STRICTLY CONFIDENTIAL China Jo-Jo Drugstores, Inc. Hai Wai Hai Tongxin Mansion Floor 6 Gong Shu District, Hangzhou City People’s Republic of China 310008 Attn: Lei Liu, Chief Executive Officer
Exhibit 10.2
Execution Version
May 31, 2020
STRICTLY CONFIDENTIAL
China Xx-Xx Drugstores, Inc.
Hai Wai Hai Tongxin Xxxxxxx Xxxxx 0
Xxxx Xxx Xxxxxxxx, Xxxxxxxx Xxxx
People’s Republic of China 310008
Attn: Xxx Xxx, Chief Executive Officer
Dear Xx. Xxx:
This letter agreement (this “Agreement”) constitutes the agreement between China Xx-Xx Drugstores, Inc. (the “Company”) and X.X. Xxxxxxxxxx & Co., LLC (“Xxxxxxxxxx”), that Xxxxxxxxxx shall serve as the exclusive agent, advisor or underwriter in any offering of securities of the Company (the “Securities”) during the Term (as hereinafter defined) of this Agreement (each, an “Offering”). The terms of each Offering and the Securities issued in connection therewith shall be mutually agreed upon by the Company and Xxxxxxxxxx and nothing herein implies that Xxxxxxxxxx would have the power or authority to bind the Company and nothing herein implies that the Company shall have an obligation to issue any Securities. It is understood that Xxxxxxxxxx’x assistance in an Offering will be subject to the satisfactory completion of such investigation and inquiry into the affairs of the Company as Xxxxxxxxxx deems appropriate under the circumstances and to the receipt of all internal approvals of Xxxxxxxxxx in connection with the transaction. The Company expressly acknowledges and agrees that Xxxxxxxxxx’x involvement in an Offering is strictly on a reasonable best efforts basis and that the consummation of an Offering will be subject to, among other things, market conditions. The execution of this Agreement does not constitute a commitment by Xxxxxxxxxx to purchase the Securities and does not ensure a successful Offering of the Securities or the success of Xxxxxxxxxx with respect to securing any other financing on behalf of the Company. Xxxxxxxxxx may retain other brokers, dealers, agents or underwriters on its behalf in connection with an Offering and shall bear the costs for such retention.
000 Xxxx Xxxxxx x Xxx Xxxx, XX 00000 | 212.356.0500 | xxx.xxxxx.xxx
Member: FINRA/SIPC
A. Compensation; Reimbursement. At the closing of each Offering (each, a “Closing”), the Company shall compensate Xxxxxxxxxx as follows:
| 1. | Cash Fee. The Company shall pay to Xxxxxxxxxx a cash fee, or as to an underwritten Offering an underwriter discount, equal to 6.5% of the aggregate gross proceeds raised in each Offering. |
| 2. | Warrant Coverage. The Company shall issue to Xxxxxxxxxx or its designees at each Closing, warrants (the “Xxxxxxxxxx Warrants”) to purchase that number of shares of common stock of the Company equal to 6.0% of the aggregate number of shares of common stock (or common stock equivalent, if applicable) placed in each Offering (and if an Offering includes a “greenshoe” or “additional investment” component, such number of shares of common stock underlying such “greenshoe” or “additional investment” component, with the Xxxxxxxxxx Warrants issuable upon the exercise of such component). If the Securities included in an Offering are convertible, the Xxxxxxxxxx Warrants shall be determined by dividing the gross proceeds raised in such Offering by the Offering Price (as defined hereunder). The Xxxxxxxxxx Warrants shall be in a customary form reasonably acceptable to Xxxxxxxxxx, have a term of three (3) years and an exercise price equal to 125% of the offering price per share (or unit, if applicable) in the applicable Offering and if such offering price is not available, the market price of the common stock on the date an Offering is commenced (such price, the “Offering Price”). If warrants are issued to investors in an Offering, the Xxxxxxxxxx Warrants shall have the same terms as the warrants issued to investors in the applicable Offering, except that such Xxxxxxxxxx Warrants shall have an exercise price equal to 125% of the Offering Price (as such term is defined hereunder) and that such exercise price shall be at or above the Minimum Price. “Minimum Price” means a price that is the lower of: (i) the closing price (as reflected on Xxxxxx.xxx) immediately preceding the signing of the underwriting agreement or the Purchase Agreement (as defined under Paragraph D. of this Agreement), as the case may be; and (ii) the average closing price of the common stock (as reflected on Xxxxxx.xxx) for the five trading days immediately preceding the signing of the underwriting agreement or the Purchase Agreement, as the case may be. |
| 3. | Expense Allowance. If the Offering is consummated, out of the proceeds of each Closing, the Company also agrees to pay Xxxxxxxxxx $50,000 for non-accountable expenses; plus the additional amount payable by the Company pursuant to Paragraph D.3 hereunder and, if applicable, the costs associated with the use of a third-party electronic road show service (such as NetRoadshow); provided, however, that such amount in no way limits or impairs the indemnification and contribution provisions of this Agreement. |
If the Offering is not consummated, expense allowance is subject to Section B of this Agreement.
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| 4. | Tail. Xxxxxxxxxx shall be entitled to compensation under clauses (1) and (2) hereunder, calculated in the manner set forth therein, with respect to any public or private offering or other financing or capital-raising transaction of any kind (“Tail Financing”) to the extent that such financing or capital is provided to the Company by investors whom Xxxxxxxxxx had contacted during the Term or introduced to the Company during the Term, as evidenced by a list of such investors to be delivered by Xxxxxxxxxx to the Company upon the expiration or termination of this Agreement, if such Tail Financing is consummated at any time within the (i) If an Offering is consummated during the Term, 12-month period following consummation of the last Offering during the Term or (ii) if an Offering is not consummated during the Term, 3-month period following the expiration or termination of this Agreement. |
B. Term and Termination of Engagement; Exclusivity. The term of Xxxxxxxxxx’x exclusive engagement will begin on the date hereof and end forty-five (45) days thereafter (the “Initial Term”); provided, however, that if an Offering is consummated within the Initial Term, the term of this Agreement shall be extended by an additional forty-five (45) day period (the “Extension Term,” and together with the Initial Term, the “Term”. For the avoidance of doubt, if there is no Offering consummated during the Initial Term, Term only refers to the Initial Term). Notwithstanding anything to the contrary contained herein, the Company agrees that the provisions relating to the payment of fees, reimbursement of expenses, tail, indemnification and contribution, confidentiality, conflicts, independent contractor and waiver of the right to trial by jury will survive any termination or expiration of this Agreement. Notwithstanding anything to the contrary contained herein, the Company has the right to terminate the Agreement for cause in compliance with FINRA Rule 5110(f)(2)(D)(ii). The exercise of such right of termination for cause eliminates the Company’s obligations with respect to the provisions relating to the tail. Notwithstanding anything to the contrary contained in this Agreement, in the event that an Offering pursuant to this Agreement shall not be carried out for any reason whatsoever during the Term, the Company shall be obligated to pay to Xxxxxxxxxx its actual and accountable out-of-pocket expenses related to an Offering (including the fees and disbursements of Xxxxxxxxxx’x legal counsel, subject to a cap of $25,000) and, if applicable, for electronic road show service used in connection with an Offering. During Xxxxxxxxxx’x engagement hereunder: (i) the Company will not, and will not permit its representatives to, other than in coordination with Xxxxxxxxxx, contact or solicit institutions, corporations or other entities or individuals as potential purchasers of the Securities and (ii) the Company will not pursue any financing transaction which would be in lieu of an Offering, except for direct financings from the Company’s existing shareholders, including any of their affiliates, without the participation of any broker-dealer, in which case, this Agreement does not apply in its entirety. Additionally, except as set forth hereunder, the Company represents, warrants and covenants that no brokerage or finder’s fees or commissions are or will be payable by the Company or any subsidiary of the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other third-party with respect to any Offering.
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C. Information; Reliance. The Company shall furnish, or cause to be furnished, to Xxxxxxxxxx all information requested by Xxxxxxxxxx for the purpose of rendering services hereunder and conducting due diligence (all such information being the “Information”). In addition, the Company agrees to make available to Xxxxxxxxxx upon request from time to time the officers, directors, accountants, counsel and other advisors of the Company. The Company recognizes and confirms that Xxxxxxxxxx (a) will use and rely on the Information, including any documents provided to investors in each Offering (the “Offering Documents”) which shall include any Purchase Agreement (as defined hereunder), and on information available from generally recognized public sources in performing the services contemplated by this Agreement without having independently verified the same; (b) does not assume responsibility for the accuracy or completeness of the Offering Documents or the Information and such other information; and (c) will not make an appraisal of any of the assets or liabilities of the Company. Upon reasonable request, the Company will meet with Xxxxxxxxxx or its representatives to discuss all information relevant for disclosure in the Offering Documents and will cooperate in any investigation undertaken by Xxxxxxxxxx thereof, including any document included or incorporated by reference therein. At each Offering, at the request of Xxxxxxxxxx, the Company shall deliver such legal letters (including, without limitation, negative assurance letters), opinions, comfort letters (in the event of a public Offering), officers’ and secretary certificates and good standing certificates, all in form and substance satisfactory to Xxxxxxxxxx and its counsel as is customary for such Offering. Xxxxxxxxxx shall be a third party beneficiary of any representations, warranties, covenants, closing conditions and closing deliverables made by the Company in any Offering Documents, including representations, warranties, covenants and closing conditions and closing deliverables made to any investor in an Offering.
D. Related Agreements. At each Offering, the Company shall enter into the following additional agreements:
| 1. | Underwritten Offering. If an Offering is an underwritten Offering, the Company and Xxxxxxxxxx shall enter into a customary underwriting agreement in form and substance satisfactory to Xxxxxxxxxx and its counsel. |
| 2. | Best Efforts Offering. If an Offering is on a best efforts basis, the sale of Securities to the investors in the Offering will be evidenced by a purchase agreement (“Purchase Agreement”) between the Company and such investors in a form reasonably satisfactory to the Company and Xxxxxxxxxx. Xxxxxxxxxx shall be a third party beneficiary with respect to the representations, warranties, covenants, closing conditions and closing deliverables included in the Purchase Agreement. Prior to the signing of any Purchase Agreement, officers of the Company with responsibility for financial affairs will be available to answer inquiries from prospective investors. |
| 3. | Escrow, Settlement and Closing. If each Offering is not settled via delivery versus payment (“DVP”), the Company and Xxxxxxxxxx shall enter into an escrow agreement with a third party escrow agent pursuant to which Xxxxxxxxxx’x compensation and expenses shall be paid from the gross proceeds of the Securities sold. If the Offering is settled in whole or in part via DVP, Xxxxxxxxxx shall arrange for its clearing agent to provide the funds to facilitate such settlement. The Company shall pay Xxxxxxxxxx closing costs, which shall also include the reimbursement of the out-of-pocket cost of the escrow agent or clearing agent, as applicable, which closing costs shall not exceed $12,900. |
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| 4. | FINRA Amendments. Notwithstanding anything herein to the contrary, in the event that Xxxxxxxxxx determines that any of the terms provided for hereunder shall not comply with a FINRA rule, including but not limited to FINRA Rule 5110, then the Company shall agree to amend this Agreement (or include such revisions in the final underwriting agreement) in writing upon the request of Xxxxxxxxxx to comply with any such rules; provided that any such amendments shall not provide for terms that are less favorable to the Company than are reflected in this Agreement. |
E. Confidentiality. In the event of the consummation or public announcement of any Offering, Xxxxxxxxxx shall have the right to disclose its participation in such Offering, including, without limitation, the Offering at its cost of “tombstone” advertisements in financial and other newspapers and journals.
F. Indemnity.
| 1. | In connection with the Company’s engagement of Xxxxxxxxxx hereunder, the Company hereby agrees to indemnify and hold harmless Xxxxxxxxxx and its affiliates, and the respective controlling persons, directors, officers, members, shareholders, agents and employees of any of the foregoing (collectively the “Indemnified Persons”), from and against any and all claims, actions, suits, proceedings (including those of shareholders), damages, liabilities and expenses incurred by any of them (including the reasonable fees and expenses of counsel), as incurred, whether or not the Company is a party thereto (collectively a “Claim”), that are (A) related to or arise out of (i) any actions taken or omitted to be taken (including any untrue statements made or any statements omitted to be made) by the Company, or (ii) any actions taken or omitted to be taken by any Indemnified Person in connection with the Company’s engagement of Xxxxxxxxxx, or (B) otherwise relate to or arise out of Xxxxxxxxxx’x activities on the Company’s behalf under Xxxxxxxxxx’x engagement, and the Company shall reimburse any Indemnified Person for all expenses (including the reasonable fees and expenses of counsel) as incurred by such Indemnified Person in connection with investigating, preparing or defending any such claim, action, suit or proceeding, whether or not in connection with pending or threatened litigation in which any Indemnified Person is a party. The Company will not, however, be responsible for (i) any Claim that is finally judicially determined to have resulted from the gross negligence or willful misconduct of any Indemnified Persons; or (ii) for any settlement by an Indemnified Person effected without the Company’s prior written consent (not to be unreasonably withheld, delayed or conditioned). The Company further agrees that no Indemnified Person shall have any liability to the Company for or in connection with the Company’s engagement of Xxxxxxxxxx except for any Claim incurred by the Company as a result of such Indemnified Person’s gross negligence or willful misconduct. |
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| 2. | The Company further agrees that it will not, without the prior written consent of Wainwright, settle, compromise or consent to the entry of any judgment in any pending or threatened Claim in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such Claim), unless such settlement, compromise or consent includes an unconditional, irrevocable release of each Indemnified Person from any and all liability arising out of such Claim. |
| 3. | Promptly upon receipt by an Indemnified Person of notice of any complaint or the assertion or institution of any Claim with respect to which indemnification is being sought hereunder, such Indemnified Person shall notify the Company in writing of such complaint or of such assertion or institution but failure to so notify the Company shall not relieve the Company from any obligation it may have hereunder, except to the extent that such failure or delay causes actual material harm to the Company, or materially prejudices its ability to defend such Claim on behalf of such Indemnified Person. If the Company is requested by such Indemnified Person, the Company will assume the defense of such Claim, including the employment of counsel for such Indemnified Person and the payment of the fees and expenses of such counsel, provided, however, that such counsel shall be reasonably satisfactory to the Indemnified Person and provided further that if the legal counsel to such Indemnified Person reasonably determines that having common counsel would present such counsel with a conflict of interest or if the defendant in, or target of, any such Claim, includes an Indemnified Person and the Company, and legal counsel to such Indemnified Person reasonably concludes that there may be legal defenses available to it or other Indemnified Persons different from or in addition to those available to the Company, such Indemnified Person will employ its own separate counsel (including local counsel, if necessary) to represent or defend him, her or it in any such Claim and the Company shall pay the reasonable fees and expenses of such counsel. If such Indemnified Person does not request that the Company assume the defense of such Claim, such Indemnified Person will employ its own separate counsel (including local counsel, if necessary) to represent or defend him, her or it in any such Claim and the Company shall pay the reasonable fees and expenses of such counsel. Notwithstanding foregoing, in no event shall the Company be required to pay fees and expenses for more than one firm of attorneys (including local counsel, if necessary) representing the Indemnified Parties. Notwithstanding anything herein to the contrary, if the Company fails timely or diligently to defend, contest, or otherwise protect against any Claim, the relevant Indemnified Person shall have the right, but not the obligation, to defend, contest, compromise, settle, assert crossclaims, or counterclaims or otherwise protect against the same, and shall be fully indemnified by the Company therefor, including without limitation, for the reasonable fees and expenses of its counsel and all amounts paid as a result of such Claim or the compromise or settlement thereof. In addition, with respect to any Claim in which the Company assumes the defense, the Indemnified Person shall have the right to participate in such Claim and to retain his, her or its own counsel therefor at his, her or its own expense. |
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| 4. | The Company agrees that if any indemnity sought by an Indemnified Person hereunder is held by a court to be unavailable for any reason then (whether or not Xxxxxxxxxx is the Indemnified Person), the Company and Xxxxxxxxxx shall contribute to the Claim for which such indemnity is held unavailable in such proportion as is appropriate to reflect (i) the relative benefits to the Company, on the one hand, and Xxxxxxxxxx on the other, in connection with Xxxxxxxxxx’x engagement referred to above, or, (ii) if (but only if) the allocation provided for in clause (i) is for any reason unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company, on the one hand, and Xxxxxxxxxx, on the other hand, as well as any other relevant equitable considerations. Notwithstanding the foregoing, the Company agrees that in no event shall the amount of Xxxxxxxxxx’x contribution to such Claim exceed the amount of fees actually received by Xxxxxxxxxx from the Company pursuant to Xxxxxxxxxx’x engagement. The Company hereby agrees that the relative benefits to the Company, on the one hand, and Xxxxxxxxxx on the other, with respect to Xxxxxxxxxx’x engagement shall be deemed to be in the same proportion as (a) the total value proposed to be paid or received by the Company pursuant to the applicable Offering (whether or not consummated) for which Xxxxxxxxxx is engaged to render services bears to (b) the fee paid or proposed to be paid to Xxxxxxxxxx in connection with such engagement. |
| 5. | The Company’s indemnity, reimbursement and contribution obligations under this Agreement shall be in addition to, and shall in no way limit or otherwise adversely affect any rights that any Indemnified Person may have at law or at equity. |
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G. Limitation of Engagement to the Company. The Company acknowledges that Xxxxxxxxxx has been retained only by the Company, that Xxxxxxxxxx is providing services hereunder as an independent contractor (and not in any fiduciary or agency capacity) and that the Company’s engagement of Xxxxxxxxxx is not deemed to be on behalf of, and is not intended to confer rights upon, any shareholder, owner or partner of the Company or any other person not a party hereto as against Xxxxxxxxxx or any of its affiliates, or any of its or their respective officers, directors, controlling persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), employees or agents. Unless otherwise expressly agreed in writing by Xxxxxxxxxx, no one other than the Company is authorized to rely upon this Agreement or any other statements or conduct of Xxxxxxxxxx, and no one other than the Company is intended to be a beneficiary of this Agreement. The Company acknowledges that any recommendation or advice, written or oral, given by Xxxxxxxxxx to the Company in connection with Xxxxxxxxxx’x engagement is intended solely for the benefit and use of the Company’s management and directors in considering a possible Offering, and any such recommendation or advice is not on behalf of, and shall not confer any rights or remedies upon, any other person or be used or relied upon for any other purpose. Xxxxxxxxxx shall not have the authority to make any commitment binding on the Company. The Company, in its sole discretion, shall have the right to reject any investor introduced to it by Xxxxxxxxxx.
H. Limitation of Xxxxxxxxxx’x Liability to the Company. Xxxxxxxxxx and the Company further agree that neither Xxxxxxxxxx nor any of its affiliates or any of its or their respective officers, directors, controlling persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), employees or agents shall have any liability to the Company, its security holders or creditors, or any person asserting claims on behalf of or in the right of the Company (whether direct or indirect, in contract, tort, for an act of negligence or otherwise) for any losses, fees, damages, liabilities, costs, expenses or equitable relief arising out of or relating to this Agreement or the services rendered hereunder, except for losses, fees, damages, liabilities, costs or expenses that arise out of or are based on any action of or failure to act by Xxxxxxxxxx and that are finally judicially determined to have resulted solely from the gross negligence or willful misconduct of Xxxxxxxxxx.
I. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be fully performed therein. Any disputes that arise under this Agreement, even after the termination of this Agreement, will be heard only in the state or federal courts located in the City of New York, State of New York. The parties hereto expressly agree to submit themselves to the jurisdiction of the foregoing courts in the City of New York, State of New York. The parties hereto expressly waive any rights they may have to contest the jurisdiction, venue or authority of any court sitting in the City and State of New York. In the event Xxxxxxxxxx or any Indemnified Person is successful in any action, or suit against the Company, arising out of or relating to this Agreement, the final judgment or award entered shall be entitled to have and recover from the Company the costs and expenses incurred in connection therewith, including its reasonable attorneys’ fees. Conversely, in the event the Company is successful in any action, or suit against Xxxxxxxxxx or any Indemnified Person, arising out of or relating to this Agreement, the final judgment or award entered shall be entitled to have and recover from Xxxxxxxxxx or any Indemnified Person the costs and expenses incurred in connection therewith, including its reasonable attorneys’ fees. Any rights to trial by jury with respect to any such action, proceeding or suit are hereby waived by Xxxxxxxxxx and the Company.
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J. Notices. All notices hereunder will be in writing and sent by certified mail, hand delivery, overnight delivery, fax or e-mail, if sent to Xxxxxxxxxx, at the address set forth on the first page hereof, e-mail: xxxxxxx@xxxxx.xxx, Attention: Head of Investment Banking, and if sent to the Company, to the address set forth on the first page hereof, e-mail: xxxxx.xxxx@xxxxxxxxxxxxxx.xxx, Attention: Chief Financial Officer. Notices sent by certified mail shall be deemed received five days thereafter, notices sent by hand delivery or overnight delivery shall be deemed received on the date of the relevant written record of receipt, notices delivered by fax shall be deemed received as of the date and time printed thereon by the fax machine and notices sent by e-mail shall be deemed received as of the date and time they were sent.
K. Conflicts. The Company acknowledges that Xxxxxxxxxx and its affiliates may have and may continue to have investment banking and other relationships with parties other than the Company pursuant to which Xxxxxxxxxx may acquire information of interest to the Company. Xxxxxxxxxx shall have no obligation to disclose such information to the Company or to use such information in connection with any contemplated transaction.
L. Anti-Money Laundering. To help the United States government fight the funding of terrorism and money laundering, the federal laws of the United States require all financial institutions to obtain, verify and record information that identifies each person with whom they do business. This means Xxxxxxxxxx must ask the Company for certain identifying information, including a government-issued identification number (e.g., a U.S. taxpayer identification number) and such other information or documents that Xxxxxxxxxx considers appropriate to verify the Company’s identity, such as certified articles of incorporation, a government-issued business license, a partnership agreement or a trust instrument.
M. Miscellaneous. The Company represents and warrants that it has all requisite power and authority to enter into and carry out the terms and provisions of this Agreement and the execution, delivery and performance of this Agreement does not breach or conflict with any agreement, document or instrument to which it is a party or bound. This Agreement shall not be modified or amended except in writing signed by Xxxxxxxxxx and the Company. This Agreement shall be binding upon and inure to the benefit of both Xxxxxxxxxx and the Company and their respective assigns, successors, and legal representatives. This Agreement constitutes the entire agreement of Xxxxxxxxxx and the Company with respect to the subject matter hereof and supersedes any prior agreements with respect to the subject matter hereof. If any provision of this Agreement is determined to be invalid or unenforceable in any respect, such determination will not affect such provision in any other respect, and the remainder of the Agreement shall remain in full force and effect. This Agreement may be executed in counterparts (including facsimile or electronic counterparts), each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
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In acknowledgment that the foregoing correctly sets forth the understanding reached by Xxxxxxxxxx and the Company, please sign in the space provided below, whereupon this letter shall constitute a binding Agreement as of the date indicated above.
| Very truly yours, | ||
| X.X. XXXXXXXXXX & CO., LLC | ||
| By: | /s/ Xxxxxx X. Xxxxxxx | |
| Name: | Xxxxxx X. Xxxxxxx | |
| Title: | Chief Operating Officer | |
| Date: | 5/31/2020 | |
| Accepted and Agreed: | ||
| China Xx-Xx Drugstores, Inc. | ||
| By: | /s/ Xxxx Xxxx | |
| Name: | Xxxx Xxxx | |
| Title: | Chief Financial Officer | |
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