ASSET PURCHASE AGREEMENT
This
Agreement (the "Agreement"), entered into as of December 29, 2008, by and
between Magnegas Corporation, a Delaware corporation (the "Purchaser") and
HyFuels, Inc., a Florida corporation (the "Seller").
WHEREAS, Seller is engaged
in the business of developing technology related to recycling and waste
treatment (the "Business");
WHEREAS,
Seller wishes to sell to Purchaser and Purchaser wishes to purchase and assume
from Seller, certain assets and liabilities with respect to the Business on the
terms and subject to the conditions set forth in this Agreement;
NOW
THEREFORE, In consideration of the mutual covenants, agreements, representations
and warranties contained in this Agreement, the parties agree as
follows:
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1.
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Agreement
To
Sell. Seller agrees to
sell, transfer and deliver to Purchasers free and clear
of any encumbrances or liens, and Purchasers agrees to purchase,
upon the terms and conditions hereinafter set forth, essentially all of
the assets of the Seller, as set forth in Schedule A (the "Purchased
Assets").
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2.
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Purchase
Price. The
consideration to be paid for the Purchased Assets by Purchaser
(subject
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to
adjustment as hereinafter provided) shall be the
following:
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A. Consideration.
Upon the terms and subject to the satisfaction of the conditions
contained in this Agreement, in consideration of the aforesaid sale, assignment,
transfer and delivery of the Purchased Assets, the Purchaser shall pay
30,000,000 (thirty millions) restricted shares of the Purchasers common stock,
par value $0.001 (the "Common Stock").
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3.
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The
Closing.
Unless this Agreement shall have been terminated or abandoned. The
closing ("Closing") of the transactions contemplated by this Agreement
shall be on December 29, 2008.
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4.
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Closing
Documents. At the closing, Seller shall execute and deliver to
Purchaser such instruments as may be necessary or proper to transfer to
Purchaser all ownership interests in the Purchased Assets to be
transferred under this
Agreement.
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5.
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Representations
and Warranties of Sellers, Sellers represent and warrant to
Purchasers as follows:
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(A) Sellers
have full power and authority to conduct its business as now carried on, and to
carry out and perform its undertakings and obligations as provided
herein.
(B) No
action, approval, consent or authorization of any governmental authority is
necessary for Sellers to consummate the transactions contemplated
hereby.
(C) Seller is
the owner of and has good and marketable title to the Purchased Assets, free of
all liens, claims and encumbrances, except as may be set forth
herein.
(D) There are
no violations of any law or governmental rule or regulation pending against
Seller or the Purchased Assets, and Seller has complied with all laws and
governmental rules and regulations applicable to the Business or the Purchased
Assets.
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6.
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Representations
And Warranties of
Purchasers. Purchasers represent and warrant to Seller
as follows:
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(A) Purchaser
has full power and authority to carry out and perform its undertakings and
obligations as provided herein.
(B) No
action, approval, consent or authorization of any governmental authority is
necessary for the Purchaser to consummate the transactions contemplated
hereby.
(C) There
are no judgments, liens, suits, actions or proceedings pending or, to the best
of Purchaser's knowledge, threatened against Purchaser or its
property.
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7.
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Indemnification
by
Seller. Notwithstanding any provisions contained in this Agreement,
Seller shall indemnify
(including reasonable attorney's fees and costs), defend and hold
Purchaser and its respective successors and assigns,
harmless:
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(1) From and
against all losses, costs, damages, expenses or liabilities for all taxes of
Seller for tax
periods (or portions thereof) ending on the Closing
Date;
(2) With
respect to all losses, claims, damages and liabilities, including accounts
payable at the Closing Date, from Seller's conduct of the Business arising
before the Closing Date;
(3) With
respect to any causes of action, proceedings, suits, claims, demands, taxes,
assessments, judgments, costs and expenses, including reasonable attorneys' fees
incident to the foregoing.
If any
claim is asserted in writing against the Purchaser relating to any of the
matters described in this Section, Purchaser shall notify Seller within fifteen
(15) days a
receipt of the claim or demand, and Seller shall have the right to
control the defense, compromise or settlement of the claim or demand, provided
that Seller covenants and agrees to keep Purchaser periodically and reasonably
appraised of the status of same, and provided further that Seller does not take
any action or omit taking any action, the effect of which would cause a material
detriment to Purchaser or its Assets.
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8.
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Indemnification
by Purchaser. Notwithstanding any provisions contained in
this Agreement, Purchaser shall indemnify (including reasonable attorneys'
fees and costs)
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defend
and hold Seller and assigns harmless:
(1) from and
against all losses, costs, damages, expenses or liabilities arising out of
Purchaser's conduct of the Business as of the Closing Date or ownership of the
Purchased Assets as of the Closing Date;
(2) from and
against any claim in conjunction with liabilities and obligations being assumed
by Purchaser hereunder:
(3) with
respect to any material breach of a material representation, warranty, covenant,
or agreement (including without limitation any breach of one or more of
Purchaser's covenants and/or agreements under this Agreement), or
non-fulfillment of any material obligation on the part of Purchaser under this
Agreement or contained in the Schedules or Exhibits annexed to this Agreement,
or otherwise delivered to Seller, or any material misrepresentation in any
certificate or other instrument furnished to Seller under this Agreement:,
and
(4) with
respect to any causes of action, proceedings, suits, claims, demands,
assessments, judgments, costs and expenses, including reasonable attorneys' fees
incident to the foregoing.
If any
claim is asserted in writing against the Seller relating to any of the matters
described in this Section, Seller shall notify Purchaser within fifteen (15)
days of receipt of the claim or demand, and Purchaser shall have the right to
control the defense, compromise or settlement of the claim or demand, provided
that Purchaser covenants and agrees to keep Seller periodically and reasonably
appraised of the status of same, and provided further that Purchaser does not
take any action or omit taking any action, the effect of which would cause a
material detriment
to Seller or its assets.
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9.
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No
Other Representations. Purchaser acknowledges that neither Seller
nor any representative or agent of Seller has made any representation or
warranty regarding the Purchased Assets or the Business, or any matter or
thing affecting or relating to this Agreement, except as specifically set
forth in this Agreement.
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10.
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Condition
To Closing. The obligations
of the parties to close hereunder are subject to the following
conditions:
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(A) All of
the terms, covenants and conditions to be complied with or performed by the
other party under this agreement on or before the closing shall have been
complied with or performed in all material respects.
(B) All
representations or warranties of the other party herein are true in all
material
respects as
of the closing date.
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11.
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Assignment.
Purchasers shall not assign this agreement without
the prior written consent of Seller. Any attempted assignment
without Seller's consent shall be null
and void.
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12.
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Notices.
All notices, demands and other communications required or permitted
to be given hereunder shall be in writing and shall be deemed to have been
properly given if delivered by hand or by registered or certified mail,
return receipt requested, with postage prepaid, to Seller or Purchaser, as
the case may be, at their addresses first above written, or at such, other
addresses as they may be designate by notice given
hereunder.
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If
to Purchaser:
Magnegas
Corporation
000
Xxxxxxxxx Xx
Xxxxxx
Xxxxxxx, XX 00000
If
to Seller:
HyFuels,
00000 XX
Xxxxxxx 00 Xxxxx, #000
Xxxx Xxxxxx, Xxxxxxx
00000
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13.
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Entire Agreement
This Agreement contains all of the terms agreed upon between Seller
and Purchaser with respect to the subject matter hereof. This
Agreement has been entered into after full
investigation.
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14.
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Changes
Must Be In Writing This Agreement may not be altered, amended,
changed, modified, waived or terminated in any respect or particular
unless the same shall be in writing signed by
the party to be bound.
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15.
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Governing Law.
This Agreement shall be governed by and construed in accordance
with the
laws of the State of Florida without regard to conflicts of law
principles.
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16.
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Binding
Effect This Agreement shall not be considered an offer or an
acceptance of an offer by Seller, and shall not be binding upon Seller
until
executed and delivered by both Seller and Purchaser. Upon such
execution and delivery, this Agreement shall be binding upon and inure to
the benefit of the parties
hereto and their respective heirs, executors, administrators,
successors and permitted assigns.
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IN
WITNESS WHEREOF, the parties have executed this agreement the date first above
written.
DATED:
SELLER
HYFUELS, INC
BY: /s/
Ruggero Xxxxx Xxxxxxxx
Ruggero Xxxxx Xxxxxxxx, President
DATED:
PURCHASER
MAGNEGAS CORPORATION
BY: /s/
Xxxxx Xxxxxxxxxx
Xxxxx
Xxxxxxxxxx Chief
Financial Officer and Director
EXHIBIT
A
THE
PURCHASED ASSETS
PATENTS AND
PATENT APPLICATIONS IRREVOCABLY TRANSFERRED TO MAGNEGAS
CORPORATIONS AS PER ATTACHED NOTARIZED,ASSIGNMENTS
U.S.
Patent
No. 6,926,872,
issued
on August
9, 2005 entitled
Apparatus
and Method for Producing a Clean Burning Combustible Gas
With Long Life Electrodes
and Multiple Plasma-Arc-Flows
U.S. Patent No. 6,972,118,
issued on December
6, 2005 entitled
Apparatus
and Method for Processing Hydrogen, Oxygen and Other Gases
U.S. application no. 11/474,687, filed on June 26,
2006 entitled
Operating
under High Power, Pressure and Temperature
Conditions
to
Produce
A
Combustible
Gas
TRADEMARK
IRRECOVABLE TRANSFERRED TO MAGNEGAS CORPORATION AS
PER
ATTACHED ASSIGNMENT
MAGNEGAS
DOMAIN
NAMES IRRECOVABLY TRANSFERRED TO MAGNEGAS
CORPORATION
AS PER DOCUMENTATION IN THE SERVER WEBPAGE
xxxxx://xx0.xxxx.xxx/xxxx/?Xx0000&Xxxx0XxXXxxX0XX0Xxxx000000&
M=xNmgsxU0SgHK17%2B%2F3egEaA
hycoal.
corn,
xxxxxxxx.xxx,
xxxxxxxxx.xxx,
xxxxxxxxxx.xxx,
xxxxxxxxxxxx.xxx,
xxxxxxxxx.xxx,
xxxxxxxxxx.xxx,
magnegas,com,
xxxxxxxxxx.xxx,
xxxxxxxxxxxxx.xxx,
xxxxxxxxxxxxx.xxx,
xxxxxxxxxxx.xxx,
xxxxxxxxxxx0.xxx,
xxxxxxxxxxx.xxx
Practitioner's
Docket
No, 2367.1
PATENT
For: U
S. Rights and Foreign Rights
For: U.S.
Application
By: Present
Owner
ASSIGNMENT
OF APPLICATION
In
consideration of the payment by ASSIGNEE to ASSIGNOR of the sum of One Dollar
($1 00), the receipt of which is hereby acknowledged, and
for other good and valuable consideration,
ASSIGNOR:
HYFUELS,
INC.
00000
X.X. Xxx. 19 North, 0215
Xxxx
Xxxxxx, Xxxxxxx 00000
State or
Country of Formation: Florida, US
hereby
sells, assigns and transfers to
ASSIGNEE:
MAGNEGAS
CORPORATION
000
Xxxxxxxxx Xxxx
Xxxxxx
Xxxxxxx, Xxxxxxx 00000
State or
Country of Formation: Florida, US
and the
successors, assigns and legal representatives of the ASSIGNEE the entire
right, title and interest for the
United States and its
territorial possessions and in
all foreign countries, including all rights to claim
priority, in and to any and all improvements which are disclosed
in the invention entitled:
Novel
Plasma-Are-Flow
Apparatus for Submerged Long Lasting Electric Arcs Operating
Under High Power, Pressure and Temperature Conditions to Produce A
Combustible Gas
Name of Inventor: Ruggero
Xxxxx Xxxxxxxx
and which is found in
U,S.
application no. 11/474,687, filed on June
26, 2006, and any
legal equivalent thereof in a
foreign country, including the right
to claim priority
and, in and to, all Letters
Patent to be obtained
for said invention by the above application or any continuation,
division, renewal, or substitute thereof,
and
as
to letters patent any reissue or re-examination
thereof
ASSIGNOR
hereby covenants
that no assignment, sale,
agreement or encumbrance has been or will be
made or entered into which would conflict with this
assignment.
ASSIGNOR
further covenants that ASSIGNEE will,
upon its request, be provided promptly with all
pertinent facts and documents relating to said invention and said Letters
Patent and legal equivalents as
may be
known and accessible
to ASSIGNOR and will testify as to the same in any interference, litigation
or proceeding related thereto and will promptly execute and deliver to
ASSIGNEE or its legal representatives any
and all papers, instruments
or affidavits required to apply for, obtain, maintain, issue and enforce
said application, said invention and said Letters Patent and said equivalents
thereof which
may be
necessary or desirable
to carry out the purposes thereof.
IN
WITNESS WHEREOF, I have hereunto set hand and seal this DEC
29, 2008 day of
December,
2008.
HYFUEL,
INC
/s/
Ruggero Xxxxx Xxxxxxxx
Signature
of Assignor
Ruggero
Xxxxx Xxxxxxxx President
NOTARIZATION OR LEGALIZATION ACCOMPANYING
ASSIGNMENT
Details
of
Country United
States
and place
of signing of
assignment Pinellas
County,
Florida
Before me
this
29
day of December,
2008,
personally
appeared the above named individual, to me known to
be the
person who is described herein (or presented
Folrida Drivers
License as
identification), and who executed the foregoing assignment instrument and
acknowledged
to me that he executed the same
of his own free will
for the purpose therein expressed.
/s/
Xxxxx Xxxxx
Notary Public
(signature)
{SEAL}
Print
Name
Practitioner's
Docket No. 2367.8
PATENT
For: U.S.
Rights and Foreign Rights
For: U.S.
Application
By.
Present Owner
ASSIGNMENT OF
PATENT
In
consideration of the payment by ASSIGNEE to ASSIGNOR of the sum of One Dollar
($1.00), the receipt of which is hereby acknowledged, and for other good and
valuable consideration,
ASSIGNOR:
HYFUELS,
INC.
00000 X
X. Xxx. 00 Xxxxx, #000
Xxxx
Xxxxxx, Xxxxxxx 00000
State or
Country of Formation: Florida, US
hereby
sells, assigns and transfers to
ASSIGNEE:
MAGNEGAS
CORPORATION
000
Xxxxxxxxx Xxxx
Xxxxxx
Xxxxxxx, Xxxxxxx 00000
State or
Country of Formation: Delaware, US
and the
successors, assigns and legal representatives of the ASSIGNEE the entire right,
title and interest for the United States and its territorial possessions and in
all foreign
countries, including all rights to claim priority, in and to any and all
improvements which are disclosed in the invention entitled:
Apparatus
and Method for Producing a Clean Burning Combustible Gas With Long Life
Electrodes and Multiple Plasma-Arc-Flows
Name of Inventor:
Ruggero Xxxxx
Xxxxxxxx
and which
is found in U.S. Patent No. 6,926,872,
issued on August
9, 2005, and any legal equivalent thereof in a foreign country, including
the right to claim priority and, in and to, any continuation, division, renewal,
or substitute thereof, and as to Letters Patent any reissue or
reexamination thereof.
ASSIGNOR hereby
covenants that no assignment, sale, agreement or encumbrance has been or will be
made or entered into which would conflict with this
assignment.
ASSIGNOR
further covenants that ASSIGNEE will, upon its request, be provided promptly
with all pertinent facts and documents relating to said invention and said
Letters Patent and
legal equivalents as may be known and accessible to ASSIGNOR and
will testify as to the same in any interference, litigation or proceeding
related thereto and will promptly execute and deliver to ASSIGNEE or its legal
representatives any and all papers, instruments or affidavits required to
maintain and enforce said invention and said Letters Patent and said equivalents
thereof
which may be necessary or desirable to carry out the purposes
thereof.
IN
WITNESS WHEREOF, I have hereunto set hand and seal this
Dec 29, 2008
day of December,
2008.
HYFUEL,
INC
/s/
Ruggero Xxxxx Xxxxxxxx
Signature
of Assignor
Ruggero
Xxxxx Xxxxxxxx President
NOTARIZATION
OR LEGALIZATION ACCOMPANYING ASSIGNMENT
Details
of
Country United
States
and place
of signing of
assignment Pinellas
County,
Florida
Before me
this
29
day of December,
2008,
personally
appeared the above named individual, to me known to
be the
person who is described herein (or presented
Folrida Drivers
License as
identification), and who executed the foregoing assignment instrument and
acknowledged
to me that he executed the same
of his own free will
for the purpose therein expressed.
/s/
Xxxxx Xxxxx
Notary
Public (signature)
{SEAL}
Print
Name
Practitioner's Docket
No. 2367.5
PATENT
For: U.S.
Rights and Foreign Rights
For: U.S.
Application
By: Present
Owner
ASSIGNMENT OF
PATENT
In
consideration of the payment by ASSIGNEE to ASSIGNOR of the sum of One Dollar
($1.00), the receipt of which is hereby acknowledged, and for other good and
valuable consideration,
ASSIGNOR:
HYFUELS,
INC.
00000
X.X. Xxx. 00 Xxxxx, #000
Xxxx
Xxxxxx, Xxxxxxx 00000
State or Country of
Formation; Florida,
US
hereby
sells, assigns and transfers to
ASSIGNEE:
MAGNEGAS
CORPORATION
000
Xxxxxxxxx Xxxx
Xxxxxx
Xxxxxxx, Xxxxxxx 00000
State or
Country of
Formation: Delaware, US
and the
successors, assigns and legal representatives of the ASSIGNEE the entire right,
title and interest for the United
States and its territorial possessions and in
all foreign countries, including all rights to claim priority, in and to any and
all improvements
which are disclosed in the invention entitled:
Apparatus and
Method for Processing Hydrogen, Oxygen and Other Gases
Name of Inventor:
Ruggero
Xxxxx Xxxxxxxx
and which is found
in U.S. Patent No. 6,972,118,
issued on
December 6, 2005,
and any legal
equivalent
thereof in a foreign country, including the right to claim priority and,
in and to, any continuation, division, renewal, or substitute thereof, and as to
Letters Patent any reissue or reexamination thereof.
ASSIGNOR
hereby covenants that no assignment, sale, agreement or encumbrance has been or
will be made
or entered into which would conflict with this assignment.
ASSIGNOR
further covenants that ASSIGNEE will, upon its
request, be provided promptly with all pertinent facts and documents relating to
said invention and said Letters Patent and legal equivalents as may be known and
accessible to ASSIGNOR and will testify as to the same in any interference,
litigation or proceeding related thereto and will promptly execute and deliver
to ASSIGNEE or its legal representatives any and all papers, instruments or
affidavits required to maintain and enforce said
invention and said Letters Patent and said equivalents thereof which may
be necessary or desirable to carry out the purposes
thereof.
IN
WITNESS WHEREOF, I have hereunto set hand and seal this
Dec 29, 2008
day of December,
2008.
HYFUEL,
INC
/s/
Ruggero Xxxxx Xxxxxxxx
Signature
of Assignor
Ruggero
Xxxxx Xxxxxxxx President
NOTARIZATION
OR LEGALIZATION ACCOMPANYING ASSIGNMENT
Details
of
Country United
States
and place
of signing of
assignment Pinellas
County,
Florida
Before me
this
29
day of December,
2008,
personally
appeared the above named individual, to me known to
be the
person who is described herein (or presented
Folrida Drivers
License as
identification), and who executed the foregoing assignment instrument and
acknowledged
to me that he executed the same
of his own free will
for the purpose therein expressed.
/s/
Xxxxx Xxxxx
Notary
Public (signature)
{SEAL}
Print
Name
ASSIGNMENT
OF TRADEMARK
WHEREAS,
HYFUELS, INC., (Assignor) is the owner
of United States
Trademark Registration
No. 2,812,824, registered February 10, 2004, for the trademark MAGNEGAS,
(hereinafter the "Trademark"), and HYFUELS,
INC., warrants that it is legally entitled to assign said
Trademark unto
Assignee, that said Trademark is not encumbered by license or other
interest; and
WHEREAS,
MAGNEGAS CORPORATION (Assignee) desires to acquire the
entire right, title and interest
in the
Trademark, and the good will represented therewith.
NOW
THEREFORE, in consideration of valuable consideration, the sufficiency of
which is hereby acknowledged, Assignor, by these presents, does sell, assign and
transfer unto
said Assignee the entire right, title and interest in and to the
Trademark, together with the goodwill of the business, including all right to
bring and maintain actions for all past and future infringement of said
Trademark. The undersigned Assignor hereby authorizes and requests the
Commissioner of Patents and Trademarks to record this Assignment of the
Trademark, unto said Assignee, as the owner by assignment of the entire right,
title and interest in and to said Trademark, and
any renewals thereof, for its sole use and
for the use of its legal representatives, to the full end of the term for
which the Trademark
is granted, as
fully and entirely as the same had this assignment and sale not been
made.
Executed
this 29th
day of December,
2008
Assignor:
HYFUELS, INC
By:
/s/ Ruggero Xxxxx Xxxxxxxx
Xxxxxxx
Xxxxx Xxxxxxxx President
