Exhibit 10.4





Exhibit 10.4




General Form




BRANDYWINE REALTY TRUST

NON-QUALIFIED OPTION




This is a Non-Qualified Stock Option Award (the “Award”) from Brandywine Realty Trust,
a Maryland real estate investment trust (the “Company”), to                     
(“Optionee”) and is dated March 4, 2010 (the “Date of Grant”). Terms used herein
as defined terms and not defined herein have the meanings assigned to them in the Brandywine Realty
Trust Amended and Restated 1997 Long-Term Incentive Plan, as amended from time to time (the
“Plan”).




1. Definitions. As used herein:



(a) “Board” means the Board of Trustees of the Company, as constituted from time to
time.




(b) “Cause” means “Cause” as defined in the Plan.



(c) “Change of Control” means a “Change of Control” as defined in the Plan; provided
that if the Change in Control arises from a transaction described in clause (ii)(A) of the
definition of “Change in Control” in the Plan, then a Change of Control shall occur hereunder on
the date of the closing or effectiveness of such transaction.



(d) “Closing” means the closing of the acquisition and sale of the Shares as described
in, and subject to the provisions of, Paragraph 8 hereof.




(e) “Closing Date” means the date of the Closing.



(f) “Code” means the Internal Revenue Code of 1986, as amended from time to time, and
any successor thereto.



(g) “Common Share” means a common share of beneficial interest, $.01 par value per
share, of the Company.



(h) “Committee” means the Committee appointed by the Board in accordance with Section
2 of the Plan, if one is appointed and in existence at the time of reference. If no committee has
been appointed pursuant to Section 2, or if such a committee is not in existence at the time of
reference, “Committee” means the Board.



(i) “Date of Exercise” means the date on which the notice required by Paragraph 5
hereof is given.




(j) “Date of Grant” has the meaning shown above.



(k) “Disability” means “Disability” as defined in the Plan.


 


 









 






(l) “Expiration Date” means the earliest of the following:




	 	(i)	 	If the Optionee terminates
employment with the Company for any reason other than death,
Disability or for Cause, 5:00 p.m. on the date 90 days following
such termination of employment;
	 
	 	(ii)	 	If the Optionee terminates
employment with the Company because of death or Disability, 5:00
p.m. on the first anniversary of the date the Optionee
terminates employment because of death or Disability;
	 
	 	(iii)	 	If the Optionee terminates
employment with the Company for Cause, 5:00 p.m. on the date of
such termination of employment;
	 
	 	(iv)	 	The close of business on the date
of a Change of Control;
	 
	 	(v)	 	5:00 p.m. on the day before the
tenth anniversary of the Date of Grant.





For clarity, the phrase “If the Optionee terminates employment with the Company”, as used herein,
means a termination of the Optionee’s employment with the Company whether on account of (x) the
Company terminating Optionee’s employment or (y) the Optionee’s resignation of employment.



(m) “Fair Market Value” means the Fair Market Value of a Share, as determined pursuant
to the Plan.




(n) “Option” means the option to purchase Shares hereby granted.



(o) “Option Price” means $11.31 per Share. In the event of any recapitalization,
Share distribution or dividend, Share split or combination, the Option Price shall be equitably and
proportionally adjusted. The Option Price shall also be subject to adjustment pursuant to Section
3(c) of the Plan if, as and to the extent determined by the Committee in its sole discretion.



(p) “Shares” means the
 _____ 

Common Shares which are the subject of the Option
hereby granted. In the event of any recapitalization, Share distribution or dividend, Share split
or combination, the number of Shares that remain subject to the Option shall be equitably and
proportionally adjusted if, as and to the extent determined by the Committee in its sole
discretion. The number of Shares that remain subject to the Option shall also be subject to
adjustment pursuant to Section 3(c) of the Plan if, as and to the extent determined by the
Committee in its sole discretion.


 


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(q) “Subsidiary” means, with respect to the Company, a subsidiary company, whether now
or hereafter existing, as defined in section 424(f) of the Code, and any
other entity 50% or more of the economic interests in which are owned, directly or indirectly,
by the Company.



2. Grant of Option. Subject to the terms and conditions set forth herein and in the
Plan, the Company hereby grants to the Optionee the Option to purchase any or all of the Shares.




3. Time of Exercise of Options.



(a) Subject to Paragraph 3(b), the Option may be exercised after such time or times as set
forth below, and shall remain exercisable until the Expiration Date, when the right to exercise
shall terminate absolutely:




	 	(i)	 	The Option may be exercised for [            ]
of the Shares subject to the Option on or after the
first anniversary of the Date of Grant.
	 
	 	(ii)	 	The Option may be exercised for
an additional [            ] of the Shares subject to the Option
on or after the second anniversary of the Date of Grant.
	 
	 	(iii)	 	The Option may be exercised for
an additional [            ] of the Shares subject to the Option on
or after the third anniversary of the Date of Grant.





Notwithstanding the foregoing, subject to Section 3(b), no Shares subject to the Option shall first
become exercisable following the termination of the Optionee’s employment with the Company whether
on account of (x) the Company terminating Optionee’s employment or (y) the Optionee’s resignation
of employment. The number of Shares available for exercise as determined under this Paragraph 3
shall be rounded down to the nearest whole Share.



(b) Notwithstanding Paragraph 3(a), the Option shall become fully exercisable upon the
earliest of (i) the occurrence of a Change of Control, (ii) the death of the Optionee or (iii) the
Disability of the Optionee. In addition, notwithstanding anything to the contrary set forth in the
Plan, upon or in anticipation of any Change in Control, the Committee may, in its sole and absolute
discretion and without the need for the consent of the Optionee, take one or more of the following
actions contingent upon the occurrence of that Change in Control: (i) cause the Option to become
fully vested and immediately exercisable for a reasonable period in advance of the Change in
Control and, to the extent not exercised prior to that Change in Control, cancel the Option upon
closing of the Change in Control; (ii) cancel the Option, in whole or in part, in exchange for a
substitute option in a manner consistent with the requirements of Treas. Reg. §1.424-1(a) or any
successor rule or regulation (notwithstanding the fact that the original Option was not intended to
satisfy the requirements for treatment as an Incentive Stock Option); or (iii) cancel the Option,
in whole or in part, in exchange for cash and/or other substitute consideration with a value equal
to (A) the number of Shares subject to the Option, multiplied by (B) the difference, if any,
between the Fair Market Value per Share on the date of the Change in Control and the Option Price;
provided, that if the Fair Market Value per Share on the date of the Change in Control does not
exceed the Option Price of the Option, the Committee



 


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may cancel the Option without any payment of consideration therefor. In the discretion of the
Committee, any cash or substitute consideration payable upon cancellation of the Option may be
subjected to earn-out, escrow, holdback or similar arrangements, to the extent such arrangements
are applicable to any consideration paid to shareholders in connection with the Change in Control.



4. Payment for Shares. Full payment for Shares purchased upon the exercise of an
Option may be made in cash. In addition, this Option may be exercised through means of a “net
settlement,” whereby the Option Price will be satisfied by cancellation of the Company’s obligation
to issue a number of Common Shares otherwise issuable upon such exercise, which number of Common
Shares will be equal to: (A) the total Option Price payable to acquire the number of Shares as to
which the Option is then being exercised divided by (B) the then current Fair Market Value per
Common Share. The number of Shares actually issuable upon such exercise will then be equal to the
difference between the number of Shares as to which the Option is then being exercised and the
number of Shares described in the preceding sentence. Without limiting the foregoing, payment for
Shares purchased upon the exercise of an Option may, at the election of the Optionee and as the
Committee may, in its discretion, approve, by surrendering Common Shares with an aggregate Fair
Market Value equal to the aggregate Option Price.



5. Manner of Exercise. The Option shall be exercised by giving written notice of
exercise to:


Brandywine Realty Trust

555 East Lancaster Avenue

Suite 100

Radnor, PA 19087

Attention: General Counsel




All notices under this agreement shall be deemed to have been given when hand-delivered, telecopied
or transmitted electronically and shall be irrevocable once given.



6. Nontransferability of Option. The Option may not be transferred or assigned by the
Optionee otherwise than as and to the extent permitted by Section 5(e) of the Plan; and any attempt
at assignment or transfer contrary to the provisions of the Plan or the levy of any execution,
attachment or similar process upon the Option shall be null and void and without effect. Any
exercise of the Option by a person other than the Optionee shall be accompanied by appropriate
proofs of the right of such person to exercise the Option.



7. Securities Laws. The Committee may from time to time impose any conditions on the
exercise of the Option as it deems necessary or appropriate to comply with the then-existing
requirements of the Securities Act of 1933, as amended, or of the Securities Exchange Act of 1934,
as amended, including Rule 16b-3 (or any similar rule) of the Securities and Exchange Commission.
If the listing, registration or qualification of Shares issuable on the exercise of the Option upon
any securities exchange or under any federal or state law, or the consent or approval of any
governmental regulatory body is necessary as a condition of or in connection with the purchase of
such Shares, the Company shall not be obligated to issue or



 


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deliver the certificates (if any) representing the Shares otherwise issuable on the exercise
of the Option unless and until such listing, registration, qualification, consent or approval shall
have been effected or obtained. If registration is considered unnecessary by the Company or its
counsel, the Company may cause a legend to be placed on such Shares calling attention to the fact
that they have been acquired for investment and have not been registered.



8. Issuance of Certificate at Closing; Payment of Cash. Subject to the provisions of
this Paragraph 8, the Closing Date shall occur as promptly as is feasible after the exercise of the
Option. Subject to the provisions of Paragraphs 7 and 9 hereof, a certificate for the Shares
issuable on the exercise of the Option shall be delivered to the Optionee or to his personal
representative, heir or legatee at the Closing, provided that no certificates for Shares
will be delivered to the Optionee or to his personal representative, heir or legatee unless the
Option Price has been paid in full and provided further that the Company may elect to
provide for the issuance and delivery of the Shares via book entry or in uncertificated form.



9. Rights Prior to Exercise. The Optionee shall not have any right as a shareholder
with respect to any Shares subject to his Options until the Option shall have been exercised in
accordance with the terms of the Plan and this Award and the Optionee shall have paid the full
purchase price for the number of Shares in respect of which the Option was exercised, provided
that in the event that the Optionee’s employment with the Company is terminated for Cause, upon
a determination by the Committee, the Optionee shall automatically forfeit all Shares otherwise
subject to delivery upon exercise of an Option but for which the Company has not yet delivered the
Share certificates or issued the Shares via book entry or in uncertificated form, upon refund by
the Company of the Option Price.



10. Status of Option; Interpretation. The Option is intended to be a non-qualified
stock option. Accordingly, it is intended that the transfer of property pursuant to the exercise
of the Option shall be subject to federal income tax in accordance with section 83 of the Code.
The Option is not intended to qualify as an incentive stock option within the meaning of section
422 of the Code. The interpretation and construction of any provision of this Option or the Plan
made by the Committee shall be final and conclusive and, insofar as possible, shall be consistent
with the intention expressed in this Paragraph 10.



11. Option Not to Affect Employment. The Option granted hereunder shall not confer
upon the Optionee any right to continue in the employment of the Company or any Subsidiary.




12. Miscellaneous.



(a) The address for the Optionee to which notice, demands and other communications to be given
or delivered under or by reason of the provisions hereof shall be the address contained in the
Company’s personnel records.



(b) This Award and all questions relating to its validity, interpretation, performance, and
enforcement shall be governed by and construed in accordance with the laws of the State of
Maryland.


 


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13. Withholding of Taxes. Whenever the Company proposes or is required to deliver or
transfer Shares in connection with the exercise of the Option, the Company shall have the right to
(a) require the Optionee to remit to the Company an amount in cash or Common Shares (valued at the
then current Fair Market Value) sufficient to satisfy any federal, state and/or local withholding
tax requirements prior to the delivery or transfer of any certificate or certificates for such
Shares or (b) take whatever action it deems necessary to protect its interests with respect to tax
liabilities.



IN WITNESS WHEREOF, the Company has granted this Award on the day and year first above
written.



	 	 	 	 	 
	 	BRANDYWINE REALTY TRUST

 	 
	 	BY:  	 	 
	 	 	TITLE: 	 	 
	 	 	 	 



 


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Form for CEO




BRANDYWINE REALTY TRUST

NON-QUALIFIED OPTION





This is a Non-Qualified Stock Option Award (the “Award”) from Brandywine Realty Trust,
a Maryland real estate investment trust (the “Company”), to Gerard H. Sweeney
(“Optionee”) and is dated March 4, 2010 (the “Date of Grant”). Terms used herein
as defined terms and not defined herein have the meanings assigned to them in the Brandywine Realty
Trust Amended and Restated 1997 Long-Term Incentive Plan, as amended from time to time (the
“Plan”).




1. Definitions. As used herein:



(a) “Board” means the Board of Trustees of the Company, as constituted from time to
time.




(b) “Cause” means “Cause” as defined in the Employment Agreement.



(c) “Change of Control” means a “Change of Control” as defined in the Plan; provided
that if the Change in Control arises from a transaction described in clause (ii)(A) of the
definition of “Change in Control” in the Plan, then a Change of Control shall occur hereunder on
the date of the closing or effectiveness of such transaction.



(d) “Closing” means the closing of the acquisition and sale of the Shares as described
in, and subject to the provisions of, Paragraph 8 hereof.




(e) “Closing Date” means the date of the Closing.



(f) “Code” means the Internal Revenue Code of 1986, as amended from time to time, and
any successor thereto.



(g) “Common Share” means a common share of beneficial interest, $.01 par value per
share, of the Company.



(h) “Committee” means the Committee appointed by the Board in accordance with Section
2 of the Plan, if one is appointed and in existence at the time of reference. If no committee has
been appointed pursuant to Section 2, or if such a committee is not in existence at the time of
reference, “Committee” means the Board.



(i) “Date of Exercise” means the date on which the notice required by Paragraph 5
hereof is given.




(j) “Date of Grant” has the meaning shown above.



(k) “Disability” means “Disability” as defined in the Plan.


 


 









 





(l) “Employment Agreement” means the Amended and Restated Employment Agreement between
Grantee and the Company, dated as of February 9, 2007, as amended from time to time, or any
subsequent employment agreement between Grantee and the Company as in effect at the time of
determination.




(m) “Expiration Date” means the earliest of the following:




	 	(i)	 	If the Optionee terminates
employment with the Company for any reason other than death,
Disability or for Cause, 5:00 p.m. on the date 90 days following
such termination of employment;
	 
	 	(ii)	 	If the Optionee terminates
employment with the Company because of death or Disability, 5:00
p.m. on the first anniversary of the date the Optionee
terminates employment because of death or Disability;
	 
	 	(iii)	 	If the Optionee terminates
employment with the Company for Cause, 5:00 p.m. on the date of
such termination of employment;
	 
	 	(iv)	 	The close of business on the date
of a Change of Control;
	 
	 	(v)	 	5:00 p.m. on the day before the
tenth anniversary of the Date of Grant.





(n) “Fair Market Value” means the Fair Market Value of a Share, as determined pursuant
to the Plan.




(o) “Option” means the option to purchase Shares hereby granted.



(p) “Option Price” means $11.31 per Share. In the event of any recapitalization,
Share distribution or dividend, Share split or combination, the Option Price shall be equitably and
proportionally adjusted. The Option Price shall also be subject to adjustment pursuant to Section
3(c) of the Plan if, as and to the extent determined by the Committee in its sole discretion.



(q) “Resignation for Good Reason” means “Resignation for Good Reason” as defined in
the Employment Agreement.



(r) “Shares” means the
 _____ 

Common Shares which are the subject of the Option
hereby granted. In the event of any recapitalization, Share distribution or dividend, Share split
or combination, the number of Shares that remain subject to the Option shall be equitably and
proportionally adjusted. The number of Shares that remain subject to the Option shall also be
subject to adjustment pursuant to Section 3(c) of the Plan.



(s) “Subsidiary” means, with respect to the Company, a subsidiary company, whether now
or hereafter existing, as defined in section 424(f) of the Code, and any
other entity 50% or more of the economic interests in which are owned, directly or indirectly,
by the Company.


 


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2. Grant of Option. Subject to the terms and conditions set forth herein and in the
Plan, the Company hereby grants to the Optionee the Option to purchase any or all of the Shares.




3. Time of Exercise of Options.



(a) Subject to Paragraph 3(b), the Option may be exercised after such time or times as set
forth below, and shall remain exercisable until the Expiration Date, when the right to exercise
shall terminate absolutely:




	 	(i)	 	The Option may be exercised for [            ]
of the Shares subject to the Option on or after the
first anniversary of the Date of Grant.
	 
	 	(ii)	 	The Option may be exercised for
an additional [            ] of the Shares subject to the Option on
or after the second anniversary of the Date of Grant.
	 
	 	(iii)	 	The Option may be exercised for
an additional [            ] of the Shares subject to the Option on
or after the third anniversary of the Date of Grant.





Notwithstanding the foregoing, the number of Shares available for exercise as determined under this
Paragraph 3 shall be rounded down to the nearest whole Share. No Shares subject to the Option
shall first become exercisable following the Optionee’s termination of employment.



(b) Notwithstanding Paragraph 3(a), the Option shall become fully exercisable upon the
earliest of (i) the occurrence of a Change of Control, (ii) the death of the Optionee, (iii) the
Disability of the Optionee or (iv) termination of the Optionee’s employment with the Company
without Cause or resignation of the Optionee employment with the Company that is a Resignation for
Good Reason. In addition, notwithstanding anything to the contrary set forth in the Plan, upon or
in anticipation of any Change in Control, the Committee may, in its sole and absolute discretion
and without the need for the consent of the Optionee, take one or more of the following actions
contingent upon the occurrence of that Change in Control: (i) cause the Option to become fully
vested and immediately exercisable for a reasonable period in advance of the Change in Control and,
to the extent not exercised prior to that Change in Control, cancel the Option upon closing of the
Change in Control; (ii) cancel the Option, in whole or in part, in exchange for a substitute option
in a manner consistent with the requirements of Treas. Reg. §1.424-1(a) or any successor rule or
regulation (notwithstanding the fact that the original Option was not intended to satisfy the
requirements for treatment as an Incentive Stock Option); or (iii) cancel the Option, in whole or
in part, in exchange for cash and/or other substitute consideration with a value equal to (A) the
number of Shares subject to the Option, multiplied by (B) the difference, if any, between the Fair
Market Value per Share on the date of the Change in Control and the Option Price; provided, that if
the Fair Market Value per Share on the date of the Change in Control does not exceed the Option
Price of the Option, the Committee



 


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may cancel the Option without any payment of consideration therefor. In the discretion of the
Committee, any cash or substitute consideration payable upon cancellation of the Option may be
subjected to earn-out, escrow, holdback or similar arrangements, to the extent such arrangements
are applicable to any consideration paid to shareholders in connection with the Change in Control.



4. Payment for Shares. Full payment for Shares purchased upon the exercise of an
Option may be made in cash. In addition, this Option may be exercised through means of a “net
settlement,” whereby the Option Price will be satisfied by cancellation of the Company’s obligation
to issue a number of Common Shares otherwise issuable upon such exercise, which number of Common
Shares will be equal to: (A) the total Option Price payable to acquire the number of Shares as to
which the Option is then being exercised divided by (B) the then current Fair Market Value per
Common Share. The number of Shares actually issuable upon such exercise will then be equal to the
difference between the number of Shares as to which the Option is then being exercised and the
number of Shares described in the preceding sentence. Without limiting the foregoing, payment for
Shares purchased upon the exercise of an Option may, at the election of the Optionee and as the
Committee may, in its discretion, approve, by surrendering Common Shares with an aggregate Fair
Market Value equal to the aggregate Option Price.



5. Manner of Exercise. The Option shall be exercised by giving written notice of
exercise to:


Brandywine Realty Trust

555 East Lancaster Avenue

Suite 100

Radnor, PA 19087

Attention: General Counsel




All notices under this agreement shall be deemed to have been given when hand-delivered, telecopied
or transmitted electronically and shall be irrevocable once given.



6. Nontransferability of Option. The Option may not be transferred or assigned by the
Optionee otherwise than as and to the extent permitted by Section 5(e) of the Plan; and any attempt
at assignment or transfer contrary to the provisions of the Plan or the levy of any execution,
attachment or similar process upon the Option shall be null and void and without effect. Any
exercise of the Option by a person other than the Optionee shall be accompanied by appropriate
proofs of the right of such person to exercise the Option.



7. Securities Laws. The Committee may from time to time impose any conditions on the
exercise of the Option as it deems necessary or appropriate to comply with the then-existing
requirements of the Securities Act of 1933, as amended, or of the Securities Exchange Act of 1934,
as amended, including Rule 16b-3 (or any similar rule) of the Securities and Exchange Commission.
If the listing, registration or qualification of Shares issuable on the exercise of the Option upon
any securities exchange or under any federal or state law, or the consent or approval of any
governmental regulatory body is necessary as a condition of or in connection with the purchase of
such Shares, the Company shall not be obligated to issue or



 


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deliver the certificates (if any) representing the Shares otherwise issuable on the exercise
of the Option unless and until such listing, registration, qualification, consent or approval shall
have been effected or obtained. If registration is considered unnecessary by the Company or its
counsel, the Company may cause a legend to be placed on such Shares calling attention to the fact
that they have been acquired for investment and have not been registered.



8. Issuance of Certificate at Closing; Payment of Cash. Subject to the provisions of
this Paragraph 8, the Closing Date shall occur as promptly as is feasible after the exercise of the
Option. Subject to the provisions of Paragraphs 7 and 9 hereof, a certificate for the Shares
issuable on the exercise of the Option shall be delivered to the Optionee or to his personal
representative, heir or legatee at the Closing, provided that no certificates for Shares
will be delivered to the Optionee or to his personal representative, heir or legatee unless the
Option Price has been paid in full and provided further that the Company may elect to
provide for the issuance and delivery of the Shares via book entry or in uncertificated form.



9. Rights Prior to Exercise. The Optionee shall not have any right as a shareholder
with respect to any Shares subject to his Options until the Option shall have been exercised in
accordance with the terms of the Plan and this Award and the Optionee shall have paid the full
purchase price for the number of Shares in respect of which the Option was exercised, provided
that in the event that the Optionee’s employment with the Company is terminated for Cause, upon
a determination by the Committee, the Optionee shall automatically forfeit all Shares otherwise
subject to delivery upon exercise of an Option but for which the Company has not yet delivered the
Share certificates or issued the Shares via book entry or in uncertificated form, upon refund by
the Company of the Option Price.



10. Status of Option; Interpretation. The Option is intended to be a non-qualified
stock option. Accordingly, it is intended that the transfer of property pursuant to the exercise
of the Option shall be subject to federal income tax in accordance with section 83 of the Code.
The Option is not intended to qualify as an incentive stock option within the meaning of section
422 of the Code. The interpretation and construction of any provision of this Option or the Plan
made by the Committee shall be final and conclusive and, insofar as possible, shall be consistent
with the intention expressed in this Paragraph 10.



11. Option Not to Affect Employment. The Option granted hereunder shall not confer
upon the Optionee any right to continue in the employment of the Company or any Subsidiary.




12. Miscellaneous.



(a) The address for the Optionee to which notice, demands and other communications to be given
or delivered under or by reason of the provisions hereof shall be the address contained in the
Company’s personnel records.



(b) This Award and all questions relating to its validity, interpretation, performance, and
enforcement shall be governed by and construed in accordance with the laws of the State of
Maryland.


 


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13. Withholding of Taxes. Whenever the Company proposes or is required to deliver or
transfer Shares in connection with the exercise of the Option, the Company shall have the right to
(a) require the Optionee to remit to the Company an amount in cash or Common Shares (valued at the
then current Fair Market Value) sufficient to satisfy any federal, state and/or local withholding
tax requirements prior to the delivery or transfer of any certificate or certificates for such
Shares or (b) take whatever action it deems necessary to protect its interests with respect to tax
liabilities.



IN WITNESS WHEREOF, the Company has granted this Award on the day and year first above
written.



	 	 	 	 	 
	 	BRANDYWINE REALTY TRUST

 	 
	 	BY:  	 	 
	 	 	TITLE: 	 	 
	 	 	 	 
	 




 


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