EXHIBIT 10.23
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "AGREEMENT") is entered into as
of October 18, 2002 by and between Persistence Software, Inc., a Delaware
corporation (the "COMPANY"), and RTX Securities Corporation (the "WARRANT SHARE
HOLDER"). For purposes of this Agreement, the term "Warrant Share Holder"
includes all subsequent holders of Warrant Shares (as defined below).
RECITALS
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1. The Company and the Warrant Share Holder have entered into an
Advisory Agreement pursuant to which the Warrant Share Holder will provide
certain services to the Company in consideration, in part, for the issuance to
the Warrant Share Holder by the Company of a warrant to purchase common stock,
dated as of the date hereof (the "WARRANT").
2. A condition to the Warrant Share Holder obligations' under the
Advisory Agreement is that the Company grant certain registration rights to the
Warrant Share Holder with respect to the shares of Common Stock issuable upon
exercise of the Warrant (the "WARRANT SHARES").
3. The Company wishes to execute this Agreement and grant the Warrant
Share Holder the rights contained herein.
AGREEMENT
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The parties hereby agree as follows:
1. REGISTRATION RIGHTS. The Company and the Warrant Share Holder
covenant and agree as follows:
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The terms "REGISTER," "REGISTERED," and
"REGISTRATION" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities Act
of 1933, as amended (the "SECURITIES ACT") on Form S-3, and the declaration or
ordering of effectiveness of such registration statement or document;
(b) The term "REGISTRABLE SECURITIES" means:
(i) the Warrant Shares that are exercisable from
time to time in accordance with the terms of the Warrant; and
(ii) any other shares of Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or other distribution
with respect to, or in connection with a stock split, or in exchange for or in
replacement of, the Warrant Shares, excluding in all cases, however, any
Registrable Securities sold by a person in a transaction in which his or her
rights under this Agreement are not assigned; PROVIDED, HOWEVER, that the
Warrant Shares shall only be treated as Registrable Securities if and so long as
they have not been (A) sold to or through a broker or dealer or underwriter in a
public distribution or a public securities transaction, or (B) sold in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act under Section 4(1) thereof so that all transfer restrictions,
and restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale;
(c) The term "HOLDER" means any holder of outstanding
Registrable Securities who, subject to the limitations set forth in Section 1.10
below, acquired such Registrable Securities in a transaction or series of
transactions not involving any registered public offering;
(d) The term "FORM S-3" means such form under the
Securities Act as in effect on the date hereof or any successor form under the
Securities Act; and
(e) The term "SEC" means the Securities and Exchange
Commission.
1.2 COMPANY REGISTRATION. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
stock under the Securities Act in connection with the public offering of such
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 under the Securities Act, a registration in which the only
stock being registered is Common Stock issuable upon conversion of debt
securities which are also being registered, 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 covering the sale of the Registrable
Securities), the Company shall, at such time, promptly give each Holder written
notice of such registration. Upon the written request of each Holder given
within 20 days after mailing of such notice by the Company in accordance with
Section 2.6, the Company shall, subject to the provisions of Section 1.7, cause
to be registered under the Securities Act all of the Registrable Securities that
each such Holder has requested to be registered. Each Holder understands and
agrees that the registration rights granted to the Holder(s) hereunder are to
rank junior to the piggyback registration rights held by certain of the
Company's other stockholders.
1.3 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective, and keep such
registration statement effective until the earlier of: (i) the date on which all
the Registrable Securities are sold thereunder, or (ii) 90 days.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement pursuant to the terms and
subject to the conditions of this Agreement.
(c) Furnish to the Holder(s) such numbers of copies
of a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
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(d) Use its commercially reasonable efforts to
register and qualify the securities covered by such registration statement under
such other securities or Blue Sky laws of such jurisdictions as shall be
reasonably requested by the Holder(s), PROVIDED that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions.
(e) Notify each Holder of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing, such obligation to continue for so long as the Company agrees to
keep the registration statement effective pursuant to the terms of Section
1.3(a), whereupon each Holder shall cease utilizing such prospectus until such
time as the Company files a supplement or file a post-effective amendment to the
registration statement or the prospectus or any document incorporated therein by
reference or files any other report or document so that, as thereafter delivered
to the purchasers of the Registrable Securities, the prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading (a "PROSPECTUS UPDATE").
As soon as the Prospectus Update has been effectuated, the Company will notify
each Holder that the prospectus is available for use, whereupon each such Holder
may thereupon commence utilizing such prospectus.
(f) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange or other market on
which similar securities issued by the Company are then listed.
(g) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
1.4 FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 1
with respect to the Registrable Securities of any selling Holder that such
Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Holder's
Registrable Securities.
1.5 EXPENSES OF REGISTRATION. All expenses incurred in
connection with registrations, filings or qualifications of Registrable
Securities hereunder for each Holder (which right may be assigned as provided in
Section 1.10), including (without limitation) all registration, filing, and
qualification fees, printers' and accounting fees, and fees and disbursements of
counsel for the Company, shall be borne by the Company. The Company shall not be
required to pay any underwriters' or brokers' fees, discounts or commissions
relating to the Registrable Securities, or the fees or expenses of separate
counsel to the selling Holder(s) (such fees, discounts and expenses, if any, to
be borne pro rata by the Holders participating in the registration).
1.6 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.2 to include any of the Holders'
securities in such underwriting unless they 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), and then only in such
quantity as the underwriters determine in their sole discretion will not
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jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable 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, including
Registrable 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 all selling stockholders according to
the total amount of securities entitled to be included therein owned by each
selling stockholder, provided that the Warrant Shares shall be excluded entirely
from the offering before any shares of Common Stock issued on conversion of
Preferred Stock of the Company are excluded). For purposes of the preceding
parenthetical concerning apportionment, for any selling stockholder that is a
holder of Registrable Securities and that is a partnership or corporation, the
partners, retired partners and stockholders of such holder, or the estates and
family members of any such partners and retired partners and any trusts for the
benefit of any of the foregoing persons shall be deemed to be a single "SELLING
STOCKHOLDER," and any pro-rata reduction with respect to such "selling
stockholder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling stockholder," as defined in this sentence.
1.7 DELAY OF REGISTRATION. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.8 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, any underwriter (as defined in the
Securities Act) for such Holder and each person, if any, who controls such
Holder or underwriter within the meaning of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), against any losses,
claims, damages, or liabilities (joint or several) to which they may become
subject under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "VIOLATION"): (i) any untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading, or (iii) any violation
or alleged violation by the Company of the Securities Act, the Exchange Act, any
state securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any state securities law; and the Company will pay to
each such Holder, underwriter or controlling person, as incurred, any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; PROVIDED, HOWEVER,
that the indemnity agreement contained in this subsection 1.8(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability, or
action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be liable to
any Holder, underwriter or controlling person for any such loss, claim, damage,
liability, or action to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling
Holder will indemnify and hold harmless the Company, each of its directors, each
of its officers who has signed the registration statement, each person, if any,
who controls the Company within the meaning of the Securities Act, any
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underwriter, any other Holder selling securities in such registration statement
and any controlling person of any such underwriter or other Holder, against any
losses, claims, damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject, under the Securities Act, the Exchange Act
or other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such registration;
and each such Holder will pay, as incurred, any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant to this
subsection 1.8(b), in connection with investigating or defending any such loss,
claim, damage, liability, or action; PROVIDED, HOWEVER, that the indemnity
agreement contained in this subsection 1.8(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld; PROVIDED, that in no event shall any indemnity
under this subsection 1.8(b) exceed the net proceeds from the offering received
by such Holder, except in the case of willful fraud by such Holder.
(c) Promptly after receipt by an indemnified party
under this Section 1.8 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 1.8,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; PROVIDED, HOWEVER, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.8, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.8.
(d) If the indemnification provided for in this
Section 1.8 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 therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations; PROVIDED, that in no event shall any contribution by a Holder
under this Subsection 1.8(d) exceed the net proceeds from the offering received
by such Holder, except in the case of willful fraud by such Holder. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
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(e) Notwithstanding the foregoing, to the extent that
the provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holder(s)
under this Section 1.8 shall survive the completion of any offering of
Registrable Securities in a registration statement under this Section 1, and
otherwise.
1.9 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view
to making available to the Holder(s) the benefits of Rule 144 promulgated under
the Securities Act and any other rule or regulation of the SEC that may at any
time permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as
those terms are understood and defined in SEC Rule 144, at all times so long as
the Company remains subject to the periodic reporting requirements under
Sections 13 or 15(d) of the Exchange Act;
(b) file with the SEC in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act; and
(c) furnish to any Holder, so long as the Holder owns
any Registrable Securities, forthwith upon request (i) a written statement by
the Company that it has complied with the reporting requirements of SEC Rule
144, the Securities Act and the Exchange Act, (ii) a copy of the most recent
annual or quarterly report of the Company and such other reports and documents
so filed by the Company, and (iii) such other information as may be reasonably
requested in availing any Holder of any rule or regulation of the SEC which
permits the selling of any such securities without registration.
1.10 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register Registrable Securities pursuant to this Section 1 may be
assigned by any Holder to a transferee or assignee of at least 25,000 shares of
the Warrant Shares, provided the Company is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Securities Act.
1.11 CERTAIN ADDITIONAL AGREEMENTS OF THE HOLDER(S).
(a) Prior to and so long as the registration
statement shall remain effective, each Holder shall:
(i) Not engage in any stabilization activity in
connection with the Company's Common Stock;
(ii) Not bid for or purchase any of the
Company's Common Stock or any rights to acquire the Company's Common Stock, or
attempt to induce any person to purchase any of the Company's Common Stock other
than as permitted under the Exchange Act; or
(iii) Effect all sales of Registrable Securities
in broker's transactions through broker-dealers acting as agents, in
transactions directly with market makers or in privately negotiated transaction
where no broker or other third party (other than the purchaser) is involved.
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(b) Without limiting any other provision of this
Agreement, no Holder shall engage in any short-sales of the Company's Common
Stock prior to or during the effectiveness of the registration statement
pursuant to which the Holder(s) is offered the opportunity to sell its
Registrable Securities hereunder.
1.12 TERMINATION OF REGISTRATION RIGHTS. The rights granted
under this Section 1, including the rights to utilize any previously filed
registration statements, shall terminate upon the earlier of (a) October 18,
2007, (b) the date the Company has effected one registration statement pursuant
hereto or (c) such time as the Holder(s) may sell all of its Registrable
Securities in any single three month period pursuant to Rule 144 (or such
successor rule as may be adopted).
2. MISCELLANEOUS.
2.1 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended or waived with the written consent of the Company and the holders of all
of the Warrant Shares then held by all Holders. Any amendment or waiver effected
in accordance with this Section 2.1 shall be binding upon the parties and their
respective successors and assigns.
2.2 SUCCESSORS AND ASSIGNS. Subject to the provisions of
Section 1.10, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties. Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and
assigns, any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
2.3 GOVERNING LAW. The corporate laws of the State of Delaware
shall govern all issues concerning the relative rights of Company and the Holder
as a stockholder. All other questions concerning the construction, validity,
enforcement and interpretation of this Agreement and all acts and transactions
pursuant hereto shall be governed by and construed in accordance with the laws
of the State of California, without regard to principles of conflicts of law.
2.4 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
2.5 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
2.6 NOTICES. Any notice required or permitted by this
Agreement shall be in writing and shall be deemed sufficient upon receipt, when
delivered personally or by courier, overnight delivery service or confirmed
facsimile, or 48 hours after being deposited in the regular mail as certified or
registered mail (airmail if sent internationally) with postage prepaid, if such
notice is addressed to the party to be notified at such party's address or
facsimile number as set forth below (or as subsequently modified by written
notice):
To the Company: Persistence Software, Inc.
0000 X. Xxxxxxxx Xxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
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With a copy to (which shall not constitute notice)
Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
To the Holders, at the respective addresses on the signature
pages hereto.
2.7. SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, the parties agree
to renegotiate such provision in good faith, in order to maintain the economic
position enjoyed by each party as close as possible to that under the provision
rendered unenforceable. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
2.8. ENTIRE AGREEMENT. This Agreement is the product of
all of the parties hereto, and constitutes the entire agreement between such
parties pertaining to the subject matter hereof, and merges all prior
negotiations and drafts of the parties with regard to the transactions
contemplated herein. Any and all other written or oral agreements existing
between the parties hereto regarding such transactions are expressly canceled.
2.9. ADVICE OF LEGAL COUNSEL. Each party acknowledges and
represents that, in executing this Agreement, it has had the opportunity to seek
advice as to its legal rights from legal counsel and that the person signing on
its behalf has read and understood all of the terms and provisions of this
Agreement. This Agreement shall not be construed against any party by reason of
the drafting or preparation thereof.
2.10. DELAYS OR OMISSIONS. No delay or omission to exercise
any right, power or remedy accruing to any party to this Agreement, upon any
breach or default of the other party, 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 thereafter 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 of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be made 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 Holder, shall be
cumulative and not alternative.
2.11. THIRD PARTIES. Nothing in this Agreement, express or
implied, is intended to confer upon any party, other than the parties hereto,
and their respective successors and assigns, any rights, remedies, obligations
or liabilities under or by reason of this Agreement, except as expressly
provided herein.
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2.12. PRIORITY OF RIGHTS. The registration rights granted
to the Holder(s) under this Agreement are intended by the parties to rank junior
to the piggyback registration rights held by other Company stockholders. The
parties agree to interpret the terms of this Agreement in a manner consistent
with the foregoing intention.
[Signature Page Follows]
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The parties have executed this Registration Rights Agreement as of the
date first above written.
COMPANY:
PERSISTENCE SOFTWARE, INC.
By: /s/ Xxxxxxxxx Xxxxxxx
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Title: Chief Financial Officer
WARRANT SHARE HOLDER
Name: RTX SECURITIES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Title: President
Address: 000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax Number: (000) 000-0000
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