Sanswire Corp. CONFIDENTIAL EMPLOYMENT AGREEMENT Glenn Estrella June __, 2010
Xxxxx
Xxxxxxxx
June
__, 2010
AGREEMENT
dated the ____ day of June, 2010, between Sanswire Corp, a Delaware
corporation, with offices at 00000 Xxxxxxxx Xxxx., Xxxxxxxx, Xxxxxxx 00000 at
(the "Company"), and Xxxxx Xxxxxxxx, (the "Employee").
WITNESSETH:
WHEREAS,
the Company desires to employ the Employee and the Employee is willing to accept
such employment, all on the terms hereinafter set forth;
NOW,
THEREFORE, the parties agree as follows:
1. Employment. The Company hereby
employs the Employee as its Chief Executive Officer and
Chief Financial Officer
on the terms hereinafter set forth in Appendix A, and the Employee hereby
accepts such employment. Upon the third anniversary hereof, and upon each
anniversary thereafter, this agreement shall automatically renew for successive
one year terms unless this Agreement is terminated for
cause.
2. Duties. The Employee will
perform duties as detailed in Appendix A. These job duties, subject
to mutual agreement, may be varied from time to time.
3. Non-Competition.
The Employee will devote whatever time may be reasonably required for
the performance of his duties under this
Agreement, and during his employment with the Company, the Employee
will not (i) act for his own account in any manner which is competitive with any
of the businesses of the Company or which demonstrably interferes
with the effective performance of his duties under this Agreement, or
(ii) serve as an officer, director or employee of any
other competing business entity, or (iii) invest or have any financial interest,
direct or indirect, in any business competitive with any of the businesses of
the Company, provided, however, that notwithstanding the foregoing, the Employee
may own up to 1% of the outstanding equity securities of any company engaged in
any such competitive business whose shares are listed on a national securities
exchange or regularly quoted in an over-the-counter market by one or more
members of a national or an affiliated securities association. It is
acknowledged by the Company that the Employee may remain involved in other
previous business activities but may ultimately be requested to wind up previous
business activities, in a timely, transitory way without creating for himself
financial or relationship harm, if such activities clearly
pose a conflict with the Employee’s duties and obligations to the
Company.
4. Compensation. Compensation
is set forth in Appendix A attached hereto.
5. Expenses. The Company will
reimburse the Employee for all proper, normal and reasonable expenses incurred
by the Employee in performing his duties as Chief Executive Officer and CFO of
the Company under this Agreement upon the Employee's furnishing the Company with
normal evidence of such expenditures. The Employee will not incur any
unusual or major expenditure without the Company's prior written approval of the
Board or the Chairman of the Board.
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6. Benefits.
6.1 The
Company will provide to the Employee and his family, at the Company's expense,
medical Insurance with employee standard applicable contributions and disability
insurance as detailed in Appendix A, which is not less favorable than that which
it provides to any other employee of the Company. If the Company does not
currently have such a plan then the Company shall reimburse the Employee for the
expense of such a plan as approved by the Board of Directors.
6.2 The
Employee's salary and other rights and benefits under this Agreement will not be
suspended or terminated because the Employee is absent from work due to illness,
accident or other disability; but the Company may deduct from the Employee's
salary under Appendix A any payment received by the Employee under any
disability insurance which the Company provides the Employee pursuant to Section
6.1. The provisions of this Section 6.2 will not limit or affect the rights of
the Company under Section 7.
7. Death And
Disability.
7.1 If
the Employee dies prior to expiration of the term of his employment,
all future obligations of the Company to the Employee will cease as of the date
of the Employee's death. However, any vested options or earned grants of stock
shall remain the property of the Employee’s Estate of if not yet issued, but
due, shall be issued to the Employee’s estate.
7.2 If
the Employee is unable to perform substantially all of his/her duties under this
Agreement because of illness, accident or other disability (collectively
referred to as "Disability"), and the Disability continues for more than three
consecutive months or an aggregate of more than six months during any 12-month
period, then the Company may suspend its obligations to the Employee under
Sections 4 and 6.1 and 6.2 on or after the expiration of said 6-month period
until the Company terminates such suspension as hereinafter provided. The
Company will terminate any such suspension after the Disability has, in fact,
ended and after it has received written notice from the Employee that the
Disability has ended and that he/she is ready, willing and able to perform fully
services under this Agreement. Termination of such suspension will be no later
than one week after the Company has received such notice from the Employee. If
any one or more periods of suspension continue pursuant to the provisions of
this Section for three consecutive months or six months in the aggregate, then
the Company may at any time prior to termination of the then current period of
suspension, terminate the Employee's employment hereunder.
If the
Employee or the Company asserts at any time that the Employee is suffering a
Disability, the Company may cause the Employee to be examined by a doctor or
doctors selected by the Company, and the Employee will submit to all required
examinations and will cooperate fully with such doctor or doctors and, if
requested to do so, will make available to them her medical records. The
Employee's own doctor may be present.
8. Results of The Employee's
Services.
8.1 The
Company will be entitled to and will own all the results and proceeds of the
Employee's services under this Agreement, including, without limitation, all
rights throughout the world to any copyright, patent, trademark or other right
and to all ideas, inventions, products, programs, procedures, formats and other
materials of any kind created or developed or worked on by the Employee during
his/her employment by the Company; the same shall be the sole and exclusive
property of the Company; and the Employee will not have any right, title or
interest of any nature or kind therein. Without limiting the foregoing, it will
be presumed that any copyright, patent, trademark or other right and any idea,
invention, product, program, procedure, format or material created, developed or
worked on by the Employee at any time during the term of her employment will be
a result or proceed of the Employee's services under this Agreement. The
Employee will take such action and execute such documents as the Company may
reasonably request to warrant and confirm the Company's title to and ownership
of all such results and proceeds and to transfer and assign to the Company any
rights which the Employee may have therein. The Company agrees that it will not
be entitled to any works, proceeds, or other benefits as a result of the
Employee’s other business activities, which the Company acknowledges at the
outset of this employment arrangement.
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The
Employee's right to any compensation or other amounts under this Agreement will
not constitute a lien on any results or proceeds of the Employee's services
under this Agreement.
8.2 The
Company will also own, and promptly on receipt thereof the Employee will pay to
the Company, any monies and other proceeds to which the Employee is entitled on
account of rights pertaining to any of the Company's products which the Employee
acquired after the date of this Agreement..
8.3 The
Employee acknowledges that the violation of any of the provisions of Section
8.1, will cause irreparable loss and harm to the Company which cannot be
reasonably or adequately compensated by damages in an action at law, and,
accordingly, that the Company will be entitled to injunctive and other equitable
relief to enforce the provisions of that Section; but no action for any such
relief shall be deemed to waive the right of the Company to an action for
damages.
9.0 Uniqueness of Services. The
Employee acknowledges that his or her services hereunder are special, unique,
unusual, extraordinary and intellectual in character, the loss of which cannot
be reasonably or adequately compensated by damages in an action at law.
Accordingly, the Company will be entitled to injunctive and other equitable
relief to prevent or cure any breach or threatened breach of this Agreement by
the Employee, but no action for any such relief shall be deemed to waive the
right of the Company to an action for damages. The Company shall not require the
employee to relocate.
10.0
Negative
Covenants.
10.1 The
Employee will not, during or after the term of this Agreement, disclose to any
third person or use or take any personal advantage of any confidential
information or any trade secret of any kind or nature obtained by him during the
term hereof or during his employment by the Company.
10.2 To
the full extent permitted by law, the Employee will not for a period of one year
following the termination of his employment with the Company:
(i) attempt
to cause any person, firm or corporation which is a customer of or has a
contractual relationship with the Company at the time of the termination of
his employment to terminate such relationship with the Company, and
this provision shall apply only if the customer has a valid
contractual arrangement or other commercial relationship with the
Company;
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(ii) attempt
to cause any employee of the Company to leave such employment;
(iii) engage
any person who was an employee of the Company at the time of the termination of
his employment or cause such person otherwise to become associated
with the Employee or with any other person, corporation, partnership or other
entity with which the Employee may thereafter become associated;
(iv) engage
in any activity or perform any services competitive with any business conducted
by the Company at the time of such termination in any geographic area in which
the company did business during the course of the Employee’s
employment.
The
provisions of under this Section 10.2 will not apply if the Employer wrongfully
terminates the Employee's employment or if the Employee properly terminates his
employment for cause.
10.3 The
Employee acknowledges that the violation of any of the provisions of this
Section 10 will cause irreparable loss and harm to the Company which cannot be
reasonably or adequately compensated by damages in an action at law, and,
accordingly, that the Company will be entitled to injunctive and other equitable
relief to prevent or cure any breach or threatened breach thereof, but no action
for any such relief shall be deemed to waive the right of the Company to an
action for damages.
11. Governing Law;
Remedies
11.1 This
Agreement has been executed in the State of Florida and shall be governed by and
construed in all respects in accordance with the law of the State of
Florida
11.2 Except
as otherwise expressly provided in this Agreement, any dispute or claim arising
under or with respect to this Agreement will be resolved by arbitration in
Broward County, Florida in accordance with the National Rules for the Resolution
of Employment Disputes of the American Arbitration Association before a panel of
three (3) arbitrators, one appointed by the Employee, one appointed by the
Company, and the third appointed by said Association. The decision or award of a
majority of the arbitrators shall be final and binding upon the parties. Any
arbitral award may be entered as a judgment or order in any court of competent
jurisdiction.
11.3 Notwithstanding
the provisions for arbitration contained in this Agreement, the Company and the
Employee will be entitled to injunctive and other equitable relief from the
courts as provided in Sections 8.3, 9 and 10.3 and as the courts may otherwise
determine appropriate; and the Employee and Company agree that it will not be a
defense to any request for such relief that the Company or the Employee has an
adequate remedy at law. For purposes of any such proceeding the Company and the
Employee submit to the non-exclusive jurisdiction of the courts of the State of
Florida and of the United States located in the County of Broward State of
Florida and each agrees not to raise and waive any objection to or defense based
on the venue of any such court or forum non
conveniens.
11.4 A
court of competent jurisdiction, if it determines any provision of this
Agreement to be unreasonable in scope, time or geography, is hereby authorized
by the Employee and the Company to enforce the same in such narrower scope,
shorter time or lesser geography as such court determines to be reasonable and
proper under all the circumstances.
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11.5 The
Company and the Employee will also have such other legal remedies as may be
appropriate under the circumstance including, inter alia, recovery of
damages occasioned by any breach. The Company's and
Employee’s rights and remedies are cumulative and the exercise or enforcement of
any one or more of them will not preclude the Company or the Employee from
exercising or enforcing any other right or remedy.
12. Indemnity. To the extent
permitted by law, the Company will indemnify the Employee against any claim or
liability and will hold the Employee harmless from and pay any expenses
(including, without limitation, legal fees and court costs), judgments, fines,
penalties, settlements and other amounts arising out of or in connection with
any act or omission of the Employee performed or made in good faith on behalf of
the Company pursuant to this Agreement, regardless of negligence. The Company
will not be obligated to pay the Employee's legal fees and related charges of
counsel during any period that the Company furnishes, at its expense, counsel to
defend the Employee; but any counsel furnished by the Company must be reasonably
satisfactory to the Employee. The foregoing provisions will survive termination
of the Employee's employment with the Company for any reason whatsoever and
regardless of fault.
13. Severability Of Provisions. If
any provision of this Agreement or the application of any such provision to any
person or circumstance is held invalid, the remainder of this Agreement, and the
application of such provision other than to the extent it is held invalid, will
not be invalidated or affected thereby.
14. Waiver. No failure by the
Company or the Employee to insist upon the strict performance of any term or
condition of this Agreement or to exercise any right or remedy available to it
will constitute a waiver. No breach or default of any provision of this
Agreement will be waived, altered or modified, and the Company and the Employee
may not waive any of its rights, except by a written instrument executed by the
Company. No waiver of any breach or default will affect or alter any term or
condition of this Agreement, and such term or condition will continue in full
force and effect with respect to any other then existing or subsequent breach or
default thereof.
15. Miscellaneous.
15.1 This
Agreement may be amended only by an instrument in writing signed by the Company
and the Employee.
15.2 This
Agreement shall be binding upon the parties and their respective successors and
assigns. The Company may not, without the Employee's consent, transfer or assign
any of its rights and obligations under this Agreement to any corporation which,
directly or indirectly, controls or is controlled by the Company or is under
common control with the Company or to any corporation succeeding to all or a
substantial portion of the Company's business and assets. Should such
transfer be mutually agreed by the parties, the Company shall not be released
from any of its obligations under this Agreement. Control means the
power to elect a majority of the directors of a corporation or in any other
manner to control or determine the management of a corporation. Except as
provided above, neither the Company nor the Employee may, without the other's
prior written consent, transfer or assign any of its or her rights or
obligations under this Agreement, and any such transfer or assignment or attempt
thereat without such consent shall be null and void.
15.3 All
notices under or in connection with this Agreement shall be in writing and may
be delivered personally or sent by mail, courier, fax, or other written means of
communication to the parties at their addresses, email address and fax numbers
set forth below or to such other addresses and fax numbers as to which notice is
given:
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(a)
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if
to the Company:
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Xxxxxx
Xxxxxxx
Chief
Financial Officer
00000
Xxxxxxxx Xxxx.
Xxxxxxxx,
Xxxxxxx 00000
Fax:
(000) 000-0000
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(b)
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if
to the Employee:
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Xxxxx
Xxxxxxxx
Notice
will be deemed given on receipt.
15.4 Section
headings are for purposes of convenient reference only and will not affect the
meaning or interpretation of any provision of this Agreement.
15.5 This
Agreement constitutes the entire agreement of the parties and supersedes any and
all prior agreements or understandings between them.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
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Employee
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By: /s/ Xxxxxx
Xxxxxxx
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By: /s/ Xxxxx
Xxxxxxxx
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Name: Xxxxxx
Xxxxxxx
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Xxxxx
Xxxxxxxx
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Title:
Director, Authorized Signing Officer
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Date: _____________________
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Date: ___________________
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6
Confidentiality
Agreement
Date: June ___, 2010
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To:
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Sanswire
Corp (the "Company")
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00000 Xxxxxxxx Xxxx., Xxxxx
000
Xxxxxxxx, Xxxxxxx 00000
Gentlemen:
I
recognize that in connection with my employment with the Company, I may become
aware of or familiar with processes, formulae, procedures, information and
materials which the Company has spent a great deal of time and money to develop,
which are essential to the business of the Company, and which comprise
confidential information and trade secrets of the Company (collectively called
"Trade Secrets"). The term "Trade Secret" does not include any process, formula,
procedure, information or material which is currently in the public domain or
which hereafter becomes public knowledge in a way that does not involve a breach
of an obligation of confidentiality. Notwithstanding the foregoing, I
acknowledge and agree that any process, formula, procedure, information or
material of which I become aware during my employment with the Company is
presumed to be a Trade Secret unless the Company advises me in writing that it
is not a Trade Secret.
I agree
that I will not during the term of my employment with the Company and at all
times thereafter, either directly or indirectly, use or disclose to anyone any
Trade Secret, except
that while I am employed by the Company I may use Trade Secrets in the
performance of my services for the Company and I may disclose Trade Secrets to
employees of the Company who need to know them in the performance of their
services for the Company. I also agree that the Company will be
entitled to and will own all the results and proceeds of my services for the
Company including, without limitation, all rights throughout the world to any
copyright, patent, trademark or other right and to all ideas, inventions,
products, programs, procedures, formats and other materials of any kind created,
developed or worked on by me during my employment with the Company.
Without
limiting the foregoing, it will be presumed that any copyright, patent,
trademark or other right and any idea, invention, product, program, procedure,
format or material created, developed or worked on by me at any time during my
employment with the Company will be a result or proceed of my services for the
Company. I will take such action and execute such documents as the Company may
reasonably request to warrant and confirm the Company's title to and ownership
of all such results and proceeds and to transfer and assign to the Company any
rights which I may have therein. My right to compensation and other benefits
will not constitute a lien on any such results or proceeds.
My
obligations and the rights of the Company under this agreement will remain in
full force and effect regardless of (i) the reason for or cause of the
termination of my employment, or (ii) whether the Company or I was at
fault.
I
acknowledge that the violation of any of the provisions of this agreement will
cause irreparable loss and harm to the Company or to the Employee which cannot
be reasonably or adequately compensated by damages in an action at law, and,
accordingly, that the Company and the Employee will be entitled to injunctive
and other equitable relief to enforce the provisions of this agreement and to
prevent or cure any breach or threatened breach thereof; but no action for any
such relief shall be deemed to waive the right of the Company or the Employee to
an action for damages. I also agree that it will not be a defense to any request
for such relief that the Company or the Employee has an adequate remedy at law.
For purposes of any proceeding under or with respect to this agreement, both the
Company and the Employee submit to the nonexclusive jurisdiction of the courts
of the State of Florida and of the United States located in the County of
Broward an agree not to raise and waive any objection to or defense
based on the venue of any such court or based upon forum non
conveniens.
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The
rights and remedies of the Company and the Employee are cumulative and the
exercise or enforcement of any one or more of them will not preclude the Company
or the Employee from exercising or enforcing any other right or
remedy.
The delay
or failure by the Company or the Employee to exercise any of its rights in any
one instance will not preclude the Company or the Employee from exercising its
rights at a later time in that instance or at any other time in any other
instance.
The
Company acknowledges that the employee is engaged in other business activities
wherein confidentiality may become null and void due to prior or other business
dealings. In such case, the employee agrees to use best efforts not to disclose
any proprietary methods or technology to any outside competitor. This paragraph
shall supersede any contrary language within the agreement.
This
agreement may be amended and any provision of this agreement may be waived only
by an instrument in writing signed by the Company and the Employee.
This
agreement will be governed by and construed in accordance with the law in the
State of Florida.
This
agreement will inure to the benefit of the Company's and Employee’s successors
and assigns, as the case may be, including, without limitation, the
assignee of any Trade Secret. Accordingly, at any one time, more than one person
may be the beneficiary of this agreement.
Very
truly yours,
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/s/
Xxxxx
Xxxxxxxx
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Xxxxx
Xxxxxxxx
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ACCEPTED
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By:
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/s/
Xxxxxx Xxxxxxx
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Xxxxxx
Xxxxxxx
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8
Appendix A to Employment
Agreement
This
letter (“Appendix A”) in combination with the Employment Contract and
Confidentiality Agreement to which it is appended, constitutes the full
agreement (the “Agreement”) between Sanswire Corp. (“Sanswire”) and you (“Xxxxx
Xxxxxxxx”).
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1.
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Title: Chief
Executive Officer, Chief Financial
Officer
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2.
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Signing
Bonus:
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a.
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Stock Bonus: Upon the
signing of this employment agreement with Sanswire, you will receive
5,000,000 (Five Million) shares of Sanswire common
stock.
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b.
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Cash
Bonus: $20,000 upon
signing.
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3.
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Salary: A minimum of
$250,000 payable in cash per year during your term of employment. However,
at anytime the Employee may elect to take a portion of the amounts owing
in common stock of the company.
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4.
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Annual
Bonus: As long as you remain employed by the Company,
you will be eligible to receive a bonus in stock and/or options to be
granted by the Board of Directors in its
discretion.
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5.
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Change-of-Control
Acceleration: If Sanswire is acquired as a result of a
friendly or hostile takeover or merger or other combination, the above
compensation will be accelerated so that upon the completion of such
takeover, merger or combination, you will receive 100% of the unpaid
portion of thereof regardless of the amount of time you have been with the
Company.
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6.
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Primary
Residence: New Jersey. It is understood and
agreed that your primary residence is in New Jersey and that your base of
operations shall be in New Jersey.
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7.
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Officers and Directors
Liability Insurance. The Company does not currently have
Officers and Directors Liability Insurance, but the Company shall
endeavour to purchase such insurance to cover all officers and directors
as soon as practicable.
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In
witness whereof, the parties hereto have executed this Appendix A on the same
date as the Employment Agreement.
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XXXXX
XXXXXXXX
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By: /s/ Xxxxxx
Xxxxxxx
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By: /s/ Xxxxx
Xxxxxxxx
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Xxxxxx
Xxxxxxx
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Xxxxx
Xxxxxxxx
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Director,
ASO
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