SUPPORT AGREEMENT
Exhibit 10.1
Execution Version
This SUPPORT AGREEMENT, dated as of July 12, 2022 (this “Support Agreement”), is entered into by and among Bright Vision Sponsor LLC, a Delaware limited liability company (“Sponsor”), Chijet Inc., a Cayman Islands exempted company (the “Company”), Chijet Motor Company, Inc., a Cayman Islands exempted company (“Pubco”), and Deep Medicine Acquisition Corp., a Delaware corporation (“DMAC”). Capitalized terms used but not defined in this Support Agreement shall have the meanings ascribed to them in the Business Combination Agreement (as defined below).
WHEREAS, as of July 12, 2022, DMAC, Pubco, Chijet Motor (USA) Company, Inc., a Delaware corporation and a wholly owned subsidiary of Pubco (“Merger Sub”), the Company, and the shareholders of the Company named as Sellers therein (collectively, the “Sellers”) entered into that certain Business Combination Agreement (as amended from time to time in accordance with the terms thereof, the “Business Combination Agreement”), pursuant to which, subject to the terms and conditions thereof, among other matters, (a) Pubco will acquire all of the issued and outstanding shares of the Company from the Sellers in exchange for ordinary shares of Pubco and the Company shall surrender for no consideration its shares in Pubco, such that the Company becomes a wholly owned subsidiary of Pubco and the Sellers become shareholders of Pubco (the “Share Exchange”); and immediately thereafter (b) Merger Sub will merge with and into DMAC, with DMAC continuing as the surviving entity (the “Merger”), and as a result of which, (i) DMAC will become a wholly-owned subsidiary of Pubco, and (ii) each issued and outstanding security of DMAC immediately prior to the effective time of the Merger will no longer be outstanding and will automatically be cancelled, in exchange for the right of the holder thereof to receive a substantially equivalent security of Pubco, all upon the terms and subject to the conditions set forth in the Business Combination Agreement and in accordance with the provisions of applicable Law;
WHEREAS, Sponsor is the sponsor of DMAC and, as of the date hereof, Sponsor is the owner of 3,021,958 shares of DMAC’s common stock, par value $0.0001 per share (“DMAC Common Stock”) (all such shares, or any successor or additional shares of DMAC of which ownership of record or the power to vote is hereafter acquired by Sponsor prior to the termination of this Support Agreement being referred to herein as the “Sponsor Shares”);
WHEREAS, the Board of Directors of DMAC has (a) approved and declared advisable the Business Combination Agreement, the Ancillary Documents, the Merger and the other transactions contemplated by any such documents (collectively, the “Transactions”), (b) determined that the Transactions are fair to and in the best interests of DMAC and its stockholders (the “DMAC Stockholders”) and (c) recommended the approval and the adoption by each of the DMAC Stockholders of the Business Combination Agreement, the Ancillary Documents, the Merger and the other Transactions; and
WHEREAS, in order to induce the Company, to enter into the Business Combination Agreement, Sponsor is executing and delivering this Support Agreement to the Company.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereby agree as follows:
1. Voting Agreements. Sponsor, solely in its capacity as a stockholder of DMAC, agrees that, during the term of this Support Agreement, at the DMAC Stockholder Meeting, at any other meeting of the DMAC Stockholders related to the Transactions (whether annual or special and whether or not an adjourned or postponed meeting, however called and including any adjournment or postponement thereof) and/or in connection with any written consent of the DMAC Stockholders related to the Transactions (the DMAC Stockholder Meeting and all other meetings or consents related to the Business Combination Agreement, collectively referred to herein as the “Meeting”), Sponsor shall:
(a) when the Meeting is held, appear at the Meeting or otherwise cause the Sponsor Shares to be counted as present thereat for the purpose of establishing a quorum;
(b) vote (or execute and return an action by written consent), or cause to be voted at the Meeting (or validly execute and return and cause such consent to be granted with respect to), all of the Sponsor Shares in favor of the Business Combination Agreement and the Transactions and each of the other Stockholder Approval Matters; and
(c) vote (or execute and return an action by written consent), or cause to be voted at the Meeting (or validly execute and return and cause such consent to be granted with respect to), all of the Sponsor Shares against any other action that would reasonably be expected to (x) materially impede, interfere with, delay, postpone or adversely affect the Merger or any of the Transactions, (y) result in a breach of any covenant, representation or warranty or other obligation or agreement of DMAC under the Business Combination Agreement or (z) result in a breach of any covenant, representation or warranty or other obligation or agreement of Sponsor contained in this Support Agreement.
2. Restrictions on Transfer. Sponsor agrees that, during the term of this Support Agreement, it shall not sell, assign or otherwise transfer any of the Sponsor Shares unless the buyer, assignee or transferee thereof executes a joinder agreement to this Support Agreement in a form reasonably acceptable to the Company and DMAC. DMAC shall not, and shall not permit DMAC’s transfer agent to, register any sale, assignment or transfer of the Sponsor Shares on DMAC’s stock ledger (book entry or otherwise) that is not in compliance with this Section 2.
3. No Redemption; Conversion of Rights. Sponsor hereby agrees:
(a) that, during the term of this Agreement, it shall not redeem, or submit a request to DMAC’s transfer agent or otherwise exercise any right to redeem, any Sponsor Shares; and
(b) that it will elect to convert, effective prior to the Closing, any and all Private Placement Rights and Working Capital Rights (as those terms are defined in the Rights Agreement) held by it into the underlying shares of DMAC Common Stock in the manner contemplated by the Rights Agreement.
4. New Securities. During the term of this Support Agreement, in the event that, (x) any shares of DMAC Common Stock or other equity securities of DMAC are issued to Sponsor after the date of this Support Agreement pursuant to any stock dividend, stock split, recapitalization, reclassification, combination or exchange of DMAC securities owned by Sponsor, (y) Sponsor purchases or otherwise acquires beneficial ownership of any shares of DMAC Common Stock or other equity securities of DMAC after the date of this Support Agreement, or (c) Sponsor acquires the right to vote or share in the voting of any DMAC Common Stock or other equity securities of DMAC after the date of this Support Agreement (such DMAC Common Stock or other equity securities of DMAC, collectively the “New Securities”), then such New Securities acquired or purchased by Sponsor shall be subject to the terms of this Support Agreement to the same extent as if they constituted the Sponsor Shares as of the date hereof.
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5. Company Acquisition of Sponsor Membership Interests. Sponsor agrees to be bound by, and comply with, the provisions of Section 11.2(a) of the Business Combination Agreement insofar as they relate to Sponsor, as though Sponsor were a party to the Business Combination Agreement. Without prejudice to the generality of the foregoing:
(a) Sponsor represents and warrants to the Company and Pubco that it has provided or caused to be provided to the Company true, correct and complete copies of Sponsor’s limited liability company operating agreement and any amendments thereto and any other organizational documents of Sponsor or agreements or instruments governing the relations of Sponsor’s members to each other or to Sponsor, each as in effect on the date hereof (together, the “Sponsor Governing Documents”);
(b) upon and subject to the funding of the Extension Amount by the Company pursuant to Section 11.2(a) of the Business Combination, Sponsor shall issue such amount or number of limited liability company membership interests in Sponsor (“Membership Interests”) to the Company (or its designee) as will cause the value of the Company’s (or its designee’s) interest in shares of DMAC Common Stock held by the Sponsor and allocable to such Membership Interests to be equal to the Extension Amount, with each share of DMAC Common Stock being valued at $10.00 for this purpose. Such Membership Interests will be duly and validly issued, free and clear of any Liens other than those imposed under the Sponsor Governing Documents. For the avoidance of doubt, the Company (or its designee) will not, by virtue of the issuance of the Membership Interests and its admission as a member of the Sponsor, become subject to any obligation to make any additional capital contribution to Sponsor other than its contribution of the Extension Amount;
(c) during the period between the date hereof and the Closing under the Business Combination Agreement, except with the prior written consent of the Company, Sponsor will not amend or modify, or permit to be amended or modified, the Sponsor Governing Documents other than as necessary or appropriate to reflect the issuance of the Membership Interests to the Company (or its designee) and the admission of the Company (or its designee) as a member of Sponsor, if applicable; and
(d) as soon as practicable after the Company’s deposit of the Extension Amount to an account designated by Sponsor and DMAC, Sponsor shall take, or cause to be taken, any and all action necessary for the Company or its designee, as applicable, to be admitted as a member of Sponsor and to become a party to Sponsor’s limited liability company operating agreement, subject to the Company’s (or its designee’s) execution and delivery to Sponsor of a joinder agreement substantially in the form attached hereto as Annex 1 (the “Joinder Agreement to Sponsor Operating Agreement”).
6. No Challenge. Sponsor, on behalf of itself and its Affiliates (the “Sponsor Releasing Persons”), agrees:
(a) not to commence, join in, facilitate, assist or encourage, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against DMAC, Pubco, Merger Sub, the Company or any of their respective successors or directors (x) challenging the validity of, or seeking to enjoin the operation of, any provision of this Support Agreement or the Business Combination Agreement or (y) alleging a breach of any fiduciary duty of any Person in connection with the evaluation, negotiation or entry into the Business Combination Agreement;
(b) to release and discharge DMAC, Pubco, Merger Sub, the Company or any of their respective successors or directors from and against any and all Actions, obligations, agreements, debts and Liabilities whatsoever, whether known or unknown, both at law and in equity, which such Sponsor Releasing Person now has, has ever had or may hereafter have against DMAC arising on or prior to the Closing Date as a result of such person’s capacity as a holder of capital shares or other securities of DMAC and arising on or prior to the Closing Date or on account of or arising out of any matter occurring on or prior to the Closing Date, provided that releases and restrictions shall not apply to any claims a Sponsor Releasing Person may have against any party with respect to any rights under the Business Combination Agreement, this Agreement, any of the other Ancillary Documents or any Contract set forth in Schedule 12.2(b) of the Business Combination Agreement or any rights to indemnification, fee reimbursement or exculpation; and
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(c) to irrevocably refrain from, directly or indirectly, asserting any Action, or commencing or causing to be commenced, any Action of any kind against DMAC, Pubco, Merger Sub, the Company or any of their respective successors or directors, based upon any matter purported to be released herein, from and after the Closing.
7. Waiver of Anti-Dilution Protection. Sponsor, solely in connection with and only for the purpose of the proposed Transactions, hereby waives, and agrees not to exercise, assert or claim, to the fullest extent permitted by Law, the provisions of Section 4.3(b)(ii) of DMAC’s Second Amended and Restated Certificate of Incorporation (as amended, the “DMAC Charter”), and agrees that the Class B Common Stock (as defined in the DMAC Charter) will convert only upon the Initial Conversion Ratio (as defined in the DMAC Charter) automatically on the Closing. This waiver shall be void and of no force and effect following the date on which the Business Combination Agreement is validly terminated in accordance with its terms. All other terms in the DMAC Charter related to the Class B Common Stock shall remain in full force and effect, and foregoing waiver shall be effective only upon the consummation of the Transactions.
8. Consent to Disclosure. Sponsor hereby consents to the publication and disclosure in the Form F-4 and the Proxy Statement (and, as and to the extent otherwise required by applicable securities Laws or the SEC or any other securities authorities, any other documents or communications provided by DMAC, Pubco or the Company to any Authority or to securityholders of DMAC, Pubco or the Company) of Sponsor’s identity and beneficial ownership of Sponsor Shares and the nature of Sponsor’s commitments, arrangements and understandings under and relating to this Support Agreement and, if deemed appropriate by DMAC, Pubco or the Company, a copy of this Support Agreement. Sponsor will promptly provide any information reasonably requested by DMAC, Pubco or the Company for any regulatory application or filing made or approval sought in connection with the Transactions (including filings with the SEC). Sponsor shall not issue any press release or otherwise make any public statements with respect to the Transactions or the transactions contemplated herein without the prior written approval of the Company and DMAC.
9. Sponsor Representations. Sponsor represents and warrants to DMAC, Pubco and the Company, as of the date hereof, that:
(a) Sponsor has never been suspended or expelled from membership in any securities or commodities exchange or association or had a securities or commodities license or registration denied, suspended or revoked;
(b) Sponsor has full right and power, without violating any agreement to which it is bound (including any non-competition or non-solicitation agreement with any employer or former employer), to enter into this Support Agreement;
(c) Sponsor is duly organized, validly existing and in good standing under the Laws of the jurisdiction in which it is organized, and the execution, delivery and performance of this Support Agreement and the consummation of the transactions contemplated hereby are within Sponsor’s organizational powers and have been duly authorized by all necessary organizational actions on the part of Sponsor;
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(d) this Support Agreement has been duly executed and delivered by Sponsor and, assuming due authorization, execution and delivery by the other parties to this Support Agreement, this Support Agreement constitutes a legally valid and binding obligation of Sponsor, enforceable against Sponsor in accordance with the terms hereof (except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies);
(e) the execution and delivery of this Support Agreement by Sponsor does not, and the performance by Sponsor of its obligations hereunder will not, (i) conflict with or result in a violation of the organizational documents of Sponsor, or (ii) require any consent or approval from any third party that has not been given or other action that has not been taken by any third party, in each case, to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by Sponsor of its obligations under this Support Agreement;
(f) there are no Actions pending against Sponsor or, to the knowledge of Sponsor, threatened against Sponsor, before (or, in the case of threatened Actions, that would be before) any Authority, which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by Sponsor of Sponsor’s obligations under this Support Agreement;
(g) no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with this Support Agreement or any of the respective transactions contemplated hereby, based upon arrangements made by or on behalf of Sponsor;
(h) Sponsor has had the opportunity to read the Business Combination Agreement and this Support Agreement and has had the opportunity to consult with Sponsor’s tax and legal advisors;
(i) Sponsor has not entered into, and shall not enter into, any agreement that would prevent Sponsor from performing any of Sponsor’s obligations hereunder;
(j) Sponsor has good title to the Sponsor Shares, free and clear of any Liens other than Permitted Liens and Liens under DMAC’s Organizational Documents, and Sponsor has the sole power to vote or cause to be voted the Sponsor Shares; and
(k) the Sponsor Shares are the only shares of DMAC’s outstanding capital stock owned of record or beneficially owned by the Sponsor as of the date hereof, and none of the Sponsor Shares are subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of the Sponsor Shares that is inconsistent with Sponsor’s obligations pursuant to this Support Agreement.
10. Specific Performance. The Sponsor hereby agrees and acknowledges that (a) DMAC, Pubco and the Company would be irreparably injured in the event of a breach by the Sponsor of its obligations under this Support Agreement, (b) monetary damages may not be an adequate remedy for such breach and (c) DMAC, Pubco and the Company shall be entitled to obtain injunctive relief, in addition to any other remedy that such party may have in law or in equity, in the event of such breach or anticipated breach, without the requirement to post any bond or other security or to prove that money damages would be inadequate.
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11. Entire Agreement; Amendment; Waiver. This Support Agreement and the other agreements referenced herein constitute the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersede all prior understandings, agreements or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby provided, that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the parties under the Business Combination Agreement or any Additional Agreement. This Support Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by all parties hereto. No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof. No waivers of or exceptions to any term, condition, or provision of this Support Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.
12. Binding Effect; Assignment; Third Parties. This Support Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Support Agreement and all obligations of Sponsor are personal to Sponsor and may not be assigned, transferred or delegated by Sponsor at any time without the prior written consent of DMAC, Pubco and the Company, and any purported assignment, transfer or delegation without such consent shall be null and void ab initio. Nothing contained in this Support Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any Person that is not a party hereto or thereto or a successor or permitted assign of such a party.
13. Counterparts. This Support Agreement may be executed in any number of original, electronic 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.
14. Severability. This Support Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Support Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Support Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
15. Governing Law; Jurisdiction; Jury Trial Waiver. Sections 13.4 and 13.5 of the Business Combination Agreement are incorporated by reference herein to apply with full force to any disputes arising under this Support Agreement.
16. Notice. Any notice, consent or request to be given in connection with any of the terms or provisions of this Support Agreement shall be in writing and shall be sent or given in accordance with the terms of Section 13.1 of the Business Combination Agreement to the applicable party, with respect to the Company, Pubco and DMAC, at the respective addresses set forth in Section 13.1 of the Business Combination Agreement, and, with respect to the Sponsor, at the address set forth underneath Sponsor’s name on the signature page hereto.
17. Termination. This Support Agreement become effective upon the date hereof and shall automatically terminate, and none of DMAC, Pubco, the Company or Sponsor shall have any rights or obligations hereunder, on the earliest of (i) the mutual written consent of DMAC, the Company and the Sponsor, (ii) the Closing (following the performance of the obligations of the parties hereunder required to be performed at or prior to the Closing), or (iii) the termination of the Business Combination Agreement in accordance with its terms. No such termination shall relieve the Sponsor, Pubco, DMAC or the Company from any liability resulting from a breach of this Support Agreement occurring prior to such termination. Notwithstanding anything to the contrary herein, the provisions of Section 15 and this Section 17 shall survive the termination of this Support Agreement.
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18. Adjustment for Stock Split. If, and as often as, there are any changes in the Sponsor Shares by way of stock split, stock dividend, combination or reclassification, or through merger, consolidation, reorganization, recapitalization or business combination, or by any other means, equitable adjustment shall be made to the provisions of this Support Agreement as may be required so that the rights, privileges, duties and obligations hereunder shall continue with respect to the Sponsor, DMAC, the Company, the Sponsor Shares as so changed.
19. Further Actions. Each of the parties hereto agrees to execute and deliver hereafter any further document, agreement or instrument of assignment, transfer or conveyance as may be necessary or desirable to effectuate the purposes hereof and as may be reasonably requested in writing by another party hereto.
20. Expenses. Each party shall be responsible for its own fees and expenses (including the fees and expenses of investment bankers, accountants and counsel) in connection with the entering into of this Support Agreement, the performance of its obligations hereunder and the consummation of the transactions contemplated hereby; provided, that in the event of any Action arising out of or relating to this Support Agreement, the non-prevailing party in any such Action will pay its own expenses and the reasonable documented out-of-pocket expenses, including reasonable attorneys’ fees and costs, reasonably incurred by the prevailing party.
21. Interpretation. The titles and subtitles used in this Support Agreement are for convenience only and are not to be considered in construing or interpreting this Support Agreement. In this Support Agreement, unless the context otherwise requires: (i) any pronoun used shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) the term “including” (and with correlative meaning “include”) shall be deemed in each case to be followed by the words “without limitation”; and (iii) the words “herein,” “hereto,” and “hereby” and other words of similar import shall be deemed in each case to refer to this Support Agreement as a whole and not to any particular section or other subdivision of this Support Agreement. The parties have participated jointly in the negotiation and drafting of this Support Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Support Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Support Agreement.
22. No Partnership, Agency or Joint Venture. This Support Agreement is intended to create a contractual relationship among Sponsor, Pubco, the Company and DMAC, and is not intended to create, and does not create, any agency, partnership, joint venture or any like relationship among the parties hereto or among any other DMAC Stockholders entering into support agreements with the Company, Pubco or DMAC. Sponsor has acted independently regarding its decision to enter into this Support Agreement. Nothing contained in this Support Agreement shall be deemed to vest in the Company or DMAC any direct or indirect ownership or incidence of ownership of or with respect to any Sponsor Shares.
23. Capacity as Stockholder. Sponsor signs this Support Agreement solely in Sponsor’s capacity as a stockholder of DMAC, and not in any other capacity, including, if applicable, as a director (including “director by deputization”), officer or employee of DMAC or any of its Subsidiaries. Nothing herein shall be construed to limit or affect any actions or inactions by Sponsor or any representative of Sponsor, as applicable, serving as a director of DMAC or any Subsidiary of DMAC, acting in such Person’s capacity as a director of DMAC or any Subsidiary of DMAC.
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IN WITNESS WHEREOF, the parties have executed this Support Agreement as of the date first written above.
| The Company: | ||
| CHIJET INC. | ||
| By: | /s/ Hongwei Mu (慕宏伟) | |
| Name: | Hongwei Mu (慕宏伟) | |
| Title: | Director | |
| Pubco: | ||
| CHIJET MOTOR COMPANY, INC. | ||
| By: | /s/ Hongwei Mu (慕宏伟) | |
| Name: | Hongwei Mu (慕宏伟) | |
| Title: | Director | |
| DMAC: | ||
| DEEP MEDICINE ACQUISITION CORP. | ||
| By: | /s/ Xxxxxxxx Polanen | |
| Name: | Xxxxxxxx Polanen | |
| Title: | Chief Executive Officer | |
{Signature Page to Support Agreement}
| Sponsor: | ||
| BRIGHT VISION SPONSOR LLC | ||
| By: | /s/ Xx Xx | |
| Name: | Xx Xx | |
| Title: | Managing Member | |
| Address for Notice: | |
| Address: 000 Xxxxxxx Xxxxxx, 00xx Xxxxx | |
| Xxx Xxxx, XX 00000 | |
| Telephone No.: | |
| Email: |
{Signature Page to Support Agreement}
ANNEX 1
Form of
Joinder to Limited Liability Company Operating Agreement
Of
Bright Vision Sponsor LLC
Dated as of [____], 2022
The undersigned hereby accepts, and becomes a party to, the Limited Liability Company Operating Agreement of Bright Vision Sponsor LLC, a Delaware limited liability company (the “Company”), dated as of March 15, 2021 (the “Agreement”), in connection with the acquisition of Membership Interests (as defined in the Agreement), and by its signature below signifies its agreement to be bound by the terms and conditions of the Agreement.
| Member Name: | _________________________ |
| By: | __________________________ |
| Name: | __________________________ |
| Title: | __________________________ |
| Capital Contribution: | $_______________________ |
| Membership Interest: | [____]% |
| Founder Shares Percentage: | [____]% |
| Private Placement Units Percentage: [0%] | |
| Residual Percentage: | [____]% |
Following the execution of this Joinder, the Schedule A will be updated to reflect the admission of the above as a new Member (as defined in the Agreement), and such updated Schedule A shall be provided to all Members.
Agreed and Accepted:
| Bright Vision Sponsor LLC | ||
| By: | ||
| Name: | Xx Xx | |
| Title: | Managing Member | |
