EXHIBIT 2.2
FORM OF
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
August 10, 2005, by and between Manhattan Associates, Inc., a Georgia
corporation ("Buyer"), and the undersigned in his, her or its capacity as a
shareholder ("Shareholder") of Evant, Inc., a California corporation ("Evant").
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Merger Agreement (as defined below).
RECITALS
A. As an inducement for Buyer to enter into that certain Agreement and
Plan of Merger dated as of August 10, 2005 (the "Merger Agreement"), by and
among Buyer, Madison Acquisition Corp., a California corporation and a
wholly-owned subsidiary of Buyer ("Merger Sub"), Evant and Xxx Xxxxxxx as the
Shareholder Representative, which agreement provides, among other things, for
the merger of Merger Sub with and into Evant (the "Merger"), Buyer has requested
that Shareholder execute and deliver this Agreement.
B. Pursuant to the Merger, among other things, all of the issued and
outstanding shares of capital stock of Evant will be converted into the right to
receive the consideration set forth in the Merger Agreement, all upon the terms
and subject to the conditions set forth in the Merger Agreement.
C. Shareholder is the Beneficial Owner (as defined herein) of the number
of outstanding shares of capital stock of Evant and other securities convertible
into, or exercisable or exchangeable for, shares of capital stock of Evant, all
as set forth on the signature page of this Agreement (collectively, the
"Shares"). For purposes hereof, "Beneficial Owner" shall have the meaning set
forth in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
D. As an inducement for Buyer to enter into the Merger Agreement,
Shareholder has agreed to restrict the transfer or disposition of the Shares and
the New Shares (as defined in Section 1(b) hereof) and desires to vote the
Shares and the New Shares so as to facilitate the consummation of the Merger.
The execution and delivery of this Agreement and the granting of any irrevocable
proxy herein is a material condition to Buyer's willingness to enter into the
Merger Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Agreement to Retain Shares.
(a) Transfer and Encumbrance. Shareholder agrees, during the period
beginning on the date hereof and ending on the Expiration Date, (i) not to
transfer, sell, exchange, pledge or otherwise dispose of or encumber
(collectively, "Transfer") any of the Shares or any of the New Shares, or to
negotiate, or make any offer or agreement relating thereto, other than to or
with Buyer or pursuant to or in favor of the Merger Agreement, and (ii) not to
deposit (or permit the
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deposit of) any Shares or New Shares in a voting trust or grant any proxy or
enter into any voting agreement or similar agreement in contravention of the
obligations of Shareholder under this Agreement with respect to any of the
Shares or New Shares, in each case without the prior written consent of Buyer.
Shareholder acknowledges that the intent of this Section 1(a) is to ensure that
Buyer retains the right under the Proxy (as defined in Section 3 hereof) to vote
the Shares and any New Shares in accordance with the terms of the Proxy. As used
herein, the term "Expiration Date" shall mean the earliest to occur of (x) the
Effective Time, (y) the termination of the Merger Agreement in accordance with
its terms and (z) written notice of termination of this Agreement by Buyer to
Shareholder.
(b) New Shares. Shareholder agrees that any shares of capital stock
of Evant that Shareholder purchases or with respect to which Shareholder
otherwise acquires Beneficial Ownership after the date of this Agreement and
prior to the Expiration Date, including shares of preferred stock or common
stock of Evant and shares issued or issuable upon the conversion, exercise or
exchange, as the case may be, of all securities held by Shareholder which are
convertible into, or exercised or exchangeable for, shares of capital stock of
Evant ("New Shares"), shall be subject to the terms and conditions of this
Agreement to the same extent as if they constituted Shares.
2. Agreement to Vote Shares. Subject to Section 12(l), until the
Expiration Date, at every meeting of shareholders of Evant called with respect
to any of the following, and at every adjournment or postponement thereof, and
on every action or approval by written consent of shareholders of Evant
solicited with respect to any of the following, Shareholder shall vote or shall
consent (in the case of a written consent, as soon as practicable and no later
than twenty-four (24) hours after receipt of the solicitation of consent), to
the extent not voted by Buyer or such duly authorized and appointed officers or
directors of Buyer under the Proxy, the Shares and any New Shares (to the extent
any such Shares and New Shares may be voted):
(i) in favor of the Merger Agreement, the Merger and any other
matter necessary to consummate the transactions contemplated by the Merger
Agreement, including approval of (A) all provisions of Article VIII of the
Merger Agreement, the escrow and the deposit of that portion of the Merger
Consideration equal to the Escrow Amount into the Escrow Fund (as defined in the
Escrow Agreement), and (B) the appointment of the Shareholder Representative,
pursuant to and as defined in the Merger Agreement;
(ii) against (A) approval of any proposal made in opposition
to, or in competition with, the Merger Agreement, the consummation of the Merger
or the transactions contemplated by the Merger Agreement, and (B) any of the
following actions (other than those actions that relate to the Merger and the
transactions contemplated by the Merger Agreement): (I) any merger,
consolidation, business combination, sale of assets, reorganization or
recapitalization of Evant with any party; (II) any sale, lease or transfer of
any material portion of the assets or capital stock of Evant; (III) any
reorganization, recapitalization, dissolution, liquidation or winding up of
Evant; (IV) any change in the capitalization of Evant or Evant's corporate
structure; or (V) any other action that is intended to interfere with, delay,
postpone, discourage or adversely affect the Merger or any of the other
transactions contemplated by the Merger Agreement; and
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(iii) in favor of waiving any notice that may have been or may
be required by the Tenth Amended and Restated Articles of Incorporation, any
agreement by which Evant or Shareholder is bound, or otherwise relating to any
reorganization of Evant, any reclassification or recapitalization of the capital
stock of Evant or any sale of assets, change of control, or acquisition of Evant
by any other Person, or any consolidation or merger of Evant with or into any
other Person.
Prior to the Expiration Date, Shareholder shall not enter into any
agreement or understanding with any Person to vote or give instructions in any
manner inconsistent with this Section 2.
3. Agreement to Execute General Release of Claims. Shareholder also agrees
to execute and deliver upon request of Evant or Buyer a general release of
claims in the form attached hereto as Exhibit A.
4. Irrevocable Proxy. Shareholder hereby grants to Buyer, and to any
officer or director authorized and appointed by Buyer, a proxy (the "Proxy") to
vote the Shares and New Shares as indicated in Section 2 above. Shareholder
intends this Proxy to be irrevocable and coupled with an interest and will take
such further action or execute such other instruments as may be reasonably
necessary to effectuate the intent of this Proxy and hereby revokes any proxy
previously granted by him or it with respect to the Shares or New Shares.
5. Representations and Warranties.
(a) Shareholder represents, warrants and covenants to Buyer as
follows:
(i) Shareholder is the Beneficial Owner of the Shares, with
the requisite power to vote or direct the voting of the Shares (to the extent
the Shares may be voted), for and on behalf of all beneficial owners of the
Shares.
(ii) Except as set forth in the Tenth Amended and Restated
Articles of Incorporation, the Shares are, and at all times up until the
Expiration Date the Shares will be, free and clear of any rights of first
refusal, co-sale rights, security interests, liens, pledges, claims, options,
charges or other encumbrances of any kind or nature.
(iii) Shareholder does not Beneficially Own any shares of
capital stock of Evant other than the Shares.
(iv) Shareholder has the requisite power and authority to
make, enter into and carry out the terms of this Agreement. This Agreement has
been duly and validly authorized, executed and delivered by Shareholder and
constitutes a valid and binding agreement of Shareholder, enforceable against
Shareholder in accordance with its terms, except that such enforceability (A)
may be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to enforcement of creditor's rights generally and (B) is
subject to general principles of equity.
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(b) Buyer represents, warrants and covenants to Shareholder as
follows:
(i) Buyer is a corporation duly organized and validly existing
under the laws of the State of Georgia and has all requisite limited company
power and authority to make, enter into and carry out the terms of this
Agreement.
(ii) This Agreement has been duly and validly executed and
delivered by Buyer and constitutes a valid and binding agreement of Buyer,
enforceable against Buyer in accordance with its terms, except that such
enforceability (A) may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting or relating to enforcement of creditors' rights generally
and (B) is subject to general principles of equity.
6. Additional Documents. Shareholder hereby covenants and agrees to
execute and deliver any additional documents necessary, in the reasonable
opinion of Buyer, to carry out the purpose and intent of this Agreement and the
Merger Agreement.
7. Consents and Waivers. Shareholder hereby gives any consents or waivers
that are reasonably requested in good faith for the consummation of the Merger
under the terms of any agreement to which Shareholder is a party or pursuant to
any rights Shareholder may have.
8. Disclosure. Shareholder hereby agrees to permit the Buyer to publish
and disclose in any proxy statement (including all documents and schedules filed
with the Securities and Exchange Commission), and any press release or other
disclosure document which the Buyer, in its reasonable discretion, determines to
be required by law or necessary in connection with the Merger and any
transactions related thereto, the Shareholder's identity and ownership of the
Shares and the New Shares and the nature of the Shareholder's commitments,
arrangements and understandings under this Agreement.
9. Public Disclosure. Prior to the Expiration Date, Shareholder shall not
issue any statement or communication to any third party regarding the subject
matter of the Merger Agreement or the transactions contemplated thereby,
including, if applicable, the termination of the Merger Agreement and the
reasons therefore, without the prior written consent of Buyer.
10. Appointment of Shareholder Representative. Shareholder appoints Xxx
Xxxxxxx as agent and attorney-in-fact for and on behalf of Shareholder for
purposes of the Merger Agreement. Shareholder further agrees that any decision,
act, consent or instruction of the Shareholder Representative, including any
agreement by the Shareholder Representative for and on behalf of the
Shareholders of Evant to any amendments, modifications and waivers of any term,
condition or other agreement set forth in the Merger Agreement, shall constitute
a decision of Shareholder for all purposes of and under the Merger Agreement,
and that such decision, act, consent or instruction shall be final, binding and
conclusive upon Shareholder as if made by Shareholder.
11. Termination. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date, provided, however, that notwithstanding the foregoing, the
provisions in Section 12 shall survive in full force and effect following the
Expiration Date.
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12. Miscellaneous.
(a) Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally against written receipt or by facsimile transmission
against facsimile confirmation or mailed by prepaid first class certified mail,
return receipt requested, or mailed by overnight courier prepaid, to the parties
at the following addresses or facsimile numbers:(i) if to Buyer, to:
Manhattan Associates, Inc.
0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Telecopier: 000-000-0000
with copies to:
Xxxxx X. Xxxxxxxx, Esq.
Manhattan Associates, Inc.
0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
and
Xxxxxx, Xxxxxxx & Xxxxxx, LLP
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxxx, Esq.
Facsimile: 000-000-0000
(ii) if to Shareholder, to the address set forth on the
signature page hereto.
with a copy to:
DLA Xxxxx Xxxxxxx Xxxx Xxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: 000-000-0000
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 13(a), be deemed given
upon delivery, (ii) if delivered by facsimile transmission to the facsimile
number as provided for in this Section 13(a), be deemed given upon facsimile
confirmation, (iii) if delivered by mail in the manner described above to the
address as provided for in this Section 13(a), be deemed given on the earlier of
the third Business
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Day following mailing or upon receipt and (iv) if delivered by overnight courier
to the address as provided in this Section 13(a), be deemed given on the earlier
of the first Business Day following the date sent by such overnight courier or
upon receipt (in each case regardless of whether such notice, request or other
communication is received by any other Person to whom a copy of such notice is
to be delivered pursuant to this Section 13(a)). Any party from time to time may
change its address, facsimile number or other information for the purpose of
notices to that party by giving notice specifying such change to the other party
hereto.
(b) Interpretation. The words "include," "includes" and "including"
when used herein shall be deemed in each case to be followed by the words
"without limitation." The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(c) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
(d) Entire Agreement; Assignment. This Agreement and the documents
and instruments and other agreements among the parties hereto referenced herein:
(i) constitute the entire agreement among the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings both
written and oral, among the parties with respect to the subject matter hereof,
(ii) are not intended to confer upon any other person any rights or remedies
hereunder, and (iii) shall not be assigned by operation of law or otherwise,
except that Buyer may assign its rights and delegate its obligations hereunder
to its affiliates so long as Buyer remains obligated to perform those
obligations required to be performed by Buyer hereunder.
(e) Severability. If any provision of this Agreement or the
application thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement will
continue in full force and effect and the application of such provision to other
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
(f) Other Remedies. Any and all remedies herein expressly conferred
upon a party will be deemed cumulative with and not exclusive of any other
remedy conferred hereby, or by law or equity upon such party, and the exercise
by a party of any one remedy will not preclude the exercise of any other
remedy.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Georgia, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
Each of the parties hereto irrevocably submits in any suit, action or proceeding
arising out of or related to this Agreement or any of the transactions
contemplated hereby or thereby, to the jurisdiction of the United States
District Court for the Northern District of Georgia and the jurisdiction of any
court of the State of Georgia located in Xxxx County, Georgia (in the case of
any action brought by the Shareholder) and to the jurisdiction of the United
States District Court for the Northern District of California and the
jurisdiction of any court of the State of California located in Santa Xxxxx
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County, California (in the case of any action brought by Buyer) and waive any
and all objections to jurisdiction that they may have under the laws of the
State of Georgia (with respect to the Shareholder), the State of California
(with respect to Buyer) or the United States (with respect to each party).
(h) Rules of Construction. The parties agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefor, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
(i) Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in the United States District Court
for the Northern District of Georgia and any court of the State of Georgia
located in Xxxx County, Georgia (in the case of any action brought by the
Shareholder) and in the United States District Court for the Northern District
of California and any court of the State of California located in Santa Xxxxx
County, California (in the case of any action brought by Buyer).
(j) Attorneys' Fees. If any action or other proceeding relating to
the enforcement of any provision of this Agreement is brought by any party
hereto, the prevailing party shall be entitled to recover reasonable attorneys'
fees, costs, and disbursements (in addition to any other relief to which the
prevailing party may be entitled).
(k) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY AND ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE ACTIONS OF ANY PARTY IN NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT HEREOF.
(l) Fiduciary Duties. Notwithstanding anything in this Agreement to
the contrary: (i) Shareholder makes no agreement or understanding herein in any
capacity other than in Shareholder's capacity as a record holder and Beneficial
Owner of Shares and New Shares, if applicable, (ii) nothing herein shall be
construed to limit or affect any action or inaction by Shareholder acting in
such person's capacity as a director, officer or employee of Evant, and
(iii) Shareholder shall have no liability to Buyer or any of its affiliates
under this Agreement or otherwise as a result of any action or inaction by
Shareholder in such person's capacity as a director, officer, or employee of
Evant.
(m) Amendments. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
(n) Non-survival of Representations and Warranties. The respective
representations and warranties of Shareholder and Buyer contained herein shall
not survive the closing of the transactions contemplated hereby and by the
Merger Agreement.
(o) No Ownership Interest. Nothing contained in this Agreement shall
be deemed to vest in Buyer or Merger Sub any direct or indirect ownership or
incidence of ownership of or with respect to any
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Shareholder's Shares or New Shares. All rights, ownership and economic benefits
of and relating to each Shareholder's Shares and New Shares shall remain vested
in and belong to the Shareholder, and Buyer shall have no authority to manage,
direct, superintend, restrict, regulate, govern or administer any of the
policies or operations of Evant or exercise any power or authority to direct
Shareholder in the voting of any of its Shares or New Shares, except as
otherwise provided herein.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
MANHATTAN ASSOCIATES, INC. SHAREHOLDER
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By: Print name of entity, if applicable
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Name: Signature
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Title: Print Name
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Print Title
Address:
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Shares:
Common Stock:
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Series 1 Preferred Stock:
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Series 2 Preferred Stock:
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Series 3 Preferred Stock:
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Evant Options:
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Evant Warrants:
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Other:
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EXHIBIT A TO VOTING AGREEMENT
GENERAL RELEASE OF CLAIMS
This General Release of Claims (the "Release") is being executed and
delivered by the undersigned shareholder (the "Shareholder") of Evant, Inc., a
California corporation (the "Company"), in accordance with the Agreement and
Plan of Merger dated as of August 10, 2005 (the "Merger Agreement") by and among
the Company, Manhattan Associates, Inc., a Georgia corporation (the "Buyer"),
Madison Acquisition Corporation, a California corporation and wholly-owned
subsidiary of Buyer (the "Merger Sub"), and Xxx Xxxxxxx as Shareholder
Representative, pursuant to which the Merger Sub will merge with and into the
Company with the Company surviving as a wholly-owned subsidiary of Buyer (the
"Merger"). Capitalized terms used in this Release without definition shall have
the meanings ascribed to them in the Merger Agreement.
Shareholder acknowledges that the execution and delivery of this Release
by a certain percentage of the Company's shareholders is a condition to Buyer's
and Merger Sub's obligation to consummate the transactions contemplated by the
Merger Agreement.
Shareholder, in order to induce Buyer and Merger Sub to consummate the
Merger pursuant to the Merger Agreement, hereby agrees as follows:
GENERAL RELEASE OF CLAIMS. Effective as of the closing of the
Merger, for the benefit of the Buyer and its subsidiaries and the Company and
its subsidiaries, Shareholder hereby releases, remises and forever discharges
any and all rights and claims that he, she or it has had, now has or might now
have against the Buyer, the Company and each of their respective subsidiaries,
including but not limited to the Merger Sub, and the directors, officers,
employees, agents, shareholders, attorneys, successors and assigns of the Buyer,
the Company and their respective subsidiaries (collectively, the "Released
Parties"); provided, however, that such release shall not include any claim
Shareholder has, had, or might now have or may have in the future against Buyer
or the Surviving Corporation for breach of their respective obligations under
the Merger Agreement. In signing this Release, Shareholder expressly waives and
relinquishes all rights and benefits afforded by Section 1542 of the Civil Code
of the State of California, and does so understanding and acknowledging the
significance of such specific waiver of Section 1542, which states as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
Thus, notwithstanding the provisions of Section 1542, and for the purpose
of implementing a full and complete release and discharge of the Released
Parties, Shareholder expressly acknowledges that this Release is intended to
include in its effect, without limitation, all claims which Shareholder does not
know or suspect to exist in Shareholder's favor at the time of execution hereof,
and that this Release contemplates the extinguishment of such claim or claims.
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IN WITNESS WHEREOF, Shareholder has executed this General Release of
Claims as of the date set forth below.
IF SHAREHOLDER IS AN INDIVIDUAL:
SHAREHOLDER:
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Print Name:
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Date: , 2005
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IF SHAREHOLDER IS AN ENTITY:
SHAREHOLDER:
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By:
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Name:
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Title:
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Date: , 2005
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