Exhibit 2.12
EXHIBIT B
Form of Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of the _____ day of _________, 200_ (the "Effective Date")
between Amarin Corporation plc, a public limited company organized under the
laws of England (the "Company"), and the parties set forth on the signature
pages hereto (each, a "Purchaser" and collectively, the "Purchasers").
R E C I T A L S:
A. Each Purchaser has delivered to the Company a Subscription
Agreement in connection with the Amended Confidential Private Placement
Memorandum of the Company dated December 10, 2002, offering to purchase from the
Company the amount of ordinary shares, par value Pound Sterling 1.00 per share,
of the Company as in such Subscription Agreement.
B. The Company has, in whole or in part, accepted each Purchaser's
subscription and delivered to such Purchaser a Subscription Agreement,
countersigned by the Company (as so countersigned and delivered, the "Purchase
Agreement").
C. Pursuant to the Subscription Agreement, on the date hereof the
Company is issuing to each Purchaser, and each Purchaser is purchasing, the
number of ordinary shares, par value Pound Sterling 1.00 per share, of the
Company set forth in the Subscription Agreement, as accepted by the Company.
D. The Company and each Purchaser desire to set forth the registration
rights to be granted by the Company to the Purchasers.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants, and conditions set forth herein and in
the Purchase Agreement, the parties mutually agree as follows:
A G R E E M E N T:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Blackout Period" shall mean, with respect to a registration
statement, a period or periods not in excess of an aggregate 90 calendar days in
any calendar year during which the Company, in the good faith judgment of its
Board of Directors, determines (because of the existence of, or in anticipation
of, any acquisition, financing activity, or other transaction involving the
Company, or the unavailability for reasons beyond the Company's control of any
required financial statements, disclosure of information which is in its best
interest not to publicly disclose, or any other event or condition of similar
significance to the Company) that the registration and distribution of the
Registrable Securities to be covered by such registration statement, if any,
would be seriously detrimental to the Company and its shareholders.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Family Member" shall mean with respect to any individual, such
individual's spouse, any descendants (whether natural, adopted or in the process
of adoption), any trust all of the beneficial interests of which are owned by
any of such individuals or by any of such individuals together with any
organization described in Section 501(c)(3) of the Internal Revenue Code of
1986, as amended, the estate of any such individual, and any corporation,
association, partnership or limited liability company all of the equity
interests of which are owned by those above described individuals, trusts or
organizations.
"Form F-3" shall mean such form under the Securities Act as in effect
on the date hereof or any registration form under the Securities Act
subsequently adopted by the Commission, which permits inclusion or incorporation
of substantial information by reference to other documents filed by the Company
with the Commission.
"Holder" shall mean each Purchaser or any of such Purchaser's
respective successors and assigns who acquire rights in accordance with this
Agreement with respect to the Registrable Securities directly or indirectly from
such Purchaser, including any Permitted Assignee of such Holder.
"Permitted Assignee" shall mean (a) with respect to a partnership, its
partners or former partners in accordance with their partnership interests, (b)
with respect to a corporation, its shareholders in accordance with their
interest in the corporation, (c) with respect to a limited liability company,
its members or former members in accordance with their interest in the limited
liability company, (d) with respect to an individual party, any Family Member of
such party, (e) with respect to any entity, an other entity that is controlled
by, controls, or is under common control with such entity, or (f) a party to
this Agreement.
The terms "register", "registered" and "registration" refers to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registrable Securities" shall mean ordinary shares, par value Pound
Sterling 1.00 per share, of the Company issued to a Purchaser pursuant to a
Purchase Agreement, excluding (a) any such shares that have been publicly sold
or may be sold immediately without registration under the Securities Act either
pursuant to Rule 144 of the Securities Act or otherwise; (b) any such shares
sold by a person in a transaction pursuant to a registration statement filed
under the Securities Act or (c) any such shares that are at the time subject to
an effective registration statement under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
2. Registration. Subject to the terms and conditions hereof, as
promptly as reasonably practicable after the date hereof, but in any event not
later than 90 days from the Effective Date, the Company shall use its reasonable
efforts to file a shelf registration statement on Form F-1 or, if the Company is
eligible to use such form, Form F-3 relating to the resale by the Holders of the
Registrable Securities from time to time in accordance with the methods of
distribution set forth in such registration statement and Rule 415 under the
Securities Act; provided, however, that the Company shall not be obligated to
effect any such registration pursuant to this Section 2, or to keep such
registration effective pursuant to Section 3, during any Blackout Period or if
the means of distribution involves an underwritten offering; and provided
further, that if the Company does not meet the eligibility requirements to use
such Form F-1 or F-3, it shall instead use its reasonable efforts to file a
shelf registration statement on Form S-1 or S-3, as the case may be. Each
Purchaser
hereby acknowledges that any registration statement filed pursuant to this
Section 2 will include Registrable Securities held by other Purchasers and may
include securities held by other shareholders of the Company.
3. Registration Procedures. In the case of the registration effected
by the Company pursuant to Section 2 hereof, the Company will keep each Holder
reasonably advised in writing as to the initiation of each registration and as
to the completion thereof. Subject to the terms and conditions hereof, at its
expense with respect to any registration statement filed pursuant to Section 2,
the Company will use its reasonable efforts to:
(a) prepare and file with the Commission with respect to such
Registrable Securities shelf registration statement on Form F-1 (or S-1, as the
case may be) or, if the Company is eligible to use such form, Form F-3 (or S-3,
as the case may be), and use its reasonable efforts to cause such registration
statement to become and remain effective at least for a period ending with the
first to occur of (i) the sale of all Registrable Securities covered by the
registration statement, (ii) the availability under Rule 144 for the Holder to
immediately, freely resell without restriction all Registrable Securities
remaining to be sold under the registration statement, and (iii) one year after
a registration statement filed pursuant to Section 2(a) is declared effective by
the Commission (the "Effectiveness Period");
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective
during the Effectiveness Period;
(c) furnish, without charge, to each Holder of Registrable Securities
covered by such registration statement one (1) signed copy of such registration
statement (excluding any exhibits thereto other than applicable underwriting
documents), each amendment and supplement thereto (including one (1) conformed
copy to each Holder, including all exhibits thereto), and such number of copies
of the prospectus included in such registration statement (including each
preliminary prospectus and any other prospectus filed under Rule 424 under the
Securities Act) as such Holders may reasonably request, in conformity with the
requirements of the Securities Act;
(d) register or qualify such Registrable Securities under such other
applicable securities or blue sky laws of such jurisdictions as any Holder of
Registrable Securities covered by such registration statement reasonably
requests as may be necessary for the marketability of the Registrable Securities
(such request to be made not more than 10 days after the applicable registration
statement is filed with the Commission) and do any and all other acts and things
which may be reasonably necessary or advisable to enable such Holder to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such Holder; provided that the Company shall not be required to (i)
qualify generally to do business in any particular jurisdiction in which the
Company would be required to qualify to do business as a foreign corporation or
as a dealer in securities under the securities or blue sky laws of such
jurisdiction or to execute a general consent to service of process in effecting
such registration, qualification or compliance, in each case where it has not
already done so, or (ii) subject itself to taxation in any such jurisdiction, or
(iii) consent to general service of process in any such jurisdiction;
(e) promptly notify each Holder of such Registrable Securities at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event which comes to the Company's
attention if as a result of such event the prospectus included in such
registration statement contains an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and the Company shall promptly prepare and
furnish to such Holder a supplement or amendment to such prospectus (or prepare
and file appropriate reports under the Exchange Act) so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
material fact required to be stated
therein or necessary to make the statements therein not misleading, unless
suspension of the use of such prospectus otherwise is authorized herein or in
the event of a Blackout Period, in which case no supplement or amendment need be
furnished (or Exchange Act filing made) until the termination of such suspension
or Blackout Period; and
(f) comply, and continue to comply during the period that such
registration statement is effective under the Securities Act, in all material
respects with the Securities Act and the Exchange Act and with all applicable
rules and regulations of the Commission with respect to the disposition of all
securities covered by such registration statement, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve (12) months, but not more than eighteen
(18) months, beginning with the first full calendar month after the effective
date of such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act.
Each Holder of Registrable Securities agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
3(e) hereof or of the commencement of a Blackout Period, such Holder shall
discontinue disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by Section
3(e) hereof or notice of the end of the Blackout Period, and, if so directed by
the Company, such Holder shall deliver to the Company (at the Company's expense)
all copies (including, without limitation, any and all drafts), other than
permanent file copies, then in such Holder's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
4. Registration Expenses. The Company shall pay all expenses in
connection with any registration, including, without limitation, all
registration, filing, stock exchange and NASD fees, printing expenses, all fees
and expenses of complying with securities or blue sky laws, the fees and
disbursements of counsel for the Company and of its independent accountants, and
the reasonable fees and expenses of one counsel reasonably acceptable to the
Company ("Holders Counsel") selected by the Holders of a majority of the
Registrable Securities covered by such registration statement; provided that the
reasonable fees and disbursements of Holders Counsel shall not exceed in the
aggregate with respect to all registrations $10,000. Except as provided in this
Section 4 and in Section 7, the Company shall not be responsible for the
expenses of any attorney or other advisor employed by a Holder of Registrable
Securities.
5. Assignment of Rights. No Holder may assign its rights under this
Agreement to any party without the prior written consent of the Company;
provided, however, that a Holder may assign its rights under this Agreement
without such restrictions to a Permitted Assignee so long as such Permitted
Assignee agrees in writing addressed to the Company to be bound to the
provisions of this Agreement.
6. Information by Holder. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company in a timely
manner such information regarding such Holder or Holders and the distribution
proposed by such Holder or Holders as the Company may from time to time
reasonably request in writing. No Holder shall be entitled to be named as a
selling security holder in a registration statement or have its Registrable
Securities included therein, and no Holder shall be entitled to use the
prospectus forming a part thereof for resales of Registrable Securities at any
time, unless such Holder has furnished such information within a reasonable time
after receiving such a request.
7. Indemnification.
(a) In the event of the offer and sale of Registrable Securities held
by Holders under the Securities Act, the Company shall, and hereby does,
indemnify and hold harmless, to the fullest extent permitted by law, each
Holder, its directors, officers, partners and each person, if any, who controls
or is under common control
with such Holder within the meaning of Section 15 of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, and expenses to
which the Holder or any such director, officer, partner or controlling person
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such shares were registered
under the Securities Act, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or supplement thereto, or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and the Company shall
reimburse the Holder, and each such director, officer, partner and controlling
person for any legal or any other expenses reasonably incurred by them in
connection with investigating, defending or settling any such loss, claim,
damage, liability, action or proceeding; provided that (i) the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company or through an instrument duly executed by or on behalf of such Holder
specifically stating that it is for use in the preparation thereof, and (ii) the
foregoing indemnity with respect to any untrue statement or alleged untrue
statement in or omission or alleged omission from such registration statement,
any such preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement, shall not inure to the benefit of any Holder (or any person
controlling such Holder) from whom the person asserting any such losses, claims,
damages, liabilities or expenses purchased the securities concerned, to the
extent that a prospectus (as then amended or supplemented) relating to such
securities was required by law to be delivered to such person under the
Securities Act and such Holder failed to send or give to such person a copy of
the prospectus (as then amended or supplemented) if the Company had previously
furnished copies thereof to such Holder and if the prospectus (as then amended
or supplemented) would have cured the defect giving rise to such loss, claim,
damage, liability or expense. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Holders, or
any such director, officer, partner or controlling person and shall survive the
transfer of such shares by the Holder.
(b) Each Purchaser shall, and hereby does, indemnify and hold the
Company, its directors and officers and each other person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which the Company
or any such director or officer or controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement in or omission or alleged omission from such registration
statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with written information about such Holder as a Holder of the
Company furnished to the Company, and such Holder shall reimburse the Company,
and each such director, officer, partner and controlling person for any legal or
any other expenses reasonably incurred by them in connection with investigating,
defending or settling any such loss, claim, damage, liability, action or
proceeding. Such indemnity shall remain in full force and effect, regardless of
any investigation made by or on behalf of the Company or any such director,
officer or controlling person and shall survive the transfer by any Holder of
such shares. As a condition to including any Registrable Securities to be
offered by a Holder who is not also a Purchaser in any registration statement
filed pursuant to this Agreement, the Company shall have received an undertaking
from such Holder to be bound by the terms of this Section 7.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in
Section 7(a) or (b) hereof (including any governmental action), such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the indemnifying party of the
commencement of such action; provided that the failure of any indemnified party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under Section 7(a) or (b) hereof, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, unless in the
reasonable judgment of counsel to such indemnified party a conflict of interest
between such indemnified and indemnifying parties may exist or the indemnified
party may have defenses not available to the indemnifying party in respect of
such claim, the indemnifying party shall be entitled to participate in and to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties arises in
respect of such claim after the assumption of the defenses thereof or the
indemnifying party fails to defend such claim in a diligent manner, other than
reasonable costs of investigation. Neither an indemnified nor an indemnifying
party shall be liable for any settlement of any action or proceeding effected
without its consent which shall not be unreasonably withheld. No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or
litigation. Notwithstanding anything to the contrary set forth herein, and
without limiting any of the rights set forth above, in any event any party shall
have the right to retain, at its own expense, counsel with respect to the
defense of a claim.
(d) In the event that an indemnifying party does or is not permitted
to assume the defense of an action pursuant to Section 7(c) or in the case of
the expense reimbursement obligation set forth in Sections 7(a) and (b), the
indemnification required by Sections 7(a) and (b) hereof shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or expenses, losses, damages, or
liabilities are incurred.
(e) If the indemnification provided for in this Section 7 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage or expense referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
(i) shall contribute to the amount paid or payable by such indemnified party as
a result of such loss, liability, claim, damage or expense as is appropriate to
reflect the proportionate relative fault of the indemnifying party on the one
hand and the indemnified party on the other (determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission relates to information supplied by the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission), or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, the indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such loss,
liability, claim, damage or expense as is appropriate to reflect not only the
proportionate relative fault of the indemnifying party and the indemnified
party, but also the relative benefits received by the indemnifying party on the
one hand and the indemnified party on the other, as well as any other relevant
equitable considerations. No indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any indemnifying party who was not guilty
of such fraudulent misrepresentation.
(f) Other Indemnification. Indemnification similar to that specified
in the preceding subsections of this Section 7 (with appropriate modifications)
shall be given by the Company and each Holder of Registrable Securities with
respect to any required registration or other qualification of securities under
any federal or state law or regulation or governmental authority other than the
Securities Act.
8. Miscellaneous
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
EXECUTED AND PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAWS PRINCIPLES THEREOF TO THE EXTENT SUCH PRINCIPLES WOULD REQUIRE OR PERMIT
THE APPLICATION OF THE LAWS OF ANOTHER STATE.
(b) Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, executors, and administrators of the parties hereto.
(c) Entire Agreement. This Agreement and the Purchase Agreement,
together with the documents referred to herein and therein, contain the entire
agreement of the parties with respect to the subject matter hereof and supersede
and are in full substitution for any and all prior oral or written agreements
and understandings between them related to such subject matter, and no party
hereto shall be liable or bound to any other party hereto in any manner with
respect to such subject matter by any representations, indemnities, covenants or
agreements except as specifically set forth herein and therein.
(d) Notices. All notices or other communications which are required or
permitted under this Agreement shall be in writing and sufficient if delivered
by hand, by facsimile transmission, by registered or certified mail, postage
pre-paid, or by courier or overnight carrier, to the persons at the addresses
set forth below (or at such other address as may be provided hereunder), and
shall be deemed to have been delivered as of the date so delivered:
If to the Company: Amarin Corporation plc
0 Xxxxxx Xxxxxx
Xxxxxx X0X0XX, Xxxxxxx
Fax: x00.00.0000.0000
Attention: General Counsel
with a copy to: Amarin Pharmaceuticals Inc.
Xxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, Xxxxxxxxxx 00000 XXX
Fax: x0.000.000.0000
Attention: Executive Vice President
If to the Purchasers: To each Purchaser at the address
set forth in such Purchaser's Purchase
Agreement
or at such other address as any party shall have furnished to the other parties
in writing.
(e) Delays or Omissions. Subject to Section 8(h) below, no delay or
omission to exercise any right, power or remedy accruing to any Holder of any
Registrable Securities on the one hand and the Company on the other, upon any
breach or default of the other under this Agreement, shall impair any such
right, power or remedy of such non-breaching party nor shall it be construed to
be a waiver of any such breach or default, or an acquiescence therein, or of or
in any similar breach or default thereunder occurring; nor shall any waiver of
any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring.
Any waiver, permit, consent or approval of any kind or character on the part of
any party to this Agreement of any breach or default under this Agreement, or
any waiver on the part of any party to this Agreement of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement, or by law or otherwise afforded to any party to this Agreement,
shall be cumulative and not alternative.
(f) Counterparts; Facsimiles. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other parties. In no event shall this Agreement be binding
against the Company by any Purchaser until the Company shall have delivered to
such Purchaser a copy of this Agreement, signed by the Company. This Agreement
may be executed by any party by the delivery by such party by facsimile of a
copy of the signature page of this Agreement duly executed by such party. Any
copy of this Agreement so executed by facsimile shall be deemed to be an
originally executed copy of this Agreement.
(g) Severability. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
(h) Amendments. The provisions of this Agreement may be amended at any
time and from time to time, and particular provisions of this Agreement may be
waived, with and only with an agreement or consent in writing signed by the
Company and by the holders of a majority of the number of shares of Registrable
Securities outstanding as of the date of such amendment or waiver; provided that
without the consent in writing of all holders of the Registrable Securities, no
such agreement or consent shall reduce the percentage of the number of
Registrable Securities the consent of the Holders of which shall be required
under this Section 8(h). The Purchasers acknowledge that by the operation of
this Section 8(h), the holders of a majority of the outstanding Registrable
Securities may have the right and power to diminish or eliminate all rights of
the Purchasers under this Agreement.
(i) Headings. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be part of this Agreement.
[Remainder of Page Intentionally Left Blank]
This Registration Rights Agreement is hereby executed by the Company as
of the Effective Date.
COMPANY:
AMARIN CORPORATION PLC
By:
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Name:
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Its:
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This Registration Rights Agreement is hereby executed by the
undersigned Purchaser as of the Effective Date.
PURCHASER:
By:
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Name:
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Its:
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