LABATT SERVICES AGREEMENT
EXHIBIT
4.19
LABATT
SERVICES AGREEMENT
THIS
AGREEMENT
made the
27th day of August, 0000,
X
X X X X X X:
LABATT
BREWING COMPANY LIMITED,
a
corporation existing under the laws of Canada (“LBCL”)
-and-
INTERBREW
S.A.,
a
public limited liability company organized under the laws of the Kingdom of
Belgium (“Interbrew”)
WHEREAS:
A. LBCL
and
Interbrew have entered into a services agreement dated December 19, 2001 (the
“Existing
Agreement”),
pursuant to which LBCL has agreed to provide certain services to Interbrew
on
the terms and conditions specified in such Existing Agreement.
B. LBCL
and
Interbrew are parties to an Incorporação Agreement dated as of March 3, 2004, as
amended (the “Incorporação
Agreement”)
among
Companhia de Bebidas das Américas - AmBev (“AmBev”),
Interbrew, LBCL and Labatt Brewing Canada Holding Ltd., which requires, in
Section 5.01(c) thereof, that Interbrew, AmBev and LBCL use their respective
commercially reasonable efforts to negotiate in good faith new intercompany
agreements between Interbrew and certain of its subsidiaries as may be necessary
or advisable, on mutually agreeable terms.
C. Having
regard to the aforementioned requirements of the Incorporação Agreement, the
corporate and economic structure of Interbrew, LBCL and AmBev that will result
from the completion of the transactions contemplated by the Incorporação
Agreement (including the anticipated provision by AmBev of certain services
formerly performed by Interbrew) and the parties’ desire that certain LBCL costs
be borne by Interbrew from and after the Closing Date (as defined below) in
accordance with the terms of a confirmation letter among Interbrew, LBCL and
AmBev, dated August 27, 2004, in respect of intellectual property and hedging
arrangements, LBCL and Interbrew desire to terminate the Existing Agreement
as
of the Closing Date and to enter into this agreement for the provision of
Services (as defined below) on the terms and conditions set forth
herein.
NOW
THEREFORE THIS AGREEMENT WITNESSES
that in
consideration of the mutual covenants and agreements set forth herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto have agreed as
follows:
ARTICLE 1
DEFINITIONS
AND INTERPRETATION
1.1 Definitions.
In this
Agreement:
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(a)
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“Agreement”
means this agreement and all schedules attached to this agreement,
in each
case as they may be amended or supplemented from time to time, and
the
expressions “hereof”, “herein”, “hereto”, “hereunder”, “hereby” and
similar expressions refer to this agreement and, unless otherwise
indicated, references to Articles and Sections are to Articles and
Sections in this agreement;
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(b)
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“Business
Day”
means any day, other than a Saturday or Sunday, on which the principal
commercial banks located in the cities of Toronto and Brussels are
open
for business during normal banking
hours;
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(c)
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“Closing
Date”
has the meaning ascribed thereto in the Incorporação
Agreement;
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(d)
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“Corporate
Services”
has the meaning ascribed thereto in Section
2.3(b);
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(e)
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“LBCL
Services”
means the services described in Schedule “A”
hereto;
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(f)
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“Services”
means, collectively, such LBCL Services and Corporate Services to
be
provided by LBCL to Interbrew hereunder, as determined by the parties
hereto in accordance with Section
2.3;
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(g)
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“Term”
has the meaning ascribed thereto in Section
3.1;
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1.2 Number
and Gender.
Words
importing the singular include the plural and vice versa and words importing
gender include all genders.
1.3 Headings.
The
division of this Agreement into articles and sections and the insertion of
headings and subheadings are for convenience of reference only and shall not
affect the construction or interpretation of this Agreement.
1.4 Severability.
Each of
the provisions contained in this Agreement is distinct and severable and a
declaration of invalidity, illegality or unenforceability of any such provision
or part thereof by a court of competent jurisdiction shall not affect the
validity or enforceability of any other provision hereof.
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1.5 Currency.
All
amounts of money set forth herein are expressed in the lawful currency of
Canada.
1.6 Schedules.
The
following Schedule is attached to, and forms an integral part of, this
Agreement:
Schedule
“A”: LBCL
Services that may be Provided and Applicable Fees
Schedule
“B”: List
of
Corporate Cost Centres to be Reinvoiced to Interbrew and Xxxx-up
to
be
Applied on Costs Reinvoiced
1.7 Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof. This Agreement supersedes all prior or concurrent
agreements, promises, covenants, arrangements, representations or warranties,
communications or proposals, whether oral or written, between the parties
relating to the subject matter hereof. There are no representations, warranties,
terms, conditions, undertakings or collateral agreements, express, implied
or
statutory, between the parties other than those expressly set forth in this
Agreement.
ARTICLE
2
SERVICES
2.1 Termination
of Existing Agreement.
LBCL
and Interbrew hereby confirm and agree that the Existing Agreement is terminated
as at the Closing Date and that it shall be of no further force or effect as
of
the Closing Date; it being understood that Interbrew shall remain liable for
payment to LBCL, and shall forthwith pay to LBCL, any and all amounts due and
owing to LBCL in accordance with the provisions of the Existing
Agreement.
2.2 Services.
Interbrew hereby engages LBCL and LBCL hereby covenants to provide the Services,
from and after the Closing Date, in accordance with the terms and conditions
set
forth in this Agreement. LBCL shall, throughout the Term, diligently and
continuously provide the Services to Interbrew using due care and in a prompt
and efficient manner to the satisfaction of Interbrew, acting reasonably. LBCL
shall provide and make available as necessary such professional, supervisory,
managerial, administrative and other personnel as, in LBCL’s discretion, are
necessary to perform the Services, which personnel may, but need not be,
officers or employees of LBCL or one of its affiliates. Such personnel shall
be
qualified and experienced in the duties to which they are assigned. It is the
express intention of the parties hereto that the terms and conditions hereof,
including payment terms, shall be arm’s length in all respects.
2.3 Determination
of Services and Payment.
The
parties hereto agree as follows in respect of the provision of Services and
the
invoicing and payment of fees in respect thereof:
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(a)
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The
LBCL Services which may be provided by LBCL (and the fees to be paid
as
consideration therefor) from the Closing Date to and including December
31, 2004 are set out in Schedule “A” hereto. The LBCL Services actually to
be
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3
rendered
by LBCL hereunder during the Term shall be determined by the parties from time
to time.
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(b)
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LBCL
shall further provide support services, which shall be determined
by the
parties from time to time, to certain cost centres (the “Corporate
Cost Centres”)
which shall bear the cost of certain LBCL employees who are expected
to
spend more than fifty percent (50%) of their working time rendering
services to Interbrew (the “Corporate
Employees”).
LBCL shall invoice one hundred percent (100%) of its costs associated
with
Corporate Cost Centres, plus applicable xxxx-ups, to Interbrew. The
Corporate Cost Centres and the respective xxxx-ups to be applied
by LBCL
in respect thereof are listed in Schedule “B” hereto. LBCL shall cause all
Corporate Employees to complete time sheets on a monthly basis to
allow
for re-invoicing to LBCL of services provided by such Corporate Employees
to LBCL under the Interbrew Services Agreement, dated of even date
herewith, between Interbrew and
LBCL;
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(c)
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On
or before October 29, 2004 and January 28, 2005, and thereafter (if
the
Term is extended) on or before the twentieth (20th) Business Day
of April,
July, October and January of each year during the Term, LBCL shall
transmit to Interbrew an invoice setting out LBCL’s fees for its provision
of LBCL Services and support to Corporate Cost Centres during the
previous
calendar quarter (each, an “LBCL
Invoice”).
Interbrew shall pay to LBCL all amounts owing under each LBCL Invoice
within twenty (20) days following the end of the month in which Interbrew
received such LBCL Invoice. Each LBCL Invoice shall include a report
of
the LBCL Services actually provided and, for the Corporate Cost Centres,
a
list per Corporate Cost Centre of the actual costs incurred by LBCL
and
the xxxx-up applied.
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2.4 Taxes.
Interbrew shall pay any and all applicable sales, use, value-added or other
similar taxes and any similar charges payable upon or in connection with the
provision of Services hereunder. Any and all payments made by Interbrew to
LBCL
under this Agreement shall be made free and clear of, and without deduction
for,
any taxes imposed upon income generated by provision of the Services, which
taxes are required to be withheld at source, provided that if Interbrew shall
be
required to deduct such taxes from payments, then the amount payable shall
be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.4), LBCL
receives an amount equal to the sum it would have received had no such
deductions been made.
ARTICLE
3
TERM
AND TERMINATION
3.1 Term.
The
term (the “Term”)
of
this Agreement shall commence on the Closing Date and shall end at the close
of
business on December 31, 2004, unless terminated earlier in accordance with
the
provisions of this Article 3. The Term may be extended by the mutual written
consent of the parties hereto.
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3.2 Termination
without Cause.
To the
extent that this Agreement is extended by the mutual written consent of the
parties hereto, it may be terminated without cause after December 31, 2004
by
either party upon three (3) months’ prior written notice to the other
party.
3.3 Termination
for Cause.
This
Agreement may be terminated by either party immediately in the event that the
other party:
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(a)
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fails
to cure a material breach of its obligations hereunder within thirty
(30)
days after receiving notice of the breach;
or
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(b)
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becomes
insolvent or the subject of bankruptcy or insolvency proceedings,
commits
an act of bankruptcy, makes any assignment for the benefit of its
creditors or a receiver is appointed for its business or any part
of its
property.
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3.4 Consequences
of Termination.
In the
event that this Agreement expires or is terminated in accordance with this
Article 3, (a) all Services will promptly cease and (b) Interbrew shall
forthwith pay to LBCL any and all amounts due and owing to LBCL as required
pursuant to the terms of this Agreement (or at such time as payment is required
pursuant to Section 2.3(d)), and no rights already accrued hereunder shall
be
affected.
ARTICLE
4
INDEMNIFICATION
4.1 Indemnity.
LBCL
shall hold Interbrew harmless and shall indemnify Interbrew from and against
any
and all claims, loss, damage, harm, liability, cost or expense (including
reasonable legal fees) (collectively, “Losses”)
incurred by Interbrew in any way arising out of, caused by or resulting from
any
grossly negligent act or omission of LBCL in respect of the provision of
Services or the grossly negligent performance or non-performance of any other
duties or obligations of LBCL hereunder. LBCL’s obligations under this Section
4.1 shall: (i) survive the termination of this Agreement for a period of one
(1)
year, (ii) not be applicable to any liability caused by the fault, negligence
or
wilful misconduct of Interbrew or its directors, officers, employees or agents,
and (iii) not be applicable to any Losses resulting from events listed in
Section 5.5. In no event shall LBCL be liable to Interbrew for indirect,
incidental, special or consequential losses or damages of any kind (including,
but not limited to, loss of profits, business, data, information, opportunities
or use), whether arising as a result of breach of contract, tort or otherwise.
Notwithstanding the foregoing and any other provision of this Agreement, LBCL’s
aggregate liability to indemnify Interbrew in accordance with this Section
4.1
shall in no event exceed the aggregate amount of fees received by LBCL under
this Agreement during the twelve (12) month period prior to and including the
date on which indemnification is claimed.
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ARTICLE
5
MISCELLANEOUS
5.1 Notices.
All
notices, requests, demands, invoices or other communications required or
permitted under this Agreement shall be in writing and (a) delivered by
messenger; (b) transmitted by facsimile or electronic mail; or (c)
delivered by a reputable international courier service, with courier charges
paid or payable by the sender. All such notices and other communications shall
be addressed as follows to the parties at the respective addresses set forth
below or to such other address as any party may hereafter specify in
writing:
(a) In
the
case of notice to LBCL, to:
Xxxxxx
Xxxxx
Xxxxx
000
000
Xxxxx’s Quay West
Toronto,
Ontario
Canada
M5J 1A7
Attention: Vice
President, Legal
Telephone: (000)
000-0000
Fax: 416)
000-0000
(b) In
the
case of notice to Interbrew, to:
Xxxxxxxxxxx
00
X-0000,
Xxxxxx
Xxxxxxx
Attention: General
Counsel
Telephone: x00-00-00-00-00
Fax: 00-00-00-00-00
A
notice
shall be deemed to have been given: (i) on the date of delivery (evidenced
by a
signed receipt) if delivered by messenger; (ii) two Business Days after it
has
been delivered to a reputable international courier service with courier charges
paid or payable by the sender; or (iii) on the day sent by facsimile or
electronic mail, if the transmission is confirmed by the sender’s facsimile or
computer server.
5.2 Amendment;
Waiver.
Except
as expressly provided in this Agreement, no amendment or waiver of all or any
part of this Agreement shall be binding unless executed in writing by the party
or parties to be bound thereby. No waiver of any provision of this Agreement
shall constitute a waiver of any other provision and no waiver of any provision
of this Agreement shall constitute a continuing waiver, in either case unless
otherwise expressly provided therein.
5.3 Independent
Contractors.
It is
expressly understood and agreed that, in performing the Services for Interbrew,
(i) LBCL shall be acting, and shall at all times act, as an
independent
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contractor
and (ii) LBCL’s employees shall not be considered as employees, servants or
agents of Interbrew. This Agreement shall not constitute LBCL as an employee,
agent, partner or joint venturer of or with Interbrew and no such relationship
shall arise or subsist between LBCL and Interbrew at any time during the Term.
Each party hereto acknowledges and agrees that it does not have, and will not
exercise or purport to exercise or hold itself out to any person as having,
any
authority to enter into or conclude any contract or to undertake any commitment
or obligation for, in the name of or on behalf of the other party.
5.4 Further
Assurances.
The
parties hereto and each of them agree to make, do, execute, endorse, acknowledge
and deliver or cause and procure to be made, done, executed, endorsed,
acknowledged, filed, registered and delivered any and all further acts and
assurances and to take all such other action as may be required or desirable
to
complete the transactions contemplated herein.
5.5 Force
Majeure.
LBCL
shall not be responsible to Interbrew for any non-performance or delay in
performance occasioned by any causes beyond its control, including, without
limitation, acts or omissions of Interbrew, acts of civil or military authority,
changes in laws or regulations, strikes, lock-outs, embargoes, insurrections
or
acts of God.
5.6 Governing
Law.
This
Agreement shall be construed and enforced in accordance with, and the rights
of
the parties shall be governed by, the laws of the State of New York, and the
parties hereby consent to the exclusive jurisdiction of the courts of the State
of New York to hear and determine any and all disputes, actions and proceedings
arising out of this Agreement.
5.7 Counterparts.
This
Agreement may be executed in separate counterparts, each of which will be deemed
to be an original of this Agreement and all of which, when taken together,
will
be deemed to constitute one and the same agreement.
5.8 Successors
and Assigns.
This
Agreement shall enure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns. LBCL shall be entitled
to
assign this Agreement to any affiliate of LBCL upon providing prior written
notice to Interbrew of such assignment.
[Remainder
of page intentionally left blank.]
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IN
WITNESS WHEREOF
the
parties hereto have duly executed this Agreement.
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LABATT
BREWING COMPANY LIMITED
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By:
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/s/
Xxxxx X. Xxxx
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Name: Xxxxx
X. Xxxx
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Title: Vice
President
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By:
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/s/
Xxxxx Xxxxxxxx
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Name: Xxxxx
Xxxxxxxx
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Title: Director
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INTEBREW
S.A.
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By:
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/s/
Xxxxxxxxx Noirfalisse
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Name: C.
Noirfalisse
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Title: Legal
Counsel
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By:
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/s/
Xxxxxx Xxxxxx
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Name: X.
Xxxxxx
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Title: Vice
President Planning and Control
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SCHEDULE
“A”
LBCL
SERVICES THAT MAY BE PROVIDED AND APPLICABLE FEES
1.
Tax
support services at a fee of C$228 per hour
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general
tax advice
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assistance
with preparation of tax returns and tax compliance work for Interbrew
subsidiaries
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assistance
and advice in tax litigation
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2.
Internal audit support services at a fee of C$228 per
hour
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SCHEDULE
“B”
LIST
OF CORPORATE COST CENTRES TO BE REINVOICED TO
INTERBREW
AND XXXX-UP TO BE APPLIED ON COSTS REINVOICED
1.
Technology applications - xxxx-up 9%
Services
provided cover technical services, technical skill transfer, value engineering,
problem solving, fire fighting and knowledge management
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Cost
Centre (“cc”)
1552 - Operations - Technical
applications
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2.
Operations Sensory -
xxxx-up 2%
Services
provided cover tasting and sensory analysis
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cc
1545 - Operations Sensory
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3.
Research and development -
xxxx-up 5%
Services
provided cover research and development in product and packaging innovation,
brewing processes and technology, toxicology, food safety, fermentation,
microbiology and design of new equipment and laboratory analysis.
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cc
1566 - Operations Product
Development
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cc
1567 - Operations Packaging
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cc
1568 - Operations Technology
Development
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cc
1569 - Operations Brewing
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cc
1593 - Operations Science
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cc
7008 - Amortization Parent
production
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4.
Human Resources - Pension management -
xxxx-up 3%
Services
provided cover advice on pension governance, pension asset risk controlled
return maximization and insurance of compliance with local regulations.
Development and maintenance of asset manager performance analysis,
administration of pension plan, support reporting and control of pension
expenses and contributions and work with local pension bodies on local pension
issues and hire/fire managers
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cc
5051 - Treasury - Pension
management
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5.
Legal and patents -
xxxx-up 5%
Services
provided cover general legal advice, assistance with preparation of contracts
and other documents of legal nature, follow-up and assistance in litigation
or
in the context of disputes, and administrative arbitration proceedings. Code
of
conduct/compliance
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oversight,
corporate governance and specialized M&A services. Specialized assistance in
international commercial law, management of protection and use of industrial
property rights, trademarks, patents, “know-how” and similar
rights.
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cc
5041 - Legal & Patents
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