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EXHIBIT 10.86
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is entered into
as of November 7, 1996, by and among American Biomed, Inc., a Delaware
corporation (the "COMPANY") and the subscribers (the "SUBSCRIBERS") to the
Company's offering of up to 2,500 units (the "UNITS"), each Unit consisting of
(i) one (1) share of 1996 Series B Convertible Preferred Stock (the "PREFERRED
SHARES") and (ii) one (1) warrant (the "WARRANT") to purchase one (1) share of
the Company=s common stock, $.001 par value per share (the "COMMON STOCK")
pursuant to the Securities Purchase Agreement between the Company and the
Subscribers of even date herewith (the "SUBSCRIPTION AGREEMENT").
1. DEFINITIONS. For purposes of this Agreement:
(a) The term "REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933 (the "SECURITIES
ACT") and, to the extent possible, in compliance with Rule 415 under the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement or document;
(b) The term "REGISTRABLE SECURITIES" means the Common Stock or other
securities issuable or issued (i) upon conversion of the Preferred Shares and
exercise of the Warrants and (ii) in exchange for or as a dividend or
distribution on the Common Stock referred to in clause (i) hereof; provided,
however, that, notwithstanding the foregoing, the term Registrable Securities
does not include securities that at the time the determination is being made,
in the written opinion of the Company=s counsel (in form, substance and scope
reasonably acceptable to the Holders), may be immediately sold or transferred
in the United States by the Holder thereof without registration under the
Securities Act free of any restrictive legend.
(c) The term "REGISTRABLE SECURITIES THEN OUTSTANDING" shall mean the
number of shares of Common Stock which have been issued or are issuable upon
conversion of the Preferred Shares and exercise of the Warrants at the time of
such determination; and
(d) The term "HOLDER" means any person owning or having the right to
acquire Registrable Securities or any permitted assignee thereof.
2. DEMAND REGISTRATION.
(a) At any time beginning after the end of the Restricted Period (as
defined in the Subscription Agreement), the Holders of Registrable Securities
of at least twenty percent (20%) of
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the Registrable Securities then outstanding may notify the Company in writing
that they demand that the Company file a registration statement under the
Securities Act covering the registration of all of the Registrable Securities.
Upon receipt of such notice, the Company shall, within ten (10) days, give
written notice of such request to all Holders and shall, subject to the
limitations of subsection 2(b), effect as soon as practicable, and in any event
within ninety (90) days of the receipt of such request, the registration under
the Securities Act of all Registrable Securities which the Holders request, by
notice given to the Company within ten (10) days of receipt of the Company's
notice, to be registered as expeditiously as reasonably possible after the
mailing of such notice by the Company (a "DEMAND REGISTRATION").
(b) If the Holders initiating the registration request hereunder
("INITIATING HOLDERS") intend to distribute the Registrable Securities covered
by their request by means of an underwriting, they shall so advise the Company
as part of their request made pursuant to this Section 2 and the Company shall
include such information in the written notice referred to in subsection 2(a).
In such event, the right of any Holder to include his Registrable Securities in
such registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in subsection 6(f)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by a majority in interest of the Initiating
Holders, and reasonably acceptable to the Company.
(c) The Company is obligated to effect only three (3) demand
registrations pursuant to Section 2 of this Agreement. The Company agrees to
include all Registrable Securities held by all Holders requesting inclusion in
such Registration Statement without cutback or reduction. In the event the
Company is unable to fulfill its obligation of the preceding sentence with
respect to any registration, such registration shall not be counted as a Demand
Registration under this Agreement.
3. PIGGYBACK REGISTRATION. If (but without any obligation to do so) the
Company proposes to register (including, for this purpose, a registration
effected by the Company for stockholders other than the Holders) any of its
Common Stock under the Securities Act in connection with the public offering of
such securities for cash (other than a registration on Form S-8 or on Form
S-4), the Company shall, at such time, promptly give each Holder written notice
of such registration. Upon the written request of each Holder given by fax
within ten (10) days after the mailing of such notice by the Company, which
request shall state the intended method of disposition of such shares of such
Holder, the Company shall cause to be registered under the Securities Act all
of the Registrable Securities that each such Holder has requested to be
registered (a "PIGGYBACK REGISTRATION").
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4. LIMITATION ON OBLIGATION TO REGISTER.
(a) In the case of a Piggyback Registration on an underwritten public
offering by the Company, if the managing underwriter determines and advises in
writing that the inclusion in the registration statement of (i) all Registrable
Securities proposed to be included by the Holders pursuant to Section 3 hereof
and (ii) all other securities of the Company proposed to be included in such
registration statement for the account of persons other than the Company would
interfere with the successful marketing of the securities proposed to be
registered by the Company, then Registrable Securities may be excluded from
such registration statement only to the extent that the underwriter shall
require. Any such exclusion of Registrable Securities shall be pro-rata among
the Holders who had requested Piggyback Registration and the persons (the
"OTHER HOLDERS") entitled to include securities in such registration statement
pursuant to registration rights in existence as of the date hereof (such
securities held by Other Holders being hereinafter referred to as "OTHER
SECURITIES"), in the proportion that the number of Registrable Securities or
Other Securities which each such Holder or Other Holder seeks to register bears
to the total number of Registrable Securities and Other Securities sought to be
included by all Holders and Other Holders; provided, however, that Registrable
Securities may be excluded from such registration statement only to the extent
that the Company has first excluded all outstanding securities held by persons
who are not entitled to inclusion of such securities in such registration
statement or are not entitled to inclusion on a pro-rata basis with the
Registrable Securities; provided, further, however, that the Company shall
exclude all of the Registrable Securities from such registration statement
before any Other Securities entitled to be included in such registration
statement pursuant to the terms of that certain Registration Rights Agreement,
dated as of July 25, 1996, by and among the Company and the other signatories
thereto are excluded from such registration statement.
(b) Notwithstanding anything to the contrary herein, the Company shall
have the right (i) to defer the initial filing or request for acceleration of
effectiveness of any Demand Registration or Piggyback Registration or (ii)
after effectiveness, to suspend effectiveness of any such registration
statement, if, in the good faith judgment of the board of directors of the
Company and upon the advice of counsel to the Company, such delay in filing or
requesting acceleration of effectiveness or such suspension of effectiveness is
necessary in light of the existence of material non-public information
(financial or otherwise) concerning the Company, disclosure of which at the
time is not, in the opinion of the board of directors of the Company upon the
advice of counsel (A) otherwise required and (B) in the best interests of the
Company; provided, however, that the Company will not delay or suspend
effectiveness of such registration for more than three (3) months from the date
of the demand, unless it is then engaged in an acquisition or financing that
would make such registration impracticable, in which case it will use its best
efforts to eliminate such impracticability as soon as possible.
(c) Notwithstanding anything to the contrary contained herein, if the
shares of Common Stock referred to in Section 1(b) above, in the written
opinion of Company=s counsel (in form, substance and scope reasonably
acceptable to the Holders), may be immediately sold or transferred
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in the United States by the Holder thereof without registration free of any
restrictive legend, no registration in respect thereof need be effected by the
Company hereunder.
5. OBLIGATIONS TO INCREASE AVAILABLE SHARES. In the event that the number
of shares available under a registration statement filed pursuant to Section 2
is insufficient to cover all of the Registrable Securities requested to be
included therein (which request may be for all Registrable Securities issuable
at any time upon conversion of the Preferred Shares or exercise of the
Warrants) the Company shall amend that registration statement, or file a new
registration statement, or both, so as to cover all shares of Registrable
Securities requested to be included therein. The Company shall effect such
amendment or new registration within sixty (60) days of the date the
registration statement filed under Section 2 is insufficient to cover all the
shares of Registrable Securities then outstanding. Any Registration Statement
filed hereunder shall, to the extent permissible by the Rules of the Securities
and Exchange Commission, state that, in accordance with Rule 416 under the
Securities Act, such Registration Statement also covers such indeterminate
numbers of additional shares of Common Stock as may become issuable upon
conversion of the Preferred Shares to prevent dilution resulting from stock
changes or by reason of changes in the conversion price in accordance with the
terms thereof.
6. OBLIGATIONS OF THE COMPANY. Whenever required under this Agreement to
effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the Securities and Exchange Commission (the
ASEC@) a registration statement with respect to such Registrable Securities and
use its best efforts to cause such registration statement to become effective.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to keep the registration statement
effective and comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement.
(c) With respect to any Demand Registration, use best efforts to keep
such registration statement effective until the Holders of Registrable
Securities covered by such registration statement have completed the
distribution described in the registration statement.
(d) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in
order to facilitate the disposition of Registrable Securities owned by them.
(e) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders of
the Registrable Securities covered by such registration statement,
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provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(f) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(g) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(h) Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Agreement, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Agreement, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants
to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of Registrable
Securities.
(i) If requested by any Holder, promptly include in any Registration
Statement or prospectus, pursuant to a supplement or post-effective amendment
if necessary, such information as such Holder may reasonably request to have
included therein, including, without limitation, information relating to the
"plan of distribution" of the Registrable Securities, the purchase price being
paid therefor and any other terms of the offering of the Registrable Securities
to be sold in such offering; and make all required filings of such prospectus
supplement or post-effective amendment as soon as practicable after the Company
is notified of the matters to be included in such prospectus supplement or
post-effective amendment;
(j) Make available at reasonable times for inspection by the Holders
and any attorney or accountant retained by such Holders, all pertinent
financial and other records, pertinent corporate documents and properties of
the Company and cause the Company's officers, directors and employees to supply
all information reasonably requested by any such Holder, attorney or accountant
in connection with such Registration Statement or any post-effective amendment
thereto
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subsequent to the filing thereof and prior to its effectiveness; provided,
that, any person to whom information is provided under this clause (j) agrees
in writing to maintain the confidentiality of such information to the extent
such information is not in the public domain; and
(k) Have stop orders lifted as soon as practicable.
7. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
the selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities as shall be required to effect the registration
of their Registrable Securities or to determine that registration is not
required pursuant to Rule 144 or other applicable provision of the Securities
Act.
8. EXPENSES OF DEMAND REGISTRATION. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Section 2, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees,
fees and disbursements of counsel for the Company, and including the reasonable
fees and disbursements incurred of only one counsel for the selling Holders,
shall be borne by the Company; provided, however, that the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 2 if the registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable Securities to be
registered (in which case all Holders who had requested such registration shall
bear such expenses prorated, based on the number of shares included in the
Registration Statement); provided further, however, that if at the time of such
withdrawal, the Holders have learned of a material adverse change in the
condition, business, or prospects of the Company from that known to the Holders
at the time of their request, then the Holders shall not be required to pay any
of such expenses and shall retain their rights pursuant to Section 2.
9. EXPENSES OF COMPANY REGISTRATION. The Company shall bear and pay all
expenses incurred in connection with any registration, filing or qualification
of registrable Securities with respect to the registrations pursuant to Section
3 for each Holder, including (without limitation) all registration, filing, and
qualification fees, printers and accounting fees relating or apportionable
thereto (and including the reasonable fees and disbursements incurred of only
one counsel for the selling Holders selected by them), but excluding
underwriting discounts and commissions relating to Registrable Securities.
10. INDEMNIFICATION. In the event any Registrable Securities are included
in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each "HOLDER INDEMNIFIED PERSON" (defined for purposes of this
Section 10 as each Holder, the stockholders, parties, employees, agents,
officers and directors of each Holder acting in their capacity as such, any
underwriter (as defined in the Securities Act) for such Holder and each person,
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if any, who controls such Holder or underwriter within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages,
expenses, or liabilities (joint or several) ("LOSSES") to which they may become
subject under the Securities Act, the Exchange Act or other federal or state
law, insofar as such Losses (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "VIOLATION"): (i) any untrue statement of a material fact
contained in such registration statement, including any preliminary prospectus
or final prospectus contained therein or any amendments or supplements thereto,
(ii) the omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein not misleading, or (iii)
any violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law; and the Company will reimburse
each such Holder Indemnified Person for any legal or other expenses reasonably
incurred by him, her or it in connection with investigating or defending any
such Loss or action; provided, however, that the indemnity agreement contained
in this subsection 10(a) shall not apply to amounts paid in settlement of any
such Loss or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such Loss or action to the extent
that it arises out of or is based upon a Violation which occurs (i) in reliance
upon and in conformity with written information furnished expressly for use in
connection with such registration by any such Holder Indemnified Person, or
(ii) the failure of such Holder Indemnified Person to deliver a copy of the
registration statement or the prospectus, or any amendments or supplements
thereto, after the Company or underwriters has furnished such person with a
sufficient number of copies of the same.
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the "COMPANY INDEMNIFIED PERSONS" (defined for the purpose of
this Section 10 as the Company, each of its directors in their capacity as
such, each of its officers who have signed the registration statement in their
capacity as such, each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act, any underwriter and any
other stockholder selling securities in such registration statement), against
any Losses (joint or several) to which they may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
Losses (or actions in respect thereof) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such
registration; and each such Holder will reimburse any legal or other expenses
reasonably incurred by the Company and any such Company Indemnified Person in
connection with investigating or defending any such Losses or action; provided,
however, that the indemnity agreement contained in this subsection 10(b) shall
not apply to amounts paid in settlement of any such Losses or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld; provided further, however, that, in no event
shall any indemnity under this subsection 10(b) exceed the net proceeds from
the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
10 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if
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a claim in respect thereof is to be made against any indemnifying party under
this Section 10, deliver to the indemnifying party written notice to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the reasonably incurred fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 10, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 10.
(d) To the extent any indemnification by an indemnifying party
pursuant to this Section 10 is prohibited or limited by law, the indemnifying
party agrees to make the maximum contribution with respect to any amounts for
which it would otherwise be liable hereunder to the fullest extent permitted by
law in such proportion as is appropriate to reflect the relative fault of such
indemnifying party determined by reference to, among other things, whether an
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party and such indemnifying party=s relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, however, that (i) no contribution shall be
made under circumstances where the maker would not have been liable for
indemnification under the fault standards set forth in this Section 10, (ii) no
seller of Registrable Securities guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any seller of Registrable Securities who was not guilty of
such fraudulent misrepresentation, and (iii) contribution (together with any
indemnification or other obligations under this Agreement) by any seller of
Registrable Securities shall be limited in amount to the net proceeds received
by such seller from the sale of such Registrable Securities.
(e) The obligations of the Company and Holders under this Section
10 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement.
11. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to the
Holders the benefits of Rule 144 promulgated under the Securities Act and any
other rule or regulation of the SEC that may at any time permit a Holder to
sell securities of the Company to the public without registration, the Company
agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times;
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(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act; and
(c) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company, if
true, that it has complied with the reporting requirements of SEC Rule 144 (at
any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested in availing any Holder of
any rule or regulation of the SEC which permits the selling of any such
securities without registration.
12. AMENDMENT OF REGISTRATION RIGHTS. Any provisions of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the holders of a majority of the shares of
Common Stock issued or issuable upon conversion of the Preferred Shares. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each Holder, each future holder, and the Company.
13. NOTICES. All notices required or permitted under this Agreement shall
be made in writing signed by the party making the same, shall specify the
section under this Agreement pursuant to which it is given, and shall be
addressed if to (i) the Company, Attn: President, American BioMed, Inc., 00000
Xxxxxxxx Xxxx Xxxx, xxxxx 000, Xxx Xxxxxxxxx, Xxxxx 00000, Telecopy No.
(000)-000-0000 and (ii) each Holder at the last address as the party shall have
furnished in writing as a new address to be entered on such register. Any
notice, except as otherwise provided in this Agreement, shall be made by fax
and shall be deemed given at the time of transmission of the fax.
14. TERMINATION. This Agreement shall terminate on the later to occur of
(a) the date that is three years from the date of this Agreement and (b) the
date any distribution of Registrable Securities described in a registration
statement filed pursuant to this Agreement is completed; but without prejudice
to (i) the parties' rights and obligations arising from breaches of this
Agreement occurring prior to such termination or (ii) other indemnification
obligations under this Agreement.
15. ASSIGNMENT. No assignment, transfer or delegation, whether by
operation of law or otherwise, of any rights or obligations under this
Agreement by the Company or any Holder, respectively, shall be made without the
prior written consent of the majority in interest of the Holders and the
Company, respectively; provided that the rights of a Holder may be transferred
to a subsequent holder of the Holder's Registrable Securities (provided such
transferee shall provide to the Company, together with or prior to such
transferee's request to have such Registrable Securities included in a Demand
Registration or Piggyback Registration, a writing executed by such transferee
agreeing to be bound as a Holder by the terms of this Agreement); and provided
further that the Company may transfer its rights and obligations under this
Agreement to a purchaser of all
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or a substantial portion of its business if the obligations of the Company
under this Agreement are assumed in connection with such transfer, either by
merger or other operation of law (which may include without limitation a
transaction whereby the Registrable Securities are converted into securities of
the successor in interest) or by specific assumption executed by the
transferee.
16. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
in and wholly to be performed in that jurisdiction, except for matters arising
under the Securities Act or the Exchange Act, which matters shall be construed
and interpreted in accordance with such laws. Any action brought to enforce, or
otherwise arising out of, this Agreement shall be heard and determined only in
either a federal or state court sitting in the County of Kent in the State of
Delaware.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
AMERICAN BIOMED, INC.
By:
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President
SUBSCRIBER
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Subscriber's Name
By:
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(Signature)
Address:
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