition (financial or otherwise), operations or prospects of RENW for
the use of such technology or assets, (iii) any entry into or termination
of any material commitment, contract, Agreement, or transaction(including,
without limitation, any material borrowing or capital expenditure or sale
or other disposition of any material asset or assets) of, or involving
RENW, other than this Agreement and Agreements executed in the ordinary
course of business;(iv) nor promise or payment of any increase to or for
any executive or principal's executive bonus, or other compensation,
(viii) any default or breach of any material respect pursuant to any
covenant or Agreement, or (ix) any other change in the manner which the
company has conducted its business in the past which would impede the
operations concerning the CAVD and related technology
acquisition.
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2)
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By
WESCO: At the time of the execution of this Agreement and at
the time of closing (if different), there has not been, other than as
contemplated or caused by this Agreement any (i) material
adverse the rights of WESCO to any of the intellectual properties, assets,
or other materials being purchased, pursuant to Schedule A, being
purchased from WESCO, which would impede such operations or business for
any of the operations of the CAVD and related technologies being acquired;
(ii) any damage, destruction, or loss, whether covered by insurance or
not, having a material adverse effect on the business, condition
(financial or otherwise), operations or prospects of WESCO for the use of
such technology or assets, (iii) any entry into or termination of any
material commitment, contract, Agreement, or transaction(including,
without limitation, any material borrowing or capital expenditure or sale
or other disposition of any material asset or assets) of, or involving
WESCO, other than this Agreement and Agreements executed in the ordinary
course of business;(iv) nor promise or payment of any increase to or for
any executive or principal's executive bonus, or other compensation,
(viii) any default or breach of any material respect pursuant to any
covenant or Agreement, or (ix) any other change in the manner which the
company has conducted its business in the past which would impede the
operations concerning the CAVD and related technology interests
acquisition.
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From the
date of this Agreement until the Closing Date, the Parties agree as
follows:
3.1
General. Each of the Parties hereto will use its best
efforts to take all actions and to do all things necessary in order to
consummate and make effective the transaction contemplated by this Agreement
(including satisfaction of the closing conditions set forth in Article IV
below).
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3.2
Notices and Consents. Each of the Parties hereto will
give any notices to third Parties, and will use its best efforts to obtain any
third party consents, that the other party reasonably may request in connection
with any matter referred to in this Agreement.
3.3
Access. Both Parties each agree that they will permit
the others directors, officers, accountants, attorneys and other representatives
full access, during reasonable business hours throughout the term or
applicability of this Agreement, to all premises, properties, personnel, books,
records, contracts and documents of or pertaining to the others business
affairs, operations, properties and financial affairs as the other party may
reasonably request. All information provided shall be furnished strictly subject
to the confidentiality provision of this Agreement.
3.4
Confidentiality. All information and documents furnished
by a party pursuant to this Agreement shall be deemed and treated as proprietary
in nature. Each party agrees that it shall hold all information received from
another party pursuant to or in connection with this Agreement in the highest
and strictest confidence and shall not reveal any such information to any
individual who is not one of its directors, officers, key employee, attorney or
accountant, and that it will not use any such information obtained for any
purpose whatsoever other than assisting in its due diligence inquiry precedent
to the Closing and, if this Agreement is terminated for any reason whatsoever,
agrees to return to the other party any all tangible embodiments (and all
copies) thereof which are in its possession.
This
covenant shall survive the consummation or termination of this
Agreement.
3.5
Publicity and Filings. All press releases, shareholder
communications, filings with the Securities and Exchange Commission or other
governmental agency or body and other information and publicity generated the
Parties, separately or jointly, regarding the exchange contemplated in this
Agreement shall be reviewed and approved by the other Party before release or
dissemination to the public or filing with any governmental agency or body
whatever. Post-Closing, the Parties will provide each other
with such documents, information, assistance and cooperation as may be
reasonably required to complete in a timely fashion, all required filings with
any state, Federal or other agency, or outside party.
3.6
Notice of Developments. Each party hereto will give
prompt written notice to the other of any material adverse development causing a
breach of any of its own representations and warranties in this
Agreement.
3.7
Stand-Still Agreement. Neither Party will solicit,
initiate, or encourage the submission of any proposal or offer from any person
or entity relating to any other transaction related to the matters being
acquired under this Agreement pending the closing of the transaction
contemplated herein.
3.8.
Patent and Asset Verification. RENW shall have verified
that the assets and patents, patents pending and other proprietary assets are
duly and legally in the name of WESCO or a subsidiary and represent those
products including the CAVD, B.O.R.S Lift, and Plasma technologies formerly
owned by WESCO. RENW acknowledges that part of the CAVD rights for
tire refuse is held by RCT, LLC, which are tied to the use of the technology for
tires, is excluded from this acquisition, only to the limit that such agreement
pertains. All other uses of the CAVD, pyrolisis applications before explored by
WESCO or any related party shall be owned by RENW, and shall be part of the
acquired technologies under this agreement. As well, any right and title to any
interest in the other technologies shall be delivered to RENW as part of this
agreement.
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3.9
Indemnification, and Hold Harmless. The Parties mutually
agree to indemnify, defend and hold the other harmless from any claim, debt,
cause of action or other demand made by any party whatsoever, for any reason
whatsoever, for, from or as a result of any negligent action, negligent
omission, negligent breach, ensuing injury from such actions or
inactions caused to be or claimed by any third party. Should either party desire
to enact this provision, it must provide notice of a demand for defense and
indemnification to the other Party in writing, within a reasonable amount
of time after discovery of any potential claim. The method of
defense, choice of counsel and indemnification shall be chosen by the party
accepting indemnification. Should a Party deny liability under this section, the
dispute shall be referred to a Court of Competent jurisdiction pursuant to this
Agreement. Specifically, WESCO is indemnifying RENW from any claim
from the Laurus funding, the current or any lawsuit in any jurisdiction
regarding any of the technologies related in this agreement. Such
indemnification shall include legal representation, at the expense of WESCO, or
continued with WESCO in any current, or potential lawsuit now known in any such
case. Such cases are listed in Schedule D attached hereto, which are now filed
and existing at the time of this agreement.
4.1 Conditions
Precedent upon the Parties. The obligation of both Parties to consummate
this Agreement is contingent upon both Parties being able to deliver those
matters disclosed in Section 1.1 and the following conditions at or before the
Closing Date:
(a)
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Representations
and Warranties True. The representations and warranties
by both Parties in the Agreement shall have been correct on and as of the
Closing Date with the same force and
effect.
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(b)
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Legal
Opinions. Both shall be responsible to receive any necessary favorable
written opinion of counsel for those matters to be accomplished
herein.
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(c)
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No
Restraint. No injunction, filing in a jurisdiction,
judgment, decree or restraining order shall be in effect to forbid or
enjoin the consummation of this
Agreement.
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(d)
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Execution
of Agreement. Each Party shall have the authorized
officer or director execute this Agreement, and the consent of their Board
of Directors, if deemed necessary for completion of any or all actions
called for under this
Agreement.
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(e)
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Transference
of all Title, Leases and other Matters. Each Party shall cause
to be transferred, all rights, title and interest to all matters to be
exchanged under Section 1.1 of this Agreement, and that in Schedule
A.
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5.1 Exchange. All
items within Section 1.1 and Schedule A shall be tendered to the other Party
before or at the time of closing.
(a)
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RENW
Stock Certificate. Stock certificates representing the
necessary stock certificate for payment of consideration for the items
being purchased herein. All of the issued shares of RENW common stock
properly issued to WESCO.
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(b)
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Certified
Corporate Resolutions. Certified copy of the resolutions
duly adopted by the Board of Directors, as necessary, authorizing and
approving the execution and delivery of this Agreement and the performance
of its obligations hereunder.
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(c)
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Other
Documents. All such matters necessary to fulfill the
consideration necessary
under Section 1.1 and to transfer title, right and interest in Schedule
A.
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6.1
Termination of Agreement. This Agreement may be
terminated as provided below:
(a)
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The
Parties hereto may terminate this Agreement by mutual consent at any time
prior to the Closing Date;
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(b)
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RENW
may terminate this Agreement by giving written notice to the Shareholders
at any time prior to the Closing
Date;
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(
c)
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RENW may
terminate this Agreement by giving written notice to WESCO at any time
prior to the Closing Date;
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(d)
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It
is the Parties intention to close this transaction as soon as practicable,
however, the Closing Date shall occur no later than March 15, 2008, absent
regulatory or consent delays.
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6.2
Effect of Termination. If any party hereto terminates this
Agreement pursuant to Section 6.1(a) above, all rights and obligations of the
Parties hereunder shall terminate without any liability of any party to the
other party (except for any liability of any Party then in breach).
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7.1
Entire Agreement. This Agreement embodies the entire
Agreement and understanding between the Parties concerning the subject matter
hereof and supersedes any and all prior negotiations, understandings or
Agreements in regard thereto.
7.2
Choice of Law. The Parties stipulate that
regardless of the location of the execution of this Agreement or the location of
the closing, they agree that the choice of law governing this contract shall be
the Laws of the State of Florida.
7.3
Notices. Unless otherwise changed by notice given in
accordance with this provision, any notice or other communications required or
permitted herein shall be deemed given if delivered personally or sent by
certified mail, postage prepaid, return receipt requested, addressed to the
other Parties at the addresses set forth above or, in the case of the
Shareholders, at the address set forth their signature.
7.4
Waiver. All rights and remedies under this Agreement are
cumulative and are not exclusive of any other rights and remedies provided by
law. No delay or failure in the exercise of any right or remedy arising under
this Agreement shall operate as a waiver of any subsequent right or remedy
subsequently arising under this Agreement.
7.5
Survival of Provisions. All Agreements, representations,
covenants and warranties on the part of the Parties contained herein or in any
instrument executed and delivered in connection herewith shall survive closing
of this Agreement and any investigation at any time made with respect thereto.
The terms, conditions and obligations of the Parties contained in this Agreement
shall survive and remain enforceable after the closing upon any other party
holding such rights, or entity which gains such rights. All such matters shall
be transferred and obligatory upon RENW after any name change, if any before or
after closing.
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7.6
Attorney's Fees. In the event of litigation for
enforcement of the terms of this Agreement or to enforce any remedy hereunder,
the prevailing party shall be entitled to recover from the other party any and
all costs and expenses, including reasonable attorney's fees, as may be
incurred.
7.7
Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Parties hereto and their respective personal
representatives, successors and assigns.
7.8
Headings. The section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
7.9
Execution by Facsimile. Facsimile execution of this
Agreement by any party is authorized and shall be binding upon all
Parties.
7.10
Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be considered an original
hereof.
7.11
Venue. For resolution of any dispute hereunder, shall be
the courts of competent jurisdiction in Hillsborough County, Tampa Florida
only.
7.12
Survivability. Should any term, condition, section or
subpart of this Agreement be deemed null, void, voidable or unenforceable, the
remaining terms, obligations, parts, sections and conditions shall remain in
force and binding on the Parties.
7.13
Recitals. The Parties expressly acknowledge that the Recitals
in the second preamble section contain covenants that shall be enforced and
relied upon and do not constitute merely descriptive recitals.
Renewable Energy Resources, Inc. | World Environmental Services, Inc. | |||
/s/
Xxxxx X. Xxxxxxx
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/s/
Xxxx Xxxxxxx
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Xxxxx
X. Xxxxxxx, Chairman
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Xxxx
Xxxxxxx, President
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and
Acting Chief Executive Officer
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Renewable Energy Resources, Inc. |
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