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Asset Purchase Agreement
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THIS AGREEMENT is made the 19th day of April, 2002
BETWEEN:
HAGENSBORG FOODS CORP, a company incorporated under the laws of
Nevada, having its registered offices at 000 Xxxxxxx Xxxxxx, Xxx 000
Xxxx, Xxxxxx 00000
(the "Vendor")
AND:
HAGENSBORG FOODS LTD. and
HAGENSBORG SEAFOODS LIMITED each being companies incorporated under
the laws of British Columbia, and having their registered offices at
480 - 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(referred to individually as "HFL" or "HSL", or jointly as the "Purchasers")
BACKGROUND
A. The Vendor carries on the business of distributing and wholesale sales of
food products, (the "Vendor's Business").
B. HSL is a wholly owned subsidiary of HFL, and they have agreed to divide the
Vendor's Business between them, with HFL acquiring the Branded Business (as
defined herein), and HSL acquiring the Seafood Business of the Vendor.
C. The Vendor has agreed to sell, and the Purchasers have agreed to purchase,
subject to certain exceptions listed in this Agreement, all the assets and
undertaking of the Vendor's Business, and the Purchasers have agreed to
grant back to the Vendor distribution rights to the products being acquired
from the Vendor, all on the terms and subject to the conditions provided in
this Agreement.
TERMS OF AGREEMENT
In consideration of the premises and the covenants, agreements, representations,
warranties and payments contained in this Agreement, the parties agree with the
others as follows:
1. PURCHASE AND SALE OF ASSETS
1.1 Description of Assets
Upon the terms and subject to the conditions of this Agreement, the Vendor
agrees to sell, assign and transfer to the Purchasers, and the Purchasers agree
to purchase from the Vendor at closing, the undertaking and all the property and
assets of the Vendor's Business of every kind and description wherever situate
(except as provided in section 1.2), including, without limiting the foregoing:
(a) all inventories (the "Inventories");
(f) all equipment;
(g) the benefit of all unfilled orders received by the Vendor in
connection with the Vendor's Business, and all other contracts,
engagements or commitments, whether written or oral, to which the
Vendor is entitled in connection with the Vendor's Business, and in
particular all right, title and interest of the Vendor in, to and
under the material agreements and contracts (the "Material Contracts")
described in the Schedule of Material Contracts;
(h) all right and interest of the Vendor to all registered and
unregistered trademarks, trade or brand names, copyrights, designs,
restrictive covenants and other industrial or intellectual property
used in connection with the Vendor's Business (the "Intangible
Property"), including, without limitation, the intangible property
described in the Schedule of Intangible Property;
; and
(i) the goodwill of the Vendor's Business and the right of the Purchasers
to represent themselves as carrying on the Vendor's Business in
continuation of and in succession to the Vendor and the right to use
the name "Hagensborg" or any variation thereof as part of or in
connection with the Vendor's Business (the "Goodwill");
all of which are collectively called the "Assets".
1.2 Exclusions
Cash on hand or on deposit, and accounts receivable shall be specifically
excluded from the purchase and sale in this Agreement, and from the Assets.
1.3 Division of Assets between the Purchasers
HFL and HSL agree that the Assets will be divided between them such that HFL
will acquire the Branded Business and HSL will acquire the Seafood Business.
For the purposes hereof the Branded Business shall mean that portion of the
Vendor's Business related to the "Kiss Me" and "spoons" chocolate based
products, and all other Assets not related to the Seafood Business, including:
- All product inventory and product packaging supplies
- Kiss Me(TM) trademarks and intellectual property
- Branded Business equipment including Custom frog-shaped molds
- Shelf space arrangements with all customers
- Existing contracts
- Trade acceptance
For the purposes hereof the Seafood Business shall mean that portion of the
Vendor's Business related to the xxxx and seafood based products including:
- All product inventory and product packaging supplies
- All "Hagensborg" trademarks
- All manufacturing finishing and packaging equipment utilized in the
production of the Seafood Business products
- all recipes for seafood pates and products
- Shelf space arrangements with all customers
- Existing contracts
- Trade acceptance
2. PURCHASE PRICE AND ALLOCATION
The purchase price payable by the Purchasers to the Vendor for the Assets will
be US$1,000,000, and shall be allocated between the Purchasers such that HFL
shall pay US$250,000 for the Branded Business (the "BB Purchase Price"), and HSL
shall pay US$750,000 for the Seafood Business (the "SB Purchase Price"). The BB
Purchase Price and the SB Purchase Price are allocated as follows:
2.1 BB Purchase Price Allocation
(a) to the Inventories, approximately US$47,000, with their net book value
as at closing determined in accordance with section 6.1;
(b) to Packaging materials, US$17,000;
(c) to the Intangible Property and the Material Contracts, including shelf
space arrangements and Trade Acceptance Drafts, US$100,000; and
(d) to the Goodwill and any other of the Assets not related to the Branded
Business purchased under this Agreement, US$86,000, or the balance
after deducting (a), (b) and (c) above from $250,000, whichever is the
lower amount.
2.2 SB Purchase Price Allocation
(a) to the Inventories, approximately US$32,000, with their net book value
as at closing determined in accordance with section 6.1;
(b) to Packaging materials, US$47,000;
(c) to manufacturing equipment US$100,000;
(d) to the Intangible Property and the Material Contracts, including shelf
space arrangements and Trade Acceptance Drafts, US$300.000; and
(f) to the Goodwill and any other of the Assets related to the Seafood
Business purchased under this Agreement, US$271,000, or the balance
after deducting (a), (b) (c) and (d) above from $750,000, whichever is
the lower amount. . .
3. PAYMENT OF THE PURCHASE PRICE
3.1 Payment of the BB Purchase Price
The purchase price for the Branded Business shall be paid and satisfied by
certified cheque or bankers draft payable at par in Vancouver to or to the order
of the Vendor and delivered at closing.
3.2 Payment of the Seafood Business Purchase Price
The purchase price for the Seafood Business shall be paid and satisfied by
certified cheque or bankers draft payable at par in Vancouver to or to the order
of the Vendor and delivered at closing.
4. ASSUMPTION OF LIABILITIES
4.1 Assumed Indebtedness
The Purchasers will assume no liabilities of the Vendor.
5. REPRESENTATIONS AND WARRANTIES OF THE VENDOR
The Vendor represents and warrants to the Purchasers as follows, with the intent
that the Purchasers will rely on these representations and warranties in
entering into this Agreement, and in concluding the purchase and sale
contemplated by this Agreement.
5.1 Capacity to Sell
The Vendor is a corporation duly incorporated, validly existing and in good
standing under the laws of Nevada with respect to the filing of annual reports,
and has the power and capacity to own and dispose of the Assets and to carry on
the Vendor's Business as now being conducted by it, and to enter into this
Agreement and carry out its terms to the full extent.
5.2 Authority to Sell
The execution and delivery of this Agreement and the completion of the
transactions contemplated by this Agreement have been duly and validly
authorized by all necessary corporate action on the part of the Vendor, and this
Agreement constitutes a legal, valid and binding obligation of the Vendor
enforceable against the Vendor in accordance with its terms except as may be
limited by laws of general application affecting the rights of creditors.
5.3 Sale Will Not Cause Default
Neither the execution and delivery of this Agreement nor the completion of the
purchase and sale contemplated by this Agreement will:
(a) violate any of the terms and provisions of the memorandum or articles
of the Vendor, or any order, decree, statute, by-law, regulation,
covenant or restriction applicable to the Vendor or any of the Assets;
or
(b) give any person the right to terminate, cancel or remove any of the
Assets, except to the extent that the consents of the other parties to
the Material Contracts are required to assign the Material Contracts;
5.4 Assets
The Vendor owns and possesses and has a good marketable title to the Assets free
and clear of all mortgages, liens, charges, pledges, security interest,
encumbrances and other claims except as described in the Schedule of Material
Contracts.
5.5 Books and Records
The books and records of the Vendor fairly and correctly set out and disclose in
all material respects, in accordance with generally accepted accounting
principles in the U.S., the financial position of the Vendor and all material
financial transactions of the Vendor relating to the Business have been
accurately recorded in those books and records.
5.6 Financial Statements
The financial statements (the "Statements") of the Vendor for the fiscal year
ended June 30, 2001, copies of which are attached as the Schedule of Financial
Statements, have been prepared in accordance with generally accepted accounting
principles in the US applied on a basis consistent with those of previous fiscal
years and present fairly and correctly the assets, liabilities (whether accrued,
absolute, contingent or otherwise) and the financial condition of the Vendor as
of the date of the balance sheet included in the Statements, and the sales and
earnings of the operations of the Vendor during the period covered by the
Statements.
5.7 Material Change
Since the date of the balance sheet included in the Statements there has not
been:
(a) any change in the financial condition of the Vendor's Business, its
liabilities or the Assets other than changes in the ordinary course of
business, none of which has been materially adverse;
(b) any damage, destruction, loss or other event (whether or not covered
by insurance) materially and adversely affecting the Assets or the
Vendor's Business;
(c) any material increase in the compensation payable or to become payable
by the Vendor to any of its officers, employees or agents or any
bonus, payment or arrangement made to or with any of them, except
increases agreed to in writing by the Purchasers.
5.8 Litigation
Excepting the damages claim of a former Landlord of the Vendor, the particulars
of which are known to the Purchasers, there is no litigation or administrative
or governmental proceeding or inquiry pending, or to the knowledge of the
Vendor, threatened against or relating to the Vendor, the Vendor's Business or
any of the Assets, nor does the Vendor know of any reasonable basis for any such
action, proceeding or inquiry.
5.9 Conformity With Laws
All governmental licenses and permits required for the conduct in the ordinary
course of the operations of the Vendor's Business and the uses to which the
Assets have been put, have been obtained and are in good standing and such
conduct and uses are not in breach of any order, decree, statute, by-law,
regulation, covenant, restriction, plan or permit, including those regulating
the discharge of materials into the environment and the storage, treatment and
disposal of waste or otherwise relating to the protection of the environment and
the health and safety of persons. For greater certainty, the Assets have not
been used in a manner which does or will give rise to any obligation of
restoration or removal or any liability for the costs of restoration or removal
or for the payment of damages to any third party.
5.10 Forward Commitments
All outstanding forward commitments by or on behalf of the Vendor for the
purchase or sale of the Inventories have been made in accordance with
established price lists of the Vendor or its suppliers, or if otherwise, then in
accordance with the Vendor's normal business custom in varying those established
price lists.
5.11 Material Contracts
The Schedule of Material Contracts contains a true and correct listing of each
written or oral contract of the following types to be acquired or assumed by the
Purchasers:
(a) contracts or commitments out of the ordinary course of business;
(b) contracts or commitments involving an obligation to pay in the
aggregate US$1,000 or more or of a duration greater than one year;
(c) contracts or commitments affecting ownership of, or title to, or any
interest in real estate or in personal property;
(d) contracts or commitments in respect of the Intangible Property;
(e) except as required by statute or regulation, contracts or commitments
in respect of bonuses, incentive compensation, pensions, group
insurance or employee welfare plans, all of which are fully funded as
determined by an independent and reputable firm of actuaries employed
by the Vendor;
(f) employment contracts or commitments other than unwritten employment
contracts of indefinite duration entered into in the ordinary course
of the Vendor's Business.
5.12 No Defaults
Except as otherwise expressly disclosed in this Agreement or in any Schedule to
this Agreement there has not been any default in any obligation to be performed
under any Material Contract, each of which is in good standing and in full force
and effect, un-amended, except as set forth in the Schedule of Material
Contracts.
5.13 Accuracy of Representations
No certificate furnished by or on behalf of the Vendor to the Purchasers at
closing in respect of the representations, warranties or covenants of the Vendor
will contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements contained in the certificate not
misleading.
6. COVENANTS OF THE VENDOR
6.1 Determination of Net Book Values
The Vendor and the Purchasers shall determine as of the day immediately
preceding closing, the net book value of the Receivables in relation to each of
the Seafood Business and the Branded Business, and arrange payment of same,
which amounts shall be within 10% of the estimates set out in Section 2.
6.2 Conduct of Business
Until closing, the Vendor shall conduct the Vendor's Business diligently and
only in the ordinary course and will use its best efforts to preserve the Assets
intact, and to preserve for the Purchasers its relationship with its suppliers,
customers and others having business relations with it.
6.3 License Back to Use Name
The Purchasers hereby grant a non-exclusive license back to the Vendor to
continue to use the word "Hagensborg" within its corporate name, and in
conjunction only with the Distribution Rights granted back to the Vendor
pursuant to Section 11.3 hereof. In the event of termination of the Distribution
Agreement the Vendor agrees that it will change its corporate name to exclude
the term Hagensborg, or any other word deemed offensive to the business purposes
of the Purchasers upon receipt of written notice to do so.
6.4 Access by Purchasers
The Vendor shall give to the Purchasers and Purchasers' counsel, accountants and
other representatives full access, during normal business hours throughout the
period prior to closing, to all of the properties, books, contracts, commitments
and records of the Vendor relating to the Vendor's Business and the Assets, and
shall furnish to the Purchasers during that period all such information as the
Purchasers may reasonably request.
6.5 Insurance
From the date of this Agreement until closing, the Vendor shall maintain in full
force and effect the policies of insurance currently in effect in respect of the
Assets until closing.
6.6 Procure Consents
The Vendor shall diligently take all reasonable steps required to obtain, before
closing, all consents to the assignments of the Material Contracts and any other
of the Assets for which a consent is required.
6.7 Covenant of Indemnity
The Vendor shall indemnify and hold harmless the Purchasers from and against:
(a) any and all liabilities, whether accrued, absolute, contingent or
otherwise, existing at closing and which are not agreed to be assumed
by the Purchasers under this Agreement;
(b) any and all damage or deficiencies resulting from any
misrepresentation, breach of warranty or non-fulfillment of any
covenant on the part of the Vendor under this Agreement or from any
misrepresentation in or omission from any certificate or other
instrument furnished or to be furnished to the Purchasers under this
Agreement; and
(c) any and all claims, actions, suits, demands, costs and legal and other
expenses incident to any of the foregoing.
7. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
The Purchasers represents and warrants to the Vendor as follows, with the intent
that the Vendor will rely on these representations and warranties in entering
into this Agreement, and in concluding the purchase and sale contemplated by
this Agreement.
7.1 Status of Purchasers
The Purchasers are each corporations duly incorporated, validly existing and in
good standing under the British Columbia Company Act with respect to the filing
of annual returns, have the power and capacity to enter into this Agreement and
carry out its terms.
7.2 Authority to Purchase
The execution and delivery of this Agreement and the completion of the
transaction contemplated by this Agreement have been duly and validly authorized
by all necessary corporate action on the part of the Purchasers, and this
Agreement constitutes a legal, valid and binding obligation of the Purchasers
enforceable against the Purchasers in accordance with its terms except as
limited by laws of general application affecting the rights of creditors.
8. COVENANTS OF THE PURCHASERS
8.1 Social Services Tax, Goods and Services Tax and the Income Tax Act
The Purchasers will be liable for and shall pay all sales taxes and registration
charges and transfer fees properly payable upon and in connection with the sale
and transfer of the Assets by the Vendor to the Purchasers. At closing, each of
the Purchasers and the Vendor shall make such tax elections under the Canada
Excise Tax Act and Income Tax Act, respectively, as may be required by the
Purchasers.
8.2 Consents
The Purchasers shall at the request of the Vendor execute and deliver such
applications for consent and such assumption agreements, and provide such
information as may be necessary to obtain the consents referred to in section
6.6 and will assist and co-operate with the Vendor in obtaining the consents.
9. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
9.1 Vendor's Representations, Warranties and Covenants
All statements contained in any certificate or other instrument delivered by or
on behalf of the Vendor under this Agreement or in connection with the
transaction contemplated by this Agreement shall be deemed to be representations
and warranties by the Vendor. All representations, warranties, covenants and
agreements made by the Vendor in this Agreement or under this Agreement shall,
unless otherwise expressly stated, survive closing and any investigation at any
time made by or on behalf of the Purchasers, subject to section 9.2, and shall
continue in full force and effect for the benefit of the Purchasers.
9.2 Limitation on Vendor's Indemnity
No claim by the Purchasers under the covenant of indemnity contained in section
6.7 or for damages or other relief in respect of misrepresentation or breach of
warranty, covenant or agreement by the Vendor under this Agreement will be valid
unless:
(a) written notice of the claim is given by the Purchasers to the Vendor
before the expiration of 12 months after closing; and
(b) the aggregate amount of all such claims exceeds US$ 10,000.
9.3 Purchasers' Representations, Warranties and Covenants
All representations, warranties, covenants and agreements made by the Purchasers
in this Agreement or under this Agreement shall, unless otherwise expressly
stated, survive closing and any investigation at any time made by or on behalf
of the Vendor, and shall continue in full force and effect for the benefit of
the Vendor.
10. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PURCHASERS
All obligations of the Purchasers under this Agreement are subject to the
fulfillment at or before closing of the following conditions:
10.1 Vendor's Representations And Warranties
The Vendor's representations and warranties contained in this Agreement and in
any certificate or document delivered under this Agreement or in connection with
the transactions contemplated by this Agreement will be true at and as of
closing as if such representations and warranties were made at and as of such
time.
10.2 Vendor's Covenants
The Vendor will have performed and complied with all agreements, covenants and
conditions required by this Agreement to be performed or complied with by it
before or at closing.
10.3 Vendor's Certificate
The Vendor will have delivered to the Purchasers a certificate of the President
and Secretary of the Vendor, dated the time of closing, certifying in such
detail as the Purchasers may specify to the fulfillment of the conditions set
forth in sections 10.1 and 10.2.
10.4 Consents
The Purchasers will have received duly executed copies of the consents or
approvals referred to in section 6.6.
The foregoing conditions are for the exclusive benefit of the Purchasers and any
such condition may be waived in whole or in part by the Purchasers at or before
closing by delivering to the Vendor a written waiver to that effect signed by
the Purchasers.
11. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE VENDOR
All objections of the Vendor under this Agreement are subject to the
fulfillment, before or at closing, of the following conditions:
11.1 Purchasers' Representations and Warranties
The Purchasers' representations and warranties contained in this Agreement will
be true at and as of closing as though such representations and warranties were
made as of such time.
11.2 Purchasers' Covenants
The Purchasers will have performed and complied with all covenants, agreements
and conditions required by this Agreement to be performed or complied with by it
at or before closing.
11.3 Grant of Distribution Rights Back
The Purchasers and the Vendor shall enter at Closing, into a Distribution
Agreement in substantially the form attached hereto as Appendix "A", whereby the
Vendor will be granted back the non-exclusive right for a period of 6 months to
distribute the Seafood products, the Branded Products and all other products
now, or in the future during the term of the Distribution Agreement produced by
the Purchasers within the United States of America.
11.4 Consents of Third Parties
All consents or approvals required to be obtained by the Vendor for the purpose
of selling, assigning or transferring the Assets will have been obtained,
provided that this condition may only be relied upon by the Vendor if the Vendor
has diligently exercised its best efforts to procure all such consents or
approvals and the Purchasers have not waived the need for all such consents or
approvals.
Each of the foregoing conditions is for the exclusive benefit of the Vendor and
any such condition may be waived in whole or part by the Vendor at or before
closing by delivering to the Purchasers a written waiver to that effect signed
by the Vendor.
12. CLOSING
12.1 Time of Closing
Subject to the terms and conditions of this Agreement, the purchase and sale of
the Assets will be completed at a closing to be held at 11:00 a.m., local time
in Vancouver, on April 19, 2002 or at such other time and date agreed upon in
writing between the parties (the "Time Of Closing").
12.2 Place of Closing
The closing will take place at the offices of the Purchasers' solicitors,
Xxxxxxxxx & Company, 480 - 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx.
12.3 Documents to be Delivered by the Vendor
At the closing the Vendor will deliver or cause to be delivered to the
Purchasers:
(a) all deeds of conveyance, bills of sale, transfer and assignments, in
form and content satisfactory to the Purchasers' counsel, appropriate
to effectively vest a good and marketable title to the Assets in the
Purchasers to the extent contemplated by this Agreement, and
immediately registerable in all places where registration of such
instruments is required;
(b) all consents or approvals obtained by the Vendor for the purpose of
validly assigning the Material Contracts;
(c) possession of the Assets;
(d) the certificate of the President and Secretary of the Vendor to be
given under section 10.3;
(e) the elections under the Excise Tax Act and the Income Tax Act as may
be required by the Purchasers;
(f) duly executed releases of, or evidence to the reasonable satisfaction
of the Purchasers as to the discharge of any and all liabilities which
the Purchasers has not agreed to assume and which may be enforceable
against any of the Assets being purchased under this Agreement;
(g) certified copies of those resolutions of the shareholders and
directors of the Vendor required to be passed to authorize the
execution, delivery and implementation of this Agreement and of all
documents to be delivered by the Vendor under this Agreement; and
(h) a statement of the Assumed Indebtedness signed by the Vendor.
12.4 Documents to be Delivered by the Purchasers
At the closing the Purchasers will deliver or cause to be delivered:
(a) a covenant of the Purchasers in favour of the Vendor agreeing to
assume and pay or perform and indemnify the Vendor against the Assumed
Indebtedness and other obligations agreed to be assumed by the
Purchasers under this Agreement in the manner and to the extent
provided in this Agreement;
(b) the elections under the Excise Tax Act and the Income Tax Act as may
be required by the Purchasers;
(c) a certified cheque or banker's draft payable to the Vendor for that
portion of the Seafood Business Purchase Price payable in cash by HSL;
and
a certified cheque or banker's draft payable to the Vendor for the
Branded Business Seafood Purchase Price payable in cash by HFL.
13. Risk of Loss
From the date of this Agreement to closing, the Assets will be and remain at the
risk of the Vendor. If any of the Assets are lost, damaged or destroyed before
closing, the Purchasers may, in lieu of terminating this Agreement under Article
10, elect by notice in writing to the Vendor to complete the purchase to the
extent possible without reduction of the purchase price, in which event all
proceeds of any insurance or compensation in respect of such loss, damage or
destruction will be payable to the Purchasers and all right and claim of the
Vendor to any such amounts not paid by closing will be assigned to the
Purchasers.
14. Further Assurances
The parties will execute such further and other documents and do such further
and other things as may be necessary to carry out and give effect to the intent
of this Agreement.
15. Set-Off
If, under this Agreement or any document delivered under this Agreement, the
Vendor becomes obligated to pay any sum of money to the Purchasers, then such
sum may at the election of the Purchasers, and without limiting or waiving any
right or remedy for the Purchasers under this Agreement, be set off against and
will apply to any sum of money or security owed by the Purchasers to the Vendor
until such amount has been completely set off.
16. Notice
All notices required or permitted to be given under this Agreement will be in
writing and personally delivered to the address of the intended recipient set
forth on the first page of this Agreement or at such other address as may from
time to time be notified by any of the parties in the manner provided in this
Agreement.
17. Entire Agreement
This Agreement constitutes the entire agreement between the parties and there
are no representations or warranties, express or implied, statutory or otherwise
and no collateral agreements other than as expressly set forth or referred to in
this Agreement.
18. Time of the Essence
Time will be the essence of this Agreement.
19. Applicable Law
This Agreement will be governed by and interpreted in accordance with the laws
of British Columbia.
20. Successors and Assigns
This Agreement will enure to the benefit of and be binding upon the parties and
their respective successors and assigns.
21. Headings
The headings appearing in this Agreement are inserted for convenience of
reference only and will not affect the interpretation of this Agreement.
AS EVIDENCE OF THEIR AGREEMENT the parties have executed this Agreement as of
the day and year first above written.
HAGENSBORG FOODS CORP.
/s/ C. Xxxxx Xxxxx, Chairman
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Authorised Signatory
HAGENSBORG FOODS LTD.
/s/ Xxxxxx Xxxxxxx, President
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Authorised Signatory
HAGENSBORG SEAFOOD LIMITED
/s/ Xxxxxx Xxxxxxx, President
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Authorised Signatory
