STRICTLY CONFIDENTIAL Attn: Richard W. Pascoe
Exhibit 10.2
September 10, 2017
STRICTLY CONFIDENTIAL
Attn: Xxxxxxx X. Xxxxxx
Chief Executive Officer
00000 Xx Xxxxxx Xxxx, Xxxxx 000
San Diego, CA 92130
Dear Xxxxxxx:
This letter agreement (this “Agreement”) constitutes the agreement between Apricus Biosciences, Inc. (the “Company”) and X.X. Xxxxxxxxxx & Co., LLC (“Xxxxxxxxxx”), that Xxxxxxxxxx shall serve as the exclusive agent, advisor or underwriter in any offering (each, an “Offering”) of securities of the Company (the “Securities”) during the Term (as defined below) of this Agreement. The terms of each Offering and the Securities issued in connection therewith shall be mutually agreed upon by the Company and Xxxxxxxxxx and nothing herein implies that Xxxxxxxxxx would have the power or authority to bind the Company and nothing herein implies that the Company shall have an obligation to issue any Securities. It is understood that Xxxxxxxxxx’x assistance in an Offering will be subject to the satisfactory completion of such investigation and inquiry into the affairs of the Company as Xxxxxxxxxx deems appropriate under the circumstances and to the receipt of all internal approvals of Xxxxxxxxxx in connection with the transaction. The Company expressly acknowledges and agrees that Xxxxxxxxxx’x involvement in an Offering is strictly on a reasonable best efforts basis and that the consummation of an Offering will be subject to, among other things, market conditions. The execution of this Agreement does not constitute a commitment by Xxxxxxxxxx to purchase, or the Company to sell, the Securities and does not ensure a successful Offering of the Securities or the success of Xxxxxxxxxx with respect to securing any other financing on behalf of the Company. Xxxxxxxxxx may retain other brokers, dealers, agents or underwriters on its behalf in connection with an Offering.
A.Compensation; Reimbursement. At the closing of each Offering (each, a “Closing”), the Company shall compensate Xxxxxxxxxx as follows:
1. Cash Fee. The Company shall pay to Xxxxxxxxxx a cash fee, or as to an underwritten offering, an underwriter discount equal to 7.0% of the aggregate gross proceeds raised in each Offering. Additionally, Xxxxxxxxxx shall receive a cash fee payable within 48 hours of (but only in the event of) the receipt by the Company of any proceeds from the exercise of any warrants or options sold in each Offering.
2. Warrant Coverage. If the Securities included in an Offering include warrants, the Company shall issue to Xxxxxxxxxx or its designees at each Closing, warrants (the “Xxxxxxxxxx Warrants”) to purchase that number of shares of common stock of the Company equal to 5.0% of the aggregate number of shares of common stock placed in each Offering, and if an Offering includes a “greenshoe” or “additional investment” option component, such number of shares of common stock underlying such additional option component, with the Xxxxxxxxxx Warrants issuable upon the closing of the additional shares of common stock following the exercise of such option. The Xxxxxxxxxx Warrants shall have the same terms as the warrants issued to investors in the applicable Offering, except that the Xxxxxxxxxx Warrants shall have a term of no greater than 5 years and an exercise price equal to 125% of the public offering price of an Offering.
000 Xxxx Xxxxxx x Xxx Xxxx, Xxx Xxxx 00000 | 212.356.0500 | xxx.xxxxx.xxx
Member: FINRA/SIPC
Exhibit 10.2
3. Expense Allowance. Out of the proceeds of each Closing, the Company also agrees to pay Xxxxxxxxxx (a) $15,000 for non-accountable expenses and (c) up to $35,000 for actual out-of-pocket expenses of Xxxxxxxxxx, including reasonable fees and expenses of legal counsel; including the additional reimbursable amount payable by the Company pursuant to Paragraph D.3 hereunder; provided, however, that such reimbursement amount in no way limits or impairs the indemnification and contribution provisions of this Agreement.
4. Tail Fee. Xxxxxxxxxx shall be entitled to compensation under clauses (1) and (2) hereunder, calculated in the manner set forth therein, with respect to any public or private offering or other financing or capital-raising transaction of any kind, other than sales pursuant to that certain Common Stock Purchase Agreement with Aspire Capital Fund, LLC, dated July 5, 2016 (“Tail Financing”) to the extent that such financing or capital is provided to the Company by investors whom Xxxxxxxxxx had contacted during the Term, or introduced to the Company during Term, if such Tail Financing is consummated at any time within the 6-month period following the expiration or termination of this Agreement. Upon the Company’s request, Xxxxxxxxxx shall promptly provide a list to the Company of any such investors.
5. Right of First Refusal. If within the 12-month period following consummation of each Offering, the Company or any of its subsidiaries (a) decides to finance or refinance any indebtedness using a manager or agent, Xxxxxxxxxx (or any affiliate designated by Xxxxxxxxxx) shall have the right to act as sole book runner, sole manager, sole placement agent or sole agent with respect to such financing or refinancing; or (b) decides to raise funds by means of a public offering or a private placement of equity or debt securities using an underwriter or placement agent, Xxxxxxxxxx (or any affiliate designated by Xxxxxxxxxx) shall have the right to act as sole book runner, sole underwriter or sole placement agent for such financing; provided, however, that this right of first refusal shall exclude any financing principally directed toward the Company’s existing investors other than those introduced to the Company by Xxxxxxxxxx in an Offering or pursuant to a prior engagement. If Xxxxxxxxxx or one of its affiliates decides to accept any such engagement, the agreement governing such engagement will contain, among other things, provisions for customary fees for transactions of similar size and nature and the provisions of this Agreement, including indemnification, which are appropriate to such a transaction. For purposes of clarity, this right of first refusal shall not apply to a strategic transaction with a business engaged in the Company’s industry or any merger transaction.
X.Xxxx and Termination of Engagement; Exclusivity. The term of Xxxxxxxxxx’x exclusive engagement will begin on the date hereof and end thirty days after the date hereof (the “Term”). Notwithstanding anything to the contrary contained herein, the Company agrees that the provisions relating to the payment of fees, reimbursement of expenses, right of first refusal, tail, indemnification and contribution, confidentiality, conflicts, independent contractor and waiver of the right to trial by jury will survive any termination of this Agreement. During Xxxxxxxxxx’x engagement hereunder: (A) the Company will not, and will not permit its representatives to, other than in coordination with Xxxxxxxxxx, contact or solicit institutions, corporations or other entities or individuals as potential purchasers of the Securities; provided that this shall not prohibit the Company from engaging in discussions with respect to potential mergers and acquisitions or any strategic transaction and (B) the Company will not pursue any financing transaction which would be in lieu of an Offering. Furthermore, the Company agrees that during Xxxxxxxxxx’x engagement hereunder, all inquiries, whether direct or indirect, from prospective investors (other than the Company’s existing investors not introduced to the Company by Xxxxxxxxxx through this Offering or pursuant to a prior engagement) will be referred to Xxxxxxxxxx and will be deemed to have been contacted by Xxxxxxxxxx in connection with an Offering. Additionally, except as set forth hereunder, the Company represents, warrants and covenants that no brokerage or finder’s fees or commissions are or will be payable by the Company
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Exhibit 10.2
or any subsidiary of the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other third-party with respect to any Offering.
C.Information; Reliance. The Company shall furnish, or cause to be furnished, to Xxxxxxxxxx all information reasonably requested by Xxxxxxxxxx for the purpose of rendering services hereunder and conducting due diligence (all such information being the “Information”). In addition, the Company agrees to make available to Xxxxxxxxxx upon reasonable request from time to time the officers, directors, accountants, counsel and other advisors of the Company. The Company recognizes and confirms that Xxxxxxxxxx (a) will use and rely on the Information, including any documents provided to investors in each Offering (the “Offering Documents” which shall include any Purchase Agreements (as defined below)), and on information available from generally recognized public sources in performing the services contemplated by this Agreement without having independently verified the same; (b) does not assume responsibility for the accuracy or completeness of the Offering Documents or the Information and such other information; and (c) will not make an appraisal of any of the assets or liabilities of the Company. Upon reasonable request, the Company will meet with Xxxxxxxxxx or its representatives to discuss all information relevant for disclosure in the Offering Documents and will cooperate in any investigation undertaken by Xxxxxxxxxx thereof, including any document included or incorporated by reference therein. At each Offering, at the request of Xxxxxxxxxx, the Company shall deliver such legal letters (including, without limitation, negative assurance letters), opinions, comfort letters, officers’ and secretary certificates and good standing certificates, all in form and substance satisfactory to Xxxxxxxxxx and its counsel as is customary for such Offering. Xxxxxxxxxx shall be a third party beneficiary of any representations, warranties, covenants and closing conditions made by the Company in any Offering Documents, including representations, warranties, covenants and closing conditions made to any investor in an Offering.
D.Related Agreements. At each Offering, the Company shall enter into the following additional agreements:
1. Underwritten Offering. If an Offering is an underwritten Offering, the Company and Xxxxxxxxxx shall enter into a customary underwriting agreement in form and substance satisfactory to Xxxxxxxxxx and its counsel.
2. Best Efforts Offering. If an Offering is on a best efforts basis, the sale of Securities to the investors in the Offering will be evidenced by a purchase agreement (“Purchase Agreement”) between the Company and such investors in a form reasonably satisfactory to the Company and Xxxxxxxxxx. Xxxxxxxxxx shall be a third party beneficiary with respect to the representations and warranties included in the Purchase Agreement. Prior to the signing of any Purchase Agreement, officers of the Company with responsibility for financial affairs will be available to answer inquiries from prospective investors.
3. Escrow and Settlement. In respect of each Offering, the Company and Xxxxxxxxxx shall enter into an escrow agreement with a third party escrow agent, which may also be Xxxxxxxxxx’x clearing agent, pursuant to which Xxxxxxxxxx’x compensation and expenses shall be paid from the gross proceeds of the Securities sold. If the Offering is settled in whole or in part via delivery versus payment (“DVP”), Xxxxxxxxxx shall arrange for its clearing agent to provide the funds to facilitate such settlement. The Company shall bear the cost of the escrow agent and shall reimburse Xxxxxxxxxx for the actual out-of-pocket cost of such clearing agent settlement and financing, if any, which cost shall not exceed $10,000.
4. FINRA Amendments. Notwithstanding anything herein to the contrary, in the event that Xxxxxxxxxx determines that any of the terms provided for hereunder shall not comply with a FINRA rule, including but not limited to FINRA Rule 5110, then the Company shall agree to amend this Agreement (or include such revisions in the final underwriting agreement) in writing upon the request of Xxxxxxxxxx
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Exhibit 10.2
to comply with any such rules; provided that any such amendments shall not provide for terms that are less favorable to the Company than are reflected in this Agreement.
E.Confidentiality. In the event of the consummation or public announcement of any Offering, Xxxxxxxxxx shall have the right to disclose its participation in such Offering, including, without limitation, the Offering at its cost of “tombstone” advertisements in financial and other newspapers and journals.
F.Indemnity.
1. In connection with the Company’s engagement of Xxxxxxxxxx as Offering agent, the Company hereby agrees to indemnify and hold harmless Xxxxxxxxxx and its affiliates, and the respective controlling persons, directors, officers, members, shareholders, agents and employees of any of the foregoing (collectively the “Indemnified Persons”), from and against any and all claims, actions, suits, proceedings (including those of shareholders), damages, liabilities and expenses incurred by any of them (including the reasonable fees and expenses of counsel), as incurred, (collectively a “Claim”), that are (A) related to or arise out of (i) any actions taken or omitted to be taken (including any untrue statements made or any statements omitted to be made) by the Company, or (ii) any actions taken or omitted to be taken by any Indemnified Person in connection with the Company’s engagement of Xxxxxxxxxx, or (B) otherwise relate to or arise out of Xxxxxxxxxx’x activities on the Company’s behalf under Xxxxxxxxxx’x engagement, and the Company shall reimburse any Indemnified Person for all expenses (including the reasonable fees and expenses of counsel) as incurred by such Indemnified Person in connection with investigating, preparing or defending any such claim, action, suit or proceeding, whether or not in connection with pending or threatened litigation in which any Indemnified Person is a party. The Company will not, however, be responsible for any Claim that is finally judicially determined to have resulted from the gross negligence or willful misconduct of any person seeking indemnification for such Claim. The Company further agrees that no Indemnified Person shall have any liability to the Company for or in connection with the Company’s engagement of Xxxxxxxxxx except for any Claim incurred by the Company as a result of such Indemnified Person’s gross negligence or willful misconduct.
2. The Company further agrees that it will not, without the prior written consent of Xxxxxxxxxx, settle, compromise or consent to the entry of any judgment in any pending or threatened Claim in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such Claim), unless such settlement, compromise or consent includes an unconditional, irrevocable release of each Indemnified Person from any and all liability arising out of such Claim.
3. Promptly upon receipt by an Indemnified Person of notice of any complaint or the assertion or institution of any Claim with respect to which indemnification is being sought hereunder, such Indemnified Person shall notify the Company in writing of such complaint or of such assertion or institution but failure to so notify the Company shall not relieve the Company from any obligation it may have hereunder, except and only to the extent such failure results in the forfeiture by the Company of substantial rights and defenses. If the Company so elects or is requested by such Indemnified Person, the Company will assume the defense of such Claim, including the employment of counsel reasonably satisfactory to such Indemnified Person and the payment of the fees and expenses of such counsel. In the event, however, that legal counsel to such Indemnified Person reasonably determines that having common counsel would present such counsel with a conflict of interest or if the defendant in, or target of, any such Claim, includes an Indemnified Person and the Company, and legal counsel to such Indemnified Person reasonably concludes that there may be legal defenses available to it or other Indemnified Persons different from or in addition to those available to the Company, then such Indemnified Person may employ its own separate
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Exhibit 10.2
counsel to represent or defend him, her or it in any such Claim and the Company shall pay the reasonable fees and expenses of such counsel. Notwithstanding anything herein to the contrary, if the Company fails timely or diligently to defend, contest, or otherwise protect against any Claim, the relevant Indemnified Party shall have the right, but not the obligation, to defend, contest, compromise, settle, assert crossclaims, or counterclaims or otherwise protect against the same, and shall be fully indemnified by the Company therefor, including without limitation, for the reasonable fees and expenses of its counsel and all amounts paid as a result of such Claim or the compromise or settlement thereof. Notwithstanding anything herein to the contrary, it is agreed that the Company shall not, in connection with any proceeding or related proceedings, be liable for the fees and expenses of more than one separate firm for all Indemnified Persons. In addition, with respect to any Claim in which the Company assumes the defense, the Indemnified Person shall have the right to participate in such Claim and to retain his, her or its own counsel therefor at his, her or its own expense.
4. The Company agrees that if any indemnity sought by an Indemnified Person hereunder is held by a court to be unavailable for any reason then (whether or not Xxxxxxxxxx is the Indemnified Person), the Company and Xxxxxxxxxx shall contribute to the Claim for which such indemnity is held unavailable in such proportion as is appropriate to reflect the relative benefits to the Company, on the one hand, and Xxxxxxxxxx on the other, in connection with Xxxxxxxxxx’x engagement referred to above, subject to the limitation that in no event shall the amount of Xxxxxxxxxx’x contribution to such Claim exceed the amount of fees actually received by Xxxxxxxxxx from the Company pursuant to Xxxxxxxxxx’x engagement. The Company hereby agrees that the relative benefits to the Company, on the one hand, and Xxxxxxxxxx on the other, with respect to Xxxxxxxxxx’x engagement shall be deemed to be in the same proportion as (a) the total value paid or proposed to be paid or received by the Company pursuant to the applicable Offering (whether or not consummated) for which Xxxxxxxxxx is engaged to render services bears to (b) the fee paid or proposed to be paid to Xxxxxxxxxx in connection with such engagement.
5. The Company’s indemnity, reimbursement and contribution obligations under this Agreement (a) shall be in addition to, and shall in no way limit or otherwise adversely affect any rights that any Indemnified Party may have at law or at equity and (b) shall be effective whether or not the Company is at fault in any way.
G.Limitation of Engagement to the Company. The Company acknowledges that Xxxxxxxxxx has been retained only by the Company, that Xxxxxxxxxx is providing services hereunder as an independent contractor (and not in any fiduciary or agency capacity) and that the Company’s engagement of Xxxxxxxxxx is not deemed to be on behalf of, and is not intended to confer rights upon, any shareholder, owner or partner of the Company or any other person not a party hereto as against Xxxxxxxxxx or any of its affiliates, or any of its or their respective officers, directors, controlling persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), employees or agents. Unless otherwise expressly agreed in writing by Xxxxxxxxxx, no one other than the Company is authorized to rely upon this Agreement or any other statements or conduct of Xxxxxxxxxx, and no one other than the Company is intended to be a beneficiary of this Agreement. The Company acknowledges that any recommendation or advice, written or oral, given by Xxxxxxxxxx to the Company in connection with Xxxxxxxxxx’x engagement is intended solely for the benefit and use of the Company’s management and directors in considering a possible Offering, and any such recommendation or advice is not on behalf of, and shall not confer any rights or remedies upon, any other person or be used or relied upon for any other purpose. Xxxxxxxxxx shall not have the authority to make any commitment binding on the Company. The Company, in its sole discretion, shall have the right to reject any investor introduced to it by Xxxxxxxxxx.
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Exhibit 10.2
H.Limitation of Xxxxxxxxxx’x Liability to the Company. Xxxxxxxxxx and the Company further agree that neither Xxxxxxxxxx nor any of its affiliates or any of its their respective officers, directors, controlling persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), employees or agents shall have any liability to the Company, its security holders or creditors, or any person asserting claims on behalf of or in the right of the Company (whether direct or indirect, in contract, tort, for an act of negligence or otherwise) for any losses, fees, damages, liabilities, costs, expenses or equitable relief arising out of or relating to this Agreement or the services rendered hereunder, except for losses, fees, damages, liabilities, costs or expenses that arise out of or are based on any action of or failure to act by Xxxxxxxxxx and that are finally judicially determined to have resulted solely from the gross negligence or willful misconduct of Xxxxxxxxxx.
I.Representations, Warranties and Covenants of Placement Agent. Xxxxxxxxxx hereby represents and warrants to the Company that the following representations and warranties are true and correct as of the date of this Agreement:
1. | X.X. Xxxxxxxxxx & Co., LLC (“X.X. Xxxxxxxxxx”) is a member in good standing of FINRA and is registered as a broker-dealer under the Exchange Act. X.X. Xxxxxxxxxx is in compliance with all applicable rules and regulations of the SEC and FINRA, except to the extent that such noncompliance would not have a material adverse effect on the transactions contemplated hereby. None of X.X. Xxxxxxxxxx or its affiliates, or any person acting on behalf of the foregoing (other than the Company or its affiliates or any person acting on its or their behalf, in respect of which no representation is made) has or will engage in general advertising or general solicitation or has taken nor will it take any action that conflicts with the conditions and requirements of, or that would make unavailable with respect to the Offering, the exemption(s) from registration available pursuant to Rule 506 of Regulation D or Section 4(a)(2) of the Act, or knows of any reason why any such exemption would be otherwise unavailable to it. |
2. | Neither X.X. Xxxxxxxxxx nor any X.X. Xxxxxxxxxx Related Persons (as defined below) are subject to any Disqualification Event. X.X. Xxxxxxxxxx has exercised reasonable care to determine whether any X.X. Xxxxxxxxxx Covered Person is subject to a Disqualification Event. The Prospectus will contain a true and complete description of the matters required to be disclosed with respect to X.X. Xxxxxxxxxx and X.X. Xxxxxxxxxx Related Persons pursuant to the disclosure requirements of Rule 506(e) of Regulation D, to the extent applicable. As used herein, “X.X. Xxxxxxxxxx Related Persons” means any predecessor of X.X. Xxxxxxxxxx, any affiliated company, any director, executive officer, other officer of X.X. Xxxxxxxxxx participating in the Offering, any general partner or managing member of X.X. Xxxxxxxxxx, any beneficial owner of 20% or more of X.X. Xxxxxxxxxx’x outstanding voting equity securities, calculated on the basis of voting power, and any “promoter” (as defined in Rule 405 under the Act) connected with X.X. Xxxxxxxxxx in any capacity. X.X. Xxxxxxxxxx agrees to promptly notify the Company in writing of (i) any Disqualification Event relating to any X.X. Xxxxxxxxxx Related Person and (ii) any event that would, with the passage of time, become a Disqualification Event relating to any X.X. Xxxxxxxxxx Related Person. |
J.Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be fully performed therein. Any disputes that arise under this Agreement, even after the termination of this Agreement, will be heard only in the state or federal courts located in the City of New York, State of New York. The parties hereto expressly agree to submit themselves to the jurisdiction of the foregoing courts in the City of New York, State of New York. The parties hereto expressly waive any rights they may have to contest the jurisdiction, venue or authority of any court sitting in the City and State of New York. In the event Xxxxxxxxxx or any Indemnified Person is successful in any action, or suit against
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Exhibit 10.2
the Company, arising out of or relating to this Agreement, the final judgment or award entered shall be entitled to have and recover from the Company the costs and expenses incurred in connection therewith, including its reasonable attorneys’ fees. Any rights to trial by jury with respect to any such action, proceeding or suit are hereby waived by Xxxxxxxxxx and the Company.
K.Notices. All notices hereunder will be in writing and sent by certified mail, hand delivery, overnight delivery or fax, if sent to Xxxxxxxxxx, at the address set forth on the first page hereof, e-mail: xxxxxxx@xxxxx.xxx, Attention: Head of Investment Banking, and if sent to the Company, to the address set forth on the first page hereof, e-mail: xxxxxxx@xxxxxxxxxx.xxx, Attention: Chief Executive Officer. Notices sent by certified mail shall be deemed received five days thereafter, notices sent by hand delivery or overnight delivery shall be deemed received on the date of the relevant written record of receipt, notices delivered by fax shall be deemed received as of the date and time printed thereon by the fax machine and notices sent by e-mail shall be deemed received as of the date and time they were sent.
L.Conflicts. The Company acknowledges that Xxxxxxxxxx and its affiliates may have and may continue to have investment banking and other relationships with parties other than the Company pursuant to which Xxxxxxxxxx may acquire information of interest to the Company. Xxxxxxxxxx shall have no obligation to disclose such information to the Company or to use such information in connection with any contemplated transaction.
M.Anti-Money Laundering. To help the United States government fight the funding of terrorism and money laundering, the federal laws of the United States require all financial institutions to obtain, verify and record information that identifies each person with whom they do business. This means we must ask you for certain identifying information, including a government-issued identification number (e.g., a U.S. taxpayer identification number) and such other information or documents that we consider appropriate to verify your identity, such as certified articles of incorporation, a government-issued business license, a partnership agreement or a trust instrument.
N.Miscellaneous. The Company represents and warrants that it has all requisite power and authority to enter into and carry out the terms and provisions of this Agreement and the execution, delivery and performance of this Agreement does not breach or conflict with any agreement, document or instrument to which it is a party or bound. This Agreement shall not be modified or amended except in writing signed by Xxxxxxxxxx and the Company. This Agreement shall be binding upon and inure to the benefit of both Xxxxxxxxxx and the Company and their respective assigns, successors, and legal representatives. This Agreement constitutes the entire agreement of Xxxxxxxxxx and the Company with respect to the subject matter hereof and supersedes any prior agreements with respect to the subject matter hereof. If any provision of this Agreement is determined to be invalid or unenforceable in any respect, such determination will not affect such provision in any other respect, and the remainder of the Agreement shall remain in full force and effect. This Agreement may be executed in counterparts (including facsimile or electronic counterparts), each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
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Exhibit 10.2
In acknowledgment that the foregoing correctly sets forth the understanding reached by Xxxxxxxxxx and the Company, please sign in the space provided below, whereupon this letter shall constitute a binding Agreement as of the date indicated above.
Very truly yours,
X.X. XXXXXXXXXX & CO., LLC
By /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
Accepted and Agreed:
By /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
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