FORM OF EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.3
FORM OF
This Agreement is entered into as of [DATE] (the “Effective Date”) by and between the Company
and [NAME] (“Executive”).
1. Duties and Scope of Employment.
(a) Position and Duties. As of the Effective Date, Executive will [continue to] serve
as [TITLE] of the Company, reporting to the Chief Executive Officer [or his delegate]. Executive
will render such business and professional services in the performance of his or her duties,
consistent with Executive’s position within the Company, as shall reasonably be assigned to him by
the Chief Executive Officer [and/or the Company’s Board of Directors (the “Board”)]. Executive’s
[title,] duties and responsibilities may be altered, modified and changed as the [Chief Executive
Officer and/or Board] deems appropriate.
(b) Obligations. During the Term, Executive will perform his or her duties
faithfully and to the best of his or her ability and will devote his or her full business efforts
and time to the Company. For the duration of the Term, Executive agrees not to engage in any other
employment, occupation or consulting activity for any direct or indirect remuneration without the
prior written approval of [the Board and/or the Chief Executive Officer].
(c) Conflicting Employment. Executive agrees that, while employed by the Company, he
or she will not engage in any other employment, occupation, consulting or other business activity
directly related to the business in which the Company is now involved or becomes involved during
the term of Executive’s employment, nor will Executive engage in any other activities that conflict
with Executive’s obligations to the Company.
2. Term. Executive’s employment with the Company pursuant to this Agreement (the
“Term”) will commence on the Effective Date and will continue, unless otherwise terminated earlier
as provided herein, until the date that is twenty-four (24) months1 from the Effective
Date. Notwithstanding the foregoing, the parties agree that Executive’s employment with the
Company will be “at-will” employment and may be terminated at any time with or without cause by
giving the Executive a written notice. Executive understands and agrees that neither his or her
job performance nor promotions, commendations, bonuses or the like from the Company give rise to or
in any way serve as the basis for continuation, modification, amendment, or extension, by
implication or otherwise, of his or her employment with the Company. However, as described in this
Agreement, Executive may be entitled to severance benefits depending on the circumstances of
Executive’s termination of employment with the Company as expressly provided in Sections 6 and 7 of
this Agreement.
3. Compensation.
(a) Base Salary. During the Term, the Company will pay Executive as compensation for
his or her services, a base salary at the annualized rate of $[EXECUTIVE’S
| 1 The term of Xxxx Xxxx’x agreement is twenty-one (21) months. |
SALARY AMOUNT] 2(the “Base Salary”). The Base Salary will be paid periodically in
accordance with the Company’s normal payroll practices and is subject to lawfully required
withholdings. Annual adjustments to the Base Salary may be made in the Company’s sole discretion.
(b) Target Incentive Plan. Executive will be eligible to participate in the Company’s Target
Incentive Plan, and for such annual bonuses as are payable under the plan (“Incentive Bonus”).
4. Employee Benefits. During the Term, Executive will continue to be entitled to
participate in the employee benefit plans currently and hereafter maintained by the Company of
general applicability [to other senior executives of the Company, including, without limitation,
the Company’s group medical, dental, vision, disability, life insurance, vacation and
flexible-spending account plans and programs] [as identified in his letter of appointment]. The
Company reserves the right to cancel or change the benefit plans and programs it offers to its
employees at any time.
5. Equity. Executive may from time to time be eligible to receive a grant of stock
options and/or restricted stock, as the Board of Directors deems appropriate.
6. Severance.
(a) Involuntary Termination Without Cause Prior to a Change of Control or More than 6
Months Following a Change of Control. If Executive’s employment with the Company terminates
other than voluntarily or for “Cause” prior to a “Change of Control” (both as defined herein) or
more than six months following a Change of Control, and Executive signs and does not revoke a
release of claims with the Company in the form provided by the Company, the Company shall provide
severance pay and benefits, subject to certain conditions, as follows:
(i) The Company shall provide monetary severance to Executive equal to [twelve (12)
months’ of Base Salary for the Executive Vice President and Chief Technical Officer, the
Chief Operating Officer, Executive Vice Presidents, Senior Vice Presidents and the covered
Vice President] [twenty-four (24) months of Base Salary for the Chief Executive Officer].
Such severance shall be paid over a period of [twelve (12) months or twenty-four (24)
months, as applicable] following the date of termination (the “Severance Period”) through
Severance Payments made in the same installments and subject to the same deductions as
Executive’s Base Salary at the time of termination. The Severance Payments shall be subject
to offset for any amounts then owed to the Company by Executive. [In lieu of the foregoing
paragraph the following text is included in the agreement with an officer based in Malaysia:
The Company shall provide monetary severance to Executive equal to one month of Base Salary
for each year of service plus
| 2 | The specific salaries for the Executives who are party to this Agreement are as follows: TH Tan, Chief Executive Officer - $550,000; Xxx Xxxxxx, Executive VP & Chief Operating Officer — $365,000; Xxxxxxx Xxxxxx, Executive VP, Chief Technical Officer — $390,000; Xxx Xxxxxx, Executive VP, Customer Sales & Service — $345,000; Xxxxx Xxxxxx, Executive VP, Strategic Business Development — $190,000; Xxxxxxxx Xxxxxxx, Senior VP, Chief Financial Officer — $296,800; Xxxxxxx Xxxxxxxxx, Senior VP, Process Development - $290,000; Xxxxxxx Xxxxxxx, Senior VP, Human Resources — $203,496; Kheng Huat Oung, VP, Managing Director, Media Operations, Komag USA (Malaysia) Sdn. - $136,084; Xxxx Xxxx, Vice President, Corporate Controller & Chief Accounting Officer — $200,000. |
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one month of contractual bonus plus 8 (eight) weeks of pay in lieu of notice. Such
severance shall be paid in a lump sum within 30 (thirty) days of the last day of employment.
The Severance Payments shall be subject to offset for any amounts then owed to the Company
by Executive.]
(ii) If Executive elects to continue his/her benefits under the Company’s Employee
Benefits Plans, including life, disability and health insurance, through COBRA, the Company
shall pay the cost of COBRA continuation coverage for Executive (and, where applicable,
Executive’s dependents) during the Severance Period as if Executive were still employed by
the Company (the “COBRA Continuation Payments”). Executive will continue to pay the same
portion of the cost of such benefits as he or she currently pays as of the last day of
his/her employment with the Company. The COBRA Continuation Payments will cease, and the
Company will have no further obligations with respect to the payment of any premiums for
continuation coverage to Executive, as of the earlier of (a) Executive becoming eligible for
comparable coverage (for example, through obtaining alternative employment); (b) the
conclusion of the Severance Period; or (c) the cessation of Executive’s COBRA eligibility.
[In lieu of the foregoing paragraph the following text is included in the agreement with an
officer based in Malaysia: All insurance benefits will cease upon the termination of
employment.]
(iii) Any outstanding and unvested non-qualified stock options and any restricted
stock previously granted Executive shall immediately vest and become exercisable as to the
number of shares that would have otherwise vested had Executive remained employed by the
Company through the end of the Severance Period. Thereafter, any such awards will remain
subject to the terms of the applicable stock plan, grant and/or agreement.
(iv) If Executive is entitled to compensation and benefits arising from termination of
employment due to change of control pursuant to Section 7 below, compensation and benefits
under that change of control provision shall be in lieu of and not in addition to
compensation under this Section 6.
(v) Notwithstanding the foregoing, the Company’s obligation to make severance payments,
pay bonus payments, provide benefits and vest stock and/or options hereunder is expressly
conditioned upon Executive’s ongoing compliance with the provisions of the Employee
Invention, Authorship, Proprietary and Confidential Information Agreement. In the event
Executive breaches the terms of such agreement, the Company’s obligations hereunder shall
automatically terminate, without any notice to Executive, and, in addition to any other
damages to which the Company may be entitled, the Company shall be entitled to recover from
Executive any payments already made to Executive hereunder.
(vi) Executive agrees that severance as provided herein shall be the sole consideration
to which he or she is entitled in the event of the termination of his or her employment
without Cause, and that severance will not be paid in the event of termination with Cause,
and Executive expressly waives and relinquishes any claim to other or further consideration.
[The following sentence is included only in the Executive Vice President, Chief Technical
Officer’s form: Executive agrees that a change in title alone shall not mean that a position
is not comparable.]
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(vii) Severance pay, bonus pay, benefits and/or stock/option vesting are expressly
conditioned upon Executive’s execution and delivery of a release of all claims Executive may
have against the Company in a form provided by the Company.
(b) Voluntary Termination; Termination for Cause. If Executive’s employment with the
Company terminates voluntarily by Executive or for Cause by the Company, then (i) all vesting of
any restricted stock or options to purchase shares of the Company’s common stock held by Executive
will terminate immediately and all payments of compensation by the Company to Executive hereunder
will terminate immediately (except as to amounts already earned, including unused and accrued
vacation); and (ii) Executive shall not be eligible for severance or other benefits, except in
accordance with any generally applicable Company plans or policies as are then in effect. [The
provision for voluntary termination in the foregoing paragraph is not included in the agreement
with the Chief Operating Officer. In lieu thereof, the following separate paragraph is included in
that agreement: “Should Executive voluntarily terminate employment within six (6) months of the
first day of employment in of a new Chief Executive Officer, other than Executive, the Executive
will be eligible to receive six (6) months of severance pay from the date of resignation.
Severance pay is expressly conditioned upon Executive’s execution and delivery of a release of all
claims Executive may have again the Company in a form provided by the Company. Beyond the sixth
(6th) month, should Executive resign, then (i) all vesting of any restricted stock or
options to purchase shares of the Company’s common stock held by Executive will terminate
immediately and all payments of compensation by the Company to Executive hereunder will terminate
immediately (except as to amounts already earned, including unused and accrued vacation); and (ii)
Executive shall not be eligible for severance or other benefits, except in accordance with any
generally applicable Company plans or policies as are then in effect.”]
7. Change of Control Severance Benefits. In the event of a “Change of Control” (as
defined herein) followed by Executive’s termination other than voluntarily or for “Cause” within
six (6) months following the consummation of a Change of Control, Executive shall be entitled to
receive benefits as set forth below, provided he or she signs and does not revoke a release of
claims with the Company in a form provided by the Company. For the purpose of this Section 7,
Executive shall be deemed to have been terminated other than for “Cause” if Executive is not
provided with an offer of employment with the Company or successor entity following the Change of
Control with comparable duties, position, responsibilities, pay and location relative to the
Executive’s duties, position, responsibilities, pay and location in effect immediately prior to
such Change of Control and, within thirty (30) days thereafter, Executive elects to voluntarily
terminate his or her employment with the Company. Executive agrees that (1) a change in title
alone shall not mean that a position is not comparable; (2) a change in duties and responsibilities
that is not material shall not mean that a position is not comparable; (3) for purposes of pay, a
position shall be deemed comparable if it involves a reduction of no more than ten percent (10%) of
Executive’s base compensation unless in connection with similar decreases of other similarly
situated employees of the Company; and (4) for purposes of location, a position shall be deemed
comparable if it is within fifty (50) miles from Executive’s current work location.
(a) A lump sum payment within thirty (30) days of such termination equal to the Severance
Payment as set forth in section 6(a)(i) above.
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(b) An additional lump sum payment within thirty (30) days of such termination in an amount
equal to the annual Incentive Bonus, calculated on the basis of all targets under the current
Target Incentive Plan being met.
(c) On the date of termination, all stock options and restricted stock previously granted to
Executive shall become immediately and fully vested and exercisable by Executive or his or her
representative. Such exercise shall be governed by and shall be in accordance with the terms of
the applicable agreement, whose terms are incorporated herein by reference.
(d) Executive (and, where applicable, Executive’s dependents) shall be entitled to COBRA
Continuation Payments in accordance with the provisions of section 6(a)(ii) above. 3
(e) In the event that the benefits provided for in this agreement (a) constitute “parachute
payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the
“Code”), (b) would be subject to the excise tax imposed by Section 4999 of the Code, and (c) the
aggregate value of such parachute payments, as determined in accordance with Section 280G of the
Code and the Treasury Regulations thereunder is less than the product obtained by multiplying 3.59
by Executive’s “base amount” within the meaning of Code Section 280G(b)(3), then such benefits
shall be reduced to the extent necessary (but only to that extent) so that no portion of such
benefits will be subject to excise tax under Section 4999 of the Code. In the event that the
benefits provided for in this agreement (a) constitute “parachute payments” within the meaning of
Section 280G of the Code, (b) would be subject to the excise tax imposed by Section 4999 of the
Code, and (c) the aggregate value of such parachute payments, as determined in accordance with
Section 280G of the Code and the Treasury Regulations thereunder is equal to or greater than the
product obtained by multiplying 3.59 by Executive’s “base amount” within the meaning of Code
Section 280G(b)(3), then the Executive shall receive (i) a payment from the Company sufficient to
pay such excise tax plus any interest or penalties incurred by Executive with respect to such
excise tax, plus (ii) an additional payment from the Company sufficient to pay the excise tax and
federal and state income and employment taxes arising from the payments made by the Company to
Executive pursuant to this sentence. Unless the Company and the Executive otherwise agree in
writing, the determination of Executive’s excise tax liability and the amount required to be paid
or reduced under this Section shall be made in writing by the Company’s independent auditors who
are primarily used by the Company immediately prior to the Change of Control (the “Accountants”).
For purposes of making the calculations required by this Section, the Accountants may make
reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable,
good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The
Company and the Executive shall furnish to the Accountants such information and documents as the
Accountants may reasonably request in order to make a determination under this Section. The
Company shall bear all costs the Accountants may reasonably incur in connection with any
calculations contemplated by this Section.4
(f) Notwithstanding the foregoing, if Executive receives the Severance Payment pursuant to
this Section, he or she shall not be entitled to receive an additional Severance Payment pursuant
to Section 6 hereof.
| 3 This paragraph is not included in the agreement with an officer based in Malaysia. | ||
| 4 This paragraph is not included in the agreement with an officer based in Malaysia. |
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(g) Change of control benefits under this Section 7 are expressly conditioned upon Executive’s
execution and delivery of a release of all claims Executive may have against the Company in a form
provided by the Company.
8. Non-Solicitation. For a period of twelve (12) months following Executive’s
termination of employment, Executive shall not, directly or indirectly, without the prior written
consent of the Company, solicit any employee or customer of the Company, its parent or its
subsidiaries to terminate his or her employment with or customer relationship to the Company, its
parent or its subsidiaries.
9. Definitions.
(a) Cause. For purposes of this Agreement, “Cause” is defined as (i) an act of
dishonesty made by Executive in connection with Executive’s responsibilities as an employee, (ii)
Executive’s conviction of or plea of nolo contendere to, a felony or any crime
involving fraud, embezzlement or any other act of moral turpitude, (iii) Executive’s gross
misconduct, (iv) Executive’s unauthorized use or disclosure of any proprietary information or trade
secrets of the Company or any other party to whom Executive owes an obligation of nondisclosure as
a result of Executive’s relationship with the Company; (v) Executive’s willful breach of any
obligations under any written agreement or covenant with the Company; or (vi) Executive’s continued
failure to perform his or her employment duties after Executive has received a written demand of
performance from the Company with specifically sets forth the factual basis for the Company’s
belief that Executive has not substantially performed his or her duties and has failed to cure such
non-performance to the Company’s satisfaction within 30 days after receiving such notice.
(b) Change of Control. For purposes of this Agreement, “Change of Control” of the
Company is defined as: (1) any “person” (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended) is or becomes the “beneficial owner” (as defined in
Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing 50%
or more of the total voting power represented by the Company’s then outstanding voting securities;
or (ii) the date of the consummation of a merger or consolidation of the Company with any other
corporation that has been approved by the stockholders of the Company, other than a merger or
consolidation which would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) more than fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the Company approve a plan
of complete liquidation of the company; or (iii) the date of the consummation of the sale or
disposition by the Company of all or substantially all the Company’s assets.
10. Assignment. This Agreement will be binding upon and inure to the benefit of (a)
the heirs, executors and legal representatives of Executive upon Executive’s death and (b) any
successor of the Company. Any such successor of the Company will be deemed substituted for the
Company under the terms of this Agreement for all purposes. For this purpose, “successor” means any
person, firm, corporation or other business entity which at any time, whether by purchase, merger
or other, directly or indirectly acquires all or substantially all of the assets or business of the
Company. None of the rights of Executive to receive any form of compensation payable pursuant to
this Agreement may be assigned or transferred except by will of the laws of
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descent and distribution. Any other attempted assignment, transfer, conveyance or other
disposition of Executive’s right to compensation or other benefits will be null and void.
11. Notices. All notices, requests, demands and other communications called for
hereunder shall be in writing and shall be deemed given (i) on the date of delivery if delivered
personally, (ii) one (1) day after being sent by a well established commercial overnight service,
or (iii) four (4) days after being mailed by registered or certified mail, return receipt
requested, prepaid and addressed to the parties or their successor at the following addresses, or
at such other addresses as the parties may later designate in writing:
If to the Company:
Komag, Inc.
0000 Xxxxxxxxxx Xxxxxxx
Xxx Xxxx, XX 00000
Komag, Inc.
0000 Xxxxxxxxxx Xxxxxxx
Xxx Xxxx, XX 00000
If to Executive:
[NAME]
[ADDRESS]
[NAME]
[ADDRESS]
12. Severability. In the event that any provision hereof becomes or is declared by a
court of competent jurisdiction to be illegal, unenforceable or void, this Agreement will continue
in full force and effect without said provision.
13. Arbitration:
(a) General. In consideration of Executive’s services to the Company and Executive’s
receipt of the compensation, pay raises and other benefits paid to Executive by the Company, at
present and in the future, the Company and Executive agree that any and all controversies, claims,
or disputes between them (including any dispute Executive may have with any employee, officer,
director, shareholder or benefit plan of the Company in their capacity as such or otherwise)
arising out of, relating to, or resulting from Executive’s service with the Company, including any
breach of this Agreement, shall be subject to binding arbitration as set forth below. [Disputes
which the Company and Executive agree to arbitrate, and thereby agree to waive any right to a trial
by jury, include any statutory claims under state or federal law, including but not limited to,
claims under Title VII of the Civil Rights Act of 1964, the American with Disabilities Act of 1990,
the Age Discrimination in Employment Act of 1967, the Older Workers Benefits Protection Act, the
California Fair Employment and Housing Act, the California Labor Code, claims of harassment,
discrimination or wrongful termination and any other statutory or common law claims.]5
Executive further understands that this Agreement to arbitrate also applies to any disputes that
the Company may have with Executive, including but not limited to claims of misappropriation,
fraud, conversion, interference with economic advantage or contract, breach of fiduciary duty,
defamation, misrepresentation, or fraud.
(b) Procedure. Executive agrees that any arbitration will be administered by JAMS and
that a neutral arbitrator will be selected in a manner consistent with its Employment Arbitration
Rules and Procedures. Executive agrees that any arbitration hearing pursuant to this Agreement
shall be conducted in San Jose, California. Executive agrees that the
| 5 Bracketed text is not included in the agreement with an officer based in Malaysia. |
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arbitrator shall issue a written decision on the merits. Executive also agrees that the
arbitrator shall have the power to award any remedies, including attorneys’ fees and costs,
available under applicable law. Executive understands the Company will pay for any administrative
or hearing fees charged by the arbitrator or JAMS except that Executive shall pay the first $200.00
of any filing fees associated with any arbitration Executive initiates. Executive agrees that the
arbitration shall be conducted in accordance with the JAMS Employment Arbitration Rules and
Procedures provided, however, that the Arbitrator shall allow the discovery authorized by
California Code of Civil Procedure section 1283.05 or any other discovery required by law in
arbitration proceedings. Also, to the extent that any of the JAMS Employment Arbitration Rules and
Procedures conflict with any arbitration procedures required by applicable law, the arbitration
procedures required by applicable law shall govern. Executive agrees that nothing in this Section
13 relieves him or her from any obligation he or she may have to exhaust certain administrative
remedies before arbitrating any claims or disputes under this Section 13.
(c) Remedy. Except as provided elsewhere in this Agreement, arbitration shall be the
sole, exclusive and final remedy for any dispute between Executive and the Company. Accordingly,
except as provided elsewhere in this Agreement, neither Executive nor the Company will be permitted
to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the
arbitrator will not have the authority to disregard or refuse to enforce any lawful Company policy,
and that the arbitrator shall not order or require the Company to adopt a policy not otherwise
required by law which the Company has not adopted.
(d) Availability of Injunctive Relief. The parties agree that they shall have the
right to seek judicial relief in the form of injunctive and/or other equitable relief under the
California Arbitration Act, Code of Civil Procedure section 1281.8(b), including but not limited to
relief for threatened or actual misappropriation of trade secrets, violation of this Agreement or
the Confidentiality Agreement or any other agreement regarding trade secrets, confidential
information, nonsolicitation or Labor Code §2870. In the event either party seeks injunctive
relief, the prevailing party shall be entitled to recover reasonable costs and attorneys’ fees.
(e) Administrative Relief. Executive understands that this Agreement does not
prohibit Executive from pursuing an administrative claim with a local, state or federal
administrative body [such as the Department of Fair Employment and Housing, the Equal Employment
Opportunity Commission or the workers’ compensation board. This Agreement, does, however, preclude
Executive from pursuing court action regarding any such claim].6
(f) Voluntary Nature of Agreement. Executive acknowledges and agrees that Executive
is executing this Agreement voluntarily and without any duress or undue influence by the Company or
anyone else. Executive further acknowledges and agrees that Executive has carefully read this
Agreement and that Executive has asked any questions needed for Executive to understand the terms,
consequences and binding effect of this Agreement and fully understand it, including that Executive
is waiving Executive’s right to a jury trial. Finally, Executive agrees that Executive has been
provided an opportunity to seek the advice of an attorney of Executive’s choice before singing this
Agreement.
| 6 Bracketed text is not included in the agreement with an officer based in Malaysia. |
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14. Existing Agreements. This Agreement supersedes and replaces any prior severance
or retention plans, employment agreements and offer letters that Executive may have entered into
with the Company prior to the Effective Date.
15. Integration. This Agreement, Executive’s stock option and restricted stock
agreements with the Company, and the Employee Invention, Authorship, Proprietary and Confidential
Information Agreement by and between Executive and the Company represent the entire agreement and
understanding between the parties as to the subject matter herein and supersede all prior or
contemporaneous agreements whether written or oral. No waiver, alteration, or modification of any
of the provisions of this Agreement will be binding unless in writing and signed by duly authorized
representatives of the parties hereto.
16. Tax Withholding. All payments made pursuant to this Agreement will be subject to
withholding of applicable taxes.
17. 409A Compliance. Because of the uncertainty of the application of Section 409A of
the Code to any severance benefits to be paid or provided to Executive under this Agreement,
Executive and the Company agree that if Treasury Regulations or other official guidance
interpreting Section 409A of the Code would subject such benefits to Section 409A and require that
such benefits be provided in a different form or manner to avoid the application of Section 409A,
they shall agree in writing to a different form or manner of payment in order to avoid such
application.7
18. Governing Law. This Agreement will be governed by the laws of the State of
California (with the exception of its conflict of laws provisions.)
19. Acknowledgment. Executive acknowledges that he or she has had the opportunity to
discuss this matter with and obtain advice from his or her private attorney, has had sufficient
time to, and has carefully read and fully understands all the provisions of this Agreement, and is
knowingly and voluntarily entering into this Agreement.
| EXECUTIVE | KOMAG, INCORPORATED | ||
| |
By | |
|
| [NAME] | |||
| |
Dated: | |
|
Dated
| 7 This paragraph is not included in the agreement with an officer based in Malaysia. |
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