Exhibit 10.20
FIRST AMENDMENT TO AMENDED AND RESTATED INVENTORY AND
RECEIVABLES PURCHASE AGREEMENT
This First Amendment to Amended and Restated Inventory and Receivables
Purchase Agreement (the "First Amendment") is entered into as of May 24, 2006 by
and between Intraop Medical Corporation, a Nevada Corporation ("Company") and
E.U. Capital Venture, Inc., a Nevada Corporation and E.U.C. Holding, a Danish
corporation (together, "Buyer").
RECITALS
WHEREAS, Company and Buyer entered into an Amended and Restated Inventory
and Receivables Purchase Agreement dated as of April 10, 2006 (the "Restated
Agreement").
WHEREAS, Company and Buyer desire to amend certain provisions of the
Restated Agreement as set forth below.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, and intending to be
legally bound, the parties hereby agree as follows:
1. Amendment of Section 2.1:
Section 2.1 of the Restated Agreement is amended in its entirety to
read as follows:
2.1. Buyer will purchase up to $4,000,000 of combined Inventory and
Factored Inventory from Company, on a revolving basis, upon the terms and
conditions set forth herein, provided that, Buyer shall not be obligated to
purchase more than $2,600,000 of Inventory, on a revolving basis, pursuant to
Section 2.2 below."
2. Warrant Coverage.
As consideration for entering into this First Amendment, Company shall
a) issue to Buyer, upon execution of this First Amendment by Buyer, a two-year
warrant to purchase 192,308 shares of Company's common stock at an exercise
price of $0.52 per share, in substantially the form attached hereto as Exhibit
A, and b) extend the expiration date of the warrant previously issued to Buyer
for 576,924 shares by one year from its original expiration date. Buyer
acknowledges and agrees that, in connection with the issuance of such warrant,
it shall execute and deliver to Company an agreement containing appropriate
representations and warranties of Buyer with respect to the issuance of such
warrant to facilitate compliance by Company with applicable federal and state
securities laws.
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3. General
3.1 On and after the effective date of this First Amendment, each reference
in the Restated Agreement to "the Agreement," "this Agreement," "hereunder" and
"hereof" or words of like import shall refer to the Restated Agreement as
amended by this First Amendment. The Restated Agreement, as amended by this
First Amendment, is and shall continue to be in full force and effect and is
hereby in all respects ratified and confirmed.
3.2. This First Amendment shall be governed by and construed in accordance
with the substantive laws of the United States and the State of California,
without regard to or application of California's conflicts of law rules. Any
litigation arising out of or relating to this First Amendment shall take place
exclusively in the appropriate state or federal court having jurisdiction in
Santa Xxxxx County, California, and each party hereby irrevocably consents to
the jurisdiction of such courts.
3.3. The Restated Agreement, as amended by this First Amendment, represents
the entire agreement between the parties hereto concerning the subject matter
hereof and supersedes any and all prior or contemporaneous correspondence,
quotations and negotiations. The Restated Agreement, as amended by this First
Amendment, supersedes and will take precedence over any conflicting terms in any
purchase order invoice, confirmation or other similar document.
3.4 This First Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This First Amendment may be executed and delivered
by telecopy or facsimile and execution in such manner shall constitute an
original.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this First Amendment as of the date first written above.
COMPANY:
Intraop Medical Corporation
By: /s/ Xxxxxx X. Goer
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Name: Xxxxxx X. Goer
Title: President
Date: 6/1/2006
BUYER:
E.U. Capital Venture, Inc
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Secretary/Treasurer
BUYER
E.U.C. Holding
By:
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Xxxxxx Xxxxxxxx
President
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EXHIBIT A
Form of Warrant
THIS WARRANT AND THE SECURITIES PURCHASABLE UPON ITS EXERCISE HAVE BEEN AND WILL
BE, AS THE CASE MAY BE, ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE
DISPOSED OF, UNLESS SO REGISTERED OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT IS AVAILABLE FOR SUCH SALE, TRANSFER, OR DISPOSITION.
WARRANT TO PURCHASE
COMMON STOCK OF
INTRAOP MEDICAL CORPORATION
WARRANT #CC-3
Issued this 1st day of June, 2006.
FOR VALUE RECEIVED, subject to the terms and conditions herein set forth, E.U.
Capital Venture, Inc. ("Holder") is entitled to purchase from Intraop Medical
Corporation, a Nevada corporation (the "Company"), at any time prior to the
Expiration Date (as defined below), at a price per share as set forth in Section
1 hereof (the "Warrant Price"), the number of fully paid and non-assessable
shares of common stock of the Company, $0.001 par value ("Common Stock"), as set
forth in Section 2 hereof (the "Shares").
1. Warrant Price. The Warrant Price for each of the Shares purchasable
hereunder shall be Fifty Two Cents ($0.52) (the "Warrant Price"), subject to
adjustment as provided in Section 10.
2. Number of Shares. The number of Shares issuable upon exercise of
this Warrant shall be 192,307, subject to adjustment as provided in Section 10.
3. Expiration of Warrant. Subject to earlier termination in accordance
with Section 8 below, this Warrant shall expire and shall no longer be
exercisable after May 31, 2008 (the "Expiration Date"). Subject to Section 8,
prior to the Expiration Date the Company may not call or otherwise redeem this
Warrant without the prior written consent of Holder.
4. No Fractional Shares. This Warrant may not be exercised as to
fractional Shares.
5. No Stockholder Rights. This Warrant shall not entitle Holder to any
of the rights of a stockholder of the Company until such time as Holder
exercises this Warrant.
6. Reservation of Shares. The Company covenants that during the period
this Warrant is exercisable it will reserve from its authorized and unissued
shares of Common Stock a sufficient number of shares to provide for the issuance
of the maximum number of shares of Common Stock issuable upon the exercise of
this Warrant. The Company agrees that its issuance of this Warrant shall
constitute full authority to its officers to instruct the Company's transfer
agent to issue the necessary certificates for shares of Common Stock upon the
exercise of this Warrant.
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7. Exercise of Warrant.
(a) This Warrant may be exercised by Holder, in whole or in
part, by the surrender of this Warrant at the principal office of the Company,
together with the Subscription Form attached hereto duly completed and executed,
accompanied by payment in full of the aggregate Warrant Price for the Shares
being purchased upon such exercise. In the event of exercise of this Warrant in
compliance with the provisions hereof, certificates for the Shares so purchased
shall be delivered to Holder promptly and, unless this Warrant has been fully
exercised or expired, a new Warrant representing that portion of the Shares, if
any, with respect to which this Warrant will not then have been exercised, shall
be issued to Holder. The Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise as provided above, and Holder shall be treated for all purposes as the
holder of record of such shares as of the close of business on such date.
(b) As promptly as practicable on or after such date, the
Company shall cause to be issued and delivered to Holder a certificate or
certificates for the number of full Shares issuable upon such exercise.
Notwithstanding the foregoing or any other provision of this Warrant, this
Warrant can be exercised in whole or in part, provided that each partial
exercise shall not be for less than one thousand (1,000) Shares at any time
unless at such time less than one thousand (1,000) such Shares are subject to
such exercise.
(c) Issuance of certificates for the Shares upon the exercise
of this Warrant shall be made without charge to the registered holder hereof for
any issue or transfer tax or other incidental expense with respect to the
issuance of such certificates, all of which taxes and expenses shall be paid by
the Company, and such certificates shall be issued in the name of the registered
holder of this Warrant or in such name or names as may be directed by the
registered holder of this Warrant; provided, however, that in the event
certificates for the Shares are to be issued in a name other than the name of
the registered holder of this Warrant, this Warrant, when surrendered for
exercise, shall be accompanied by the Assignment Form attached hereto duly
executed by Holder hereof, and provided further, that any such transfer shall
comply with Section 9 hereof.
8. Automatic Termination. In the event of the sale of all or
substantially all the capital stock, or substantially all the assets, of the
Company in a merger, business combination, or other form of business transaction
in which the Company's stockholders do not own at least a majority of the
outstanding voting securities of the surviving corporation or business entity
after such transaction (based solely on such Company stockholders' holdings of
the Company prior to the transaction) then the Company shall give Holder at
least twenty (20) days written notice of the proposed effective date and terms
of such offering, transaction or agreements, and if this Warrant has not been
exercised before the effective date set forth in such notice, then this Warrant
and the rights hereunder shall automatically terminate in its entirety.
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9. Transfer or Assignment of Warrant.
(a) This Warrant, and any rights hereunder, may not be
assigned or transferred, except as provided herein and in accordance with and
subject to the provisions of (i) applicable state securities laws, and (ii) the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (such Act and such rules and regulations being hereinafter
collectively referred to as the "Act"). Any purported transfer or assignment
made other than in accordance with this Section 9 shall be null and void and of
no force and effect.
(b) This Warrant, and any rights hereunder, may be transferred
or assigned only upon receipt by the Company of (i) notice of the proposed
transfer or assignment and a detailed statement of the circumstances surrounding
the proposed transfer or assignment and (ii) if reasonably requested by the
Company, an opinion of counsel reasonably satisfactory to the Company that (i)
the transferee is a person to whom this Warrant may be legally transferred
without registration under the Act, and (ii) such transfer will not violate any
applicable law or governmental rule or regulation, including, without
limitation, any applicable federal or state securities law.
(c) Any assignment permitted hereunder shall be made by
surrender of this Warrant to the Company at its principal office with the
Assignment Form annexed hereto duly executed and funds sufficient to pay any
transfer tax, if any. In such event, the Company shall, without charge, execute
and deliver a new warrant in the name of the assignee named in such instrument
of assignment in the amount so assigned and this Warrant shall be promptly
canceled, provided, however, that in the event that Holder hereof shall assign
or transfer less than the full amount of this Warrant, a new warrant evidencing
the remaining portion of this Warrant not so assigned or transferred shall be
issued in the name of Holder.
10. Adjustments to Shares.
(a) If outstanding shares of the Company's Common Stock shall
be subdivided into a greater number of shares or a dividend in Common Stock
shall be paid in respect of Common Stock, the Warrant Price in effect
immediately prior to such subdivision or at the record date of such dividend
shall simultaneously with the effectiveness of such subdivision or immediately
after the record date of such dividend be proportionately reduced. If
outstanding shares of the Company's Common Stock shall be combined into a
smaller number of shares, the Warrant Price in effect immediately prior to such
combination shall, simultaneously with the effectiveness of such combination, be
proportionately increased. When any adjustment is required to be made in the
Warrant Price, the number of shares of Common Stock purchasable upon the
exercise of this Warrant shall be changed to the number determined by dividing
(i) an amount equal to the number of shares issuable upon the exercise of this
Warrant immediately prior to such adjustment, multiplied by the Warrant Price in
effect immediately prior to such adjustment, by (ii) the Warrant Price in effect
immediately after such adjustment.
(b) When any adjustment is required to be made in the number
of shares of Common Stock purchasable hereunder or the Warrant Price pursuant to
this Section 10, the Company shall promptly mail to Holder a certificate setting
forth (i) a brief statement of the facts requiring such adjustment, (ii) the
Warrant Price after such adjustment and (iii) the kind and amount of stock or
other securities or property into which this Warrant shall be exercisable after
such adjustment.
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(c) The Company shall not, by amendment of its Certificate of
Incorporation, as amended from time to time, or through a reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of its terms to be observed or performed under this
Warrant by the Company, but shall at all times in good faith assist in carrying
out of all the provisions of this Section 10 and in taking all such action as
may be necessary or appropriate to protect Holder's rights under this Section 10
against impairment.
11. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by
the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of this Warrant, if mutilated, the Company will
make and deliver a new warrant identical in tenor and date in lieu of this
Warrant.
12. General. This Warrant shall be governed by and interpreted in
accordance with the laws of the State of California, except for its principles
of conflicts of laws. The headings in this Warrant are for purposes of
convenience and reference only and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally but rather only by an instrument in writing
signed by the Company and Holder. This Warrant shall be binding on and inure to
the benefit of the parties hereto and their respective successors and assigns.
In case any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute in
this Warrant. All notices and other communications from the Company to Holder
shall be mailed by prepaid courier or first-class registered or certified mail,
postage pre-paid, to the address furnished to the Company in writing by the last
holder who shall have furnished an address to the Company in writing.
INTRAOP MEDICAL CORPORATION
By:
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Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer
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SUBSCRIPTION FORM
The undersigned registered owner of the Warrant which accompanies this
Subscription Form hereby irrevocably exercises such warrant for, and purchases
_________ shares Common Stock (the "Shares") of Intraop Medical Corporation, a
Nevada corporation (the "Company"), purchasable upon the exercise of such
Warrant, and herewith makes payment therefor, at the price and on the terms and
conditions specified in such Warrant and represents, warrants, covenants and
agrees as follows:
1.01 Authorization. This exercise constitutes a valid and legally binding
obligation of the undersigned, enforceable in accordance with its terms.
1.02 Investment Representation. The undersigned acknowledges, represents,
and warrants that it (a) has a preexisting personal or business relationship
with the Company, and/or by reason of its business or financial experience has
the capacity to protect its own interests in connection with the transaction,
and (b) is an "accredited investor" as defined in Regulation D of the Securities
Act of 1933, as amended (the "Act"). The undersigned further acknowledges that
it is aware that the Shares have not been registered under the Act, or qualified
under any state's securities laws. The Shares are being acquired for investment
purposes only and not for sale or with a view to distribution of all or any part
thereof.
1.03 Access to Information. The undersigned represents that it has or
will have had upon exercise of the Warrant an opportunity to ask questions of
and receive answers from the Company regarding the terms and conditions of its
purchase of the Shares concerning the business, financial affairs and other
aspects of the Company, and it has further had the opportunity to obtain any
information (to the extent the Company possesses or can acquire such information
without unreasonable effort or expense) which it deems necessary to evaluate its
investment or to verify the accuracy of information otherwise provided to it.
The undersigned acknowledges that it is not relying upon any person, firm or
corporation (other than the Company and its officers and directors) in making
its investment or decision to invest in the Company, and the undersigned
represents that it has been solely responsible for its own "due diligence"
investigation of the Company and its management and business, for its own
analysis of the merits and risks of this investment.
1.04 Investment Experience. The undersigned represents and warrants that
by reason of its financial and business experience, it has the capacity to
protect its interests in connection with these transactions.
1.05 Restricted Securities. The undersigned understands that the Shares
will be characterized as "restricted securities" under the federal securities
laws inasmuch as they are being acquired from the Company in a transaction not
involving a public offering, and that under such laws and applicable regulations
such securities may be resold without registration under the Act only in certain
limited circumstances and that otherwise such securities must be held
indefinitely. In this connection, the undersigned represents that it is familiar
with SEC Rule 144, as presently in effect, and the conditions which must be met
in order for that Rule to be available for resale of "restricted securities,"
and understands the resale limitations imposed by the Act.
1.06 Further Limitations on Disposition. Without in any way limiting the
representations set forth above, the undersigned further agrees not to make any
disposition of all or any portion of the Shares unless and until:
(a) There is then in effect a "Registration Statement" under the
Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement and any applicable requirements of
state securities laws; or
(b) (i) the undersigned shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii) if
reasonably requested by the Company, shall have furnished the Company with an
opinion of counsel at undersigned's expense (except for dispositions pursuant to
Rule 144 of the Rules and Regulations under the Act which dispositions shall not
so require an opinion of counsel) reasonably satisfactory to the Company, that
such disposition will not require registration of the Shares under the Act or
the consent of or permit from appropriate authorities under any applicable state
securities law.
(c) Notwithstanding the provisions of paragraphs (a) and (b)
above, no such Registration Statement or opinion of counsel shall be necessary
for a transfer by the undersigned to a constituent stockholder or constituent
partner (including any constituent of a constituent) of the undersigned, if the
transferee or transferees agree in writing to be subject to the terms hereof to
the same extent as if they were the undersigned hereunder.
2. RESTRICTIONS ON THE TRANSFER OF SECURITIES.
2.01 Corporate Securities Law. The Shares shall be transferred only in
compliance with the conditions specified in Section 1.06, which conditions are
intended to ensure compliance with the provisions of the Act and state
securities laws with respect to the transfer of any such securities. Each
certificate representing the Shares shall bear at least a legend substantially
in the following form until such time as the conditions of such legend have been
met:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED ("ACT"), NOR HAVE THEY BEEN REGISTERED OR QUALIFIED
UNDER THE SECURITIES LAWS OF ANY STATE. NO TRANSFER OF SUCH SECURITIES WILL BE
PERMITTED UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH
TRANSFER, THE TRANSFER IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT OR AS
OTHERWISE PERMITTED BY THE COMPANY, OR IN THE OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY AND AT HOLDER'S EXPENSE, REGISTRATION UNDER THE ACT IS UNNECESSARY
IN ORDER FOR SUCH TRANSFER TO COMPLY WITH THE ACT AND WITH APPLICABLE STATE
SECURITIES LAWS.
The Company shall, within ten (10) days of the request of any holder of a
certificate bearing the foregoing legend and the surrender of such certificate,
issue a new stock certificate in the name of the transferee provided that there
has been compliance with the provisions of subsection 1.06 above.
2.02 Additional Legends. The Company may also impose any additional
legend required under applicable federal or state securities laws or permitted
under its bylaws and shall be entitled to issue stop transfer notices on its
books with respect to any securities purchased hereunder until the conditions
set forth in the applicable legends have been met.
3. REGISTRATION RIGHTS.
3.01 Company Registration. If at any time or from time to time the
Company shall determine to register any of its securities under the Securities
Act of 1933, as amended (the "Securities Act") in connection with the public
offering of its securities solely for cash (other than a registration relating
solely to the sale of securities to participants in a Company stock plan or a
transaction covered by Rule 145 or any registration on any form which does not
include substantially the same information as would be required to be included
in a registration statement on Form S-3 or any successor or substitute form) the
Company shall, at such time, promptly give the undersigned holder of the Shares
(or any transferee thereof) written notice of such registration. Upon the
written request of such holder, given within twenty (20) days after mailing of
such notice by the Company, the Company shall, subject to the provisions of
Section 3.02, cause to be registered under the Securities Act all of the Shares
that the holder thereof has requested to be registered.
3.02 Underwriting; Other Provisions. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required to include any of the Shares in such underwriting unless
the holder(s) of such Shares accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it (or by other persons
entitled to select the underwriters). If the total amount of securities,
requested by stockholders to be included in such offering exceeds the amount of
securities sold other than by the Company that the underwriters determine in
their sole discretion is compatible with the success of the offering, then the
Company shall be required to include in the offering only that number of such
securities which the underwriters determine in their sole discretion will not
jeopardize the success of the offering (the securities so included to be
apportioned pro rata among the selling stockholders according to the total
amount of securities entitled to be included therein owned by each selling
stockholder or in such other proportions as shall mutually be agreed to by such
selling stockholders). The Company shall pay expenses of the holder of the
Shares in any such registration to the same extent as is applicable to other
selling stockholders in such registration pursuant to the Investor Rights
Agreement between the Company and the holders of Preferred Stock in effect at
the time of such registration.
Dated:
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(Signature of Registered Owner)
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(Name)
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(Street Address)
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(City, State, Zip Code)
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Social Security or Tax Identification Number
ACKNOWLEDGED AND AGREED:
INTRAOP MEDICAL CORPORATION
By:
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Name:
Title:
If the number of Shares issuable upon this exercise shall not be all of
the Shares which the undersigned is entitled to purchase in accordance with the
enclosed Warrant, the undersigned requests that a new warrant evidencing the
right to purchase the Shares not issuable pursuant to the exercise evidenced
hereby be issued in the name of and delivered to:
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(Please print name and address)
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Date: Name of Holder:
--------------- (Print)
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(By)
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(Name:)
(Title:)
(Signature must conform in all respects
to name of holder as specified on the face
of the Warrant)
FORM OF ASSIGNMENT
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
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(Name and address of assignee must be printed or typewritten)
___________ shares of Intraop Medical Corporation Common Stock purchasable under
the within Warrant, hereby irrevocably constituting and appointing
______________________ Attorney to transfer said Warrant on the books of the
Company, with full power of substitution in the premises.
Dated: ___________
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(Signature of Registered Owner)
