Exhibit 10.3
CONSULTANT AGREEMENT
This Agreement for consulting services is between Digital Fusion Solutions,
Inc., a Florida corporation, whose principal place of business is located at
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ (herein "DFS") and ▇▇▇▇▇
▇▇▇▇▇▇▇ of The Rhino Group (herein "Consultant").
I. ENGAGEMENT
DFS hereby retains Consultant to provide the services described in
Attachment A hereto. Consultant shall serve at DFS's call. Consultant's
principal point of contact at DFS with respect to the specific nature and scope
of the services to be provided hereunder shall be ▇▇▇▇ ▇. ▇▇▇▇, President & COO
or designee. Consultant shall submit monthly written reports to DFS, in the
format described in Attachment B hereto, setting forth the actions taken on
behalf of DFS and provide such other reports as DFS may reasonably require.
II. PLACE OF ENGAGEMENT
Consultant shall perform the services called for under this Agreement in
such places and at such times as DFS may reasonably require.
III. TERM OF ENGAGEMENT
The term of this Agreement shall be for a period of one year commencing on
April 1, 2005 and terminating on March 31, 2006. This Agreement may be renewed
or extended for such time as DFS and the Consultant may agree upon in writing.
IV. COMPENSATION
A. Fee.
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DFS shall pay Consultant and Consultant shall accept from DFS in full
payment for services hereunder, compensation at the rate of Two Hundred Dollars
($200.00) for each hour of service performed. Payment shall be made only upon
submittal of a proper invoice and only to the extent that Consultant
satisfactorily performs services pursuant to this Agreement and substantiates
such performance in the monthly activity report required by Attachment B. In the
event services are not required or performed in a given month, DFS shall be
under no obligation to pay any compensation for that month except as otherwise
provided herein. If Consultant fails to substantiate any invoice for services,
DFS shall have no obligation to compensate Consultant for such claimed services.
B. Expenses.
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DFS shall reimburse Consultant for all reasonable and necessary business
expenses greater than Two Hundred Fifty Dollars ($250.00) in a given month
incurred by Consultant in connection with the rendering of services hereunder
provided that all such expenses are approved in advance by ▇▇▇▇ ▇. ▇▇▇▇,
President & COO or his designee. Claims for expenses must be in accordance with
DFS's established policies and limitations pertaining to allowable expenses and
documented pursuant to the procedures applicable to DFS's employees.
C. Maximum Compensation.
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Notwithstanding any other provisions of this Agreement to the contrary, DFS
shall not be obligated to request or to pay Consultant for any minimum amount of
services, and in no event shall DFS be obligated during the term of this
Agreement for consulting fees and expenses of more than Fifty-Nine Thousand Nine
Hundred Dollars ($59,900.00).
D. Full Extent Of Compensation.
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Unless otherwise specifically stated in writing, this Section IV describes
the full extent of compensation Consultant shall receive under this Agreement
and Consultant shall not be entitled by virtue of this Agreement to be paid a
commission or to participate in any insurance, saving, retirement or other
benefit programs, including, without limitation, stock ownership plans offered
by DFS to its employees, nor shall this Agreement in any way modify any other
Agreement that Consultant may have with DFS.
E. Warranty.
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Consultant certifies and warrants that in the course of performing services
under this Agreement, no payments will be made to government officials or
customer representatives, that no government official or customer representative
has any direct or indirect investment interest or interest in the revenues or
profits of Consultant, and that no expenditure for other than lawful purposes
will be made.
F. Exclusion Of Lobbying Costs From Overhead Rates.
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DFS is prohibited from charging directly or indirectly, costs associated
with lobbying activities to its contracts with the United States Government.
Unallowable costs associated with lobbying activities are defined at Federal
Acquisition Regulations (FAR)31.205-22, effective as of the date of this
Agreement. Consultant agrees that in the event that consultant performs lobbying
activities under this Agreement, Consultant shall provide DFS with a detailed
accounting of time expended, individual agency/congressional employees
contacted, and DFS programs discussed in the required activity report.
V. TRADE SECRETS AND PROPRIETARY INFORMATION
A. Disclosure To Third Parties Prohibited.
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Consultant shall not divulge, disclose or communicate any information
concerning any matters affecting or relating to the business of DFS without the
express written consent of DFS. The terms of this section shall remain in full
force and effect after the termination or expiration of this Agreement.
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B. Ideas, Improvements and Inventions.
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Any and all ideas, improvements and inventions conceived of, developed, or
first reduced to practice in the performance of work hereunder for DFS shall
become the exclusive property of DFS and ideas and developments accruing there
from shall all be fully disclosed to DFS and shall be the exclusive property of
DFS and may be treated and dealt with by DFS as such without payment of further
consideration than is hereinabove specified. Consultant shall preserve such
ideas, improvements and inventions as confidential during the term of the
contract and thereafter and will execute all papers and documents necessary to
vest title to such ideas, developments, information, data, improvements and
inventions in DFS and to enable DFS to apply for and obtain letters patent on
such ideas, developments, information, data, improvements, and inventions in any
and all countries and to assign to DFS the entire right, title and interest
thereto.
C. Notes, Memoranda, Reports and Data.
-----------------------------------
Consultant agrees that the original and all copies of notes, memoranda,
reports, findings, or other data prepared by Consultant in connection with the
services performed hereunder shall become the sole and exclusive property of
DFS.
D. Disclosure of Confidential or Proprietary Information of Third Parties
Prohibited.
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Consultant will not disclose to DFS or induce DFS to use any secret
process, trade secret, or other confidential or proprietary knowledge or
information belonging to others, including but not limited to the United States.
Such information includes but is not limited to information relating to bids,
offers, technical proposals, responses to requests for procurement, rankings of
competitors and other similar procurement sensitive information.
VI. COOPERATION WITH DFS
During and after the expiration of this Agreement, Consultant shall
cooperate with DFS in regard to any matter, dispute or controversy in which DFS
is involved, or may become involved and of which Consultant may have knowledge.
Such cooperation shall be subject to further agreement providing for legally
appropriate compensation.
VII. INDEMNIFICATION
Consultant shall indemnify, defend and hold DFS harmless from any and all
claims of third parties for loss or damage arising out of or relating to
Consultant's activities or operations or omissions, including those of the
Consultant's employees, pursuant to this Agreement. Such indemnification shall
survive the expiration or termination of this Agreement.
VIII. INDEPENDENT CONTRACTOR
Consultant shall render all services hereunder as an independent contractor
and shall not hold out himself or herself as an agent of DFS. Nothing herein
shall be construed to create or confer upon Consultant the right to make
contracts or commitments for or on behalf of DFS.
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IX.TAXES
Consultant shall pay all taxes due with respect to the compensation paid
hereunder.
X. OBSERVANCE OF APPLICABLE LAWS AND REGULATIONS
A. United States Laws.
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Consultant shall comply with and do all things necessary for DFS to comply
with United States laws and regulations and express policies of the United
States Government, including but not limited to the requirements of the Foreign
Corrupt Practices Act, 15 U.S.C. Section 78 dd-1 et seq., the Federal
Acquisition Regulations, 48 CFR section 1.101 et seq.,("FAR"), the International
Traffic in Arms Regulations, 22 CFR Parts 120 through130 and applicable
regulations; the ▇▇▇▇ Amendment (31 U.S.C. Section 1352) and applicable
regulations; the Office of Federal Procurement Policy Act (41 U.S.C. Section
423) and applicable regulations; and the DoD Joint Ethics Regulation (DoD
5500.7-R). No part of any compensation or fee paid by DFS will be used directly
or indirectly to make any kick backs to any person or entity, or to make
payments, gratuities, emoluments or to confer any other benefit to an official
of any government or any political party. Consultant shall not seek, nor relay
to DFS, any classified, proprietary or source selection information not
generally available to the public. Consultant shall also comply with and do all
things necessary for DFS to comply with provisions of contracts between agencies
of the United States Government or their contractors and DFS that relate either
to patent rights or the safe guarding of information pertaining to the security
of the United States. This entire Agreement and/or the contents thereof may be
disclosed to the United States Government.
B. No Selling Agency Employed.
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Consultant further represents and warrants that no person or selling agency
has been or will be employed or retained to solicit or secure any contract,
including but not limited to a United States Government contract, upon an
agreement or understanding for a commission, percentage, brokerage, or
contingent fee, excepting bona fide employees or bonafide established commercial
or selling agencies maintained by the Consultant for the purpose of receiving
business. In the event of a breach or violation of this warranty, DFS shall have
the right to annul this Agreement without liability or in its discretion to
deduct from the fee or consideration, or otherwise recover, the full amount of
such commission, percentage, brokerage or contingent fee.
C. State Law And Regulations.
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Consultant shall comply with and do all things necessary for Consultant and
DFS each to comply with all laws and regulations of the State of Alabama and any
other state, including but not limited to the District of Columbia, in which
services hereunder are or may be rendered.
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D. Maintenance Of Time And Expense Records.
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Consultant shall maintain appropriate time and expense records pertaining
to the services performed under this Agreement. Said records shall be subject to
examination and audit by DFS and the United States Government until notified by
DFS in writing, that the records no longer need to be maintained.
E. Certification.
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This Agreement is made in material reliance upon the representations and
warranties made by Consultant. The effectiveness of this Agreement is contingent
upon and will not commence until receipt by DFS of the certifications set forth
in Attachment C hereto. In the event that DFS has reason to believe that these
certifications are incorrect, DFS may treat this Agreement as being null and
void or may terminate this Agreement pursuant to Section XVI.
XI. ASSIGNMENT OF RIGHTS
This Agreement and the rights, benefits, duties and obligations contained
herein may not be assigned or otherwise transferred in any manner to third
parties without the express written approval of DFS. Any such assignment or
transfer without prior approval of DFS will be null, void and without effect.
XII. MODIFICATION
No waiver or modification of this Agreement or of any covenant, condition,
or limitation herein shall be valid and enforceable unless such waiver or
modification is in writing.
XIII. USE OR EMPLOYMENT OF THIRD PARTIES
Consultant shall not utilize or employ any third party, individual or
entity, in connection with Consultant's performance of services under this
Agreement without the express written approval of DFS.
XIV. CONFLICTS OF INTEREST
No business or legal conflicts of interest shall exist between services
performed or to be performed by Consultant on behalf of DFS and by Consultant on
behalf of any other client. The identity of Consultant's directorships, other
employment and clients shall be fully disclosed in the Certification, Attachment
D.
XV. COVENANT NOT TO COMPETE
Consultant shall not directly or indirectly engage in any activities
designed to deprive or which may have the effect of depriving DFS of the
goodwill of customers or potential customers of its products and services.
Further, Consultant shall not, during the term of this Agreement, and for a
period of twelve (12) months after expiration or termination of this Agreement,
represent, act as representative for, or market or sell, directly or indirectly,
products competing with DFS products and services.
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XVI. TERMINATION
A. Thirty Days Notice.
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Either party may terminate this Agreement upon thirty days written notice
to the other. Except as otherwise provided herein, in the event of termination,
Consultant shall be entitled to compensation until the expiration of the stated
notice period.
B. Violation Of Term Or Condition.
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Notwithstanding the foregoing, in the event of a violation by Consultant of
any term or condition, express or implied, of this Agreement or of any federal
or state law or regulation pertaining to or arising from Consultant's
performance of services under this Agreement, DFS may, in its discretion,
terminate this Agreement immediately, without notice and in such event,
Consultant shall only be entitled to compensation up to the time of such
violation.
C. Bankruptcy.
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Notwithstanding the foregoing, in the event that Consultant is adjudicated
a bankrupt or petitions for relief under bankruptcy, reorganization,
receivership, liquidation, compromise or other arrangement or attempts to make
an assignment for the benefit of creditors, this Agreement shall be deemed
terminated automatically, without requirement of notice, without further
liability or obligation to DFS.
XVII. SEVERABILITY OF PROVISIONS
All provisions contained herein are severable and in the event any of them
are held to be invalid by any competent court, this Agreement shall be
interpreted as if such invalid provision was not contained herein.
XVIII. AVAILABILITY OF EQUITABLE REMEDIES
Consultant understands and agrees that any breach or evasion of any of the
terms of this Agreement will result in immediate and irreparable injury to DFS
and will entitle DFS to all legal and equitable remedies including, without
limitation, injunction, or specific performance.
XIX. GOVERNING LAW
This Agreement and the performance hereunder shall be governed by and
construed in accordance with the laws of the State of Alabama (excluding any
conflicts of laws provisions) which shall be the exclusive applicable law.
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XX. SETTLEMENT OF DISPUTES
A. DFS and Consultant hereby consent to the resolution by arbitration of
all disputes, issues, claims or controversies arising out of or in connection
with this Agreement, that DFS may have against Consultant, or that Consultant
may have against DFS, or against its officers, directors, employees or agents
acting in their capacity as such. Each party's promise to resolve all such
claims, issues, or disputes by arbitration in accordance with this Agreement
rather than through the courts is consideration for the other party's like
promise. It is further agreed that the decision of an arbitrator on any issue,
dispute, claim or controversy submitted for arbitration, shall be final and
binding upon the DFS and Consultant and that judgment may be entered on the
award of the arbitrator in any court having proper jurisdiction.
B. Except as otherwise provided herein or by mutual agreement of the
parties, any arbitration shall be administered in accordance with the
then-current Model Arbitration Procedures of the American Arbitration
Association (AAA) before an arbitrator who is licensed to practice law in the
state in which the arbitration is convened. The arbitration shall be held in
Huntsville, Alabama or at any other location mutually agreed upon by the
parties.
C. The parties shall attempt to agree upon the arbitrator. If the parties
cannot agree on the arbitrator, the AAA shall then provide the names of nine (9)
arbitrators experienced in business employment matters along with their resumes
and fee schedules. Each party may strike all names on the list it deems
unacceptable. If more than one common name remains on the list of all parties,
the parties shall strike names alternately until only one remains. The party who
did not initiate the claim shall strike first. If no common name remains on the
lists of the parties, the AAA shall furnish an additional list until an
arbitrator is selected.
D. The arbitrator shall interpret this Agreement, and any applicable DFS
policy or rules and regulations, any applicable substantive law (and the law of
remedies, if applicable) of the state of Alabama, or applicable federal law. In
reaching his or her decision, the arbitrator shall have no authority to change
or modify any lawful DFS policy, rule or regulation, or this Agreement. The
arbitrator, and not any federal, state or local court or agency, shall have
exclusive and broad authority to resolve any dispute relating to the
interpretation, applicability, enforceability or formation of this Agreement,
including, but not limited to, any claim that all or any part of this Agreement
is voidable.
XXI. NOTICE
Any notice to be given hereunder shall be in writing, mailed by certified
or registered mail with return receipt requested addressed to DFS:
Digital Fusion Solutions, Inc.
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇, III, CEO
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or to Consultant:
The Rhino Group
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
or to such other address as may have been furnished at the date of mailing
either by DFS or Consultant in writing.
XXII. COMPLETE AGREEMENT
This Agreement constitutes the entire agreement of the parties with respect
to the engagement of Consultant by DFS and supersedes any and all other
agreements between the parties. The parties stipulate and agree that neither of
them has made any representation with respect to this Agreement except that such
representations are specifically set forth herein. The parties acknowledge that
any other payments or representations that may have been made are of no effect
and that neither party has relied on such payments or representations in
connection with this Agreement or the performance of services contemplated
herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
entered into and executed as set forth below.
DIGITIAL FUSION SOLUTIONS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇, III
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Its: Chief Executive Officer
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Date: March 30, 2005
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THE RHINO GROUP
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: President, Rhino Group
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TIN:
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Date: 16 April 2005
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ATTACHMENT A
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STATEMENT OF WORK
▇▇▇▇▇ ▇▇▇▇▇▇▇
When requested, Consultant shall advise DFS on issues relating to business
development, new business proposals and business opportunity evaluations. Other
areas of support may, when requested in writing, include:
1.
2.
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ATTACHMENT B
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MONTHLY ACTIVITY REPORT FORMAT
▇▇▇▇▇ ▇▇▇▇▇▇▇
As a Consultant, you are required to submit a written activity report each
month directly to the DFS employee identified in Article I of the Agreement.
Each activity report must include the following information:
1. A detailed accounting of the amount of time spent by you on behalf of
DFS since your last Activity Report, itemized each hour or by fraction
of an hour worked, reflecting the work performed during each periodic
segment and the individual who performed it.
2. The identity of all persons with whom you met or discussed business on
behalf of DFS, including a description of the business or government
affiliation of the individual, as well as the specific position or
rank of each person.
3. A statement of the subject matter of all meetings and discussions in
which you participated on behalf of DFS, including all DFS programs
discussed in connection with any activities performed.
4. An invoice, on a separate page, clearly identifying the Agreement,
specifying the time period covered, summarizing the fees and expenses
claimed for that time period, and enclosing the original receipts for
all claimed expenses. Consultant must certify on each invoice that the
charges for the period covered by it do not include any charges for
assignments not authorized by the Agreement. A suggested certification
is as follows:
"The undersigned certifies that the payment requested
herein is correct and just, and that payment has not been
received. The undersigned certifies that this invoice does not
include any charges for services not authorized by the Agreement
and, specifically, that no services have been performed involving
the influence or attempt to influence any Federal agency office or
employee, any Member of Congress, officer or employee of Congress,
or employee of a Member of Congress, in connection with any
Federal action as defined in the ▇▇▇▇ Amendment (including the
awarding, extension, continuation, renewal, amendment, or
modification of any Federal contract); and that no services have
been performed regarding advice, information, direction or
assistance to DFS for a Federal contract."
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Unless your services are fully described and accurately recorded in this
fashion, your fees will not be paid by DFS. You are not authorized to engage in
any activity covered by the ▇▇▇▇ Amendment (31 U.S.C. Section 1352), but if you
do so you must clearly identify it as such in your activity report, and the
activity you describe shall be treated as a material representation of fact upon
which DFS shall rely in preparing any certifications and/or disclosures required
by the ▇▇▇▇ Amendment, 31 USC Section 1352. Any and all liability arising from
an erroneous representation shall be borne solely by you.
Acknowledged and Understood:
By:
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Name:
------------------------
Date:
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ATTACHMENT C
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CERTIFICATION
▇▇▇▇▇ ▇▇▇▇▇▇▇
The undersigned, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ("Consultant"), hereby certifies,
represents and warrants the following:
1. In past dealings with DFS or other clients, Consultant has complied
with all applicable laws, rules, regulations, and express policies of
the United States and the State or territory in which services were
performed.
2. In performing the services under this Agreement, Consultant will
comply with all applicable laws, rules, regulations and express
policies of the United States and the State or territory in which
services will be performed.
3. There have been no kick-backs or other payments made, either directly
or indirectly, to any DFS director, employee or consultant or to the
family of any DFS director, employee or consultant.
4. No kick-backs or other payments will be made, either directly or
indirectly, to any DFS director, employee or consultant or to the
family of any DFS director, employee or consultant.
5. Consultant has not used and will not use any part of the compensation
paid by DFS to make payments, gratuities, emoluments or to confer any
other benefit to an official of any government, or any political
party, or official of any political party.
6. No person or selling agency has been or will be employed or retained
to solicit or secure any contract, including but not limited to a
United States government contract, upon an agreement or understanding
for a commission, percentage, brokerage, or contingent fee, excepting
bona fide employees or bonafide established commercial selling
agencies maintained by the Consultant for the purpose of receiving
business.
7. No classified, proprietary, source selection or procurement sensitive
information has been or will be solicited on behalf of or conveyed to
DFS.
8. Consultant has not influenced or attempted to influence and will not
influence or attempt to influence any United States government
official or employee in connection with the award, extension,
continuation, renewal, amendment or modification of a federal contract
or otherwise engage in "non-exempt services" within the meaning of the
▇▇▇▇ Amendment, 31 U.S.C. Section 1352.
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9. Consultant has not utilized or employed and will not utilize or employ
any third party, individual or entity, in connection with the
performance of services on behalf of DFS, except as follows: (if none,
state "None").
10. No business or legal conflicts of interest exist between services
performed or to be performed by Consultant on behalf of DFS and by
Consultant on behalf of any other client, the identities of which
Consultant has fully disclosed to DFS.
The person whose signature appears below is authorized by Consultant to
certify that the foregoing is true and correct.
I declare under penalty of perjury that the foregoing certificate is true
and correct.
By:
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Name:
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Date:
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ATTACHMENT D
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CERTIFICATION OF DIRECTORSHIPS, EMPLOYMENT AND CLIENTS
▇▇▇▇▇ ▇▇▇▇▇▇▇
The following is a complete list of Consultant's directorships, employment
and consulting clients (if none, state "None"):
I. DIRECTORSHIPS AND EMPLOYMENT
Name of Company Responsibilities/Duties
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II. CLIENTS
Name of Company Responsibilities/Duties
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By:
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Name:
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Date:
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