Exhibit 10.11
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of October __, 2001, by and between
Viper Networks, Inc. an Utah Corporation with offices located at 0000 Xxxxxxxxx
Xxx., Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000 ("Buyer") and ePhone, Inc., a
Nevada Corporation, with offices located at 00 X. Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxx, Xxxxxx 00000 ("Seller").
WHEREAS, Buyer is in the business of telecommunications and network
services, with a specialization in the cost-effective design, implementation,
maintenance and management of premise and network-based communications (the
"Business");
WHEREAS, Buyer desires to purchase from the Seller, and the Seller desires
to sell to the Buyer, certain specified assets relating to Viper's Business, as
set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises herein set forth
and upon the terms and subject to the conditions hereof, the parties agree as
follows:
ARTICLE I. PURCHASE AND SALE OF ASSETS
1.01 Sale of the Purchased Assets; Assumed Liabilities. Upon the terms and
subject to the conditions of this Agreement, at the Closing (i) Seller will
sell, transfer, assign, convey and deliver to Buyer, and Buyer will purchase,
accept and acquire from Seller, the following property and assets of the Seller,
free and clear of any option, lien, pledge, mortgage, security interest or other
encumbrance or any kind ("Purchased Assets"):
(i) all equipment, machinery, tools, spare parts, personal property and
other physical assets of Seller described on Exhibit 1.1(i);
(ii) all rights of the Seller under all licenses, permits, authorizations,
approvals, consents and franchises and any pending applications or the
like relating to any of the foregoing; and
(iii)all equipment repair, maintenance or other service records relating to
any of the Purchased Assets described above.
1.02 Purchase Price. The aggregate purchase price to be paid by Buyer for
the Purchased Assets shall consist of the Consideration described in Section
1.02(a) hereof.
(a) Consideration. The Consideration payable to Seller shall be an amount equal
to $100,000 Dollars, payable at the Closing in the form of:
(i) a Common Stock Certificate for 170,000 restricted common shares of
Buyer; and
(ii) a Warrant to purchase up to 170,000 additional restricted common
shares of Buyer on the following terms: (a) for the term beginning on
the date of this Agreement until the first day of public trading of
Buyer's common stock on the NASD's OTC Bulletin Board Exchange, a
purchase price of $.50 per share; (b) for the term beginning on the
first day of public trading and for 90 days thereafter, a purchase
price of $1.00 per share; (c) the Warrant shall expire upon the
completion of the term in (b) above. The Warrant is to be in
substantially the same form as Exhibit 1.2(a)(ii) hereto.
1.03 No Assumption of Liabilities. The Buyer is not assuming, and shall not
be deemed to have assumed, any obligations or liabilities of the Seller.
1.04 Allocation of the Purchase Price. Buyer and Seller hereby agree that
the purchase price for the Purchased Assets shall be allocated in accordance
with Exhibit 1.4 hereto. The parties agree to be bound by such allocation for
all purposes, including for purposes of all Federal, state, local and foreign
tax returns filed by any of them subsequent to the Closing Date, the
determination by Seller of taxable gain or loss on the sale of the Purchased
Assets, and the determination by Buyer of its tax basis in the Purchased Assets.
1.05 Closing Deliveries.
(a) Sellers' Deliveries. At the Closing, Seller shall deliver to Buyer:
(i) Such bills of sale, assignments and other Instruments (in form
and substance satisfactory to Buyer) as shall be necessary or
appropriate to vest in Buyer good and marketable title to the
Purchased Assets, free and clear of all liens, options, pledges,
mortgages, security interests or other encumbrances;
(ii) Such Consents, Permits and other Instruments as Buyer may
reasonably request to enable it to utilize the assets in the
Business without interruption or disruption;
(iii)The Consulting Agreement executed by Xxxxx Xxxxxx in accordance
with Section 2.03(g) hereof; (iv) A duly authorized Resolution of
the Board of Directors of Seller approving this transaction;
(v) A current Certificate of Good Standing of Seller in its State of
Incorporation. (vi) Buyer's standard Subscription Agreement for
the Common Stock and Warrant to acquire additional Common Stock
executed by Seller.
(b) Buyer's Deliveries. At the Closing, Buyer shall deliver to Seller:
(i) The Common Stock Certificate of Buyer for 170,000 shares of
restricted common stock in the name of Seller in accordance with
Section 1.02(a) hereof;
(ii) The Warrant to purchase an additional 170,000 shares of
restricted common stock in name of Seller in accordance with
Section 1.02(a) hereof;
(iii)The Consulting Agreement executed by the President of Buyer in
accordance with Section 2.03(g) hereof.
(iv) A duly authorized Resolution of the Board of Directors of Buyer
approving this transaction; (v) A current Certificate of Good
Standing of Buyer in its State of Incorporation.
ARTICLE II. CLOSING CONDITIONS
2.01 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place by correspondence and facsimile on or
before October 5, 2001, or on such other date and at such place as the Buyer and
Seller may mutually determine (the "Closing Date").
2.02 Conditions Precedent to the Obligations of Seller. All obligations of
Seller under this Agreement are subject to the fulfillment, at the option of
Seller, at or prior to the Closing Date, of each of the following conditions:
(a) Buyer's Representations and Warranties. The representations and
warranties of Buyer herein contained shall be true on and as of the Closing Date
with the same force and effect as though made on and as of said date, except as
affected by transactions contemplated or permitted by this Agreement.
(b) Buyer's Covenants. Buyer shall have performed all its obligations and
agreements and complied with all its covenants contained in this Agreement to be
performed and complied with by Buyer prior to the Closing Date.
(c) Consents. Seller shall have received evidence, satisfactory to Seller
and its counsel, that all the Consents hereto, including the Board of Directors
of Buyer, have been obtained.
(d) Other Agreements. On the Closing Date, the Instruments reasonably
necessary to carry out the transactions contemplated by this Agreement shall
have been duly executed and delivered by Buyer.
(e) No Litigation. No suit, action or litigation, administrative,
arbitration or other proceeding shall have been commenced and still be pending,
no investigation by any Governmental Authority shall have been commenced and
still be pending, and no Proceeding shall have been threatened against Seller or
Buyer seeking to restrain, prevent or change the transactions contemplated
hereby or questioning the validity or legality of any of such transactions.
(f) Documentation. All matters and proceedings taken in connection with the
sale of the Purchased Assets as herein contemplated, including forms of
Instruments and matters of title, shall be reasonably satisfactory to Seller and
its counsel.
2.03 Conditions Precedent to the Obligations of Buyer. All obligations of
Buyer under this Agreement are subject to the fulfillment, at the option of
Buyer, at or prior to the Closing Date, of each of the following conditions:
(a) Seller's Representations and Warranties. The representations and
warranties of Seller and the Shareholders herein contained shall be true on and
as of the Closing Date with the same force and effect as though made on and as
of said date, except as affected by transactions contemplated or permitted by
this Agreement.
(b) Sellers' Covenants. Seller and the Shareholders shall have performed
all of their obligations and agreements and complied with all of their covenants
contained in this Agreement to be performed and complied with by them prior to
the Closing Date.
(c) Consents. Buyer shall have received evidence, satisfactory to Buyer and
its counsel, that all of the Consents hereto, including the Board of Directors
of Seller, have been duly obtained.
(d) Other Agreements. On the Closing Date, the Instruments of transfer of
the Purchased Assets shall have been duly executed and delivered by Seller.
(e) No Litigation. No suit, action or litigation, administrative,
arbitration or other proceeding shall have been commenced and still be pending,
no investigation by any Governmental Authority shall have been commenced and
still be pending, and no Proceeding shall have been threatened against Seller or
Buyer seeking to restrain, prevent or change the transactions contemplated
hereby or questioning the validity or legality of any of such transactions.
(f) Documentation. All matters and proceedings taken in connection with the
sale of the Purchased Assets as herein contemplated, including forms of
Instruments and matters of title, shall be reasonably satisfactory to Buyer and
its counsel.
(g) Consulting Agreement. Xxxxx Xxxxxx and Buyer shall have entered into a
Consulting Agreement in the form of Exhibit 2.3(g) hereto.
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
3.01 Organization; Good Standing;. Seller is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite corporate, and other power and authority and
legal right to own, operate and lease its properties, and to carry on its
business as now being conducted. Seller is duly qualified to do business and is
in good standing in each jurisdiction where the conduct of its business or the
ownership or leasing of its property requires such qualification.
3.02 Authorization. Seller has all requisite legal right, power, authority
and capacity to enter into this Agreement and to perform all of its obligations
hereunder. Seller has taken all necessary action to authorize the sale hereunder
on the terms and conditions of this Agreement and to authorize the execution,
delivery and performance of this Agreement. This Agreement has been duly
executed by Seller and constitutes a legal, valid and binding obligation of
Seller enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, or other
similar laws from time to time in effect, which affect the enforcement of
creditors' rights in general and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
3.03 Title to Assets. Seller has good and marketable title to all of the
Purchased Assets, free of Liens, options, pledges, mortgages, security interests
or other encumbrances of any kind.
3.04 Condition of Property; Maintence. The Purchased Assets being acquired
are in good operating condition and repair, subject only to ordinary wear and
tear. Seller has maintained all of the Purchased Assets in customary repair,
order and condition (taking into consideration the age and condition thereof).
3.05 Litigation, etc. There is no suit, action or litigation,
administrative, arbitration or other Proceeding or governmental investigation or
inquiry or any change in any Law against or, to the best knowledge of Seller,
affecting Seller or the Purchased Assets or, to the knowledge of Seller,
threatened. To the best knowledge of Seller, no investigation is pending, or
threatened, by any Federal, state, local or foreign government or by any agency
or instrumentality thereof, the effect of which would impair or affect the
Purchased Assets.
3.06 Compliance with other Instruments, Consents etc. Neither the execution
and delivery of this Agreement by Seller, nor the consummation of the
transactions contemplated hereby will (i) conflict with or result in any
violation of or constitute a default under any term of the certificate of
incorporation or by-laws of Seller, or (ii) conflict with or result in any
violation of or constitute a default under any Law, Instrument, Lien or Contract
by which Seller is, or the Purchased Assets are bound, or (iii) result in the
creation or imposition of any Lien or give to any other Person any interest or
right, including rights of acceleration, termination or cancellation in or with
respect to, or otherwise affect, the Purchased Assets. Seller has, or prior to
the Closing will have, obtained any Consent or Permit which is required on the
part of Seller in connection with the execution or delivery of this Agreement or
the consummation of the transactions contemplated hereby.
3.07 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by Seller without the
intervention of any other Person in such manner as to give rise to any valid
claim for a finder's fee, brokerage commission or other like payment.
3.08 Due Diligence; Investment Intent. Seller acknowledges that it is
acquiring the Shares and Warrant to acquire additional shares in Buyer for a
long term investment; that the Shares and Warrant have not been registered under
the Securities Act of 1933 or under the securities laws of any state, and
therefore, the Shares and Warrant cannot be resold unless they are subsequently
registered under said laws or exemptions from such registrations are available
and a legend to that effect will be placed on any certificate representing the
Shares and Warrant; that it recognizes that the Shares and Warrant as an
investment involves a high degree of risk; that it has conducted due diligence
on the Buyer to its satisfaction and has been given full and complete access to
information regarding Buyer and the Business, reasonable opportunity to ask
questions of and receive answers from representatives of Buyer to its
satisfaction.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.01 Organization. Buyer is a Utah corporation duly organized and validly
under the laws of the State of its incorporation, and has all requisite
corporate power and authority to own, operate and lease its properties and
assets.
4.02 Authorization. Buyer has full corporate power, authority and legal
right to execute and deliver, and to perform its obligations under, this
Agreement, and has taken all necessary action to authorize the purchase
hereunder on the terms and conditions of this Agreement and to authorize the
execution, delivery and performance of this Agreement. This Agreement has been
duly executed by Buyer, and constitutes a legal, valid and binding obligation of
Buyer enforceable in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, or other similar laws from
time to time in effect, which affect the enforcement of creditors' rights in
general and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
4.03 Compliance with Instruments, Consents, etc. Neither the execution and
the delivery of this Agreement nor the consummation of the transactions
contemplated hereby will conflict with or result in any violation of or
constitute a default under the certificate of incorporation or the by-laws of
Buyer, or any Law, Instrument, Lien or other Contract by which Buyer is bound.
Buyer has, or prior to the Closing will have, obtained any Consent or Permit
which is required on the part of Buyer in connection with the execution or
delivery of this Agreement or the consummation of the transactions contemplated
hereby.
4.04 Litigation etc. There is no suit, action or litigation,
administrative, arbitration or other Proceeding or governmental investigation
pending or, to the knowledge of Buyer, threatened which might, severally or in
the aggregate, materially and adversely affect the financial condition or
prospects of Buyer or Buyer's ability to acquire the Purchased Assets as
contemplated by this Agreement.
4.05 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by Buyer without the
intervention of any other Person in such manner as to give rise to any valid
claim for a finder's fee, brokerage commission or other like payment.
4.06 Absence of Changes. Since December 31, 2000, there has not been and
will not at closing be any changes in the financial condition or operation of
Buyer, except changes in the ordinary course of business, which changes have not
in the aggregate had a material adverse effect on Buyer.
4.07 Compliance with Law. Buyer represents that, to the best of its
knowledge, it has complied with and is not in violation of any applicable
federal, state or local statutes, laws or regulations which would have a
material adverse effect on the business of Buyer
ARTICLE V. POST CLOSING COVENANTS
5.01 Survival of Representations and Warranties. The parties hereto agree
that, notwithstanding any right of Buyer fully to investigate the affairs of
Seller and notwithstanding any knowledge of facts determined or determinable by
Buyer pursuant to such investigation or right of investigation, Buyer has the
right to rely fully upon the representations and warranties of Seller contained
in this Agreement and on the accuracy of any document, certificate, Instrument,
Exhibit or Schedule given or delivered to Buyer herewith or at the Closing. All
statements contained in any such document, certificate, Exhibit or Schedule or
other Instrument given or delivered by Seller to Buyer herewith or at the
Closing shall be deemed to be a representation and warranty under this
Agreement. All covenants, representations, warranties and agreements made in
this Agreement or in any Exhibit, Schedule, Instrument, certificate or document
delivered herewith or at the Closing shall survive the execution and delivery
thereof and the Closing hereunder.
5.02 Obligation of Seller to Indemnify. Seller hereby agrees to indemnify,
defend, save and hold Buyer (and its directors, officers, employees and agents)
harmless from and against any and all damage, liability, loss, expense,
assessment, judgment or deficiency of any nature whatsoever (including, without
limitation, reasonable attorneys' fees and other costs and expenses incident to
any suit, action or proceeding) (together "Losses") incurred or sustained by
Buyer which arises out of or results from (i) the breach of any representation
or warranty of Seller set forth in Article III, (ii) the breach of or failure to
perform any covenant of Seller set forth in this Agreement, and (iii) any and
all Liabilities and obligations of Seller.
5.03 Obligation of Buyer to Indemnify. Buyer hereby agrees to indemnify,
defend, save and hold Seller (its directors, officer, employees and agents)
harmless from and against any and all Losses incurred or sustained by Seller
which arises out of or results from (i) the breach of any representation or
warranty of Buyer set forth Article VI above, and (ii) the breach of or failure
to perform any covenant of Buyer set forth in this Agreement.
5.04 Procedures for Indemnification. Promptly after service of noticeof any
claim or of process by any third person in any matter in respect of which
indemnity may be sought from a party pursuant to this Agreement, the party so
served will notify the indemnifying party of the receipt thereof. The
indemnifying party will have the right to participate in, or assume, at its own
expense, the defense of any such claim or process (with counsel reasonably
acceptable to the indemnified party) or settlement thereof. After notice from
the indemnifying party of its election so to assume the defense thereof, the
indemnifying party will not be liable to the indemnified party for any legal or
other expense incurred by the indemnified party in connection with such defense.
Such defense will be conducted expeditiously (but with due regard for obtaining
the most favorable outcome reasonably likely under the circumstances, taking
into account costs and expenditures) and the indemnified party will be advised
promptly of all material developments. The indemnifying party will not settle
any such claim without the prior written consent of the indemnified party, which
consent shall not be unreasonably withheld or delayed. With respect to any
matter which is the subject of any such claim and as to which the indemnified
party fails to give the other party such notice as aforesaid, and such failure
adversely affects the ability of the indemnifying party to defend such claim or
materially increases the amount of indemnification which the indemnifying party
is obligated to pay hereunder, the amount of indemnification which the
indemnified party will be entitled to receive will be reduced to an amount which
the indemnified party would have been entitled to receive had such notice been
timely given. No settlement of any such claim as to which the indemnifying party
has not elected to assume the defense thereof will be made without the prior
written consent of the indemnifying party, which consent will not be
unreasonably withheld or delayed.
5.05 Further Assurances. Following the Closing, at the request of Buyer,
Seller shall execute and deliver to Buyer such further documents and take such
reasonable action as may be necessary or appropriate to (i) confirm the sale,
transfer, assignment, conveyance and delivery of the Purchased Assets, or (ii)
vest in Buyer all of Seller's right, title and interest to the Purchased Assets.
In connection with the foregoing, from and after the Closing Date, Buyer shall
have the right and authority to endorse, without recourse, the name of Seller on
any check or similar negotiable instrument received by Buyer that constitutes
any part of the Purchased Assets. In addition, Seller shall pay to Buyer any
amounts, which shall be received by Seller after the Closing Date which
constitute part of the Purchased Assets.
5.06 Non-Compete. Seller acknowledges and recognizes its possession of
confidential or proprietary information and the highly competitive nature of the
Business of the Seller and accordingly agrees that, in consideration of the
Buyer entering into this Agreement and the other transactions contemplated
hereby, Seller agrees that it will not, from and after the Closing Date for a
period of three (3) years after the Closing Date for any reason whatsoever, (i)
directly or indirectly, as shareholder, employee, director, officer, principal
or agent, or in any other capacity, own, manage, operate, consult with or be
employed by a Person engaged in business engaged in by Buyer or its Affiliates
(collectively, the "Competitive Business") in any geographic area in which Buyer
or its Affiliates conducts such business; (ii) assist any other Person in
engaging in any Competitive Business; (iii) solicit, attempt to solicit or do
business on behalf of a Competitive Business with any then or prior customers of
the Business; or (iv) induce employees of the Business, Buyer or any Affiliate
of Buyer to terminate their employment with Buyer of any such Affiliate, as the
case may be, or hire any employees of Buyer or any Affiliate of Buyer to work
with Seller or any Person or business affiliated with any Seller.
Notwithstanding the foregoing, Seller may engage in such activities as a
shareholder, director, officer, principal or agent of Buyer.
The parties agrees that the Buyer does not have an adequate remedy at law
for a breach of this Section 5.06 and each agrees that in the event of a breach
or threatened breach by any party of the provisions of this 5.06, the
non-breaching party shall be entitled to an injunction restraining such party
from such breach or threatened breach. Nothing in this Section 5.06 or elsewhere
in this Agreement shall be construed as prohibiting the non-breaching party from
pursuing any other remedies at law or in equity for such breach or threatened
breach of this Agreement or limiting the amount of damages recoverable in the
event of a breach or threatened breach by any party of the provisions of this
Section 5.06.
ARTICLE VI. MISCELLANEOUS
6.01 Severability. If any provision of this Agreement or the application of
any such provision to any party or circumstances shall be determined by any
court of competent jurisdiction to be invalid and unenforceable to any extent,
the remainder of this Agreement or the application of such provision to such
person or circumstances other than those to which it is so determined to be
invalid and unenforceable, shall not be affected thereby, and each provision
hereof shall be validated and shall be enforced to the fullest extent permitted
by law.
6.02 Waivers. Any failure by any party to this Agreement to comply with any
of its obligations, agreements or covenants hereunder may be waived by Seller in
the case of a default by Buyer and by Buyer in the case of a default by Seller.
Buyer and Seller will not be deemed as a consequence of any act, delay, failure,
omission, forbearance or other indulgences granted from time to time by Buyer or
Seller: (i) to have waived, or to be estopped from exercising, any of its rights
or remedies under this Agreement, or (ii) to have modified, changed, amended,
terminated, rescinded, or superseded any of the terms of this Agreement, unless
such waiver, modification, amendment, change, termination, rescission, or
supersession is express, in writing and signed by a duly authorized officer of
Seller or a duly authorized officer of Buyer, as the case may be. No single or
partial exercise by Buyer or Seller of any right or remedy will preclude other
or further exercise thereof or preclude the exercise of any other right or
remedy, and a waiver expressly made in writing on one occasion will be effective
only in that specific instance and only for the precise purpose for which given,
and will not be construed as a consent to or a waiver of any right or remedy on
any future occasion or a waiver of any right or remedy against any other Person.
6.03 Notices. All notices, consents, demands, requests, approvals and other
communications which are required or may be given hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered (including
by overnight courier service) or mailed certified first class mail, postage
prepaid:
(a) If to Seller:
ePhone, Inc.
Attn: Xxxxx Xxxxxx
00 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
(b) If to Buyer:
Viper Networks, Inc.
Attn: Xxxxx Xxxx
0000 Xxxxxxxxx Xxx., Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
or to such other person or persons at such address or addresses as may be
designated by written notice to the other parties hereunder. Notice shall be
deemed delivered at the time received for personal delivery, or when mailed at a
United States Post Office box or branch office.
6.04 Binding Effect, Benefits. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns; provided, however, that nothing in this Agreement shall be construed to
confer any rights, remedies, obligations or liabilities on any Person other than
the parties hereto or their respective successors and assigns.
6.05 Entire Agreement; Amendment. This Agreement, together with the other
Instruments delivered in connection herewith, embodies the entire agreement and
understanding of the parties hereto and supersedes any prior agreement or
under-standing between the parties with respect to the subject matter of this
Agreement. This Agreement cannot be amended or terminated orally, but only by a
writing duly executed by the parties.
6.06 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same document.
6.07 Headings. Headings of the sections in this Agreement are for
reference purposes only and shall not be deemed to have any substantive effect.
6.08 Assignment. This Agreement may not be assigned by either party without
the prior written consent of the other
6.09 Costs and Expenses. Each party shall bear all costs and expenses
incurred by it in connection with the transactions contemplated hereby; provided
however, Seller shall pay for all packaging expenses in preparation of the
shipping of the Purchased Assets to Buyer and Buyer shall pay all shipping
expenses.
6.10 Applicable Law. This Agreement shall be governed, construed and
interpreted in accordance with the laws of the State of California, without
regard to conflict of law principles.
6.11 Arbitration; Attorney Fees. Any controversy or claim arising out of or
relating to this Agreement, or the making, performance, or interpretation
thereof, shall be resolved by binding arbitration in San Diego, California, in
accordance with the Rules of the American Arbitration Association then existing,
and judgment on the arbitration award may be entered in any court having
jurisdiction over the subject matter of the controversy. In any such arbitration
award, the prevailing party shall be entitled to recover its attorney fees and
costs of arbitration.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Viper Networks, Inc.: ePhone, Inc.:
By: /s/ By: /s/
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Name: Name:
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Title: Title:----------------------------
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