EXHIBIT 10.35
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COMMON STOCK PURCHASE AGREEMENT
between
LYNX THERAPEUTICS, INC.,
a Delaware corporation
and
TAKARA BIO INC.,
a Japanese corporation
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Dated as of December 26, 2002
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SECTION 1. SALE AND ISSUANCE OF SHARES................................................................. 1
1.1 Sale and Issuance of Shares................................................................. 1
1.2 Payment of Purchase Price................................................................... 1
1.3 Transfer Taxes.............................................................................. 1
SECTION 2. CLOSING; DELIVERY........................................................................... 2
SECTION 3. REPRESENTATIONS AND WARRANTIES OF COMPANY................................................... 2
3.1 Organization, Good Standing and Qualification............................................... 2
3.2 Authorization............................................................................... 2
3.3 Valid Issuance of Securities................................................................ 2
3.4 Legal Proceedings and Orders................................................................ 2
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER................................................. 3
4.1 Authorization............................................................................... 3
4.2 Purchase Entirely for Own Account........................................................... 3
4.3 Disclosure of Information................................................................... 3
4.4 Restricted Securities....................................................................... 3
4.5 No Public Market............................................................................ 4
4.6 Legends..................................................................................... 4
4.7 Accredited Investor......................................................................... 4
SECTION 5. CONDITIONS PRECEDENT TO OBLIGATION OF PURCHASER TO CLOSE.................................... 4
5.1 Accuracy of Representations and Warranties.................................................. 4
5.2 Performance................................................................................. 4
5.3 Shares Available............................................................................ 4
SECTION 6. CONDITIONS TO OBLIGATION OF COMPANY TO CLOSE................................................ 4
6.1 Accuracy of Representations and Warranties.................................................. 5
6.2 Performance................................................................................. 5
6.3 No Restraints............................................................................... 5
SECTION 7. MISCELLANEOUS PROVISIONS.................................................................... 5
7.1 Time of Essence............................................................................. 5
7.2 Further Actions............................................................................. 5
7.3 Publicity................................................................................... 5
7.4 Governing Law............................................................................... 5
7.5 Venue and Jurisdiction...................................................................... 5
7.6 Notices..................................................................................... 5
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7.7 Fees and Expenses........................................................................... 6
7.8 Attorneys' Fees............................................................................. 6
7.9 Table of Contents and Headings.............................................................. 6
7.10 Successors and Assigns...................................................................... 6
7.11 Severability................................................................................ 6
7.12 Entire Agreement............................................................................ 6
7.13 Waiver...................................................................................... 6
7.14 Amendments.................................................................................. 6
7.15 Corporate Securities Law.................................................................... 7
7.16 Confidentiality............................................................................. 7
7.17 Interpretation of Agreement................................................................. 7
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COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is entered into
as of December 26, 2002, by and between TAKARA BIO INC., a Japanese corporation
having its principal office at SETA ▇-▇-▇, ▇▇▇▇, ▇▇▇▇▇, ▇▇▇-▇▇▇▇ ▇▇▇▇▇
("Purchaser"), and LYNX THERAPEUTICS, INC., a Delaware corporation, having its
principal office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ (the
"Company").
RECITALS
WHEREAS, Company and Purchaser have entered into that certain
Collaboration Agreement effective as of the 1st day of October, 2000, as amended
in that Amendment No. 1 to Collaboration Agreement, dated December 19, 2002 (the
"Collaboration Agreement"), for the right to use the Company's proprietary
technologies to manufacture, distribute and sell microarrays worldwide and to
provide Megasort(TM) and MPSS(TM) services to customers in Japan, China and
Korea;
WHEREAS, the Company has authorized the sale and issuance of up to two
million forty thousand eight hundred sixteen (2,040,816) shares of its common
stock to Purchaser in a private placement; and
WHEREAS, in connection with the Collaboration Agreement, the Company
desires to issue and sell such shares of its common stock to Purchaser, and
Purchaser desires to purchase such shares of Company's common stock on the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
following mutual promises and covenants, the parties hereto agree as follows:
AGREEMENT
SECTION 1. SALE AND ISSUANCE OF STOCK
1.1 SALE AND ISSUANCE OF COMMON STOCK. Subject to the terms and
conditions set forth in this Agreement and the Collaboration Agreement, on the
Closing Date (as defined below), the Company agrees to sell and issue to
Purchaser, and Purchaser agrees to purchase, the number of shares of the
Company's common stock (the "Shares") determined by dividing the applicable One
Million U.S. Dollars ($1,000,000) ("Purchase Price") by the current market price
per share of the Company's common stock. The "current market price per share"
shall be the average for ten (10) trading days immediately prior to December 26,
2002 of the average of the daily high and the daily low, as reported on the
Nasdaq National Market or other nationally-recognized primary market on which
the Company's common stock is traded.
1.2 PAYMENT OF PURCHASE PRICE. The Purchase Price is payable by
Purchaser to the Company on the Closing Date by wire transfer of immediately
available funds to an account or
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accounts to be designated by the Company, or by bank certified or cashier's
check made payable to the Company.
1.3 TRANSFER TAXES. Any transfer taxes, stamp duties, filing fees,
registration fees, recordation expenses, escrow fees or other similar taxes,
fees, charges or expenses incurred by the Company, Purchaser or any other party
in connection with the purchase or in connection with any of the other
transactions contemplated by this Agreement shall be borne and paid exclusively
by the party incurring such expenses.
SECTION 2. CLOSING; DELIVERY.
The consummation of the transaction contemplated by this Agreement (the
"Closing") shall be held on the date hereof ("Closing Date"). The Closing shall
be held at the offices of ▇▇▇▇▇▇ Godward LLP, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or at such other time or place as Purchaser and the
Company may mutually agree. At the Closing, the Company shall cause to be issued
to Purchaser a stock certificate, in the name of Purchaser, representing the
Shares being purchased against receipt of the payment of the Purchase Price. The
Company shall deliver such stock certificate to Purchaser at the Closing or
promptly thereafter.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF COMPANY.
The Company hereby represents, warrants and covenants to Purchaser as
follows:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business as now conducted and as presently proposed to
be conducted. The Company is duly qualified to transact business and is in good
standing as a foreign corporation in each jurisdiction in which the failure to
so qualify would have a material adverse effect on its business or properties.
3.2 AUTHORIZATION. All corporate action on the part of Company,
its officers, directors and stockholders necessary for the authorization,
execution and delivery of this Agreement, the performance of all obligations of
Company hereunder and the authorization, issuance and delivery of the Shares has
been taken or will be taken prior to the Closing, and this Agreement, when
executed and delivered will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with their terms,
except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other laws of general application
affecting enforcement of creditors' rights generally, as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies.
3.3 VALID ISSUANCE OF COMMON STOCK. The Shares that are being
purchased by Purchaser hereunder, when issued, sold and delivered in accordance
with the terms hereof for the consideration expressed herein, will be duly and
validly authorized and issued, fully paid and nonassessable and free of
restrictions on transfer other than restrictions on transfer under this
Agreement and applicable state and federal securities laws.
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3.4 LEGAL PROCEEDINGS AND ORDERS. There is no action, suit,
proceeding or investigation ("Legal Proceeding") pending or threatened against
the Company that questions the validity of this Agreement or the right of the
Company to enter into this Agreement or to consummate the transactions
contemplated hereby, nor is the Company aware of any basis for any of the
forgoing. The Company is neither a party nor subject to the provisions of any
order, writ, injunction, judgment or decree of any court or government agency or
instrumentality that would affect the ability of the Company to enter into this
Agreement or to consummate the transactions contemplated hereby.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents, warrants and covenants to the Company as
follows:
4.1 AUTHORIZATION. Purchase has full power and authority to enter
into this Agreement, and this Agreement, when executed and delivered, will
constitute valid and legally binding obligations of Purchaser, enforceable in
accordance with their terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and any other laws
of general application affecting enforcement of creditors' rights generally, and
as limited by laws relating to the availability of a specific performance,
injunctive relief or other equitable remedies.
4.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made with
Purchaser in reliance upon Purchaser's representation to the Company, which by
Purchaser's execution of this Agreement Purchaser hereby confirms, that the
Shares to be purchased by Purchaser will be acquired for investment for
Purchaser's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof. Purchaser has no present intention
of selling, granting any participation in or otherwise distributing the same. By
executing this Agreement, Purchaser further represents that Purchaser does not
presently have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participations to such person or to any third
person, with respect to any of the Shares and Purchaser has not been formed for
the specific purpose of acquiring the Shares.
4.3 RECEIPT OF INFORMATION. Purchaser has had an opportunity to
discuss the Company's business, management and financial affairs and the terms
and conditions of the offering of the Shares with the Company's management and
has had an opportunity to review the Company's facilities. Purchaser has also
had an opportunity to ask questions of and receive answers from the Company
regarding the terms and conditions of its investment. Purchaser understands that
such discussions, as well as the written information issued by the Company, were
intended to describe the aspects of the Company's business which it believes to
be material.
4.4 RESTRICTED SECURITIES. Purchaser understands that the Shares
have not been, and will not be, registered under the Securities Act of 1933, as
amended (the "Securities Act"), by reason of a specific exemption from the
registration provisions of the Securities Act, which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of
Purchaser's representations as expressed herein. Purchaser understands that the
Shares are "restricted securities" under applicable U.S. federal and state
securities laws and that, pursuant to these laws, Purchaser must hold the Shares
indefinitely unless they are registered with the
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Securities and Exchange Commission and qualified by state authorities, or an
exemption from such registration and qualification requirements is available.
Purchaser further acknowledges that if an exemption from registration or
qualification is available, it may be conditioned on various requirements
including, but not limited to, the time and manner of sale, the holding period
for the Shares, and on requirements relating to the Company which are outside of
Purchaser's control, and which the Company is under no obligation and may not be
able to satisfy.
4.5 LEGENDS. Purchaser understands that the Shares and any
securities issued in respect of or exchange for the Shares, may bear one or all
of the following legends:
(a) "THE SHARES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER
SUCH ACT, OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL OR OTHER
EVIDENCE, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS
NOT REQUIRED."
(b) Any legend required by the Blue Sky laws of any state
to the extent such laws are applicable to the shares represented by the
certificate so legended.
4.6 ACCREDITED INVESTOR. Purchaser is either (a) an accredited
investor as defined in Rule 501(a) of Regulation D promulgated under the Act or
(b) not an accredited investor and neither such Investor nor any beneficiary of
any trust or any investment client for whose account such Investor is purchasing
is a citizen or resident of the United States or Canada, or any state, territory
or possession thereof, including but not limited to any estate of any such
person, or any corporation, partnership, trust or other entity created or
existing under the laws thereof, or any entity controlled or owned by any of the
foregoing (a "U.S. Person").
4.7 INVESTMENT EXPERIENCE. Purchaser is experienced in evaluating
and investing in private placement transactions of securities of companies in a
similar stage of development and acknowledges that Purchaser is able to fend for
himself, herself or itself, can bear the economic risk of such investment and
has such knowledge and experience in financial and business matters that
Purchaser is capable of evaluating the merits and risks of the investment in the
Shares.
4.8 FURTHER REPRESENTATION BY FOREIGN INVESTORS. If Purchaser is
not a U.S. Person, Purchaser hereby represents that Purchaser is satisfied as to
the full observance of the laws of Purchaser's jurisdiction in connection with
any invitation to subscribe for the Shares or any use of this Agreement,
including (i) the legal requirements of Purchaser's jurisdiction for the
purchase of the Shares, (ii) any foreign exchange restrictions applicable to
such purchase, (iii) any governmental or other consents that may need to be
obtained and (iv) the income tax and other tax consequences, if any, which may
be relevant to the purchase, holding, redemption, sale or transfer of the
Shares. Purchaser's subscription and payment for, and Purchaser's continued
beneficial ownership of, the Shares will not violate any applicable securities
or other laws of Purchaser's jurisdiction.
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SECTION 5. CONDITIONS PRECEDENT TO OBLIGATION OF PURCHASER TO CLOSE
The obligation of Purchaser to purchase the Shares and otherwise
consummate the transactions that are contemplated by this Agreement is subject
to the satisfaction, as of the Closing Date, of the following conditions (any of
which may be waived by Purchaser in whole or in part):
5.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Company set forth in Section 3 shall be
accurate and true in all material respects on and as of the Closing Date.
5.2 PERFORMANCE. All of the covenants and obligations that the
Company is required to perform or to comply with pursuant to this Agreement, at
or prior to the Closing, must have been duly performed and complied with in all
material respects.
5.3 SHARES AVAILABLE. The Company shall have available under its
Amended and Restated Certificate of Incorporation sufficient authorized shares
of capital stock to issue and sell the Shares to Purchaser.
SECTION 6. CONDITIONS TO OBLIGATION OF THE COMPANY TO CLOSE
The obligation of the Company to cause the Shares to be sold to
Purchaser and otherwise consummate the transactions that are contemplated by
this Agreement is subject to the satisfaction, as of the Closing Date, of the
following conditions (any of which may be waived by Company in whole or in
part):
6.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Purchaser set forth in Section 4 shall be
accurate and true in all material respects on and as of the Closing Date.
6.2 PERFORMANCE. All of the covenants and obligations that
Purchaser is required to perform or to comply with pursuant to this Agreement,
at or prior to the Closing, must have been duly performed and complied with in
all material respects.
6.3 NO RESTRAINTS. No temporary restraining order, preliminary or
permanent injunction or other order preventing the consummation of the Purchase
shall have been issued by any court of competent jurisdiction and remain in
effect, and there shall not be any law, rule, regulation, order, judgment or
decree enacted or deemed applicable to the Purchase that makes consummation of
the Purchase illegal.
6.4 QUALIFICATIONS. All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Shares pursuant to this Agreement shall be duly obtained and effective as of
the Closing.
SECTION 7. MISCELLANEOUS PROVISIONS
7.1 TIME OF ESSENCE. Time is of the essence of this Agreement.
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7.2 FURTHER ACTIONS. The Company shall execute such agreements and
other documents, and shall take such other actions, as Purchaser may reasonably
request (prior to, at or after the Closing) for the purpose of ensuring that the
transactions contemplated by this Agreement are carried out in full compliance
with the provisions of all applicable laws and regulations.
7.3 PUBLICITY. No press release, publicity, disclosure or notice
to any Person concerning any of the transactions contemplated by this Agreement
shall be issued, given, made or otherwise disseminated at any time (whether
prior to, at or after the Closing) without the prior written approval of the
other party.
7.4 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of California as such laws are applied to agreements between
California residents entered into and performed entirely in California.
7.5 VENUE AND JURISDICTION. If any legal proceeding or other legal
action relating to this Agreement is brought or otherwise initiated, the venue
therefor shall be in California, which shall be deemed to be a convenient forum.
Purchaser and the Company hereby expressly and irrevocably consent and submit to
the jurisdiction of the courts in California.
7.6 NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be deemed effectively given: (a) upon
personal delivery to the party to be notified, (b) when sent by confirmed telex
or facsimile if sent during normal business hours, if not, then on the next
business day, (c) five days after having been sent by registered or certified
mail, return receipt requested, postage prepaid or (d) one day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent to the
addresses set forth on the signature page hereto or at such other address as the
Company or Purchaser may designate by ten days advance written notice to the
other parties thereto.
7.7 FEES AND EXPENSES. All fees, costs and expenses incurred in
connection with the transactions contemplated by this Agreement shall be paid by
the party incurring such fees, costs and expenses.
7.8 ATTORNEYS' FEES. In the event that any suit or action is
instituted to enforce any provision in this Agreement, the prevailing party in
such dispute shall be entitled to recover from the losing party all fees, costs
and expenses of enforcing any right of such prevailing party under or with
respect to this Agreement, including without limitation, such reasonable fees
and expenses of attorneys and accountants, which shall include, without
limitation, all fees, costs and expenses of appeals.
7.9 TABLE OF CONTENTS AND HEADINGS. The table of contents of this
Agreement and the Section headings contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
7.10 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the respective successors,
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assigns, heirs, executors and administrators of the parties hereto and shall
inure to the benefit of and be enforceable by each of the parties hereto.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
7.11 SEVERABILITY. In the event that any provision of this
Agreement shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
7.12 ENTIRE AGREEMENT. This Agreement and the Collaboration
Agreement referred to herein and therein constitute the entire agreement between
the parties hereto pertaining to the subject matter hereof, and any and all
other written or oral agreements existing between the parties hereto are
expressly canceled. This Agreement and the Collaboration Agreement are intended
to define the full extent of the legally enforceable undertakings of the Company
and Purchaser, and no promise or representation, whether written or oral, which
is not set forth explicitly in this Agreement or the Collaboration Agreement is
intended by either party to be legally binding.
7.13 WAIVER. No failure on the part of either party hereto to
exercise any power, right, privilege or remedy under this Agreement, and no
delay on the part of either party hereto in exercising any power, right,
privilege or remedy under this Agreement, shall operate as a waiver thereof; and
no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy.
7.14 AMENDMENTS. This Agreement may not be amended, modified,
altered or supplemented except by means of a written instrument executed on
behalf of both Purchaser and the Company.
7.15 CORPORATE SECURITIES LAW. THE SALE OF THE SECURITIES WHICH ARE
THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO THE
QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE
QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON
THE QUALIFICATION BEING OBTAINED UNLESS THE SALE IS SO EXEMPT.
7.16 CONFIDENTIALITY. Each party hereto agrees that, except with
the prior written permission of the other party, it shall at all times keep
confidential and not in any way divulge, furnish or make accessible to anyone
any confidential information, knowledge or data concerning or relating to the
business or financial affairs of the other party to which such party has been or
shall become privy by reason of this Agreement, discussions or negotiations
relating to this Agreement, the performance of its obligations hereunder or the
ownership of the Shares purchased hereunder. The provisions of this Section 7.16
shall be in addition to, and not in
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substitution for, the provisions of any separate nondisclosure agreement
executed by the parties hereto with respect to the transactions contemplated
hereby.
7.17 INTERPRETATION OF AGREEMENT.
(a) Each party hereto acknowledges that it has
participated in the drafting of this Agreement, and any applicable rule of
construction to the effect that ambiguities are to be resolved against the
drafting party shall not be applied in connection with the construction or
interpretation of this Agreement.
(b) Whenever required by the context hereof, the singular
number shall include the plural, and vice versa; the masculine gender shall
include the feminine and neuter genders; and the neuter gender shall include the
masculine and feminine genders.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, and shall be deemed to be followed by the words "without
limitation."
(d) References herein to "Sections" and "Schedules" are
intended to refer to Sections of and Schedules to this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Common
Stock Purchase Agreement to be executed and delivered by its duly authorized
officer on the date set forth above.
ACCEPTED AND ACKNOWLEDGED BY PURCHASER:
TAKARA BIO INC.
By: /s/ Ikunoshin Kato
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Printed Name: Ikunoshin Kato
Title: President
Address: SETA ▇-▇-▇
▇▇▇▇, ▇▇▇▇▇, ▇▇▇-▇▇▇▇
▇▇▇▇▇
ACCEPTED AND ACKNOWLEDGED BY THE COMPANY:
LYNX THERAPEUTICS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇