EXHIBIT 4.15
RESTRICTED STOCK PURCHASE AGREEMENT
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This RESTRICTED STOCK PURCHASE AGREEMENT (this "Agreement") is
dated as of December 30, 2005, by and between CSAV HOLDING CORP., a Delaware
corporation (the "Company"), and ▇▇▇▇▇ ▇▇▇▇ (the "Stockholder").
WHEREAS, the Company wishes to sell and the Stockholder wishes
to buy certain shares of the Company's Class B Common Stock (as defined in
Section 1 hereof) on the terms and subject to the restrictions contained in this
Agreement; and
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein, the Company and the Stockholder agree as follows:
1. DEFINITIONS. As used herein, the following terms shall
have the meanings specified below:
"Act" has the meaning specified in Section 5(a) hereof.
"Affiliate" has the meaning specified in the Stockholder
Agreement.
"Agreement" has the meaning specified in the introductory
paragraph hereof.
"Board" means the Board of Directors of the Company.
"Cause" means anything constituting "Cause" for termination
under the Employment Agreement.
"Class A Common Stock" means the Company's Class A Voting
Common Stock, $0.001 par value per share.
"Class B Common Stock" means the Company's Class B Non-Voting
Common Stock, $0.001 par value per share.
"Class C Common Stock" means the Company's Class C Voting
Common Stock, $0.001 par value per share.
"Common Equity Value" means, as of any date, the fair market
value (as determined by an Independent Appraiser pursuant to Section 3.3 hereof)
of the entire common stock equity of the Company (without premium for control or
discounts for minority interests, restrictions on transfer or lack of voting
rights or other premiums or discounts that would be applicable if less than all
of the common stock equity is sold in a single transaction), calculated as of
such date, plus the aggregate consideration to be paid to the Company upon the
exercise of all then outstanding and exercisable warrants, options or
convertible securities pursuant to which the Company is then obligated to issue
shares of Common Stock (excluding any options or warrants for which the exercise
price per share exceeds the Market Value Per Share of a share of Common Stock as
of such date).
"Common Stock" means the Class A Common Stock, the Class B
Common Stock and the Class C Common Stock, and any capital stock of the Company
which is (a) not preferred as to dividends or assets over any class of stock of
the Company, (b) not subject to redemption, and (c) issued to the holders of
Common Stock upon any reclassification thereof.
"Company" has the meaning specified in the introductory
paragraph hereof.
"Delayed Closing Date" has the meaning specified in Section
7.2 hereof.
"Disability" has the meaning specified in the Employment
Agreement.
"Disposition Event" means (a) (i) the sale of all or
substantially all of the assets of the Company or its Subsidiaries in a single
transaction or series of related transactions whether by liquidation,
dissolution, merger, consolidation or sale or (ii) the sale or other transfer of
at least 51% of the outstanding shares of Common Stock in a single transaction
or a series of related transactions, in either case to any Person who is not an
Affiliate of the Company, or of a stockholder thereof, immediately prior to such
transaction or transactions, or (b) the effective time of any merger, share
exchange, consolidation, or other business combination of the Company if
immediately after such transaction Persons who hold a majority of the
outstanding voting securities entitled to vote generally in the election of
directors of the surviving entity (or the entity owning 100% of such surviving
entity) are not Persons who, immediately prior to such transaction, held the
securities of the Company entitled to vote generally in the election of
directors.
"Disposition Proceeds" means (i) in the case of a merger or
any other stock transaction, (A) the average price per share received by the
holders of Common Stock or by the Company or its Subsidiaries in connection with
such transaction, multiplied by (B) the sum of (x) the total number of shares of
Common Stock then outstanding, plus (y) the total number of shares of Common
Stock issuable upon exercise or conversion of any then outstanding and
exercisable warrants, options or convertible securities pursuant to which the
Company is then obligated to issue shares of Common Stock, or (ii) in the case
of any liquidation or sale of assets (including, without limitation, the sale by
the Company of the capital stock of its Subsidiaries), the Net Worth of the
Common Stock of the Company immediately prior to such liquidation or immediately
after such sale.
"Employment Agreement" means the Amended and Restated
Employment and Non-Competition Agreement, dated as of June 3, 2005, between
CSAV, Inc. (f/k/a Chief Manufacturing, Inc.), a Massachusetts corporation, and
the Stockholder, as amended, restated, supplemented or otherwise modified and in
effect from time to time.
"Good Reason" has the meaning specified in the Employment
Agreement.
"Independent Appraiser" means an independent investment
banking firm, accounting firm or appraiser of nationally recognized standing.
"Market Value Per Share" means, with respect to any date, for
any share of Common Stock, (i) the Common Equity Value as of such date, divided
by (ii) the sum of (x) the
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total number of shares of Common Stock then outstanding, plus (y) the total
number of shares of Common Stock issuable upon exercise or conversion of any
outstanding and exercisable warrants, options or convertible securities pursuant
to which the Company is then obligated to issue shares of Common Stock
(excluding any options or warrants for which the exercise price per share
exceeds the Market Value Per Share of a share of Common Stock as of such date).
"Net Worth" means, in connection with any liquidation or sale
of assets by the Company, the consolidated net worth of the Common Stock of the
Company and its Subsidiaries, determined in accordance with generally accepted
accounting principles, taking into account (i) the total consideration received
by the Company for such transaction, (ii) the transaction costs incurred in
connection with such transaction and (iii) any liabilities of the Company and
its Subsidiaries whether or not to be discharged in connection with such
transaction (including, without limitation, payment of the liquidation value and
accrued dividends on any Preferred Stock of the Company).
"Original Price Per Share" means $800.00 per Share for each of
the Purchased Shares.
"Person" an individual, partnership, limited liability
company, corporation, association, trust, joint venture, unincorporated
organization, or any government, governmental department or agency or political
subdivision thereof.
"Plan" means the Company's 2003 Equity Incentive Plan attached
hereto as Exhibit A.
"Preferred Stock" means any capital stock of the Company which
is (a) preferred as to dividends or assets over any other class of stock of the
Company, (b) subject to redemption or (c) issued to the holders of shares of
Preferred Stock upon any reclassification thereof.
"Public Sale" means the Company's initial public offering of
Common Stock.
"Purchase Price" has the meaning specified in Section 2(a)
hereof.
"Purchased Shares" has the meaning specified in Section 2(a)
hereof.
"Repurchase Notice" has the meaning specified in Section 3.2
hereof.
"Shares" means (a) the Purchased Shares purchased by the
Stockholder pursuant to Section 2(a) of this Agreement and (b) all shares of the
Company's capital stock issued with respect to the Purchased Shares by way of
dividend or stock split or in connection with any merger, consolidation,
recapitalization or reorganization affecting the Company's capital stock.
"Stockholder" has the meaning specified in the introductory
paragraph hereof.
"Stockholder Agreement" means the Stockholder Agreement, dated
as of August 29, 2003, among the Company and its stockholders, as amended and in
effect from time to time.
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"Stockholder Appraiser Notice" has the meaning specified in
Section 3.3 hereof.
"Subsidiary" means, with respect to the Company, any
corporation, a majority (by number of votes) of the outstanding shares of any
class or classes of which shall at the time be owned by the Company or by a
Subsidiary of the Company, if the holders of the shares of such class or classes
(a) are ordinarily, in the absence of contingencies, entitled to vote for the
election of a majority of the directors (or persons performing similar
functions) of the issuer thereof, even though the right so to vote has been
suspended by the happening of such a contingency, or (b) are at the time
entitled, as such holders, to vote for the election of a majority of the
directors (or persons performing similar functions) of the issuer thereof,
whether or not the right so to vote exists by reason of the happening of a
contingency.
"Target Amount" means $110,000,000; provided, that if the
Company enters into any extraordinary transaction, such as a business
acquisition or disposition, the Board in the exercise of its business judgment
may adjust upward or downward the Target Amount to take into account such
extraordinary transaction.
"Target Disposition Event" means a Disposition Event in which
the Disposition Proceeds equal or exceed the Target Amount.
"Termination of Employment" means the termination of the
Stockholder's employment with the Company or any of its Subsidiaries for any
reason, including, without limitation, for resignation, death or Disability of
the Stockholder, and whether or not for Cause.
"Transfer" has the meaning specified in Section 4 hereof.
2. PURCHASE AND SALE OF SHARES. (a) Subject to (i) the terms
and conditions hereinafter set forth and in reliance on the representations and
warranties contained herein, and (ii) the Company's receipt of any and all
necessary consents, authorizations and approvals of the transactions
contemplated by this Agreement, the Company hereby agrees to issue and sell to
the Stockholder and the Stockholder hereby agrees to purchase from the Company,
on the date hereof 62.5 shares of Class B Common Stock (the "Purchased Shares").
The aggregate purchase price paid by the Stockholder for the Shares will be
$50,000 (the "Purchase Price"). On the date hereof (A) the Purchase Price will
be paid to the Company by wire transfer of immediately available funds and (B)
the Company shall deliver to the Stockholder the certificate representing the
Purchased Shares (such certificate to bear the legends set forth in Section 6
hereof).
(b) The Company represents and warrants that, after giving
effect to the purchase and sale effected hereby and all other agreements to
purchase capital stock of the Company on the date hereof, (i) the authorized
capital of the Company consists of (A) 300,000 shares of Class A Common Stock,
no shares of which are issued and outstanding on the date hereof, (B) 250,000
shares of Class B Common Stock, 143,491.86 shares of which are issued and
outstanding on the date hereof, and (C) 100,000 shares of Class C Common Stock,
52,996.01 shares of which are issued and outstanding on the date hereof, (ii)
all such outstanding capital stock (other than the Shares) is owned as set forth
on Schedule 1 hereto and is validly issued and outstanding, fully paid and
non-assessable and
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(iii) there are no commitments for the purchase or sale of, and no options,
warrants or other rights to subscribe for or purchase, any securities of the
Company other than as set forth on Schedule 1 hereto.
3. REPURCHASE OF SHARES.
3.1. REPURCHASE RIGHTS OF THE COMPANY. Upon the Termination of
Employment at any time on or after the date hereof and for any reason, the
Company shall have the right to repurchase from the Stockholder, and the
Stockholder will at the request of the Company sell to the Company all (but not
less than all) of the Shares at a purchase price per Share equal to the Market
Value Per Share.
3.2. REPURCHASE CLOSING. The Company's repurchase rights under
Section 3.1 shall be exercisable at any time within ninety (90) days following
the Termination of Employment by notice to the Stockholder (the "Repurchase
Notice"). The closing of the repurchase of such Shares shall be held not earlier
than five (5) days nor later than thirty (30) days after determination of the
Common Equity Value. The Company's repurchase rights under Section 3.1 shall
lapse if not exercised within the time periods (if any) specified above in
accordance with the provisions hereof, except as otherwise provided in Section 7
hereof. Upon delivery by the Company of the repurchase price for the Shares
being repurchased hereunder in accordance with Section 8 hereof, all of the
Shares being repurchased shall no longer be deemed to be outstanding, all of the
Stockholder's rights with respect to such Shares shall terminate with the
exception of the right of the Stockholder to receive the repurchase price in
exchange therefor pursuant to this Section 3.2, and the Stockholder hereby
appoints the Company as his attorney-in-fact to take all actions necessary and
sign all documents required to cancel such Shares on its books and records.
3.3. APPRAISAL. Within fifteen (15) days following his receipt
of a Repurchase Notice from the Company in respect of a repurchase of the Shares
pursuant to Section 3.1(a) hereof, the Stockholder shall select three (3)
Independent Appraisers that the Stockholder proposes to determine the Common
Equity Value for purposes of this Agreement and shall notify the Company in
writing of such selection (the "Stockholder Appraiser Notice"). The Company
shall select one (1) of the Independent Appraisers listed in the Stockholder
Appraiser Notice and use reasonable commercial efforts to promptly engage, at
the cost and expense of the Company, such Independent Appraiser to determine the
Common Equity Value for purposes of this Agreement. The terms of such engagement
shall provide that the Independent Appraiser shall complete its determination of
the Common Equity Value within 45 days of engagement by the Company. The Company
shall not be required to select any Independent Appraiser from a Stockholder
Appraiser Notice unless the Stockholder Appraiser Notice includes three (3)
Independent Appraisers. If the Stockholder has not provided a Stockholder
Appraiser Notice which complies with the requirements of this Section 3.3 within
thirty (30) days following the Stockholder's receipt of the Repurchase Notice,
the Board shall in good faith select an Independent Appraiser to determine the
Common Equity Value. Any determination of the Common Equity Value by an
Independent Appraiser pursuant to this Section 3.3 shall be final, conclusive
and binding upon the parties.
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4. RESTRICTIONS ON TRANSFER. Except as otherwise expressly
provided in the Stockholder Agreement, the Stockholder may not sell, assign,
transfer, pledge or otherwise dispose of ("Transfer") any of the Shares, either
voluntarily or involuntarily or by operation of law, except to the Company or
any of its Subsidiaries. On and after the time the Company completes a Public
Sale, all of the restrictions on Transfer and the repurchase rights of the
Company contained herein (including, without limitation, the repurchase rights
of the Company pursuant to Section 3 hereof), shall cease to apply to any
Shares. On and after the completion of a Target Disposition Event, all of the
repurchase rights of the Company contained herein (including, without
limitation, the repurchase rights of the Company pursuant to Section 3 hereof),
shall cease to apply to any Shares. Upon any permitted Transfer of the Shares,
the transferee of the Shares shall execute and deliver to the Company an
agreement containing repurchase provisions substantially the same as those
contained herein.
5. INVESTMENT REPRESENTATIONS. (a) The Stockholder represents
that the Shares are being acquired by him for his own account for investment and
not with a view to the distribution thereof. The Stockholder understands that
the Shares have not been registered under the Securities Act of 1933, as amended
(the "Act"), on the grounds that the offer and sale of the Shares to him are
exempt from the registration requirements of the Act under Section 4(2) thereof
as a transaction not involving any public offering of the Shares. The
Stockholder understands that the Company's reliance on such exemption is
predicated in part on the representations of the Stockholder which are contained
herein.
(b) The Stockholder understands that he must bear the economic
risk of his investment in the Shares for an indefinite period of time because
the Shares have not been registered under the Act and, therefore, cannot be sold
unless they are subsequently registered under the Act or an exemption from such
registration is available. The Stockholder agrees that he will not offer to
Transfer any of the Shares except as expressly permitted by this Agreement and
then only after the Company has received an opinion of its counsel that such
offer or Transfer is not in violation of the registration requirements of the
Act or other applicable law.
(c) The Stockholder represents that he is an "accredited
investor" (as defined in Rule 501 under the Act) and a resident of the State of
Minnesota.
6. LEGENDS; STOP TRANSFER. (a) Each certificate representing
the Shares shall bear legends in or substantially in the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO
TRANSFER, SALE OR OTHER DISPOSITION OF THESE SHARES MAY BE
MADE UNLESS A REGISTRATION STATEMENT WITH RESPECT TO THESE
SHARES HAS BECOME EFFECTIVE UNDER SAID ACT, OR THE COMPANY HAS
BEEN FURNISHED WITH AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
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THE SHARES EVIDENCED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
CERTAIN REPURCHASE RIGHTS IN FAVOR OF THE COMPANY AND CERTAIN
PROVISIONS REGARDING RESTRICTIONS UPON TRANSFER CONTAINED IN A
RESTRICTED STOCK PURCHASE AGREEMENT, DATED AS OF DECEMBER 30,
2005, COPIES OF WHICH WILL BE FURNISHED BY THE COMPANY TO THE
HOLDER OF THE SHARES EVIDENCED BY THIS CERTIFICATE UPON
WRITTEN REQUEST AND WITHOUT CHARGE."
(b) In addition, the Company shall make a notation regarding
the restrictions on transfer of the Shares in the stock books of the Company,
and such Shares shall be transferred on the books of the Company only if and
when transferred or sold in compliance with all of the terms and conditions of
this Agreement.
7. REPURCHASE RESTRICTIONS.
7.1. CONTRACTUAL RESTRICTIONS ON REPURCHASE. Notwithstanding
any provision to the contrary in Section 3, if the terms of any of the financing
agreements of the Company or its Subsidiaries with their lenders prohibit the
Company from paying the repurchase price for the Shares in cash, the Company
shall be entitled to complete the repurchase of such Shares by delivering to the
Stockholder (or any transferee) a promissory note for that portion of such
payment. Each such promissory note shall (i) bear interest at the rate of five
percent (5%) per annum, (ii) provide for the payment of the principal evidenced
thereby in such installments and at such times as are permitted under the terms
of the Company's and its Subsidiaries' financing agreements with their lenders,
(iii) be subordinated to the indebtedness of the Company and its Subsidiaries to
their lenders on terms satisfactory to such lenders and (iv) subject to such
payment restrictions and subordination provisions, provide for the payment in
full of the principal evidenced thereby upon the sale of substantially all of
the assets or stock of the Company.
7.2. IMPAIRMENT OF CAPITAL. If even after giving effect to the
provisions of Section 7.1 hereof, the Company is prohibited by the terms of any
of the financing agreements of the Company or any of its Subsidiaries with their
lenders from issuing a promissory note for the balance of the repurchase price
as contemplated by Section 7.1 or is prohibited by law from repurchasing any
Shares which it is obligated or has elected to repurchase hereunder due to any
existing or prospective impairment of its capital, the closing of such
repurchase shall be delayed until the first date on which the Company is
permitted by the terms of any such financing agreements to repurchase such
Shares and has sufficient capital to lawfully repurchase such Shares (the
"Delayed Closing Date"). In the event of any such delay, (i) the Company will be
obligated to pay, on the Delayed Closing Date, interest on the repurchase price
for such Shares, at the rate of five percent (5%) per annum from the date on
which the closing of the repurchase of such Shares was originally scheduled to
occur to the Delayed Closing Date, and (ii) the Stockholder shall remain bound
by the restrictions on Transfer contained herein during such delay; provided,
that the Company shall not be required to issue a promissory note to evidence
its payment obligation to the extent such issuance is prohibited by the terms of
any such financing agreements.
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8. PAYMENT FOR SHARES. At any closing held to consummate
any repurchase of the Shares hereunder, the Stockholder shall deliver to the
Company the stock certificates representing such Shares, duly endorsed in blank
or with duly executed stock powers attached, and the Company shall deliver to
the Stockholder a check in the amount of any remaining balance of the repurchase
price or a promissory note as provided in Section 7.1.
9. ADJUSTMENT OF REPURCHASE PRICE. Upon any stock split,
reverse stock split, recombination of shares or other similar reorganization of
the capital structure of the Company, the repurchase price otherwise payable to
the Stockholder upon the repurchase of any Shares pursuant to Section 3 hereof
shall be proportionally adjusted to reflect such reorganization.
10. GENERAL.
10.1. NOTICES. All notices, demands and other communications
hereunder shall be in writing or by written telecommunication, and shall be
deemed to have been duly given if delivered personally or if mailed by certified
mail, return receipt requested, postage prepaid, or if sent by overnight
courier, or sent by written telecommunication, as follows:
If to the Company, to:
CSAV Holding Corp.
c/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
With copies sent simultaneously to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
If to the Stockholder, to:
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Any such notice shall be effective (a) if delivered
personally, when received, (b) if sent by overnight courier, when receipted for,
(c) if mailed, three (3) days after being mailed as described above, and (d) if
sent by written telecommunication, when dispatched.
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10.2. EQUITABLE REMEDIES. Each of the parties hereto
acknowledges and agrees that upon any breach by the Stockholder of his
obligations under Sections 3, 4, or 8 hereof, the Company will have no adequate
remedy at law, and accordingly will be entitled to specific performance and
other appropriate injunctive and equitable relief.
10.3. SEVERABILITY. If any provision of this Agreement is
or becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions hereof shall not in any way be
affected or impaired.
10.4. WAIVERS. No delay or omission by either party hereto in
exercising any right, power or privilege hereunder shall impair such right,
power or privilege, nor shall any single or partial exercise of any such right,
power or privilege preclude any further exercise thereof or the exercise of any
other right, power or privilege.
10.5. COUNTERPARTS. This Agreement may be executed in
multiple counterparts (including by facsimile), each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
10.6. ASSIGNS. This Agreement shall not be assignable or
transferable by the Stockholder without the Company's prior written consent
thereto.
10.7. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties, supersedes all prior agreements and understandings
relating to the subject matter hereof and shall not be amended except by a
written instrument hereafter signed by each of the parties hereto. Nothing in
this Agreement shall be construed as a grant to the Stockholder of any right to
continuing employment with the Company or any Subsidiary or to restrict in any
way the right to terminate the Stockholder's employment at any time.
10.8. GOVERNING LAW. This Agreement and the obligations of the
parties hereunder shall be deemed to be a contract under seal and shall for all
purposes be governed by and construed in accordance with the internal laws of
The Commonwealth of Massachusetts without reference to principles of conflicts
of law.
11. SECTION 83(b) ELECTION. The Stockholder and the Company
acknowledge that the Stockholder will make an election, in accordance with
Section 83(b) of the Internal Revenue Code of 1986, as amended. The Stockholder
and the Company agree that the fair market value of the Shares is equal to the
aggregate Original Purchase Price Per Share of the Shares, and shall reflect
such fair market value to the extent required on any Federal, or local
income tax return or filing. The Stockholder further agrees that he will file a
Section 83(b) election form with the Internal Revenue Service within thirty (30)
days after the date hereof.
12. INCORPORATION OF PLAN TERMS. The sale of the Shares to
the Stockholder pursuant to this Agreement is subject to all of the applicable
terms of the Plan, including, but not limited to, Section 9 (Settlement of
Awards).
[Remainder of page intentionally left blank; signature page follows]
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have caused this Agreement to be duly executed as of the date and
year first above written.
THE COMPANY: CSAV HOLDING CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
THE STOCKHOLDER:
/s/ ▇▇▇▇▇ ▇▇▇▇
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