SETTLEMENT AGREEMENT
EXHIBIT
10.47
Agreement
made this 22nd day of July, 2008 between Able Energy, Inc., a corporation formed
under the laws of the State of Delaware having an address at 000 Xxxxx Xxxx
Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("Able"), and S&S NY Holdings, Inc., a
corporation formed under the laws of the State of Florida having and address at
00000 Xxxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000 or its Assignee
("S&S").
WHEREAS, Able is engaged in
the business, among other things, of the retail distribution of home heating
oil, propane gas, kerosene, and diesel fuels (the "Fuel(s))";
WHEREAS, Able entered into an
agreement on October 17, 2007 S&S for S&S to provide financing for
Able's Fuel purchases which agreement was later amended on February 5,
2008;
WHEREAS, Able entered into a
second agreement with S&S on December 20, 2007 for S&S to provide
further financing for Able's Fuel purchases (the October 17, 2007 agreement
together with the amendment thereto and the December 20, 2007 agreement are
hereinafter collectively referred to as the "Fuel Financing
Agreements");
WHEREAS, disputes have arisen
between the Able & S&S regarding the termination of the Fuel Financing
Agreements, including the claim of S&S that it is owed the sum of
$862,819.53 plus outstanding interest in the amount of $135,00000;
WHEREAS, the parties desire to
resolve their disputes and provide for the orderly termination of the Fuel
Financing Agreements upon the following terms and conditions hereinafter set
forth.
NOW,
therefore upon the mutual covenants and agreements hereinafter contained and
intending to be legally bound, the parties hereby agree as follows:
1. Terms
of Settlement. In full satisfaction of
all claims S&S has, or may have, against Able, under the terms of the Fuel
Financing Agreements or any other undertaking or agreement, S&S agrees that
it shall accept the following:
(a) Able
NY. Able
shall cause forty-nine (49%) of the outstanding and issued stock of its
wholly-owned subsidiary, Able Energy of New York, Inc. ("Able NY") to be issued
to S&S and Able shall retain ownership of the remaining fifty-one (51%)
percent of the stock of Able NY, In addition, upon the execution of this
Agreement, S&S shall also pay to Able NY an amount equal to forty nine (49%)
percent of all inventory of Able NY on hand at that time less forty nine (49%)
percent of any amounts payable with respect to such inventory.
(1) Mortgage
Debt. The
parties agree and acknowledge that the Iroquois/Lilac Investment Group hold a
mortgage on real property and the improvements thereon located at 00 Xxxxxxxxxx
Xxxx, Xxxxxxxxxxx, Xxx Xxxx owned by Able NY (the "ILIG Debt") in the amount of
$1,000,000 and that Able and S&S shall each be equally liable for payment of
the ILIG Debt.
(2) Payment or Removal
of the ILIG Debt. In the event that Able
either pays the ILIG Debt in full or causes the debt to be removed as an
obligation of Able NY, S&S shall transfer a sufficient amount of its stock
of Able NY to Able or its designee that will result upon the completion of such
transfer in S&S owning twenty five (25%) percent of the outstanding and
issued stock of Able NY and Able owning the remaining seventy five (75%)
percent.
(3) Call. S&S shall have a
call on Able's fifty one (51%) percent interest in Able NY (the "Call"). The
Call shall be exercisable only simultaneously with the filing of a bankruptcy
proceeding by or against Able or the claimed default by Able of the ILIG Debt
and its failure to cure such default (a "work-out" or settlement of a default
shall constitute a cure) after proper notice. The price for the Call shall be
the sum of $1,000,000 plus thirty (30%) percent in the increase of the amount of
the EBITDA of Able NY multiplied by three (3) times at the time of such purchase
over
the EBITDA of Able NY for the fiscal year ending June 30, 2008 (the "Call
Price"), In the event that upon the exercise of the Call, the ILIG Debt is still
outstanding, the Call Price shall be reduced by one-half of the principal amount
of the ILIG Debt together with any accrued interest thereon, on a dollar for
dollar basis.. Notwithstanding anything to the contrary herein, except upon the
filing of a bankruptcy proceeding by or against Able, the Call granted
hereinabove shall be terminated and released and of no further force and effect
upon the removal of or payment of the ILIG Debt.
(4) Buy-Sack
Option. Able
shall have the right at any time, at its sole discretion, for a two year period
commencing from the date hereof, to purchase S&S's forty nine (49%) percent
interest in Able NY payable upon the exercise of the buy-back option in the
amount of $500,000 plus thirty (30%) percent of any increase in the amount of
the EBITDA of Able NY multiplied by three (3) times at the time of such purchase
over the EBITDA of Able NY for the fiscal year ending June 30, 2008. However, in
the event that such buy-back by Able is exercised within twelve (12)
months from the date of this Agreement, then in such event, the purchase price
for the buy-back shall be the sum of $500,000 plus $8,700 for each month
remaining from the date of the exercise of the buy-back until the first
anniversary of the date of this Agreement.
(5) Release
of Liens. As
of the date hereof, S&S shall release and terminate its liens on Able's
customer list; on any of Able's vehicles on which it
has such liens; on the 1,838,573 shares of common stock of Able owned by All
American Properties, Inc. f/k/a All American Plazas, Inc. which were pledged as
security for the Fuel Financing Agreements; and any other liens which it was
granted pursuant to the Fuel Financing Agreements. S&S agrees that it will
execute all documents necessary or appropriate to effectuate the termination of
such liens, including, but not limited to UCC-3 termination forms.
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(b) Able PA. S&S shall be granted
a ninety (90%) percent interest in Able's operations in Easton and Horsham
Pennsylvania and in New Jersey as indicated on the maps annexed hereto as
Exhibit A, which consist of the premises located in Easton leased by Able, which
lease shall be assigned to S&S, throughput rights at the facility owned by
Xxxxx & Hitzle Fuel, Inc., nine (9) trucks consisting of five (5) oil trucks
and four (4) service vans and the customer lists provided to S&S by Able for
all of Able's customers located in the areas of Pennsylvania and New Jersey set
forth on Exhibit A.(hereinafter collectively ("Able PA"). S&S will not use
the name Able or any derivative thereof in connection with the operation of any
business it conducts with respect to the assets of Able PA acquired hereunder
(hereinafter S&S's operation of the business utilizing the acquired assets
of Able PA shall be referred to as "S&S PA"). Able shall be the owner of the
remaining ten (10%) percent interest of S&S
PA or any other entity formed by S&S to conduct the business of S&S
PA.
(1) Price
Energy. Able
agrees that S&S PA will be an authorized dealer for XxxxxXxxxxx.xxx, Inc.
for all zip codes within which it conducts business.
(2) Option. For a period of one year
from the date hereof, S&S shall have the right to purchase the remaining ten
(10%) percent interest in S&S PA from Able for a purchase price of $50,000
plus thirty (30%) percent in the increase of the amount of the EBITDA of S&S
PA multiplied by three (.3) times at the time of such purchase over the EBITDA
of Able PA for the fiscal year ending June 30, 2008, to be payable in cash upon
the exercise of such option.
(c) Consulting
Agreement. Able will cause Able NY
to enter into a Consulting Agreement with S&S in the form annexed hereto as
Exhibit B. In consideration for its management services S&S will be paid a
fee of five (5%) percent of the adjusted gross profit as that term is
hereinafter defined. Adjusted gross profit for purposes of this Agreement and
the Consulting Agreement shall mean gross revenues less the cost of goods,
transportation and taxes for delivery of all fuel products to the end users by
Able NY or its agent.
(d) Buy-out
Option. Notwithstanding anything
to the contrary herein, for a period of ninety (90) days from the date hereof
Able shall have the right, in its sole discretion to buy-out S&S's interest
in Able NY and S&S Pa for the sum of $1,097,819.53 payable in cash upon the
exercise of such buy-out.
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2. Transfer or Sale of Shares or Interest. There can be no valid
sale or transfer of shares of Able NY or their interests in S&S PA by either
Able or S&S unless and until the selling shareholder complies with the terms
of this Agreement and first offers the shares it wishes to sell to Able NY, and
thereafter to the other shareholder, or in the case of a sale of an interest in
S&S PA to the other party, in the following manner:
(a) In
the event that either Able or S&S desires to sell or transfer all or any
portion of its Able NY shares (the "Offering Shareholder") or its interest in
S&S PA (the "Selling Party") and has received a bona fide purchase offer
from a third party, the Offering Shareholder shall deliver a written notice to
Able NY or in the case of S&S PA, the Selling Party to the other party
stating the name of the prospective bona fide transferee, the bona fide price,
terms and conditions of such bona fide sale or transfer, the number of shares or
interest affected, and the circumstances of his intention to sell or transfer
the interest or shares.
(b) After receiving said notice,
in the case of a sale of shares in Able NY, Able NY shall have the prior right
to purchase all shares or interest so offered at the price and upon the terms
and conditions stated in such notice, with the terms of payment as contained
therein. Such prior right of purchase may be exercised by giving notice in
writing to the Offering Shareholder within fourteen (14) days after receipt of
the aforesaid notice from the Offering Shareholder.
(c) Should
Able NY not purchase such offered shares or interest, then Able NY shall within seven (7) days thereafter,
deliver a written notice to the other shareholder setting forth the same
particulars described in the notice received from the Offering Shareholder. Such
other Shareholder or in the case of a sale of an interest in S&S PA, the
other party shall then have the right to purchase all of the shares specified in
the notice by delivering to Offering Shareholder, a written offer to purchase
same upon the terms so described in the notice, with the terms of payment as
contained therein, provided that the offer is delivered to the Offering
Shareholder or Selling Party within fourteen (14) days after mailing or delivery
of the notice by Able NY or the Selling Party to the other shareholder or
party.
(d) If Able
NY or the other shareholder, or in the case of a sale of an interest in S&S
PA the other party, fail to purchase all of the Offering Shareholder's shares or
the Selling Party's interest according to the forgoing provisions, then the
Offering Shareholder or Selling Party may, within two (2) months from the date
of the Offering Shareholder's or Selling Party's notice of intention to transfer
or sell all shares or interest described in such notice, transfer the shares or
interest described in the notice to the proposed transferee upon the terms and
conditions specified in such notice.
3. Able's Representations and Warranties. Able hereby represents
and warrants to S&S that:
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(a) Organization and Good
Standing. Able is a corporation duly organized and validly existing under
the laws of the State of Delaware. Able has not received any notice from any
governmental body alleging that Able was required to qualify to do business in
any jurisdiction, nor has Able's failure to qualify to do business in any other
jurisdiction caused Able any material adverse consequences.
(b) Due Authorization,
Binding
Obligation. Able has all requisite power and authority to enter into this
Agreement and to perform its obligations hereunder and thereunder, and Able has
authorized the execution, delivery and performance of this Agreement by all
necessary corporate action. This Agreement has been duly executed and delivered
by the Able, and is, and upon execution and delivery will be, the valid and
legally binding obligation of Able enforceable in accordance with its
terms.
(c) Governmental
Approval. The execution, delivery and performance of this Agreement by
Able and the consummation of the transactions provided for herein are not
subject to the jurisdiction of, or require the approval, authorization or
consent of any governmental body.
(d) No Approvals or Notices
Required: No Conflict with Other Instruments. The
execution, delivery and performance of this Agreement by Able, and the
consummation of the transactions contemplated hereby will not conflict with, nor
will it violate or require any consent or approval, filing or notice pursuant to
any other agreement, guarantee, contract or instrument by which Able is
bound.
(e) Certain Proceedings.
There is no pending proceeding that has been commenced against Able and that
challenges, or may have the effect of preventing, delaying, making illegal, or
otherwise interfering with transactions contemplated by this Agreement.. To
Able's Knowledge, no such proceeding has been threatened.
(f) No Misstatements or
Omissions. Neither this Agreement or any representation or warranty by
Able contained in this Agreement contains any untrue statement of a material
fact, or omits to state a material fact necessary to make the statements or
facts contained therein or herein not misleading.
(g) Reliance. The
foregoing representations and warranties are made by Able with the knowledge and
expectation that S&S is relying thereon, and such representations and
warranties shall continue to and survive this Agreement as provided herein in
paragraph 3(h).
(h) Survival of Representations
and Warranties, All of the representations and warranties of Able
contained in this Agreement shall survive the
closing of this Agreement and continue in full force and effect for a period of
one (1) year from the date of closing.
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4. S&S's
Representations and Warranties. S&S hereby
represents and warrants to Able that:
(a) Organization and Good
Standing. S&S is a corporation duly organized and validly existing
under the laws of the State of Florida. S&S has not received any notice from
any governmental body alleging that S&S was required to qualify to do
business in any jurisdiction, nor has S&S's failure to qualify to do
business in any other jurisdiction caused S&S any material adverse
consequences.
(b) Due Authorization. Binding
Obligation. S&S has all requisite power and authority to enter into
this Agreement and to perform its obligations hereunder and thereunder, and
S&S has authorized the execution, delivery and performance of this Agreement
by all necessary corporate action. This Agreement has been duly executed and
delivered by S&S, and is, and upon execution and delivery will be, the valid
and legally binding obligation of S&S enforceable in accordance with its
terms.
(c) Governmental
Approval. The execution, delivery and performance of this Agreement by
S&S and the consummation of the transactions provided for herein are not
subject to the jurisdiction of, or require the approval, authorization or
consent of any governmental body.
(d) No Approvals or Notices Required; No Conflict with Other
Instruments. The execution,
delivery and performance of this Agreement by S&S, and the consummation of
the transactions contemplated hereby will not conflict with, nor will it violate
or require any consent or approval, filing or notice pursuant to any other
agreement, guarantee, contract or instrument by which S&S is
bound.
(e) Certain Proceedings.
There is no pending proceeding that has been commenced against S&S and that
challenges, or may have the effect of preventing, delaying, making illegal, or
otherwise interfering with transactions contemplated by this Agreement. To
S&S's Knowledge, no such proceeding has been threatened.
(f) No Misstatements or
Omissions. Neither this Agreement or any representation or warranty by
S&S contained in this Agreement contains any untrue statement of a material
fact, or
omits to state a material fact necessary to make the statements or facts
contained therein or herein not misleading,
(g) Reliance. The
foregoing representations and warranties are made by S&S with the knowledge
and expectation that Able is relying thereon, and such representations and
warranties shall continue to and survive this Agreement as provided herein in
paragraph 4(h).
(h) Survival of Representations
and Warranties.. All of the representations and warranties of S&S
contained in this Agreement shall survive the closing of this Agreement and
continue in full force and effect for a period of one (1) year from the date of
closing.
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5. Indemnification,. Able agrees to indemnify
and hold S&S, its officers, directors, employees and agents harmless from
any claims, suits or threats thereof arising out of the negligent, gross
negligent or intentionally wrongful operation of the business of Able NY and
Able PA prior to the date of this Agreement, including, any such claims, suits
or threats relating to environmental laws applicable to the business of Able NY
or Able PA, as the case may be, and shall defend S&S its officers,
directors, employees and agents against all such claims and suits including the
payments of costs and expenses such as legal fees and other expert costs
incurred in the defense of such claims or suits.
6. Confidential
Information. Following the execution
of this Agreement and for a period of two (2) years after the date of this
Agreement:
(a) The
parties will maintain in confidence and will not disclose any matters relating
to the existence, terms and negotiations of this Agreement and all such matters
shall be confidential and none of the Parties to this Agreement, nor their
agents, employees, attorneys, servants, officers or directors shall disclose
such information to any other person, except the financial representatives of
the Parties, without the prior written consent of the parties, unless such
disclosure is required by operation of the law, by order of a court of competent
jurisdiction or necessary in connection with an arbitration or litigation
proceeding and in such event such disclosure shall be limited to such
proceeding.
(b) In the
event that any of the parties believes that disclosure is required by law or
intends to make disclosure pursuant to this Agreement, it shall give prompt
written notice to the other party to this Agreement prior to disclosing such
information,
(c) The
parties acknowledge that money damages would be an inadequate remedy for a
breach of this Section 6 and that, in addition to money damages, an aggrieved
party should be entitled to injunctive relief.
7. Non-Competition.,In
consideration of S&S's agreement to enter into this Agreement, and as a
condition thereto, Able covenants and agrees as follows:
(a) For a
period of two (2) years from and after the date of this Agreement, Able nor any
of its affiliates, successors or assigns shall directly, or indirectly,
participate in or own and/or operate any business within the
Commonwealth of Pennsylvania and the State of New Jersey in the areas set
forth in Exhibit A that is engaged in the sale of
home heating oil, diesel fuel or propane gas and S&S nor any of its
affiliates,
successors or assigns shall directly, or indirectly, participate in or own
and/or operate any business within the State of New Jersey outsides of the areas
set forth in Exhibit A that is engaged in the sale of home heating oil, diesel
fuel or propane gas. For purposes of this provision, the term "participate in"
shall include, but not be limited to, having any direct or indirect interest in
any entity, whether as owner, stockholder, partner, joint venturer, member,
creditor or otherwise, other than ownership of not more than 5% of the
outstanding stock or securities of any class that is publicly traded, or acting
as a director, officer, manager, employee, agent, consultant or independent
contractor of any entity. If the final judgment of a court of competent
jurisdiction declares that any term or provision of this Section is invalid or
unenforceable, the parties hereto agree that the court making the
determination of invalidity or unenforceability shall have the power to reduce
the scope, duration or area of the term or provision with a term or provision
that is valid and enforceable and that comes closest to expressing the intention
of the invalid or unenforceable term or provision, and this Agreement shall be
enforceable as so modified after the expiration of the time within which the
judgment may be appealed. S&S agrees and acknowledges that notwithstanding
the foregoing, this provision shall not be applicable to or have any effect
whatsoever with respect to Price Xxxxxx.xxx, Inc, a subsidiary of
Able.
(b) The
parties acknowledge that any breach or threatened breach of any of the
provisions of this Section will cause irreparable injury to the aggrieved party,
for which an adequate monetary remedy does not exist. Accordingly, in the event
of any such breach or threatened breach, the aggrieved party shall be entitled,
in addition to the exercise of other remedies, to seek and (subject to court
approval) obtain injunctive relief, without necessity of posting a bond,
restraining the other party and its affiliates or subsidiaries from committing
such breach or threatened breach.
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8. General
Provisions.
(a) Notices. All notices,
requests, demands or other communications hereunder shall be in writing and
shall be deemed to have been given upon delivery personally or upon mailing by
registered mail, postage prepaid or by delivery by reputable overnight courier
service, to each party at the address set forth hereinabove, or at such other address as each party may
designate in writing to the other,
(b) Entire Agreement:
Amendment. This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof, supersedes any prior
agreement between the parties, and may not be changed or terminated orally, No
change, termination or attempted waiver of any of the provisions hereof shall be
binding unless in
writing and signed by the party against whom the same is sought to
be enforced,
(c) Compliance with Laws:
Severability. Both parties expressly agree that it is not
the intention of either party
to violate statutory or common law and that if any sentence,
paragraph, clause or combination of same is in violation of any law, such
sentences, paragraphs, clauses or combination of
same shall be inoperative and the
remainder of this Agreement shall remain binding upon the parties hereto unless
the remaining portions hereof are inadequate to define the rights and
obligations of the parties or to carry out their original intent as set forth in
this Agreement, in which event such party shall have the right, upon making such
determination, to terminate this Agreement.
(d) Parties-In-Interest.
This agreement shall be binding upon and inure to the benefit of the parties
hereto, their respective heirs, administrators, executors, successors and
assigns.
(e) No Third-Party
Beneficiaries. This Agreement is intended for the benefit of the parties
hereto and their respective successors and permitted assigns and is not for the
benefit of, nor may any provision hereof be enforced by, any other
person.
(f) Compromise. This
Agreement is the result of compromise between the parties and as such, it does
not constitute and shall not be deemed an admission
of liability or the validity or invalidity of any claim or defense by any of the
parties.
(g) Non-Assignment.
Notwithstanding any other provision in this Agreement, the Parties warrant and
represent that they are the complete and exclusive owners of all claims and
rights that are the subject of this Agreement, that they hold the sole right and
authority to settle, compromise and release all such claims and rights and
execute this Agreement and that they have not sold, transferred, assigned,
conveyed, or otherwise disposed of any such claims or rights to
anyone.
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(h) Interpretation..
Headings, captions, section or section numbers appearing in this Agreement are
for ease of reference and convenience only, and shall in no way be deemed to
define, modify, affect, limit or describe the scope, intent or content of this
Agreement or of provisions to which they relate.
(i) Singular or Plural
Words. Whenever used, the singular pronoun will include the plural, the
plural will include the singular, and the uses of any gender will include all
genders as required or necessary for proper grammatical reading or as the sense
or context requires.
(j) Drafting
Presumptions, Any ambiguity in this Agreement shall not be construed in
accordance with any presumption against the party
initially drafting this Agreement. If any provision of this Agreement may be
construed in two or more ways, such provision shall have the meaning which
renders it valid and enforceable.
(k) Governing Law.. All
matters concerning the validity and interpretation of and performance
under this Agreement shall be governed by the laws of the State of New
York.
(l) Execution of
Documents. At any time and from time to time hereafter, the parties
hereto will execute and deliver such further instruments, documents and
certificates and other written assurances as shall reasonably be requited in
order to consummate the transactions contemplated hereunder..
(m) Execution and
Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and, all of which taken together shall constitute one and the same agreement. In
the event that any signature is delivered by facsimile transmission, such
signature shall create a valid binding obligation of the party executing (or on
whose behalf such signature is executed) the same with the same force and effect
as if such facsimile signature were the original thereof
(n) Enforcement Costs. If
any civil action, arbitration or other legal proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach, default
or misrepresentation in connection with any provision of this Agreement, the
successful or prevailing party or parties shall be entitled to recover
reasonable attorneys' fees, sales and use taxes, court costs and all expenses
even if not taxable as court costs (including, without limitation, all such
fees, taxes, costs and expenses incident to arbitration, appellate, bankruptcy
and post judgment proceedings), incurred in that civil action, arbitration or
legal proceeding, in addition to any other relief to which such party or parties
may be entitled. Attorneys' fees shall include, without limitation, paralegal
fees, investigative fees, administrative costs, sales and use taxes and all
other charges billed by the attorney to the prevailing party
(o) Leval
Representation/Satisfaction with Terms. In executing this Agreement, the
parties acknowledge that they have consulted with and had the advice and counsel
of an attorney of their choosing who is duly admitted to practice in the State
of New York, that they are satisfied with the terms incorporated herein, that
this Agreement represents a full and fair settlement, that they have executed
this Agreement after independent investigation and without fraud, duress or
undue influence, and that they have obtained all the facts necessary for them to
make a fully informed decision to enter into this Agreement. Furthermore, the
parties acknowledge that they have equal knowledge and bargaining power in
negotiating and executing this Agreement, and that the terms of this Agreement
are contractual, not a mere recital, and are the result of negotiations between
the parties.
(p) Auditing Costs, The
parties acknowledge that Able is a publicly traded company and is required to
file, among other reports with the SEC, annual and quarterly financial reports
which it files on a consolidated basis with its subsidiaries, including Able NY.
Able shall bear all costs, including audit cots, relating to the filing of such
reports and Able NY shall not be required to contribute to such costs, However,
Able NY shall be responsible for and/or contribute to any regulatory inquiry or
investigation which involves Able NY.
(q) This
Agreement shall not be binding and enforceable until it is approved by the Board
of Directors of Able.
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IN
WITNESS WHEREOF, the parties have executed this Settlement Agreement, or caused
this Settlement Agreement to be executed by their duly authorized
representatives, as of the day and year first above written,
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Able
Energy, Inc.
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Witness:
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By: /s/ Xxxxxxx Xxxxx |
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Xxxxxxx
X. Xxxxx
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Chief
Executive Officer
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| S&S NY Holdings, Inc,. | |
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Witness:
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By: /s/ Xxxxxxxx X. Xxxxxx |
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Xxxxxxxx
X. Xxxxxx
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President
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