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EXHIBIT 10.1.5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of October 10, 1997, by and among Xxxxxxx X. Xxxxxx, Xxxxxxxxx
Xxxxxx, Xxxx X. Xxxxxx and Xxxxxxxxx X. Xxxxxx (collectively, the "Holders") and
Signature Resorts, Inc., a Maryland corporation (the "Company").
This Agreement is made in connection with the acquisition by the
Company of 100% of the capital stock of Marc Hotels & Resorts, Inc., a Hawaii
corporation ("Marc"), pursuant to an Agreement and Plan of Merger, dated August
21, 1997 (the "Merger Agreement"), under which a wholly-owned subsidiary of the
Company will merge with and into Marc (the "Merger"). As a result of the Merger,
the Holders will exchange of their interests in Marc for an aggregate number of
shares of common stock, $0.01 par value per share (the "Common Stock"), of the
Company as determined pursuant to section 1.3 of the Merger Agreement. As used
herein the term "Registrable Shares" shall refer to such number of shares of
Common Stock upon original issuance thereof, and at all times subsequent
thereto, until the earlier to occur of such time as (i) a registration statement
of the Company that covers such Registrable Shares has been declared effective
and any such Registrable Shares have been disposed of in accordance with such
effective registration statement and (ii) such earlier time as all such shares
are tradeable without restriction under any applicable rules and regulations
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The
"Merger Date" shall be the closing date of the Merger.
The parties hereby agree as follows:
1. Shelf Registration.
(a) The Company shall prepare or amend and file with the
Securities and Exchange Commission (the "Commission"), a registration statement
for an offering to be made on a continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"), covering the
Registrable Shares (the "Shelf Registration"). The Shelf Registration shall be
on Form S-1 or another appropriate form (e.g. Form S-3 after having established
eligibility therefor) permitting registration of the Registrable Shares for
resale by the Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Company shall use
commercially reasonable efforts (subject in all cases to any procedures and
limitations which may be imposed by the staff of the Commission) to (i) file the
Shelf Registration with the Commission within 30 days following the Merger Date,
(ii) cause the Shelf Registration to be declared effective under the Securities
Act as soon as practicable following the Merger Date, and (iii) keep the Shelf
Registration continuously effective under the Securities Act for a period (the
"Effectiveness Period") of the shorter of (A) two years from the Merger Date,
(B) the date when all Registrable Shares are tradeable without restriction under
any applicable rules and regulations under the Exchange Act and (C) the date
when all Registrable Shares covered by the Shelf Registration have been disposed
of in accordance with the Shelf Registration.
(b) The Company may require in its sole discretion that
Registrable Shares proposed to be sold pursuant to the Shelf Registration
effected pursuant to this Section 1 be sold in trades, which shall be block
trades if requested by the approved underwriter(s) or broker-dealer, through
approved underwriter(s), or broker-dealers, selected by the Company. In the
event that the Company has either given Notice or at such time gives Notice of
an
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Underwritten Offering (each as defined in Section 2 below) in which the Holder
is offered the opportunity to participate and the Company provides with such
Notice a statement signed in the name of the Company that the Company reasonably
anticipates the completion of such Underwritten Offering within 45 days of the
date of the Notice, the Company may require that the Holders discontinue public
sales of such Holder's Registrable Securities (other than through such
Underwritten Offering) for the shorter of the 45-day period set forth in such
Notice or the period ending on the date of the closing of such Underwritten
Offering. In the event any of the Registrable Shares covered by the Shelf
Registration effected pursuant to this Section 1 are sold in such an
Underwritten Offering, the investment banker or investment bankers and manager
or managers that will manage such offering will be selected in accordance with
Section 6 below.
(c) The Company may include in any such Shelf Registration
referred to in this Section 1 other shares of Common Stock of the Company held
by other security holders of the Company who have registration rights.
2. Incidental Registration. If, at any time or from time to time
during a period of two years following the Merger Date, the Company shall
propose to file a registration statement (a "Registration Statement") with the
Commission with respect to the proposed sale by the Company of shares of its
Common Stock (or securities exchangeable or convertible therefor) to an
underwriter(s) for reoffering to the public (an "Underwritten Offering") (other
than in connection with an offering on Form S-4 or Form S-8 or successor forms
of such registration statements under the Act) and the Shelf Registration has
not been declared effective, then the Company shall in each case give written
notice (the "Notice") of such proposed filing to the Holders not less than 30
days before the anticipated filing date, which shall offer to the Holders the
opportunity to include in such Registration Statement such number of Registrable
Shares as each Holder may request. Upon written request by any Holder given
within 15 days after the giving of the Notice, the Company shall include in any
Registration Statement relating to the Common Stock of the Company all or such
portion of the Registrable Shares as the Holders may request. Neither the
delivery of the Notice by the Company nor of such request by the Holders shall
obligate the Company to file such Registration Statement and, notwithstanding
the filing of such Registration Statement, the Company may, at any time prior to
the effective date thereof, determine not to offer the securities to which such
Registration Statement relates, without liability or obligation to the Holders.
As a condition to any Holder including any Registrable Shares in any
Registration Statement pursuant to this Section 2, such Holder agrees to effect
sales of such Registrable Shares thereunder solely under the plan of
distribution established by the Company and set forth therein.
3. Company's Obligations. In connection with the Company's
obligation to effect a Shelf Registration pursuant to Section 1, or in the event
the Company files a Registration Statement in connection with an Underwritten
Offering pursuant to Section 2, it shall:
(a) Notify the Holders as to the filing thereof and of all
amendments or supplements thereto filed prior to the effective date of such
Shelf Registration or Registration Statement;
(b) Notify the Holders, promptly after the Company shall
receive notice thereof, of the time when such Shelf Registration or Registration
Statement became
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effective or any amendment or supplement to any prospectus forming a part of
such Shelf Registration or Registration Statement has been filed;
(c) Notify the Holders promptly of any request by the
Commission for the amending or supplementing of such Shelf Registration or
Registration Statement or prospectus or for additional information;
(d) Prepare and file with the Commission any amendments or
supplements to such Shelf Registration or Registration Statement and the
prospectus which may be necessary or advisable to keep such Registration
Statement effective and to comply with the provisions of the Securities Act with
respect to the offer of the Registrable Shares covered by such Registration
Statement during the period required for the distribution of such securities,
which, in the case of a Registration Statement filed pursuant to Section 2 in
connection with an Underwritten Offering, such period shall not be in excess of
120 days from the effective date of the Registration Statement or post-effective
amendment pursuant to which such Registrable Shares may be sold;
(e) Prepare and promptly file with the Commission and
promptly notify the Holders of the filing of such amendment or supplement to
such Shelf Registration or Registration Statement and the prospectus as may be
necessary to correct any statements therein or omission therefrom if, at any
time when a prospectus relating to such Registrable Shares is required to be
delivered under the Securities Act, any event with respect to the Company shall
have occurred as a result of which any prospectus would include an untrue
statement of material fact or omit to state any material fact necessary to make
the statements therein not misleading;
(f) In case the Holders or any underwriter(s) for the
Holders are required to deliver a prospectus, prepare promptly upon request such
amendment or amendments to such Shelf Registration or Registration Statement and
such prospectus or prospectuses as may be necessary to permit compliance with
the requirements of Section 9(a)(3) of the Securities Act;
(g) Advise the Holders promptly after the Company shall
receive notice or obtain knowledge of the issuance of any stop order by the
Commission suspending the effectiveness of any such Shelf Registration or
Registration Statement or amendment thereto or of the initiation or threatening
of any proceedings for that purpose, and promptly use its maximum reasonable
efforts to prevent the issuance of any stop order or to obtain its withdrawal if
such stop order should be issued;
(h) Use its maximum reasonable efforts to qualify such
Registrable Shares for sale under the securities or blue sky laws of such states
within the United States as the Holders may reasonably designate, except that
the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business in any such state or to take any action which
would subject it to general service of process in any such jurisdiction where it
is not then so subject; and
(i) Furnish to the Holders, as soon as available, copies
of any such Shelf Registration or Registration Statement and each preliminary or
final prospectus, or supplement or amendment required to be prepared thereto,
all in such quantities required as
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they may from time to time reasonably request.
Each Holder of Registrable Shares agrees by acquisition of
such Registrable Shares that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(e) hereof, such Holder
will forthwith discontinue disposition of Registrable Shares until such Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 3(e) hereof, or until it is advised in writing by the Company that the
use of the prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the prospectus,
and, if so directed by the Company, such Holder will deliver to the Company all
copies, other than permanent file copies, then in such Holder's possession of
the prospectus covering such Registrable Shares current at the time of receipt
of such notice.
4. Holders' Obligation to Furnish Information. In connection with
the Company's obligation to effect a Shelf Registration pursuant to Section 1,
or in the event the Company files a Registration Statement in connection with an
Underwritten Offering pursuant to Section 2, each Holder shall furnish
information to the Company concerning such Holder's holdings of securities of
the Company and the proposed method of sale or other disposition of the
Registrable Shares and such other information and undertakings as shall be
required in connection with the preparation and filing of the Shelf
Registration, any Registration Statement or any post-effective amendment
covering all or part of the Registrable Shares in order to insure full
compliance with the Securities Act and the Exchange Act. Each Holder further
agrees to enter into such undertakings and take such other action relating to
the conduct of the proposed offering which the Company or the underwriter(s) may
reasonably request as being necessary to ensure compliance with the federal and
state securities laws and the rules or other requirements of the National
Association of Securities Dealers, Inc. ("NASD") or otherwise to effectuate the
offering.
5. Expenses. The Company shall pay all expenses (the
"Registration Expenses") incident to each registration of the Registrable Shares
under Sections 1 and 2, including, without limitation, all registration, filing
and NASD fees, all fees and expenses of complying with state securities or blue
sky laws, all word processing, duplicating and printing expenses, messenger and
delivery expenses, the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any special audits
or "cold comfort" letters required by or incident to such performance and
compliance, premiums and other costs of policies of insurance purchased by the
Company at its option against liabilities arising out of the public offering of
such Registrable Shares, but excluding underwriting discounts and commissions
and fees and expenses of underwriter(s), selling brokers, dealer managers or
similar securities industry professionals relating to the distribution of the
Registrable Shares, transfer taxes, fees and disbursements of counsel for any
selling shareholder(s) and other selling expenses, if any.
6. Selection of Underwriter. In the event of any Registration
Statement filed in connection with an Underwritten Offering pursuant to Section
2 and in the event any of the Registrable Shares covered by the Shelf
Registration effected pursuant to Section 1 are to be sold in an Underwritten
Offering, the investment banker or investment bankers and manager or managers
that will manage the offering will be selected by the Company.
7. Priority in Incidental Registration. If in connection with an
Underwritten
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Offering registered pursuant to Section 2, the managing underwriter(s) of such
Underwritten Offering informs the Company and the Holders by letter of its
belief that the number of securities requested to be included in such
Registration Statement exceeds the number which should be sold in such
Underwritten Offering, then the Company will include in such Registration
Statement, to the extent of the number which the Company is so advised should be
sold in such Underwritten Offering, (i) first, all shares of Common Stock
proposed to be sold by the Company for its own account and (ii) second, the
number of Registrable Shares proposed by the Holders to be included in the
registration that, in the opinion of such managing underwriter(s), can be sold
without adversely affecting the price or probability of success of such
Underwritten Offering, allocated pro rata among such Holders, on the basis of
the relative amount of Registrable Shares requested to be included in such
Registration Statement; provided that in all cases the Holders of Registrable
Shares shall be entitled to include in any such registration an aggregate of up
to 25% of the total number of shares sold in any such Underwritten Offering.
8. Underwritten Offerings. In the event that Registrable Shares
are to be distributed through an Underwritten Offering, each Holder offering
Registrable Shares in such Underwritten Offering shall be a party to the
underwriting agreement between the Company and such underwriter(s) and may, at
its option, require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to and for the benefit of
such underwriter(s) shall also be made to and for the benefit of such Holder.
Holders shall not be required to make any representations or warranties to or
agreements with the Company or the underwriter(s), other than representations,
warranties or agreements regarding the Holders, the Registrable Shares, and the
Holders' intended method of distribution and any other representations required
by law. Any representations or warranties to or agreements with the
underwriter(s) made by the Holders shall also be made to and for the benefit of
the Company.
9. Indemnification.
(a) By the Company. In the event of any registration of
the Registrable Shares of the Company under the Securities Act, the Company
will, and hereby does, indemnify and hold harmless the Holders with respect to
the Registrable Shares included in such registration, its directors, officers,
underwriters and each other person, if any, who controls any Holder within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which the Company or such Holder or any such
director or officer or underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances in which
they were made not misleading, and the Company will reimburse such Holder and
each such director, officer, underwriter and controlling person for any legal or
any other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, liability, action or proceeding; provided
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability (or action or
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proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such underwriter or such Holder, as the case may be, specifically for use in the
preparation thereof and; provided further that the Company shall not be liable
to any person in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
such person's failure to send or give a copy of the final prospectus, as the
same may be then supplemented or amended, to the person asserting an untrue
statement or alleged untrue statement or omission or alleged omission at or
prior to written confirmation of the sale of the Registrable Shares to such
person if such statement or omission was corrected in such final prospectus as
amended or supplemented. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such underwriter or such
Holder or any such director, official, underwriter or controlling person and
shall survive the transfer of such securities by such Holder.
(b) Indemnification by the Holders. Each Holder agrees
that, as a condition to including any Registrable Shares in any Registration
Statement filed pursuant to Section 1 or 2, that each such Holder with
Registrable Shares included in such Registration Statement will and hereby does,
indemnify and hold harmless (in the same manner and to the same extent as set
forth in paragraph (a) of this Section 9) the Company, each director of the
Company, each officer of the Company, each other person who participates as an
underwriter in the offering or sale of such securities and each other person, if
any, who controls the Company or any such underwriter within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such Holder
specifically for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement. Such indemnity shall remain in full force and effect, regardless of
any investigation made by or on behalf of the Company or any such director,
officer or controlling person and shall survive the transfer of such securities
by such Holder.
The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information so furnished in writing by such persons
specifically for inclusion in any prospectus or registration statement or any
amendment or supplement thereto, or any preliminary prospectus.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section 9,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action; provided that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding paragraphs of this Section 9, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an
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indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the consent of the indemnified party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof, the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
(d) Other Indemnification. Indemnification similar to that
specified in paragraphs (a) through (c) of this Section 9 (with appropriate
modifications) shall be given by the Company and the Holders with respect to any
required registration or other qualification of securities under any Federal or
state law or regulation or any governmental authority other than the Act.
(e) Indemnification Payment. The indemnification required
by this Section 9 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
(f) Contribution. If the indemnification provided for in
this Agreement shall for any reason be unavailable or insufficient (other than
by reason of exceptions provided in those sections) to an indemnified party
under paragraphs (a), (b) and (d) of this Section 9 in respect to any loss,
claim, damage or liability, or any action in respect thereof, or referred to
therein, then each indemnifying party shall, in lieu of indemnifying such party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, in such
proportion as shall be appropriate to reflect the relative fault of the Company
on the one hand and any Holder on the other, with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or such Holder, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and equitable if
contribution pursuant to this Section 9 were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to in this Section 9 shall be deemed to
include, for purposes of this Section 9, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
10. Rule 144. So long as the Company has any securities
registered under
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Section 12 of the Exchange Act, the Company will file the reports required to be
filed by it under the Exchange Act and the rules and regulations adopted by the
Commission thereunder (or, if the Company is not required to file such reports,
will upon the request of Holders of a majority of the Registrable Shares, make
publicly available other information for a period of up to four months) and will
take such further action as such Holders may reasonably request, all to the
extent required from time to time to enable the Holders to sell Registrable
Shares without registration under the Securities Act within the limitation of
the exemptions provided by (a) Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of such Holders, the
Company will deliver to such Holders a written statement as to whether it has
complied with such requirements.
11. Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of Holders of a
majority of the Registrable Shares.
12. Notices. Any notice from one party to the other shall be in
writing and either delivered personally or by certified or registered mail,
postage prepaid, or by telegram, telecopier, or by overnight mail delivery by a
nationally recognized courier, and shall be deemed given when so delivered
personally or, if mailed or given by telegram or telecopier or overnight mail,
upon receipt thereof by the addressees, as follows:
If to the Company:
Signature Resorts, Inc.
Attention: Xxxxxx X. Xxxxxx, Esq.
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxx, Esq.
Xxxxxxxxx, Xxxxxxx & Xxxxx
1600 Xxxxxxx Building
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
If to any Holder:
At its address as it appears on the register of holders of
Common Stock maintained by the Company.
13. Assignment. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns as hereinafter set forth in this Section 13. In
addition, and whether or not any express assignment shall have been made, the
provisions of this Agreement which are for the
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benefit of the Holders shall also be for the benefit of and enforceable by any
subsequent holder ("Subsequent Holders") of any Registrable Shares, except any
Subsequent Holder with respect to Registrable Shares acquired in a public
offering pursuant to a Registration Statement or an exemption from registration
under Rule 144 under the Securities Act.
14. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
15. Governing Law. The validity of this Agreement and all matters
relating to its interpretation and performance shall be interpreted in
accordance with the laws of the State of California applicable to contracts made
and fully performed therein, but without regard to principles of conflicts of
law. The courts in Los Angeles, California shall have exclusive jurisdiction
over any controversy arising under this Agreement and venue in Los Angeles is
appropriate.
16. Counterparts. This Agreement may be executed simultaneously
in any number of counterparts, each of which shall be deemed an original, but
all such counterparts shall together constitute one and the same instrument.
17. Entire Agreement; Amendment. This Agreement contains all of
the terms agreed upon by the parties with respect to the subject matter herein
and there are no representations or understandings between the parties except as
provided in this Agreement. This Agreement may not be amended or modified in any
way except by a written amendment duly executed by each of the parties.
IN WITNESS WHEREOF, the parties have caused this Registration
Rights Agreement to be executed and delivered as of the date first above
written.
SIGNATURE RESORTS, INC.
By /s/ XXXXX X. XXXXXXXX
--------------------------------
Title: Vice President and Treasurer
HOLDERS
/s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
/s/ XXXXXXXXX XXXXXX
-----------------------------------
Xxxxxxxxx Xxxxxx
/s/ XXXX X. XXXXXX
-----------------------------------
Xxxx X. Xxxxxx
/s/ XXXXXXXXX XXXXXX
-----------------------------------
Xxxxxxxxx Xxxxxx
