EMPLOYMENT AGREEMENT
Exhibit
10.33
This
Agreement, effective as of the 1st day of July 2006 (the “Effective Date”),
pursuant to action of the Company’s Board of Directors on the 15th
day of
November 2005 and executed on the dates written hereafter is made by and
between
Chapeau,
Inc., d/b/a BluePoint Energy, Inc. (“Company”), whose business address
is
0000
Xxxxxxx Xxxx, Xxxxx 0, Xx Xxxxxx Xxxxx, Xxxxxxxxxx 00000; and
Xxxxxx
X.
Xxxxxxx (“Employee”), whose mailing address is 0000 Xxxxxxxxxxx Xxx, Xxxxxxx
Xxx, Xxxxxxxxxx 00000;
both
of
which entities are referred to herein as the “Parties.”
RECITALS
A. Company
is in the business of developing, manufacturing, selling and servicing
power
generation, cogeneration, and tri-generation systems and energy service
agreements for end-users in need of reliable, efficient, ultra-clean, and
economic power solutions.
B. In
the
course of Company’s business certain confidential and proprietary information is
developed which Company intends to treat as trade secrets.
C. Company
and its officers, and employees receive confidential and proprietary information
from Company’s customers and other third parties for which Company has
contractual obligations to maintain such information in confidence.
D. It
is
anticipated that in the course of performing services for Company, Employee
will
develop inventions or work which may be protectable by patent, trademark
or
copyright laws which will belong solely to Company.
E. It
is
desirable to specify how matters of confidentiality and assignment of rights
will be handled and to enumerate Employee’s rights and obligations with respect
to Company.
0000
Xxxxxxx Xxxx, Xxxxx 0 ·
Xx Xxxxxx Xxxxx, XX 00000 ·
P - 916.939.8700 ·
F - 916.939.8705
AGREEMENTS
NOW
THEREFORE,
in
consideration of the foregoing Recitals and of the covenants and agreements
hereinafter contained, and other good and valuable consideration the receipt
and
sufficiency of which are now acknowledged, the undersigned parties, intending
to
be legally bound, hereby covenant and agree as follows:
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1)
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Definitions.
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a)
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Confidential
Information
shall mean any information, whether tangible or intangible, including
scientific or technical information, design, product, processes,
procedure, composition, pattern, devices, plans, formulae, improvements,
business or financial information, data bases, or other information
which
gives the owner of the information a competitive advantage and
which the
owner has taken steps to protect from disclosure to persons other
than
those selected by the owner to receive such information. Confidential
Information
does not include information, which becomes publicly known through
lawful
means, or information that was rightly in Employee’s possession prior to
the Effective Date. Confidential
Information
includes that owned by Company or any of Company’s customers, which
becomes known to Employee in the course of his employment hereunder.
Confidential
Information
also includes information obtained by Company from a third party
under
obligations to maintain its confidentiality. Confidential
Information
includes, but is not limited to, “trade secrets,” but Confidential
Information
need not satisfy the legal definition or requirements of a “trade secret”
to be protected under this
Agreement.
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b)
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Intellectual
Property
shall mean work product, functional designs, technical designs,
and
software including programs, modules, code, algorithms, flowcharts,
data
diagrams, documentation and the like, tangible and intangible
products,
inventions, developments, manufacturing processes, copyrights,
improvements, concepts and ideas, whether patentable or not.
Intellectual
Property
shall also mean all Intellectual
Property
which is related to, or is capable of use in any way in connection
with
Company’s business or its corporate affiliates and made, conceived,
developed, or perfected by Employee, alone or with others, as
a result of
performance of his duties under this Agreement or two years after
the
termination of this Agreement, during any prior relationship
with Company,
from the use of any Company facilities, resources, or proprietary
information, and/or made, conceived, developed, perfected by
Employee as a
result of Employee’s association with
Company.
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c)
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"Customer"
and "Prospective Customer" Defined.
As
used herein, the term "Customer" shall include any person or
entity to
whom services or products are sold by Company, and any person
or entity
with whom Company has established strategic marketing, services
or other
alliances. The term "Prospective Customer" shall include any
person or
entity toward whom Company has directed efforts to establish
a customer
relationship or strategic alliance and with whom Company has
a reasonable
expectation of establishing such a relationship or
alliance.
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| 2) |
Employment.
Company hereby employs the Employee, and Employee hereby accepts
employment with Company on the terms set out in this
Agreement.
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| 3) |
Scope
of Duties. Employee
is engaged generally to perform those duties described in Appendix
A and
those duties assigned by the Chief Executive Officer of Company
from time
to time and all related duties. Employee agrees to devote his
full
business time and attention exclusively to the performance
of these duties
and further agrees to perform these duties faithfully, industriously,
and
to the best of his ability, experience, and talents, and to
the reasonable
satisfaction of Company. Such duties shall be provided at such
place(s) as
the needs, business, or opportunities of Company may
require.
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| 4) |
Supervisor.
Employee will be a member of the Company’s Executive Management Team
reporting and responsible to the Chief Executive Officer of
Company or
such other authorized representative of Company as may be identified
to
Employee by the Chief Executive Officer or the Board of Directors
of
Company.
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| 5) |
Compensation and
Benefits.
Company will pay the following compensation to Employee pursuant
to this
Agreement:
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a. Beginning
on the Effective Date, Company will pay Employee salary at the rate of
$150,000
(One Hundred Fifty Thousand and 00/100 United States Dollars) per year,
payable
on Company’s normal payroll cycle, which salary shall be subject to required
withholding and employment taxes levied by federal, state and local governments.
Such salary may be adjusted from time to time by mutual agreement of the
parties. Employee will have periodic performance reviews in accordance
with
Company’s policy at which time Employee’s compensation will be
addressed.
All
other provisions of this Agreement will remain unchanged.
b. Employee
may be granted options to purchase shares of the Company’s common stock, in
addition to those previously granted, in amounts and at per share exercise
prices and vesting criteria to be determined by the Board. Other terms
and
conditions concerning any stock options will be further delineated to a
stock
option agreement to be drafted by the Company’s counsel.
c. Company
may create and change from time to time employee handbooks and/or policy
manuals
and provide same to Employee. Such handbooks or policy manuals are intended
to
provide instruction and guidance to employees concerning operating procedures
and current working policies of the Company but shall not be deemed to
be and
Employee understands that they are not a contract between the parties and
are
not part of this Agreement. The Company is free to follow or not follow
procedures and policies set forth in the handbooks or policy manuals depending
upon the business needs and conditions as solely determined by the Company.
Employee may not rely upon anything contained in such handbooks or policy
manuals as requiring any specific or general action of Company.
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d. The
Company maintains various employee benefit plans including a medical plan.
The
Company will permit Employee to become a participant in any medical, optical,
dental and life insurance plan, pension plan, profit sharing plan, and/or
performance award programs established by Company, provided Employee has
become
eligible to participate in such plan or program according to the terms
and
conditions of said plan or program. Employee shall be eligible for vacation,
sick time, and holidays in accordance with the policies and practices of
the
Company. Vacation must be taken at a time convenient to Company and must
be
approved in advance by Company. The Employee will be eligible to participate
in
any and all such plans and any other benefit on no less favorable terms
than
those offered to any other person by the Company. In addition, the Company
will
pay all premiums in connection with welfare benefit insurance coverage,
including health, dental and vision, for Employee’s dependents in amounts not
exceeding the premiums for such coverage offered under the Company’s related
benefit plans.
e. Company
reserves the absolute right to make any changes in assignment, personnel,
or
employee benefits at any time.
6. Employment
Term.
Employee’s employment shall continue for a period of two years (such two-year
period is referred to herein as the “Full Employment Term” from the Effective
Date of this Agreement, unless Employee’s employment is terminated prior to the
expiration of the Full Employment Term, as provided in this Section 6 of
the
Agreement (such shorter period is referred to herein as the “Employment Term”).
Employee’s obligations as specified in Sections 7-14 below, shall survive any
termination of this Agreement.
a. Termination
For Cause.
Company
may terminate Employee’s employment for cause as defined in Section 6(a)(ii)
below.
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i.
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If
Company terminates Employee’s employment for cause, Employee shall be
entitled to receive payment of that portion of Employee’s annual salary
under Section 5(a) that Employee earned through and including
the
Termination Date at the rate of the annual salary in effect at
that time,
but shall be entitled to no other compensation under this
Agreement.
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ii.
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Termination
“for cause” shall mean termination by the Company of Employee’s employment
with Company because of (A) any act or omission that constitutes
a
material breach by Employee of his obligations under this Agreement,
including, but not limited to, Employee’s breach of Sections 8-10 of this
Agreement; (B) any failure by Employee to perform the duties,
meet the
performance criteria or to otherwise serve Company in the capacities
prescribed by the Company in accordance with Section 3, provided
that with
respect to the first occurrence only of any such willful failure,
such
willful failure remains uncured more than ten (10) business days
after the
date on which the Company first provides written notice of such
first
occurrence or willful failure to Employee; (C) a criminal conviction,
guilty plea, or no contest plea of Employee for any felony, any
drug
related offense, or a crime involving an act of moral turpitude;
or (D)
Employee’s perpetration of an act of fraud or embezzlement against
Company.
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iii.
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Company
may terminate for cause Employee’s employment with Company by giving
written notice to Employee at least twenty-four (24) hours prior
to the
Terminate Date. “Termination Date” shall mean the actual date Employee
terminates employment with Company as a result of action taken
by the
Company, and not as a result of Employee’s resignation from employment as
provided in Section 6(b).
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b. Resignation.
Employee
may resign his employment with Company at any time for any reason by providing
written notice to the Supervisor set forth in Section 4 of this Agreement
of the
resignation at least thirty (30) days, but not more than one hundred twenty
(120) days, prior to the effective date the resignation (the “Resignation
Notice”). The effective date of Employee’s resignation shall be that date
specified in the Resignation. Employee shall not make public any information
relating to his resignation until the Resignation Date. If Employee resigns
from
his employment, Employee shall be entitled to receive payment of that portion
of
Employee’s annual salary under Section 5(a) that Employee earned through and
including the Resignation Date at the rate of annual salary in effect at
that
time, but shall be entitled to no other compensation under this
Agreement.
c. Termination
Other Than For Cause.
If,
prior to the expiration of the Full Employment Term, Company terminates
Employee’s employment other than for cause or Permanent Disability, Employee
shall be entitled to receive, in addition to amounts payable pursuant to
Section
6(f), payment of that portion of Employee’s annual salary under Section 5(a)
that Employee earned through and including the Termination Date at the
rate of
annual salary in effect at that time.
d. Disability.
Employee shall be deemed “Permanently Disabled” when he is deemed permanently
disabled in accordance with the disability insurance policy of Company
in effect
at the time of the illness or injury causing the disability, or, in the
event no
disability policy is in effect, in accordance with the disability policy
of
Company last in effect. If, prior to the expiration of the Full Employment
Term,
Employee becomes Permanently Disabled, the Company may terminate Employee’s
employment with Company as a result of the Permanent Disability by providing
written notice to Employee at least seventy-two (72) hours prior to the
Termination Date. If Employee resigns from Employment with Company as a
result
of a Permanent Disability or Company terminates Employee’s employment as a
result of a Permanent Disability, Employee shall be entitled to receive,
in
addition to amounts payable pursuant to Section 6(f), that portion of the
annual
salary, at the rate in effect when he became Permanently Disabled, that
he
earned through and including his last day of employment with
Company.
e. Death.
If
Employee dies prior to the expiration of the Full Employment Term, Employee’s
estate or personal representative shall be entitled to receive, in addition
to
amounts payable pursuant to Section 6(f), payment of that portion of the
annual
salary, at the rate in effect at Employee’s death, that Employee earned through
and including the date of Employee’s death.
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f. Compensation
Following Termination.
If
employee’s termination of employment is pursuant to Section 6(c), 6(d) or 6(e),
this Agreement, in addition to any other amounts due or benefits to be
paid to
Employee pursuant to this Agreement, Company shall pay to Employee, or
to
Employee’s estate or personal representative an amount equal to the annual
salary under Section 5(a) to which Employee would have been entitled had
the
Employee remained employed by Company for the Full Employment Term (the
annual
salary, divided by twelve, multiplied by the number of whole or fractional
months remaining in the Full Employment Term after Employee’s last day of
employment with Company), to be paid in four equal quarterly installments
on the
first day of each consecutive subsequent calendar quarter, or the next
business
day if the first such day is a Saturday, Sunday or legal holiday, provided
that
if termination of employment occurs during the last year of the Full Employment
Term, any unpaid amount owed to Employee shall be paid no later than the
last
day of the Full Employment Term.
7. Noninterference
with Third Party Rights. Company
is employing Employee with the understanding that during the Term of
Employment:
a. Employee
is free to enter into employment with Company; and
b. Only
Company is entitled to benefit from Employee’s work. Company has no interest in
using any third party’s patents, copyrights, trade secrets, or trademarks in any
unlawful manner. Employee will not use for the benefit of, or divulge to
Company, or its personnel, any proprietary information of a third party
without
the prior written permission of the third party.
8. Non-disclosure
of Confidential Information.
Due to
the nature of Employee’s duties hereunder, he will have access to and will
acquire or develop, Confidential
Information.
Employee acknowledges that Confidential
Information
has been
developed by its owner at great expense and effort, are being revealed
in strict
confidence solely for the purpose of allowing Employee to perform duties
for
Company, and that disclosure of Confidential
Information,
could
cause substantial damage to Company and third parties. Therefore, Employee
agrees that:
a. Employee
shall use Confidential
Information
only in
performing duties and services related to his employment at Company and
will
only discuss Confidential
Information
with
other authorized employees of Company and only when necessary to the performance
of his duties.
b. During
the term of this Agreement and afterward, Employee will hold all Confidential
Information
in
strict confidence for the sole benefit of Company and will not induce or
permit
others to use or have access to any Confidential
Information
for any
purpose whatsoever except as provided for in this Agreement. Employee will
not
use, reveal, copy, disclose, discuss, transfer or remove any Confidential
Information
except
as necessary to perform his duties hereunder.
c. At
no
time will Employee use any Confidential
Information
for
Employee’s own commercial and business purposes, including participation as an
employee, partner, director, investor, officer, stockholder, member, or
joint
venture participant in any commercial or business enterprise, nor shall
Employee
take, use, copy, transfer, conceal or retain possession of property representing
the Confidential
Information
for
Employee’s own use or for the use of any other person.
9. Assignment
of Intellectual Property.
During
the duration of this Agreement and for two years thereafter, Employee may,
either alone or with others, during working hours or not, develop Intellectual
Property, which
may
be protectable by patent, trademark or copyright law. Employee agrees that
as
consideration for this Agreement, Company will solely own all Intellectual
Property
and all
Intellectual
Property will
be
considered “work made for hire.” If by operation of law or otherwise, any
Intellectual
Property is
not
“work made for hire” or if ownership of all right, title, and interest in the
Intellectual
Property
does not
vest exclusively in Company, Employee hereby irrevocably assigns, to Company
its
successors and assigns, Employee’s entire right, title, and interest in and to
all Intellectual
Property
including all patents, applications, trademarks, and copyrights. Employee
agrees
that such assignment is supported by adequate consideration under this
Agreement.
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Employee
agrees to disclose promptly and fully to the Company all Intellectual
Property
and to
advise Company’s president or designated intellectual property manager of all
Intellectual
Property.
Employee shall also keep and maintain adequate and current written records
of
all such Intellectual
Property
describing its nature, use, and operation. Records shall be in the form
of
notes, sketches and drawings or reports relating thereto, and will be the
property of, and available to, the Company at all times.
Concepts,
copyrights, and inventions which do not relate, directly or indirectly
to
Company’s business or which Employee developed independent of his association
with Company or Company’s business and on his own without use of Company’s time,
resources, equipment or Confidential
Information
are
expressly excluded from “works made for hire.” Any inventions owned by Employee
prior to the Effective Date are enumerated in Appendix B hereto and are
excluded
from Employee's obligations under this Agreement. If not listed, the Parties
agree that it shall be conclusively presumed that any relevant Intellectual
Property
which
may have been listed, whether completed or not, at the execution of this
Agreement, were not listed because they are agreed to belong exclusively
to
Company.
Employee
will promptly deliver all Intellectual
Property
to
Company and at the request of the Company, will execute and deliver all
proper
assignments thereto.
10.
Protection
and Maintenance.
At the
request of the Company, Employee will at any time do all things reasonably
required in order to protect and maintain Company’s rights in Intellectual
Property
including executing all proper papers for use in applying for, obtaining
and
maintaining United States and foreign patents and/or copyrights relating
to
Intellectual
Property
as the
Company may desire, but at the sole expense of the Company or its
affiliate.
11.
Not
Used
12.
Company
Right to Injunctive Relief. In
the
event of the breach or threatened breach of Sections 8-11 of this Agreement
by
Employee, Company shall be entitled to all appropriate legal and equitable
relief, including without limitation temporary restraining orders, preliminary
and permanent injunctions, and monetary damages. The parties agree that
in the
event of a breach of this Agreement, the total damages sustained by Company
may
be difficult or impossible to ascertain. The parties hereby agree that
no
performance bond is necessary in obtaining the equitable relief provided
for in
this Section 12.
13.
Severability.
If any
provision of this Agreement as applied to any party or to any circumstances
is
adjudged by a court to be unreasonable, invalid or unenforceable as written
as
to duration, geographic scope, nature or scope of activities affected,
nature or
scope of information covered, or in any other respect, the same will in
no way
affect any other provision hereof, the application of such provision in
any
other circumstances, or the validity or enforceability of this Agreement.
The
parties agree that the court making a determination that any provision
hereof is
unreasonable, invalid or unenforceable as written will have the power to
reduce
or alter the duration, area, nature or scope of the subject provision,
and in
its reduced or altered form or version such provision will then be enforceable
and will be enforced.
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14.
Return
of Property.
Upon
termination of this Agreement, Employee shall deliver all Company’s property
(including keys, documents, records, notes, electronic data, memoranda,
models,
and equipment) and Confidential
Information, which
is
in Employee’s possession or under Employee’s control.
15.
Non-waiver.
The
failure of either Party to enforce at any time any of the provisions of
this
Agreement, or to take action as a result of any breach of any provisions
of this
Agreement, shall in no way be considered to be a waiver of such provisions
or in
any way to affect the validity of this Agreement.
16.
Non-assignment.
This
Agreement constitutes a personal contract and Employee shall not transfer
or
assign his rights or obligations hereunder; provided, however, Employee
may
assign his right to receive all or part of Employee’s compensation upon giving
Company written notice of such assignment. Payment in accordance with such
assignment shall be deemed a fulfillment of Company’s obligations
hereunder.
17. Binding
Effect.
This
Agreement shall inure to the benefit of and be binding upon Company, its
successors and assigns and on Employee, his heirs, guardians and personal
or
legal representatives.
a. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of California, irrespective of where Employee’s duties are to be
performed. The invalidity or unenforceability of any provisions hereof
shall in
no way affect the validity or enforceability of any other
provision.
18. Entire
Agreement.
This
Agreement contains the entire agreement of the Parties and may be amended,
extended, or rescinded only by a writing signed by the Parties.
19. Company’s
Additional Rights.
This
Agreement will be supplemental to and not in derogation of any rights which
Company may have concerning any matter covered in this Agreement, including
but
not limited to any information which may have been obtained by Employee
during
the course of his employment or any Intellectual
Property
which he
has made or may make.
20. Notices.
All
notices required or permitted under this Agreement shall be deemed delivered
when delivered in person or deposited in the United States mail, postage
prepaid, addressed to the parties at the addresses designated in the first
paragraph of this Agreement. Notices to Company shall be in care of its
Chief
Operating Officer.
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IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the dates
written below. The Employee acknowledges receipt of a completed copy of
this
Agreement.
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CHAPEAU,
INC d/b/a BLUEPOINT
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XXXXXX
X. XXXXXXX
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ENERGY,
INC.
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By /s/
Xxx X. Xxxxxxxx
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By
/s/ Xxxxxx X.
Xxxxxxx
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Title Chief
Executive Officer
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Date
July 1,
2006
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Date July
1,
2006
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APPENDIX
A
SCOPE
OF DUTIES
Employee
will be responsible for acting as Chief Financial Officer and Corporate
Secretary. The Employee will be a member of the Company’s Executive Management
Team
under
the direction of the Company’s Chief Executive Officer.
Employee
and Company agree that each of them will, within 120 days of Employee’s
Employment, use his best efforts to agree to and document a detail scope
of
duties, including performance milestones and/or other Employee performance
criteria as well as corresponding incentive compensation programs which might
include one or more of the following elements: (i) annual bonus; (ii) salary
increase; (iii) additional stock options.
00
XXXXXXXX
X
PREEXISTING
INVENTIONS, COPYRIGHTS, CONCEPTS,
WORKS,
ETC. WHICH BELONG TO EMPLOYEE
None.
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APPENDIX
C
OTHER
Employee
and Company acknowledge that as of the Effective Date of this Agreement,
the
Company has recorded certain accounts payable to the Employee for past services
rendered to the Company in the capacity of an independent contractor, including
approximately $107,000 for services provided through December 31, 2005
(“Accounts Payable”). The Parties agree that, in lieu of cash and upon mutual
agreement, the Company may pay for a portion or all of Accounts Payable in
shares of the Company’s common stock equal to that number of shares determined
by dividing into the appropriate amount of Accounts Payable the closing price
of
the Company’s common stock as of the last date of the period in which the
related Accounts Payable was earned.
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