CONSULTING AGREEMENT
EXHIBIT
10.44
This
Consulting Agreement (the “Agreement”) is made and entered into as of this
11th day
of November 2009 (the "Effective Date") by and between Sunovia Energy
Technologies, Inc., a Nevada corporation with offices located at 0000 Xxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 (“SUNOVIA” or “the Company”), and
Xxxxx Xxxx, a resident of the state of Florida with an business
address also located at 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000
(“Consultant").
RECITALS
A. Company
desires to have Consultant perform certain consulting services as described in
this Agreement and the exhibits attached hereto, subject to the terms and
conditions of this Agreement; and
B. Consultant
is able, willing and properly qualified to perform such consulting
services.
In
consideration of the foregoing, the mutual covenants, agreements, promises,
representations and warranties contained in this Agreement, and other valid
consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, Company and Consultant hereby covenant and agree as
follows:
AGREEMENT
SECTION I. TERM
OF AGREEMENT.
The term
of this Agreement shall commence on the Effective Date and shall continue for a
period of one (1) year unless earlier terminated pursuant to this Agreement (the
“Term”). Unless terminated earlier as set forth herein, this
Agreement shall automatically renew for one (1) year periods at the conclusion
of the Term.
SECTION II. SCOPE
OF WORK.
Generally,
Consultant will render engineering services in accordance with generally
accepted and currently recognized engineering practices, procedures and
principles. Company shall engage Consultant to provide business advisory
services In the general area, but not limited to, the area of finance, acting
under the supervision of the Company’s Chief Executive. Whenever Company desires
that the Consultant perform consulting services that are not specifically
outlined under this Agreement, Company will advise Consultant by preparing a
Task Order (“Task Order”). A Task Order format is attached hereto as
Exhibit “B”. Company shall prepare such written Task Orders which
shall include a detailed description of the scope of the work to be performed,
including the anticipated result(s) of Consultant’s efforts, the nature and
extent of the work necessary to achieve such result(s), and an estimate of any
fees and/or expenses that may be incurred by the Consultant, and the schedule
for completion (each a “Scope of Work”).
Consultant
shall review and may comment on any Task Order prepared by the Company and
suggest reasonable changes therein. Consultant shall not proceed with
the Scope of Work described in any Task Order and Company shall not be liable
for any compensation or expenses with respect to a Task Order unless and until
such Task Order is signed by the Consultant and Company or its
designee.
Subsequent
to execution of any Task Order, the parties may execute a task change order
altering the terms of the Scope of Work.
Consultant
shall be responsible for completing the work reflected in Task Orders and agreed
upon change orders and shall not be entitled to compensation except as set forth
in this Agreement. Company shall not be liable for work performed
outside of the work agreed to specifically in writing pursuant to a Task Order
or change order thereto.
SECTION III. CONSULTING
FEE AND TERMS OF PAYMENT.
As
consideration for the services performed by Consultant pursuant to this
Agreement, Company shall compensate Consultant for work performed as provided
below, plus payment of reimbursable expenses.
SECTION IV. COMPENSATION
THE
COMPANY SHALL PAY COMPENSATION TO CONSULTANT CONSISTING OF AN ANNUAL BASE
COMPENSATION, BONUSES AND OTHER, BENEFITS AS DESCRIBED IN THIS
AGREEMENT. IN ADDITION TO THE FINANCIAL COMPENSATION AND BENEFITS SET
FORTH BELOW, CONSULTANT SHALL BE REIMBURSED FOR ANY APPROVED BUSINESS-RELATED
EXPENSES AND SHALL RECEIVE VACATION, SICK LEAVE, AND OTHER TIME OFF AS IS
CUSTOMARY AND USUAL FOR EXECUTIVES OF CONSULTANT’S STATUS IN THE COMPANY.
4.1 Base
Compensation. Consultant’s annual base compensation as of the
Effective Date is 2,000,000 shares of restricted common
stock. Consultant’s base compensation shall be reviewed annually in
conjunction with Consultant’s annual performance review and may be adjusted as
appropriate in light of Consultant’s performance.
4.2 Incentive
Compensation. The Company shall pay Consultant the following
as Incentive Compensation, in addition to Base Compensation:
2,000,000
shares payable on January 1, 2010.
4.3 Benefits. Consultant
shall be entitled to participate in such insurance, disability, medical, dental,
pension, profit sharing and retirement plans and other programs as may be made
generally available from time to time by the Company for the benefit of
consultants of Executive’s level or its consultants generally (the
“Benefits”).
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Company
shall pay Consultant its reasonable, out-of-pocket, pre-approved expenses as
incurred by Consultant in connection with his performance under this
Agreement. Consultant shall not incur any expenses without prior
written consent of Company. Consultant agrees to provide Company with
access to such receipts, ledgers and other records as may be reasonably
appropriate for Company to verify the amount and nature of such
expenses.
SECTION V. INVOICING.
Consultant
shall render an invoice (together with all receipts for expenses exceeding $25
to the extent practicable) to the Company by the 1st day of each month for all
expenses incurred by Consultant in the prior month for which Consultant seeks
reimbursement (“Invoice”). Any undisputed charges in such Invoices
shall be due and payable within thirty (30) days after receipt.
SECTION VI. STATUS
OF CONSULTANT.
Consultant
enters this Agreement as and intends to continue to be an independent
contractor. Consultant acknowledges that as an independent contractor
he is undertaking certain risks of loss not associated with an employment
relationship. None of the provisions of this Agreement shall be
interpreted or deemed to create any relationship between such parties other than
that of independent contractors. Nothing contained in this Agreement
shall be construed to create a relationship of employer and consultant, master
and servant, principal and agent, or partners or co-venturers between Company
and Consultant, between Company and any consultant of Consultant, or between
Consultant and any consultant of Company. Without limiting the
generality of the foregoing:
6.1 Control.
Company
shall have no right to control or direct the details, manner, or means by which
Consultant performs the Services under this Agreement. In performing
the Services under this Agreement, Consultant shall have no control over or
management authority with respect to Company or its operations.
6.2 Taxes and Other
Obligations.
Consultant
shall report for federal and state income tax purposes all amounts received by
it under this Agreement as income. Consultant shall have sole
responsibilities for the withholding of all federal and state income taxes,
unemployment insurance tax, social security tax, and other withholding with
respect to payments made by Consultant to its consultants performing services
for it under this Agreement. Neither Consultant nor any of its
consultants shall be entitled to any employment benefits of any kind provided by
Company to its consultants, including, but not limited to, vacation pay, sick
leave pay, retirement plan and related benefits, social security, workers
compensation insurance, disability insurance, employment insurance benefits, and
other benefits of any kind provided by Company to its consultants, and for
itself and its consultants; and Consultant expressly waives any and all rights
to such benefits. For itself and its consultants, Consultant
irrevocably elects not to participate in any retirement plans under
Section 401(a) of the Internal Revenue Code of 1986, as amended,
contributed to by Company. Consultant shall indemnify and hold
Company harmless from any and all loss or liability (including attorneys’ fees)
arising from Consultant’s failure to report as income payments received by it
under this Agreement and its failure to withhold for federal and state tax
purposes amounts paid to its consultants rendering services to it under this
Agreement, in the event the Internal Revenue Service or any other governmental
agency should question or challenge the independent contractor status of
Consultant.
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6.3 Benefits.
Consultant
expressly agrees that as an independent contractor, Consultant shall not be
eligible to participate in any of Company’s consultant benefit plans or
programs, and that the only consideration payable by Company to Consultant shall
be the amounts set forth in the this Agreement.
6.4 Insurance.
Consultant
further agrees that Consultant will provide any and all insurance coverages
which Consultant may, in Consultant's sole discretion, require; provided, however, that
Consultant shall carry and maintain in force (1) automobile insurance and
worker's compensation coverages in at least those amounts required by relevant
state or local statutes in the jurisdiction where Consultant performs the
majority of services rendered hereunder and (2) such General Liability
which is commercially reasonable under the circumstances surrounding the
Services.
6.5 Workplace.
It is
understood that while Consultant will perform the Work primarily at Consultant’s
principal place of business as noted above, Consultant shall need access to
Company’s business offices and consultants from time to
time. Accordingly, Consultant or its authorized representatives shall
have access, during normal working hours, to Company’s officers and consultants
upon reasonable notice, and shall be provided adequate and appropriate work
space, facilities and equipment in order to complete the Scope of
Work.
SECTION VII. NONCOMPETITION
COVENANT.
Because
of Consultant’s access to Sunovia Energy Technologies’s Proprietary Information,
during the period from the Effective Date through the end of the period which
ends 12 months after the termination or expiration of this Agreement, Consultant
shall not work for, work with, consult with or otherwise provide assistance or
information to a direct or indirect competitor of Sunovia Energy Technologies,
its consultants, or any successor, parent Sunovia Energy Technologies or
affiliate of a direct or indirect competitor, or by agency, through a
corporation, or through any other artifice or
device. NON-INFRINGEMENT.
To induce
Company to enter into this Agreement, Consultant represents and warrants to
Company that, in Consultant’s performance of the Services hereunder, Consultant
will not breach an obligation of Consultant to any third party. In
addition, Consultant represents and warrants to Company that Consultant is not a
party to any agreement and has no obligations that would prohibit Consultant
from engaging in any of the services contemplated by the Agreement or that might
in any way affect Consultant’s ability to use its best efforts to carry out the
provisions of this Agreement. Consultant acknowledges that Company
would not have engaged Consultant to perform the Services if Consultant could
not in good faith make the foregoing representations and
warranties. Consultant warrants that it will not provide services
hereunder that will violate or in any way infringe upon the rights of third
parties, including property, contractual, employment, trade secrets, proprietary
information, privacy or publicity and non-disclosure rights, or any trademark,
copyright or patent rights.
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SECTION VIII. CONFIDENTIALITY;
OWNERSHIP.
8.1 Receipt of Trade
Secrets.
Consultant
recognizes and acknowledges that, in the course of the engagement of Consultant
by Company, and as a result of the confidential relationship with Company
established thereby, Consultant shall be receiving trade secrets of Company and
confidential information (“Trade Secrets”), and developing additional know-how
and proprietary information owned by Company which will become Trade Secrets,
and that such Trade Secrets are highly valuable assets of Company; provided,
that technology and information shall not be considered Trade Secrets of Company
which are (1) known to Consultant prior to execution of this Agreement;
(2) previously divulged by Company to others without any restrictions
thereon; (3) disclosed to Consultant by a third party who is not in breach
of any confidentiality obligation to Company; or (4) technology or
information of such a general level as to constitute general business knowledge
and skill of Consultant.
8.2 Nondisclosure.
Consultant
shall retain in strict confidence and shall not use for any purpose whatsoever
or divulge, disseminate or disclose to any third party (other than in the
furtherance of the business purposes of Company and at the express, written
request of Company) any technology and information relating to Company’s
business or its patents, inventions, software, know-how and other property
rights, including without limitation, the Trade Secrets, all of which are deemed
confidential and proprietary. In addition, Consultant shall not
reveal to any person or entity the existence, or any of the terms, of this
Agreement.
8.3 Ownership.
Any
methods, developments, inventions and/or improvements (including but not limited
to software) whether or not patentable or subject to intellectual property
protection (including, but not limited to, the Trade Secrets, all computer
programs, including any source code, object code, enhancements and
modifications, all files, including input and output materials, all
documentation related to such computer programs and files, all media upon which
any such computer programs, files and documentation are located, including
tapes, disks and other storage media) and all related materials that are
(1) developed by Consultant in connection with the performance of the
Services after the Effective Date; or (2) paid for or provided by Company
in connection with the performance of the Services before or after the Effective
Date, (collectively “Developed Property”) shall be and remain the property of
Company.
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8.4 Works Made for
Hire.
In no way
limiting the foregoing, all Developed Property conceived or made by Consultant
in connection with the Services are “supplementary works” and “works made for
hire” (as those terms are defined in the United States Patent Trademark and
Copyright Laws, 17 U.S.C. § 101) and owned by Company; and Consultant
hereby assigns to Company all Developed Property which Consultant may conceive
of or make in connection with the performance of the Services.
8.5 Disclosure;
Assignment.
Consultant
promptly shall execute and deliver to Company any instruments deemed necessary
by Company to effect disclosure and assignment by Consultant to Company of any
Developed Property. Upon the request of Company and at Company’s
expense, Consultant shall execute patent and copyright applications and any
other instruments deemed necessary by Company for the prosecution of such patent
applications or the acquisition of letters patent or registration of copyrights
in the United States and/or foreign countries which may be based in whole or in
part on Developed Property.
8.6 Prior Non-Disclosure
Agreement.
The
parties acknowledge entering into a separate non-disclosure agreement relating
to the Company’s confidential information. The terms of that
agreement are incorporated herein by this reference. In the event of
a conflict between the separate non-disclosure agreement and this Agreement, the
terms providing greater protection to Company and its information and more
restrictive of Consultant’s actions shall prevail.
.
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SECTION IX. INJUNCTIVE
RELIEF.
If
Consultant violates either Section VII or Section VIII of this
Agreement, Company (in addition to any other and additional rights or remedies
it may have at law, in equity or by statute) shall be entitled to immediate and
permanent injunctive relief, it being agreed that the damages which Company
would sustain upon such violation are difficult or impossible to ascertain in
advance. The posting of a bond shall not be required as a
pre-condition to such injunctive relief.
SECTION X. ASSIGNMENT;
SUBCONTRACTING.
It is
mutually acknowledged that this Agreement contemplates the personal services of
Consultant and, accordingly, neither this Agreement nor any rights hereunder or
interest herein may be assigned or transferred, and no obligations of Consultant
hereunder may be subcontracted or otherwise delegated by Consultant without
express prior written consent of Company.
SECTION XI. NO
CONFLICT.
To induce
Company to enter into this Agreement, Consultant represents and warrants to
Company that, in Consultant’s performance of the Services hereunder, Consultant
will not use or disclose any confidential, proprietary information of, nor
breach an obligation of Consultant to, any third party, Consultant acknowledges
that Company would not have engaged Consultant to perform the Services if
Consultant could not in good faith make the foregoing representation and
warranty.
SECTION XII. TERMINATION.
12.1 30 Days
Notice.
Either
party may terminate this Agreement upon thirty (30) days written notice to the
other specifying the effective date of termination. In the event
Company shall so terminate this Agreement, Company shall pay Consultant for the
Work performed prior to the effective date of such termination, subject to the
provisions of Section XIII.
12.2 Return of SUNOVIA
Property.
In the
event of termination, and regardless of any dispute which may exist between
Company and Consultant, all Company property and materials in Consultant’s
possession which in any way pertain to services rendered hereunder shall be
delivered immediately to Company.
Termination
or expiration of this Agreement shall not affect the obligations of the parties
to pay amounts that may have accrued hereunder, or for breaches of this
Agreement that occurred, prior to such termination or expiration. The
provisions of Section VII., Section VIII., Section IX.,
Section XIII. Section XIV. and Section XVII. of this
Agreement shall survive the expiration or termination of this
Agreement.
SECTION XIII. REMEDIES
FOR BREACH.
In the
event of any breach of this Agreement by any party hereto which shall continue
for ten (10) or more calendar days after written notice of such breach
(including a reasonably detailed statement of the nature of such breach) shall
have been given to the breaching party by the non-breaching party, the
non-breaching party shall be entitled to:
a. suspend
performance of all its obligations under this Agreement for so long as the
breach continues uncorrected; or
b. terminate
this Agreement.
SECTION XIV. LIMITATION
OF LIABILITY.
IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL,
INDIRECT, SPECIAL OR INCIDENTAL DAMAGES ARISING OUT OF THE OTHER PARTY’S
PERFORMANCE UNDER THIS AGREEMENT.
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SECTION XV. NOTICES.
All
notices issued hereunder by either party shall be made in writing and shall be
personally delivered, transmitted by facsimile (with transmission confirmation)
or delivered by certified United States mail, postage prepaid, return receipt
requested, addressed as follows:
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To
Company:
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Sunovia
Energy Technologies, Inc.
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0000 Xxxxxxxx Xxxxx, Xxxxx
000
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Xxxxxxxx,
Xxxxxxx 00000
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Attention: Xxx
Xxxxxxx
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Fax: 941/
000-0000
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To
Consultant:
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Xxxxx
Xxxx.
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0000 Xxxxxxxx Xxxxx, Xxxxx
000
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Xxxxxxxx,
Xxxxxxx 00000
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Attention: Xxxxx
Xxxx
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Fax: 941/
000-0000
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The
effective date of notice shall be the date of delivery to the addressee or
office of addressee, whichever occurs earlier.
SECTION XVI. ENTIRE
AGREEMENT.
This
Agreement sets forth the entire understanding of the parties with respect to the
subject of this Agreement and supersedes all prior statements, representations,
warranties or covenants made by either party except as expressly set forth
herein. Consultant is not relying upon any representations made by
Company concerning the difficulty of the performance of the Services or any
other matters. This Agreement may not be amended or modified except
by a written document signed by Company and Consultant.
SECTION XVII. INDEMNIFICATION.
Consultant
(the “Indemnifying Party”) agrees to defend, indemnify and hold harmless the
other party, its officers, agents, consultants, contractors, subcontractors,
parent corporations, subsidiaries, and affiliates (referred to individually and
collectively as the “Indemnified Party”) from and against any and all claims,
liabilities, loss, damages, costs, fines, penalties or expenses (including but
not limited to attorneys fees and all costs of litigation and collection)
(“Damages”) which the Indemnified Party may hereafter incur, suffer or be
required to pay by reason of the Indemnifying Party’s failure to perform
faithfully its obligations hereunder or by reason of any bodily injury or
property damage caused by any negligent act or omission of the Indemnifying
Party, its officers, agents, consultants, contractors, subcontractors, parent
corporations, subsidiaries and affiliates in connection with this Agreement, any
products sold under this Agreement, Indemnifying Party’s activities hereunder or
otherwise, but excluding those Damages attributable solely to the Indemnified
Party’s gross negligence.
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SECTION XVIII. ENFORCEMENT.
If either
party (the “Breaching Party”) shall breach any of the provisions of this
Agreement and the non-breaching party (the “Non-breaching Party”) shall seek to
enforce such provisions against the Breaching Party, to attempt to secure
performance or to obtain equitable relief and/or damages, the Non-breaching
Party, whether or not litigation is commenced, shall be entitled to its
reasonable costs of such enforcement efforts, including, but not limited to,
attorneys’ fees and court costs.
SECTION XIX. APPLICABLE
LAW.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Florida (without regard to its conflicts of laws
principles). Any litigation with respect to this Agreement may be
brought in the Courts of the State of Florida, and by execution of this
Agreement, Consultant irrevocably submits to such jurisdiction.
SECTION XX. BINDING
AGREEMENT.
All of
the terms and provisions of this Agreement shall be binding upon and inure to
the benefit of, and be enforceable by Consultant and Company and their
respective successors and permitted assigns.
SECTION XXI. SEVERABILITY.
If any
provision of this Agreement shall be held by any court of competent jurisdiction
to be illegal, void or unenforceable, such provision shall be of no force and
effect, but the enforceability of any other provision of this Agreement shall
remain unimpaired.
SECTION XXII. COUNTERPARTS.
This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original instrument, when at least one counterpart has been
executed by each of the parties.
SECTION XXIII. HEADINGS.
Headings
contained herein are for convenience only and shall not modify, enlarge or limit
the scope of the Sections hereof in any manner.
SECTION XXIV. WAIVER.
No delay
or failure of either party in exercising any rights hereunder, and no partial or
single exercise thereof, shall be deemed to constitute a waiver of such right or
any other rights hereunder.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year first above written.
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COMPANY – Sunovia
Energy Technologies, Inc.:
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CONSULTANT:
Xxxxx Xxxx
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/s/ Xxxx
Xxxxx
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s/ R. Xxxxx
Xxxx
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By: Xxxx
Xxxxx
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By: R. Xxxxx
Xxxx
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Title: Chief Executive
Officer
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Title: Consultant
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EXHIBIT
A
(Form
of Task Order)
TASK
ORDER NO. ___
Sunovia
Energy Technologies, Inc. (“Company”) hereby authorizes _____________________
(“Consultant”) to perform the following Scope of Work and such performance shall
be governed by the terms and conditions of the Consulting Agreement between
Company and Consultant (the “Agreement”) dated __________________.
Scope of
Work:
(Explain
scope of work per the Agreement, attaching additional sheets if
necessary.)
Company
estimates that the expenses which may be incurred in connection with the Scope
of Work described herein will break down in the following categories and
amounts:
This Task
Order shall be effective upon the date of the signatures of authorized
representative of Company and shall be incorporated by reference and made a part
of the Agreement.
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COMPANY – Sunovia
Energy Technologies, Inc.:
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CONSULTANT:
Xxxxx Xxxx
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By:
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By:
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Title:
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Title:
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Date:
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Date:
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