FORM OF WARRANT AGREEMENT
EXHIBIT
4.8
FORM OF WARRANT AGREEMENT
THIS
WARRANT AGREEMENT (this “Agreement”), dated as of
_______, 20__, is entered into by and between General Finance
Corporation, a Delaware corporation (the “Company”), and
__________________ (the “Warrant
Agent”).
1. Appointment of Warrant Agent.
The Company hereby appoints the Warrant Agent to act as agent for
the Company for the Warrants, and the Warrant Agent hereby accepts
such appointment and agrees to perform the same in accordance with
the terms and conditions set forth in this Agreement.
2. Warrants.
2.1 Form of Warrant. Each Warrant
shall be (a) issued in registered form only, (b) in substantially
the form of Exhibit
A hereto, the provisions of which are incorporated herein,
and (c) signed by, or bear the facsimile signature of, the Chairman
of the Board or the President and the Treasurer or the Secretary of
the Company. In the event the person whose facsimile signature has
been placed upon any Warrant shall have ceased to serve in the
capacity in which such person signed the Warrant before such
Warrant is issued, it may be issued with the same effect as if he
or she had not ceased to be such at the date of
issuance.
2.2 Effect of Countersignature.
Unless and until countersigned by the Warrant Agent pursuant to
this Agreement, a Warrant shall be invalid and of no effect and may
not be exercised by the holder thereof.
2.3 Registration.
2.3.1 Warrant
Register. The Warrant Agent shall maintain books (the
“Warrant
Register”) for the registration of the original
issuance and transfers of the Warrants. Upon the initial issuance
of the Warrants, the Warrant Agent shall issue and register the
Warrants in the names of the respective holders thereof in such
denominations and otherwise in accordance with instructions
delivered to the Warrant Agent by the Company.
2.3.2 Registered
Holder. Prior to due presentment for registration of
transfer of any Warrant, the Company and the Warrant Agent may deem
and treat the person in whose name such Warrant shall be registered
upon the Warrant Register (the “registered holder”), as
the absolute owner of such Warrant and of each Warrant represented
thereby (notwithstanding any notation of ownership or other writing
on the warrant certificate made by anyone other than the Company or
the Warrant Agent), for the purpose of any exercise thereof, and
for all other purposes, and neither the Company nor the Warrant
Agent shall be affected by any notice to the contrary.
3.1 Warrant Price. Each two
Warrants shall, when countersigned by the Warrant Agent, entitle
the registered holder thereof, subject to the provisions of such
Warrant, as the case may be, and of this Warrant Agreement, to
purchase from the Company [*] share[s] of Common Stock stated
therein, at the price of $[*] per whole share, subject to the
adjustments provided in Section 4 hereof and in the last sentence
of this Section 3.1. The term “Warrant Price” as used in
this Warrant Agreement refers to the price per share at which
Common Stock may be purchased at the time a Warrant is exercised.
The Company, in its sole discretion, may lower the Warrant Price at
any time prior to the Expiration Date (as defined
below).
3.2 Duration of Warrants. A Warrant
may be exercised only during the period (“Exercise Period”)
commencing on the date that the Company's Registration Statement is
declared effective by the Securities and Exchange Commission and
expiring at 11:59 p.m. New York City Time on ________, 20__ (the
“Expiration
Date”). Each Warrant not exercised on or before the
Expiration Date shall become void, and all rights thereunder and
all rights in respect thereof under this Agreement shall cease at
the close of business on the Expiration Date. The Company, in its
sole discretion, may extend the duration of the Warrants by
delaying the Expiration Date.
3.3 Exercise of
Warrants.
3.3.1 Payment.
Subject to the provisions of the Warrant and this Warrant
Agreement, a Warrant, when countersigned by the Warrant Agent, may
be exercised by the registered holder thereof by surrendering it,
at the office of the Warrant Agent, or at the office of its
successor as Warrant Agent, in _________, New York, with the
subscription form, as set forth in the Warrant, duly executed, and
by paying in full the Warrant Price for each full share of Common
Stock as to which the Warrant is exercised and any and all
applicable taxes due in connection with the exercise of the
Warrant, as follows: by check payable to the order of the Warrant
Agent or immediately available funds via wire transfer or
electronic transmission acceptable to the Warrant
Agent.
3.3.2 Issuance
of Certificates. As soon as practicable after the exercise
of any Warrant and the clearance of the funds in payment of the
Warrant Price or upon surrender of the Warrant (or portion thereof)
as set forth in Section 3.3.1(b), the Company shall issue to the
registered holder of such Warrant a certificate or certificates
representing the number of full shares of Common Stock to which he,
she or it is entitled, registered in such name or names as may be
directed by him, her or it, and, if such Warrant shall not have
been exercised in full, a new countersigned Warrant for the number
of shares as to which such Warrant shall not have been exercised.
Notwithstanding the foregoing, the Company shall not be obligated
to deliver any securities pursuant to the exercise of a Warrant
unless (a) a registration statement under the Act with respect to
the Common Stock issuable upon exercise of such Warrants is
effective and a current prospectus relating to the shares of Common
Stock issuable upon exercise of the Warrants is available for
delivery to the Warrant holders or (b) in the opinion of counsel to
the Company, the exercise of the Warrants is exempt from the
registration requirements of the Act and such securities are
qualified for sale or exempt from qualification under applicable
securities laws of the states or other jurisdictions in which the
registered holder resides. Warrants may not be exercised by, or
securities issued to, any registered holder in any state in which
such exercise or issuance would be unlawful. In the event that a
registration statement under the Act with respect to the Common
Stock underlying the Warrants is not effective or a current
prospectus is not available, or because such exercise would be
unlawful with respect to a registered holder in any state, the
registered holder shall not be entitled to exercise such Warrants
and such Warrants may have no value and expire worthless. In no
event will the Company be required to “net cash settle”
the warrant exercise.
3.3.3 Valid
Issuance. All shares of Common Stock issued upon the proper
exercise of a Warrant in conformity with this Agreement shall be
validly issued, fully paid and nonassessable.
3.3.4 Date
of Issuance. Each person in whose name any such certificate
for shares of Common Stock is issued shall for all purposes be
deemed to have become the holder of record of such shares on the
date on which the Warrant was surrendered and payment of the
Warrant Price was made, irrespective of the date of delivery of
such certificate, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Company are
closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on
which the stock transfer books are open.
4. Adjustments.
4.1 Stock Dividends and Split.
If the Company, at any time while this
Warrant is outstanding, (i) pays a stock dividend on its
Common Stock or otherwise makes a distribution on any class of
capital stock that is payable in shares of Common Stock,
(ii) subdivides outstanding shares of Common Stock into a
larger number of shares, or (iii) combines outstanding shares
of Common Stock into a smaller number of shares, then in each such
case the Warrant Price shall be multiplied by a fraction of which
the numerator shall be the number of shares of Common Stock
outstanding immediately before such event and of which the
denominator shall be the number of shares of Common Stock
outstanding immediately after such event. Any adjustment made
pursuant to clause (i) of this paragraph shall become
effective immediately after the record date for the determination
of stockholders entitled to receive such dividend or distribution,
and any adjustment pursuant to clause (ii) or (iii) of
this paragraph shall become effective immediately after the
effective date of such subdivision or combination. If any event
requiring an adjustment under this paragraph occurs during the
period that an Warrant Price is calculated hereunder, then the
calculation of such Warrant Price shall be adjusted appropriately
to reflect such event.
4.2 Fundamental
Transactions. If, at any time
while this Warrant is outstanding, (1) the Company effects any
merger or consolidation of the Company with or into another
individual, a limited liability company, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization,
any other entity and a government or any department or agency
thereof (each a “Person”,
(2) the Company effects any sale of all or substantially all
of its assets in one or a series of related transactions,
(3) any tender offer or exchange offer (whether by the Company
or another Person) is completed pursuant to which holders of Common
Stock are permitted to tender or exchange their shares for other
securities, cash or property, or (4) the Company effects any
reclassification of the Common Stock or any compulsory share
exchange pursuant to which the Common Stock is effectively
converted into or exchanged for other securities, cash or property
(in any such case, a “Fundamental
Transaction”), then the Warrant holder shall have the right
thereafter to receive, upon exercise of this Warrant, the same
amount and kind of securities, cash or property as it would have
been entitled to receive upon the occurrence of such Fundamental
Transaction if it had been, immediately prior to such Fundamental
Transaction, the holder of the number of Warrant Shares then
issuable upon exercise in full of this Warrant (the
“Alternate
Consideration”). For purposes of any such exercise, the
determination of the Warrant Price shall be appropriately adjusted
to apply to such Alternate Consideration based on the amount of
Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall
apportion the Warrant Price among the Alternate Consideration in a
reasonable manner reflecting the relative value of any different
components of the Alternate Consideration. If holders of Common
Stock are given any choice as to the securities, cash or property
to be received in a Fundamental Transaction, then the Warrant
holder shall be given the same choice as to the Alternate
Consideration it receives upon any exercise of this Warrant
following such Fundamental Transaction. The terms of any agreement
pursuant to which a Fundamental Transaction is effected shall
include terms requiring any such surviving entity to comply with
the provisions of this paragraph (b) and insuring that the
Warrant (or any such replacement security) will be similarly
adjusted upon any subsequent transaction analogous to a Fundamental
Transaction.
4.8 No
Fractional Shares. Notwithstanding any provision contained
in this Warrant Agreement to the contrary, the Company shall not
issue fractional shares upon exercise of Warrants. If, by reason of
any adjustment made pursuant to this Section 4, the holder of any
Warrant would be entitled, upon the exercise of such Warrant, to
receive a fractional interest in a share, the Company shall, upon
such exercise, round up or down to the nearest whole number the
number of shares of Common Stock to be issued to the Warrant
holder.
5.1 Registration of Transfer. The
Warrant Agent shall register the transfer, from time to time, of
any outstanding Warrant in the Warrant Register, upon surrender of
such Warrant for transfer, properly endorsed with signatures
properly medallion guaranteed and accompanied by appropriate
instructions for transfer. Upon any such transfer, a new Warrant
representing an equal aggregate number of Warrants shall be issued
and the old Warrant shall be cancelled by the Warrant Agent. The
Warrants so cancelled may be delivered by the Warrant Agent to the
Company from time to time upon request.
5.2 Procedure for Surrender of
Warrants. Warrants may be surrendered to the Warrant Agent,
together with a written request for exchange or transfer, and
thereupon the Warrant Agent shall issue in exchange therefor one or
more new Warrants as requested by the registered holder of the
Warrants so surrendered, representing an equal aggregate number of
Warrants; provided, however, that in the event that a Warrant
surrendered for transfer bears a restrictive legend, the Warrant
Agent shall not cancel such Warrant and issue new Warrants in
exchange therefor until the Warrant Agent has received an opinion
of counsel for the Company stating that such transfer is exempt
from registration under the Act and indicating whether the new
Warrants must also bear a restrictive legend.
5.3 Fractional Warrants. The
Warrant Agent shall not be required to effect any registration of
transfer or exchange which will result in the issuance of a warrant
certificate for a fraction of a warrant.
5.4 Service Charges. No service
charge shall be made for any exchange or registration of transfer
of Warrants.
5.5 Warrant Execution and
Countersignature. The Warrant Agent is hereby authorized to
countersign and to deliver, in accordance with the terms of this
Agreement, the Warrants required to be issued pursuant to the
provisions of this Section 5, and the Company, whenever required by
the Warrant Agent, will supply the Warrant Agent with Warrants duly
executed on behalf of the Company for such purpose.
6.1 No Rights as Stockholder. A
Warrant does not entitle the registered holder thereof to any of
the rights of a stockholder of the Company, including, without
limitation, the right to receive dividends, or other distributions,
exercise any preemptive rights to vote or to consent or to receive
notice as stockholders in respect of the meetings of stockholders
or the election of directors of the Company or any other
matter.
6.2 Lost, Stolen, Mutilated, or Destroyed
Warrants. If any Warrant is lost, stolen, mutilated or
destroyed, the Company and the Warrant Agent may, on such terms as
to indemnity or otherwise as they may in their discretion impose
(which terms shall, in the case of a mutilated Warrant, include the
surrender thereof), issue a new Warrant of like denomination, tenor
and date as the Warrant so lost, stolen, mutilated or destroyed.
Any such new Warrant shall constitute a substitute contractual
obligation of the Company, whether or not the allegedly lost,
stolen, mutilated or destroyed Warrant shall be at any time
enforceable by anyone.
6.3 Reservation of Common Stock.
The Company shall at all times reserve and keep available a number
of its authorized but unissued shares of Common Stock that will be
sufficient to permit the exercise in full of all outstanding
Warrants issued pursuant to this Agreement.
6.4 Registration of Common Stock.
The Company agrees that prior to the commencement of the Exercise
Period, it shall use its best efforts to file with the Securities
and Exchange Commission a post-effective amendment to the
Registration Statement, or a new registration statement, for the
registration under the Act of the Common Stock issuable upon
exercise of the Warrants, and it shall take such action as is
necessary to qualify for sale, in those states in which the
Warrants were initially offered by the Company, the Common Stock
issuable upon exercise of the Warrants. In either case, the Company
will use its best efforts to cause the same to become effective and
to maintain the effectiveness of such registration statement until
the expiration of the Warrants in accordance with the provisions of
this Agreement. In no event will the registered holder of a Warrant
be entitled to receive a “net cash settlement” in lieu
of physical settlement in shares of Common Stock, regardless of
whether the Company complies with this Section 6.4.
6.5 Limitation on Monetary Damages.
In no event shall the registered holder of a Warrant be entitled to
receive monetary damages for failure to settle any Warrant exercise
if the Common Stock issuable upon exercise of the Warrants has not
been registered with the Securities and Exchange Commission
pursuant to an effective registration statement or if a current
prospectus is not available for delivery by the Warrant Agent,
provided the Company has fulfilled its obligations under Section
6.4 to use its best efforts to effect the registration under the
Act of the Common Stock issuable upon exercise of the
Warrants.
7.1 Payment of Taxes. The Company
will from time to time promptly pay all taxes and charges that may
be imposed upon the Company or the Warrant Agent in respect of the
issuance or delivery of shares of Common Stock upon the exercise of
Warrants, but the Company shall not be obligated to pay any
transfer taxes in respect of the Warrants or such
shares.
7.2.1 Appointment
of Successor Warrant Agent. The Warrant Agent, or any
successor to it hereafter appointed, may resign its duties and be
discharged from all further duties and liabilities hereunder after
giving sixty (60) days’ notice in writing to the Company. If
the office of the Warrant Agent becomes vacant by resignation or
incapacity to act or otherwise, the Company shall appoint in
writing a successor Warrant Agent in place of the Warrant Agent. If
the Company shall fail to make such appointment within a period of
30 days after it has been notified in writing of such resignation
or incapacity by the Warrant Agent or by the holder of the Warrant
(who shall, with such notice, submit his, her or its Warrant for
inspection by the Company), then the holder of any Warrant may
apply to the Supreme Court of the State of New York for the County
of New York for the appointment of a successor Warrant Agent at the
Company’s cost. Any successor Warrant Agent, whether
appointed by the Company or by such court, shall be a corporation
organized and existing under the laws of the State of New York, in
good standing and having its principal office in the Borough of
Manhattan, City and State of New York, and authorized under such
laws to exercise corporate trust powers and subject to supervision
or examination by federal or state authority. After appointment,
any successor Warrant Agent shall be vested with all the authority,
powers, rights, immunities, duties, and obligations of its
predecessor Warrant Agent with like effect as if originally named
as Warrant Agent hereunder, without any further act or deed; but if
for any reason it becomes necessary or appropriate, the predecessor
Warrant Agent shall execute and deliver, at the expense of the
Company, an instrument transferring to such successor Warrant Agent
all the authority, powers, and rights of such predecessor Warrant
Agent hereunder; and upon request of any successor Warrant Agent
the Company shall make, execute, acknowledge, and deliver any and
all instruments in writing for more fully and effectually vesting
in and confirming to such successor Warrant Agent all such
authority, powers, rights, immunities, duties, and
obligations.
7.2.2 Notice
of Successor Warrant Agent. In the event a successor Warrant
Agent shall be appointed, the Company shall give notice thereof to
the predecessor Warrant Agent and the transfer agent for the Common
Stock not later than the effective date of any such
appointment.
7.2.3 Merger
or Consolidation of Warrant Agent. Any corporation into
which the Warrant Agent may be merged or with which it may be
consolidated or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party shall be
the successor Warrant Agent under this Agreement without any
further act.
7.3.1 Remuneration.
The Company agrees to pay the Warrant Agent reasonable remuneration
for its services as such Warrant Agent hereunder and will reimburse
the Warrant Agent upon demand for all expenditures that the Warrant
Agent may reasonably incur in the execution of its duties
hereunder.
7.3.2 Further
Assurances. The Company agrees to perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Warrant Agent for the carrying out or performing of the provisions
of this Agreement.
7.4.1 Reliance
on Company Statement. Whenever in the performance of its
duties under this Warrant Agreement the Warrant Agent shall deem it
necessary or desirable that any fact or matter be proved or
established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a statement signed by the
President or Chairman of the Board of the Company and delivered to
the Warrant Agent. The Warrant Agent may rely upon such statement
for any action taken or suffered in good faith by it pursuant to
the provisions of this Agreement.
7.4.2 Indemnity.
The Warrant Agent shall be liable hereunder only for its own gross
negligence, willful misconduct or bad faith. The Company agrees to
indemnify the Warrant Agent and save it harmless against any and
all liabilities, including judgments, costs and reasonable counsel
fees, for anything done or omitted by the Warrant Agent in the
execution of this Agreement, except as a result of the Warrant
Agent’s gross negligence, willful misconduct or bad
faith.
7.4.3 Exclusions.
The Warrant Agent shall have no responsibility with respect to the
validity of this Agreement or with respect to the validity or
execution of any Warrant (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any
Warrant; nor shall it be responsible to make any adjustments
required under the provisions of Section 4 hereof or responsible
for the manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such
adjustment; nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation
of any shares of Common Stock to be issued pursuant to this
Agreement or any Warrant or as to whether any shares of Common
Stock will when issued be valid and fully paid and
nonassessable.
7.5 Acceptance of Agency. The
Warrant Agent hereby accepts the agency established by this
Agreement and agrees to perform the same upon the terms and
conditions herein set forth and, among other things, shall account
promptly to the Company with respect to Warrants exercised and
concurrently account for, and pay to the Company, all moneys
received by the Warrant Agent for the purchase of shares of Common
Stock through the exercise of Warrants.
8.1 Successors. All the covenants
and provisions of this Agreement by or for the benefit of the
Company or the Warrant Agent shall bind and inure to the benefit of
their respective successors and assigns.
8.2 Notices. Any notice, statement
or demand authorized by this Warrant Agreement to be given or made
by the Warrant Agent or by the holder of any Warrant to or on the
Company shall be delivered by hand or sent by registered or
certified mail or overnight courier service, addressed (until
another address is filed in writing by the Company with the Warrant
Agent) as follows:
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General
Finance Corporation
Attention:
Xxxxxxxxxxx Xxxxxx
00 Xxxx
Xxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
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Any
notice, statement or demand authorized by this Agreement to be
given or made by the holder of any Warrant or by the Company to or
on the Warrant Agent shall be delivered by hand or sent by
registered or certified mail or overnight courier service,
addressed (until another address is filed in writing by the Company
with the Warrant Agent) as follows:
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________________________
________________________
________________________
Attn:
____________________
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Any
notice, sent pursuant to this Warrant Agreement shall be effective,
if delivered by hand, upon receipt thereof by the party to whom it
is addressed, if sent by overnight courier, on the next business
day of the delivery to the courier, and if sent by registered or
certified mail on the third day after registration or certification
thereof.
8.3 Applicable Law. The validity,
interpretation and performance of this Agreement and of the
Warrants shall be governed in all respects by the laws of the State
of New York, without giving effect to conflicts of law principles
that would result in the application of the substantive laws of
another jurisdiction. The Company hereby agrees that any action,
proceeding or claim against it arising out of or relating in any
way to this Agreement shall be brought and enforced in the courts
of the State of New York or the United States District Court for
the Southern District of New York, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The Company
hereby waives any objection to such exclusive jurisdiction and that
such courts represent an inconvenient forum. Any such process or
summons to be served upon the Company may be served by transmitting
a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set
forth in Section 8.2 hereof. Such mailing shall be deemed personal
service and shall be legal and binding upon the Company in any
action, proceeding or claim.
8.4 Persons Having Rights under this
Agreement. Nothing in this Agreement expressed and nothing
that may be implied from any of the provisions hereof is intended,
or shall be construed, to confer upon, or give to, any person or
corporation other than the parties hereto and the registered
holders of the Warrants, any right, remedy, or claim under or by
reason of this Warrant Agreement or of any covenant, condition,
stipulation, promise, or agreement hereof. All covenants,
conditions, stipulations, promises, and agreements contained in
this Warrant Agreement shall be for the sole and exclusive benefit
of the parties hereto and their successors and assigns and of the
registered holders of the Warrants.
8.5 Examination of the Warrant
Agreement. A copy of this Agreement shall be available at
all reasonable times at the office of the Warrant Agent in the
Borough of Manhattan, City and State of New York, for inspection by
the registered holder of any Warrant. The Warrant Agent may require
any such holder to submit his, her or its Warrant for inspection by
it.
8.6 Counterparts. This Agreement
may be executed in any number of original or facsimile counterparts
and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute
but one and the same instrument.
8.7 Effect of Headings. The section
headings herein are for convenience only and are not part of this
Warrant Agreement and shall not affect the interpretation
thereof.
8.8 Amendments. This Agreement may
be amended by the parties hereto without the consent of any
registered holder for the purpose of curing any ambiguity, or
curing, correcting or supplementing any defective provision
contained herein or adding or changing any other provisions with
respect to matters or questions arising under this Agreement as the
parties may deem necessary or desirable and that the parties deem
shall not adversely affect the interest of the registered holders.
All other modifications or amendments, including any amendment to
increase the Warrant Price or shorten the Exercise Period, shall
require the written consent of the registered holders of a majority
of the then outstanding Warrants. Notwithstanding the foregoing,
the Company may lower the Warrant Price or extend the duration of
the Exercise Period pursuant to Sections 3.1 and 3.2, respectively,
without the consent of the registered holders.
8.9 Severability. Whenever
possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but
if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective
only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
[Signature page
follows]
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GENERAL FINANCE CORPORATION
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By:
_______________________
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Name:
____________________
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Title:
_____________________
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_________________________________
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By:
_______________________
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Name:
____________________
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Title:
_____________________
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