COMMERCIAL GUARANTY
EXHIBIT 10.39
| Principal | Loan Date | Maturity | Loan No. | Call / Coll | Account | Officer | Initials | |||||||
| 4A / 60 | *** |
References in the shaded area are for Lender’s use only and do not limit the applicability of this document to any
particular loan or item. Any item above containing “***” has been omitted due to text length limitations.
particular loan or item. Any item above containing “***” has been omitted due to text length limitations.
Borrower:
|
SYNERGETICS, INC. (MISSOURI CORPORATION) | Lender: | Union Planters Bank NA | |||
| (TIN: 00-0000000) | Xxxxxxx Commercial Lending | |||||
| 0000 XXXXXXXXX XXXXXX XXXXX | 0000 Xxxxxxxx Xxxxxx Xxxxx 000 | |||||
| O’FALLON, MO 00000 | Xx. Xxxxx, XX 00000 | |||||
Guarantor:
|
SYNERGETICS USA, INC. (DELAWARE PUBLIC | |||||
| CORPORATION) (TIN: 00-0000000) | ||||||
| 0000 XXXXXXXXX XXXXXX XXXXX | ||||||
| O’FALLON, MO 63368 |
AMOUNT OF GUARANTY. The amount of this Guaranty is Unlimited.
CONTINUING
UNLIMITED GUARANTY. For good and valuable consideration, SYNERGETICS
USA, INC. (DELAWARE
PUBLIC CORPORATION) (“Guarantor”) absolutely and unconditionally guarantees and promises to pay to
Union Planters Bank NA (“Lender”) or its order, in legal tender of the United States of America,
the Indebtedness (as that term is defined below) of SYNERGETICS, INC. (MISSOURI CORPORATION)
(“Borrower”) to Lender on the terms and conditions set forth in this Guaranty. Under this
Guaranty, the liability of Guarantor is unlimited and the obligations of Guarantor are continuing.
INDEBTEDNESS GUARANTEED. The Indebtedness guaranteed by this Guaranty includes any and all of
Borrower’s indebtedness to Lender and is used in the most comprehensive sense and means and
includes any and all of Borrower’s liabilities, obligations and debts to Lender, now existing or
hereinafter incurred or created, including, without limitation, all loans, advances, interest,
costs, debts, overdraft indebtedness, credit card indebtedness, lease obligations, other
obligations, and liabilities of Borrower, or any of them, and any present or future judgments
against Borrower, or any of them; and whether any such Indebtedness is voluntarily or involuntarily
incurred, due or not due, absolute or contingent, liquidated or unliquidated, determined or
undetermined; whether Borrower may be liable individually or jointly with others, or primarily or
secondarily, or as guarantor or surety; whether recovery on the Indebtedness may be or may become
barred or unenforceable against Borrower for any reason whatsoever; and whether the Indebtedness
arises from transactions which may be voidable on account of infancy, insanity, ultra xxxxx, or
otherwise.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender without the necessity
of any acceptance by Xxxxxx, or any notice to Guarantor or to Borrower, and will continue in full
force until all Indebtedness incurred or contracted before receipt by Lender of any notice of
revocation shall have been fully and finally paid and satisfied and all of Guarantor’s other
obligations under this Guaranty shall have been performed in full. If Guarantor elects to revoke
this Guaranty, Guarantor may only do so in writing. Guarantor’s written notice of revocation must
be mailed to Lender, by certified mail, at Xxxxxx’s address listed above or such other place as
Lender may designate in writing. Written revocation of this Guaranty will apply only to advances
or new Indebtedness created after actual receipt by Xxxxxx of Guarantor’s written revocation. For
this purpose and without limitation, the term “new Indebtedness” does not include Indebtedness
which at the time of notice of revocation is contingent, unliquidated, undetermined or not due and
which later becomes absolute, liquidated, determined or due. This Guaranty will continue to bind
Guarantor for all Indebtedness incurred by Borrower or committed by Lender prior to receipt of
Guarantor’s written notice of revocation, including any extensions, renewals, substitutions or
modifications of the Indebtedness. All renewals, extensions, substitutions, and modifications of
the Indebtedness granted after Guarantor’s revocation, are contemplated under this Guaranty and,
specifically will not be considered to be new Indebtedness. This Guaranty shall bind Guarantor’s
estate as to Indebtedness created both before and after Guarantor’s death or incapacity, regardless
of Lender’s actual notice of Guarantor’s death. Subject to the foregoing, Guarantor’s executor or
administrator or other legal representative may terminate this Guaranty in the same manner in which
Guarantor might have terminated it and with the same affect. Release of any other guarantor or
termination of any other guaranty of the Indebtedness shall not affect the liability of Guarantor
under this Guaranty. A revocation Lender receives from any one or more Guarantors shall not affect
the liability of any remaining Guarantors under this Guaranty. It is anticipated that fluctuations
may occur in the aggregate amount of Indebtedness covered by this Guaranty, and Guarantor
specifically acknowledges and agrees that reductions in the amount of Indebtedness, even to zero
dollars ($0.00), prior to Guarantor’s written revocation of this Guaranty shall not
constitute a termination of this Guaranty. This Guaranty is binding upon Guarantor and Guarantor’s
heirs, successors and assigns so long as any of the guaranteed Indebtedness remains unpaid and even
though the Indebtedness guaranteed may from time to time be zero dollars ($0.00).
GUARANTOR’S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before or after any
revocation hereof, without notice or demand and without lessening Guarantor’s liability under this
Guaranty, from time to time: (A) prior to revocation as set forth above, to make one or more
additional secured or unsecured loans to Borrower, to lease equipment or other goods to Borrower,
or otherwise to extend additional credit to Borrower; (B) to alter, compromise, renew, extend,
accelerate, or otherwise change one or more times the time for payment or other terms of the
Indebtedness or any part of the Indebtedness, including increases and decreases of the rate of
interest, principal amount, fees or other charges on the Indebtedness; extensions may be repeated
and may be for longer than the original loan term; (C) to take and hold security for the payment of
this Guaranty or the Indebtedness, and exchange, enforce, waive, subordinate, fail or decide not to
perfect, and release any such security, with or without the substitution of new collateral; (D) to
release, substitute, agree not to sue, or deal with any one or more of Borrower’s sureties,
endorsers, or other guarantors on any terms or in any manner Lender may choose; (E) to determine
how, when and what application of payments and credits shall be made on the Indebtedness; (F) to
apply such security and direct the order or manner of sale thereof, including without limitation,
any nonjudicial sale permitted by the terms of the controlling security agreement or deed of trust,
as Lender in its discretion may determine; (G) to sell, transfer, assign or grant participations in
all or any part of the Indebtedness; and (H) to assign or transfer this Guaranty in whole or in
part.
GUARANTOR’S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (A)
no representations or agreements of any kind have been made to Guarantor which would limit or
qualify in any way the terms of this Guaranty; (B) this Guaranty is executed at Borrower’s request
and not at the request of Lender; (C) Guarantor has full power, right and authority to enter into
this Guaranty; (D) the provisions of this Guaranty do not conflict with or result in a default
under any agreement or other instrument binding upon Guarantor and do not result in a violation of
any law, regulation, court decree or order applicable to Guarantor; (E) Guarantor has not and will
not, without the prior written consent of Lender, sell, lease, assign, encumber, hypothecate,
transfer, or otherwise dispose of all or substantially all of, Guarantor’s assets, or any interest
therein; (F) upon Lender’s request, Guarantor will provide to Lender financial and credit
information in form acceptable to Lender, and all such financial information which currently has
been, and all future financial information which will be provided to Lender is and will be true and
correct in all material respects and fairly present Guarantor’s financial condition as of the dates
the financial information is provided; (G) no material adverse change has occurred in Guarantor’s
financial condition since the date of the most recent financial statements provided to Lender and
no event has occurred which may materially adversely affect Guarantor’s financial condition; (H) no
litigation, claim, investigation, administrative proceeding or similar action (including those for
unpaid taxes) against Guarantor is pending or threatened; (I) Lender has made no representation to
Guarantor as to the creditworthiness of Borrower; and (J) Guarantor has established adequate means
of obtaining from Borrower on a continuing basis information regarding Borrower’s financial
condition. Guarantor agrees to keep adequately informed from such means of any facts, events, or
circumstances which might in any way affect Guarantor’s risks under this Guaranty, and Guarantor
further agrees that, absent a request for information, Xxxxxx shall have no obligation to disclose
to Guarantor any information or documents acquired by Lender in the course of its relationship with
Borrower.
GUARANTOR’S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require
Lender (A) to continue lending money or to extend other credit to Borrower; (B) to make any
presentment, protest, demand, or notice of any kind, including notice of any nonpayment of the
Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction
on the part of Borrower, Lender, any surety, endorser, or other guarantor in connection with the
Indebtedness or in connection with the creation of new or additional loans or obligations; (C) to
resort for payment or to proceed directly or at once against any person, including Borrower or any
other guarantor; (D) to proceed directly against or exhaust any collateral held by Xxxxxx from
Borrower, any other guarantor, or any other person; (E) to give notice of the terms, time, and
place of any public or private sale of personal property security held by Xxxxxx from Borrower or
to comply with any other applicable provisions of the Uniform Commercial Code; (F) to pursue any
other remedy within Lender’s power; or (G) to commit any act or omission of any kind, or at any
time, with respect to any matter whatsoever.
In addition to the waivers set forth herein, if now or hereafter Borrower is or shall become
insolvent and the Indebtedness shall not at all times until paid be fully secured by collateral
pledged by Xxxxxxxx, Guarantor hereby forever waives and gives up in favor of Xxxxxx and Xxxxxxxx,
and Xxxxxx’s and Xxxxxxxx’s respective successors, any claim or right to payment Guarantor may now
have or hereafter have or acquire against Borrower, by subrogation or otherwise, so that at no time
shall Guarantor be or become a “creditor” of Borrower within the meaning of U.S.C. section 547(b),
or any successor provision of the Federal bankruptcy laws.
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Guarantor also waives any and all rights or defenses arising by reason of (A) any “one action” or
“anti-deficiency” law or any other law which may prevent Lender from bringing any action, including
a claim for deficiency, against Guarantor, before or after Lender’s commencement or completion of
any foreclosure action, either judicially or by exercise of a power of sale; (B) any election of
remedies by Lender which destroys or otherwise adversely affects Guarantor’s subrogation rights or
Guarantor’s rights to proceed against Borrower for reimbursement, including without limitation, any
loss of rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the
Indebtedness; (C) any disability or other defense of Borrower, of any other guarantor, or of any
other person, or by reason of the cessation of Borrower’s liability from any cause whatsoever,
other than payment in full in legal tender, of the Indebtedness; (D) any right to claim discharge
of the Indebtedness on the basis of unjustified impairment of any collateral for the Indebtedness;
(E) any statute of limitations, if at any time any action or suit brought by Lender against
Guarantor is commenced, there is outstanding Indebtedness of Borrower to Lender which is not barred
by any applicable statute of limitations; or (F) any defenses given to guarantors at law or in
equity other than actual payment and performance of the Indebtedness. If payment is made by
Xxxxxxxx, whether voluntarily or otherwise, or by any third party, on the Indebtedness and
thereafter Xxxxxx is forced to remit the amount of that payment to Xxxxxxxx’s trustee in bankruptcy
or to any similar person under any federal or state bankruptcy law or law for the relief of
debtors, the Indebtedness shall be considered unpaid for the purpose of the enforcement of this
Guaranty.
Guarantor further waives and agrees not to assert or claim at any time any deductions to the amount
guaranteed under this Guaranty for any claim of setoff, counterclaim, counter demand, recoupment or
similar right, whether such claim, demand or right may be asserted by the Borrower, the Guarantor,
or both.
GUARANTOR’S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the
waivers set forth above is made with Guarantor’s full knowledge of its significance and
consequences and that, under the circumstances, the waivers are reasonable and not contrary to
public policy or law. If any such waiver is determined to be contrary to any applicable law or
public policy, such waiver shall be effective only to the extent permitted by law or public policy.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in
all Guarantor’s accounts with Lender (whether checking, savings, or some other account). This
includes all accounts Guarantor holds jointly with someone else and all accounts Guarantor may open
in the future. However, this does not include any IRA or Xxxxx accounts, or any trust accounts for
which setoff would be prohibited by law. Guarantor authorizes Xxxxxx, to the extent permitted by
applicable law, to hold those funds if there is a default, and Lender may apply the funds in these
accounts to pay what Guarantor owes under the terms of this Guaranty.
SUBORDINATION OF XXXXXXXX’S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness of Borrower
to Lender, whether now existing or hereafter created, shall be superior to any claim that Guarantor
may now have or hereafter acquire against Borrower, whether or not Borrower becomes insolvent.
Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any
account whatsoever, to any claim that Lender may now or hereafter have against Borrower. In the
event of insolvency and consequent liquidation of the assets of Borrower, through bankruptcy, by an
assignment for the benefit of creditors, by voluntary liquidation, or otherwise, the assets of
Borrower applicable to the payment of the claims of both Lender and Guarantor shall be paid to
Lender and shall be first applied by Lender to the Indebtedness of Borrower to Lender, Guarantor
does hereby assign to Lender all claims which it may have or acquire against Borrower or against
any assignee or trustee in bankruptcy of Borrower; provided however, that such assignment shall be
effective only for the purpose of assuring to Lender full payment in legal tender of the
Indebtedness. If Lender so requests, any notes or credit agreements now or hereafter evidencing
any debts or obligations of Borrower to Guarantor shall be marked with a legend that the same are
subject to this Guaranty and shall be delivered to Lender. Xxxxxxxxx agrees, and Xxxxxx is hereby
authorized, in the name of Guarantor, from time to time to file financing statements and
continuation statements and to execute documents and to take such other actions as Lender deems
necessary or appropriate to perfect, preserve and enforce its rights under this Guaranty.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty:
Amendments. This Guaranty, together with any Related Documents, constitutes the entire
understanding and agreement of the parties as to the matters set forth in this Guaranty. No
alteration of or amendment to this Guaranty shall be effective unless given in writing and
signed by the party or parties sought to be charged or bound by the alteration or amendment.
Arbitration. Borrower and Guarantor and Xxxxxx agree that all disputes, claims and
controversies between them whether individual, joint, or class in nature, arising from this
Guaranty or otherwise, including without limitation contract and tort disputes, shall be
arbitrated pursuant to the Rules of
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the American Arbitration Association in effect at the time the claim is filed, upon request
of either party. No act to take or dispose of any Collateral shall constitute a waiver of
this arbitration agreement or be prohibited by this arbitration agreement. This includes,
without limitation, obtaining injunctive relief or a temporary restraining order; invoking a
power of sale under any deed of trust or mortgage; obtaining a writ of attachment or
imposition of a receiver; or exercising any rights relating to personal property, including
taking or disposing of such property with or without judicial process pursuant to Article 9
of the Uniform Commercial Code. Any disputes, claims, or controversies concerning the
lawfulness or reasonableness of any act, or exercise of any right, concerning any
Collateral, including any claim to rescind, reform, or otherwise modify any agreement
relating to the Collateral, shall also be arbitrated, provided however that no arbitrator
shall have the right or the power to enjoin or restrain any act of any party. Judgment upon
any award rendered by any arbitrator may be entered in any court having jurisdiction.
Nothing in this Guaranty shall preclude any party from seeking equitable relief from a court
of competent jurisdiction. The statute of limitations, estoppel, waiver, laches, and
similar doctrines which would otherwise be applicable in an action brought by a party shall
be applicable in any arbitration proceeding, and the commencement of an arbitration
proceeding shall be deemed the commencement of an action for these purposes. The Federal
Arbitration Act shall apply to the construction, interpretation, and enforcement of this
arbitration provision.
Attorneys’ Fees; Expenses. Xxxxxxxxx agrees to pay upon demand all of Xxxxxx’s costs and
expenses, including Xxxxxx’s attorneys’ fees and Xxxxxx’s legal expenses, incurred in
connection with the enforcement of this Guaranty. Lender may hire or pay someone else to
help enforce this Guaranty, and Guarantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Xxxxxx’s attorneys’ fees and legal expenses whether
or not there is a lawsuit, including attorneys’ fees and legal expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or injunction), and
appeals. Guarantor also shall pay all court costs and such additional fees as may be
directed by the court.
Caption Headings. Caption headings in this Guaranty are for convenience purposes only and
are not to be used to interpret or define the provisions of this Guaranty.
Governing Law. This Guaranty will be governed by federal law applicable to Lender and, to
the extent not preempted by federal law, the laws of the State of Missouri without regard to
its conflicts of law provisions. This Guaranty has been accepted by Xxxxxx in the State of
Missouri.
Choice of Venue. If there is a lawsuit, Xxxxxxxxx agrees upon Xxxxxx’s request to submit to
the jurisdiction of the courts of St. Louis County, State of Missouri.
Integration. Xxxxxxxxx further agrees that Guarantor has read and fully understands the
terms of this Guaranty; Guarantor has had the opportunity to be advised by Guarantor’s
attorney with respect to this Guaranty; the Guaranty fully reflects Guarantor’s intentions
and parol evidence is not required to interpret the terms of this Guaranty. Guarantor
hereby indemnifies and holds Lender harmless from all losses, claims, damages, and costs
(including Xxxxxx’s attorneys’ fees) suffered or incurred by Xxxxxx as a result of any
breach by Guarantor of the warranties, representations and agreements of this paragraph.
Interpretation. In all cases where there is more than one Borrower or Guarantor, then all
words used in this Guaranty in the singular shall be deemed to have been used in the plural
where the context and construction so require; and where there is more than one Borrower
named in this Guaranty or when this Guaranty is executed by more than one Guarantor, the
words “Borrower” and “Guarantor” respectively shall mean all and any one or more of them.
The words “Guarantor,” “Xxxxxxxx,” and “Lender” include the heirs, successors, assigns, and
transferees of each of them. All of the obligations of Guarantor under this Guaranty (if
more than one Guarantor) shall be joint and several. If a court finds that any provision of
this Guaranty is not valid or should not be enforced, that fact by itself will not mean that
the rest of this Guaranty will not be valid or enforced. Therefore, a court will enforce
the rest of the provisions of this Guaranty even if a provision of this Guaranty may be
found to be invalid or unenforceable. If any one or more of Borrower or Guarantor are
corporations, partnerships, limited liability companies, or similar entities, it is not
necessary for Lender to inquire into the powers of Borrower or Guarantor or of the officers,
directors, partners, managers, or other agents acting or purporting to act on their behalf,
and any indebtedness made or created in reliance upon the professed exercise of such powers
shall be guaranteed under this Guaranty.
Notices. Any notice required to be given under this Guaranty shall be given in writing,
and, except for revocation notices by Guarantor, shall be effective when actually delivered,
when actually received by
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telefacsimile (unless otherwise required by law), when deposited with a nationally
recognized overnight courier, or, if mailed, when deposited in the United States mail, as
first class, certified or registered mail postage prepaid, directed to the addresses shown
near the beginning of this Guaranty. All revocation notices by Guarantor shall be in
writing and shall be effective upon delivery to Lender as provided in the section of this
Guaranty entitled “DURATION OF GUARANTY.” Any party may change its address for notices under
this Guaranty by giving formal written notice to the other parties, specifying that the
purpose of the notice is to change the party’s address. For notice purposes, Xxxxxxxxx
agrees to keep Xxxxxx informed at all times of Guarantor’s current address. Unless
otherwise provided or required by law, if there is more than one Guarantor, any notice given
by Lender to any Guarantor is deemed to be notice given to all Guarantors.
No Waiver by Xxxxxx. Lender shall not be deemed to have waived any rights under this
Guaranty unless such waiver is given in writing and signed by Xxxxxx. No delay or omission
on the part of Lender in exercising any right shall operate as a waiver of such right or any
other right. A waiver by Xxxxxx of a provision of this Guaranty shall not prejudice or
constitute a waiver of Lender’s right otherwise to demand strict compliance with that
provision or any other provision of this Guaranty. No prior waiver by Xxxxxx, nor any
course of dealing between Xxxxxx and Guarantor, shall constitute a waiver of any of Lender’s
rights or of any of Guarantor’s obligations as to any future transactions. Whenever the
consent of Lender is required under this Guaranty, the granting of such consent by Lender in
any instance shall not constitute continuing consent to subsequent instances where such
consent is required and in all cases such consent may be granted or withheld in the sole
discretion of Lender.
Successors and Assigns. This Guaranty shall be understood to be for the benefit of Xxxxxx
and for such other person or persons as may from time to time become or be the holder or
owner of any of the Indebtedness or any interest therein, and this Guaranty shall be
transferable to the same extent and with the same force and effect as any such Indebtedness
may be transferable.
DEFINITIONS. The following capitalized words and terms shall have the following meanings when used
in this Guaranty. Unless specifically stated to the contrary, all references to dollar amounts
shall mean amounts in lawful money of the United States of America. Words and terms used in the
singular shall include the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Guaranty shall have the meanings attributed
to such terms in the Uniform Commercial Code:
Borrower. The word “Borrower” means SYNERGETICS, INC. (MISSOURI CORPORATION) and includes
all co-signers and co-makers signing the Note.
Guarantor. The word “Guarantor” means each and every person or entity signing this
Guaranty, including without limitation SYNERGETICS, INC. (DELAWARE PUBLIC CORPORATION).
Guaranty. The word “Guaranty” means the guaranty from Guarantor to Lender, including
without limitation a guaranty of all or part of the Note.
Indebtedness. The word “Indebtedness” means Xxxxxxxx’s indebtedness to Lender as more
particularly described in this Guaranty.
Lender. The word “Lender” means Union Planters Bank NA, its successors and assigns.
Note. The word “Note” means and includes without limitation all of Borrower’s promissory
notes and/or credit agreements evidencing Borrower’s loan obligations in favor of Lender,
together with all renewals of, extensions of, modifications of, refinancings of,
consolidations of and substitutions for promissory notes or credit agreements.
Related Documents. The words “Related Documents” mean all promissory notes, credit
agreements, loan agreements, environmental agreements, guaranties, security agreements,
mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection with the
Indebtedness.
WAIVE JURY. Xxxxxx and Guarantor hereby waive the right to any jury trial in any action,
proceeding, or counterclaim brought by either Xxxxxx or Borrower against the other.
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THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES
TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON
GUARANTOR’S EXECUTION AND DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE
UNTIL TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED “DURATION OF GUARANTY”. NO FORMAL
ACCEPTANCE BY XXXXXX IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY IS DATED
SEPTEMBER 30, 2005.
| GUARANTOR: | ||||
| SYNERGETICS, INC. (DELAWARE PUBLIC CORPORATION) | ||||
By:
|
/s/ Xxxxx X. Xxxxxxxx | |||
| XXXXX X. XXXXXXXX, President of SYNERGETICS USA, INC. | ||||
| (DELAWARE PUBLIC CORPORATION) | ||||
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