SUBSCRIPTION AGREEMENT
Exhibit 1.2
Gentlemen:
The undersigned (the “Investor”) hereby confirms its agreement with you as follows:
1. This Subscription Agreement, including the Terms and Conditions For Purchase of
Shares and Warrants attached hereto as Annex I (collectively, this “Agreement”), is made as
of the date set forth below between VirnetX Holding Corporation, a Delaware corporation (the
“Company”), and the Investor.
2.
The Company has authorized the sale and issuance to certain investors of up to an
aggregate of (i) 3,000,000 shares (the
“Shares”) of its common stock, par value $0.0001 per
share (the “Common Stock”) and (ii) warrants
to purchase up to 1,500,000 shares of Common Stock at an exercise
price of $2.00 per share, warrants to purchase up to 1,500,000 shares
of Common Stock at an exercise price of $3.00 per share and warrants
to purchase up to 1,500,000 shares of Common Stock at an exercise
price of $4.00 per share (collectively, the “Warrants”), each subject to
adjustment by the Company’s Board of Directors, or a committee thereof, for a purchase price
of $ per Share
and associated Warrants (the “Purchase Price”). The Shares issuable upon
the exercise of the Warrants are referred to herein as the “Warrant Shares.” The Warrant
Shares, together with the Shares and the Warrants, are referred to herein as the
“Securities.”
3. The offering and sale of the Shares and Warrants (the “Offering”) are being made pursuant to a
registration statement on Form S-1 (No. 333-153645), including the related preliminary prospectus
or prospectuses contained therein, filed by the Company with the Securities and Exchange Commission
(the “Commission”). Promptly after execution and delivery by the Company of this Agreement, the
Company will prepare and file a prospectus in accordance with the provisions of Rule 430A (“Rule
430A”) of the rules and regulations of the Commission under the Securities Act of 1933, as amended
(the “1933 Act”) and paragraph (b) of Rule 424 under the 1933 Act. The information included in
such prospectus that was omitted from such registration statement at the time it became effective
but that is deemed to be part of such registration statement at the time it became effective
pursuant to paragraph (b) of Rule 430A is referred to as “Rule 430A Information.” Such
registration statement, including the amendments thereto, the exhibits and any schedules thereto,
at the time it became effective, and including the 430A Information, is herein called the
“Registration Statement.” The final prospectus in the form first furnished to the Placement Agent
for use in connection with the Offering is herein called the “Prospectus.” For purposes of this
Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus
or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system
(“XXXXX”). The preliminary prospectus included in the Registration Statement has been or will be
delivered to the Investor on or prior to the date hereof. The Prospectus will be filed with the
Commission and delivered to the Investor (or made available to the Investor by the filing by the
Company of an electronic version thereof with the Commission).
4. The Company and the Investor agree that the Investor will purchase from the Company
and the Company will issue and sell to the Investor the number of Shares and Warrants set
forth below for the aggregate purchase price set forth below. The Shares and Warrants shall
be purchased pursuant to the Terms and Conditions for Purchase of Shares and Warrants
attached hereto as Annex I and incorporated herein by this reference as if fully set
forth herein. The Investor acknowledges that the Offering is not being underwritten by the
placement agent named in the Prospectus and that there is
no minimum offering amount.
5. The manner of settlement of the Shares purchased by the Investor shall be determined
by such Investor as follows (check one):
[___]
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A. | Delivery by crediting the account of the Investor’s prime broker (as specified by such Investor on Exhibit A annexed hereto) through the Depository Trust Company’s (“DTC”) Deposit/Withdrawal At Custodian (“DWAC”) system, whereby Investor’s prime broker shall initiate a DWAC transaction on the Closing Date using its DTC participant identification number, and the Shares are released by U.S. Stock Transfer Corporation, the Company’s transfer agent (the “Transfer Agent”), at the Company’s direction. NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL: |
| (I) | DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A DWAC INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES, AND | ||
| (II) | REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE SHARES AND WARRANTS BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING ACCOUNT: |
[Escrow Agent]
ABA # [ ]
Account Name: [ ]
Account Number: [_______________]
ABA # [ ]
Account Name: [ ]
Account Number: [_______________]
— OR —
[___]
|
B. | Delivery versus payment (“DVP”) through DTC (i.e., the Company shall deliver Shares registered in the Investor’s name and address as set forth below and released by the Transfer Agent to the Investor through DTC at the Closing directly to the account(s) at Gilford Securities Incorporated (“Gilford”) identified by the Investor and simultaneously therewith payment shall be made by Gilford via wire transfer to the Company). NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL: |
| (I) | NOTIFY GILFORD OF THE ACCOUNT OR ACCOUNTS AT GILFORD TO BE CREDITED WITH THE SHARES BEING PURCHASED BY SUCH INVESTOR, AND | ||
| (II) | CONFIRM THAT THE ACCOUNT OR ACCOUNTS AT GILFORD TO BE CREDITED WITH THE SHARES BEING PURCHASED BY THE INVESTOR HAVE A MINIMUM BALANCE EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE SHARES AND WARRANTS BEING PURCHASED BY THE INVESTOR. |
IT IS THE INVESTOR’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER OR CONFIRM THE
PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (B) ARRANGE FOR SETTLEMENT BY WAY OF DWAC OR DVP IN A
TIMELY
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MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR THE SHARES AND
WARRANTS OR DOES NOT MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE SHARES AND
WARRANTS MAY NOT BE DELIVERED AT CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE
CLOSING ALTOGETHER.
6. The executed Warrant shall be delivered in accordance with the terms thereof.
7. The Investor represents that, except as set forth below, (a) it has had no position,
office or other material relationship within the past three years with the Company or
persons known to it to be affiliates of the Company, (b) it is not a FINRA member or an
Associated Person (as such term is defined under the FINRA Membership and Registration Rules
Section 1011) as of the Closing, and (c) neither the Investor nor any group of Investors (as
identified in a public filing made with the Commission) of which the Investor is a part in
connection with the Offering of the Shares and Warrants, acquired, or obtained the right to
acquire, 20% or more of the Common Stock (or securities convertible into or exercisable for
Common Stock) or the voting power of the Company on a post-transaction basis. Exceptions:
(If no exceptions, write “none.” If left blank, response will be deemed to be “none.”)
8. The Investor represents that it has received (or otherwise had made available to it
by the filing by the Company of an electronic version thereof with
the Commission) the preliminary prospectus, dated December 3,
2008, (the “Disclosure
Package”), prior to or in connection with the receipt of this Agreement. The Investor
acknowledges that, prior to the delivery of this Agreement to the Company, the Investor will
receive certain additional information regarding the Offering, including pricing information
(the “Offering Information”). Such information may be provided to the Investor by any means
permitted under the Act, including another preliminary prospectus or oral communications.
9. No offer by the Investor to buy Shares and Warrants will be accepted and no part of
the Purchase Price will be delivered to the Company until the Investor has received the
Offering Information and the Company has accepted such offer by countersigning a copy of
this Agreement, and any such offer may be withdrawn or revoked, without obligation or
commitment of any kind, at any time prior to the Company (or Gilford on behalf of the Company)
sending (orally, in writing or by electronic mail) notice of its acceptance of such offer.
An indication of interest will involve no obligation or commitment of any kind until the
Investor has been delivered the Offering Information and this Agreement is accepted and
countersigned by or on behalf of the Company.
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Number of Shares:
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Number
of Warrant Shares:
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||||||||
Purchase
Price Per Share and Associated Warrants:
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$ | |||||||
Aggregate Purchase Price:
|
$ | |||||||
Please confirm that the foregoing correctly sets forth the agreement between us by signing in
the space provided below for that purpose.
| Dated as of: , 200___ | |||||||
| INVESTOR | |||||||
| By: | |||||||
| Print Name: | |||||||
| Title: | |||||||
| Address: | |||||||
Agreed and Accepted
this ___day of ___, 200_:
this ___day of ___, 200_:
VIRNETX HOLDING CORPORATION
| By: | ||||
| Title: | Xxxxxxx Xxxxxx | |||
| Name: | President and Chief Executive Officer | |||
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ANNEX I
1. Authorization and Sale of the Shares and Warrants. Subject to the terms and conditions of
this Agreement, the Company has authorized the sale of the Shares and the Warrants.
2. Agreement
to Sell and Purchase the Shares and Warrants; Placement Agent.
2.1 At the Closing (as defined in Section 3.1), the Company will sell to the Investor,
and the Investor will purchase from the Company, upon the terms and conditions set forth herein,
the number of Shares and Warrants set forth on the last page of the Agreement to which these Terms
and Conditions for Purchase of Shares and Warrants are attached as Annex I (the “Signature
Page”) for the aggregate purchase price therefor set forth on the Signature Page.
2.2 The Company proposes to enter into substantially this same form of Subscription Agreement
with certain other investors (the “Other Investors”) and expects to complete sales of Shares and
Warrants to them. The Investor and the Other Investors are hereinafter sometimes collectively
referred to as the “Investors,” and this Agreement and the Subscription Agreements executed by the
Other Investors are hereinafter sometimes collectively referred to as the “Agreements.”
2.3
The Investor acknowledges that the Company has agreed to pay Gilford Securities Incorporated
(“Gilford” or the “Placement Agent”) a fee (the “Placement Fee”) in respect of the sale of Shares and
Warrants to the Investor.
2.4 The Company has entered into a Placement Agent Agreement, dated ____________, 2008 (the
“Placement Agreement”), with the Placement Agent that contains certain representations, warranties,
covenants and agreements of the Company that may be relied upon by the Investor, which shall be a
third party beneficiary thereof.
3. Closings and Delivery of the Shares and Warrants and Funds.
3.1 Closing. The completion of the purchase and sale of the Shares and Warrants (the
“Closing”) shall occur at a place and time (the “Closing Date”) to be specified by the Company and
the Placement Agent, and of which the Investors will be notified in
advance by the Placement Agent,
in accordance with Rule 15c6-1 promulgated under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”). At the Closing, (a) the Company shall cause the Transfer Agent to deliver to
the Investor the number of Shares set forth on the Signature Page registered in the name of the
Investor or, if so indicated on the Investor Questionnaire attached hereto as Exhibit A, in
the name of a nominee designated by the Investor, (b) the Company shall cause to be delivered to
the Investor a Warrant to purchase a number of whole Warrant Shares determined by multiplying the
number of Shares set forth on the signature page by the Warrant Ratio and rounding down to the
nearest whole number, and (c) the aggregate purchase price for the Shares and Warrants being
purchased by the Investor will be delivered by or on behalf of the Investor to the Company.
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3.2 Conditions to the Company’s Obligations. (a) The Company’s obligation to issue
and sell the Shares and Warrants to the Investor shall be subject to: (i) the receipt by the
Company of the purchase price for the Shares and Warrants being purchased hereunder as set forth on
the Signature Page and (ii) the accuracy of the representations and warranties made by the Investor
and the fulfillment of those undertakings of the Investor to be fulfilled prior to the Closing
Date.
(b) Conditions to the Investor’s Obligations. The Investor’s obligation to purchase
the Shares and Warrants will be subject to the accuracy of the representations and warranties made
by the Company and the fulfillment of those undertakings of the Company to be fulfilled prior to
the Closing Date, including without limitation, those contained in the Placement Agreement, and to
the condition that the Placement Agent shall not have: (a) terminated the Placement Agreement
pursuant to the terms thereof or (b) determined that the conditions to the closing in the Placement
Agreement have not been satisfied. The Investor’s obligations are expressly not conditioned on the
purchase by any or all of the Other Investors of the Shares and Warrants that they have agreed to
purchase from the Company.
3.3 Delivery of Funds.
(a) Delivery by Electronic Book-Entry at The Depository Trust Company. If the
Investor elects to settle the Shares purchased by such Investor through delivery by electronic
book-entry at DTC, no later than one (1) business day after the execution of this Agreement by
the Investor and the Company, the Investor shall remit by wire transfer the amount of funds
equal to the aggregate purchase price for the Shares and Warrants being purchased by the Investor
to the following account designated by the Company and the Placement Agent pursuant to the terms of
that certain Escrow Agreement (the “Escrow Agreement”) dated as of ___, by and among the
Company, the Placement Agent and [insert name of Escrow Agent] (the “Escrow Agent”):
[Escrow Agent]
ABA # _______
Account Name: __________
Account Number: _____________
ABA # _______
Account Name: __________
Account Number: _____________
Such funds shall be held in escrow until the Closing and delivered by the Escrow Agent on
behalf of the Investors to the Company upon the satisfaction, in the
sole judgment of the Placement Agent, of the conditions set forth in Section 3.2(b) hereof. The
Placement Agent shall have no
rights in or to any of the escrowed funds, unless the Placement Agent and the Escrow Agent are
notified in writing by the Company in connection with the Closing that a portion of the escrowed
funds shall be applied to the Placement Fee. The Company and the Investor agree to indemnify and
hold the Escrow Agent harmless from and against any and all losses, costs, damages, expenses and
claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”)
arising under this Section 3.3 or otherwise with respect to the funds held in escrow
pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such
Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent.
Anything in this Agreement to the contrary notwithstanding, in no event shall the Escrow Agent be
liable for any special, indirect or consequential loss or damage of any kind whatsoever (including
but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of
such loss or damage and regardless of the form of action.
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(b) Delivery Versus Payment through The Depository Trust Company. If the Investor
elects to settle the Shares purchased by such Investor by delivery versus payment through DTC,
no later than one (1) business day after the execution of this Agreement by the Investor and
the Company, the Investor shall confirm that the account or
accounts at Gilford to be credited
with the Shares being purchased by the Investor have a minimum balance equal to the aggregate
purchase price for the Shares being purchased by the Investor.
3.4 Delivery of Shares.
(a) Delivery by Electronic Book-Entry at The Depository Trust Company. If the
Investor elects to settle the Shares purchased by such Investor through delivery by electronic
book-entry at DTC, no later than one (1) business day after the execution of this Agreement by
the Investor and the Company, the Investor shall direct the broker-dealer at which the account
or accounts to be credited with the Shares being purchased by such Investor are maintained, which
broker/dealer shall be a DTC participant, to set up a Deposit/Withdrawal at Custodian (“DWAC”)
instructing the Transfer Agent, to credit such account or accounts with the Shares by means of an
electronic book-entry delivery. Such DWAC shall indicate the settlement date for the deposit of
the Shares, which date shall be provided to the Investor by the Placement Agent. Simultaneously
with the delivery to the Company by the Escrow Agent of the funds held in escrow pursuant to
Section 3.3 above, the Company shall direct its Transfer Agent to credit the Investor’s
account or accounts with the Shares pursuant to the information contained in the DWAC.
(b) Delivery Versus Payment through The Depository Trust Company. If the Investor
elects to settle the Shares purchased by such Investor by delivery versus payment through DTC,
no later than one (1) business day after the execution of this Agreement by the Investor and
the Company, the Investor shall notify Gilford of the account
or accounts at Gilford to be credited
with the Shares being purchased by such Investor. On the Closing Date, the Company shall deliver
the Shares to the Investor through DTC directly to the account or
accounts at Gilford identified by
Investor and simultaneously therewith payment shall be made by Gilford via wire transfer to the
Company.
4. Representations, Warranties and Covenants of the Investor.
The Investor acknowledges, represents and warrants to, and agrees with, the Company and the
Placement Agent that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is
qualified to make decisions with respect to, investments in shares presenting an investment
decision like that involved in the purchase of the Shares and Warrants, including investments in
securities issued by the Company and investments in comparable companies, (b) has answered all
questions on the Signature Page and the Investor Questionnaire for use in preparation of the
Prospectus Supplement and the answers thereto are true and correct as of the date hereof and will
be true and correct as of the Closing Date and (c) in connection with its decision to purchase the
number of Shares and Warrants set forth on the Signature Page, has received and is relying solely
upon (i) the Disclosure Package and (ii) the
Offering Information.
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4.2 The Investor acknowledges that (a) no action has been or will be taken in any jurisdiction
outside the United States by the Company or the Placement Agent that would permit an offering of
the Shares and Warrants, or possession or distribution of offering materials in connection with the
issue of the Securities in any jurisdiction outside the United States where action for that purpose
is required, (b) if the Investor is outside the United States, it will comply with all applicable
laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers
Securities or have in its possession or distributes any offering material, in all cases at its own
expense and (c) the Placement Agent is not authorized to make
and has not made any representation,
disclosure or use of any information in connection with the issue, placement, purchase and sale of
the Shares and Warrants, except as set forth in the Prospectus.
4.3 The Investor acknowledges that (a) the Investor has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions contemplated hereby and
has taken all necessary action to authorize the execution, delivery and performance of this
Agreement, and (b) this Agreement constitutes a valid and binding obligation of the Investor
enforceable against the Investor in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally and except as enforceability may be subject to
general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and except as to the enforceability of any rights to
indemnification or contribution that may be violative of the public policy underlying any law, rule
or regulation (including any federal or state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus or any other
materials presented to the Investor in connection with the purchase and sale of the Shares and
Warrants constitutes legal, tax or investment advice. The Investor has consulted such legal, tax
and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of Shares and Warrants.
5. Survival of Representations, Warranties and Agreements; Third Party Beneficiary.
Notwithstanding any investigation made by any party to this Agreement
or by the Placement Agent,
all covenants, agreements, representations and warranties made by the Company and the Investor
herein will survive the execution of this Agreement, the delivery to the Investor of the Shares and
Warrants being purchased and the payment therefor. The
Placement Agent shall be a third
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party beneficiary with respect to the representations, warranties and agreements of the
Investor in Section 4 hereof.
6. Notices. All notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage prepaid, or by
facsimile or (b) if delivered from outside the United States, by International Federal Express or
facsimile, and will be deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by nationally recognized overnight
carrier, one business day after so mailed, (iii) if delivered by International Federal Express, two
business days after so mailed and (iv) if delivered by facsimile, upon electric confirmation of
receipt and will be delivered and addressed as follows:
| (a) | if to the Company, to: | |||
| Xxxxxxx Xxxxxx | ||||
| VirnetX Holding Corporation | ||||
| 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000 | ||||
| Xxxxxx Xxxxxx, XX 00000 | ||||
| Fax: (000) 000-0000 | ||||
| with copies to: | ||||
| Xxxxxx X. Xxxx | ||||
| Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP | ||||
| 0000 Xxxxx Xxxx | ||||
| Xxxxx Xxxx, XX 00000 | ||||
| Fax: (000) 000-0000 |
(b) if to the Investor, at its address on the Signature Page hereto, or at such other address
or addresses as may have been furnished to the Company in writing.
7. Changes. This Agreement may not be modified or amended except pursuant to an instrument
in writing signed by the Company and the Investor.
8. Headings. The headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this Agreement.
9. Severability. In case any provision contained in this Agreement should be invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein will not in any way be affected or impaired thereby.
10. Governing Law. This Agreement will be governed by, and construed in accordance with,
the internal laws of the State of New York, without giving effect to the principles of
conflicts of law that would require the application of the laws of any other jurisdiction.
11. Counterparts. This Agreement may be executed in two or more counterparts, each of which
will constitute an original, but all of which, when taken together, will constitute but one
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instrument, and will become effective when one or more counterparts have been signed by each
party hereto and delivered to the other parties. The Company and the Investor acknowledge
and agree that the Company shall deliver its counterpart to the Investor along with the
Prospectus (or the filing by the Company of an electronic version thereof with
the Commission).
12. Confirmation of Sale. The Investor acknowledges and agrees that such Investor’s receipt
of the Company’s counterpart to this Agreement, together with the Prospectus (or
the filing by the Company of an electronic version thereof with the Commission), shall
constitute written confirmation of the Company’s sale of Shares and Warrants to such
Investor.
13. Press Release. The Company and the Investor agree that the Company shall issue a press
release announcing the Offering prior to the opening of the financial markets in New York
City on the business day immediately after the date hereof.
14. Termination. In the event that the Placement Agreement is terminated by the Placement
Agent pursuant to the terms thereof, this Agreement shall terminate without any further
action on the part of the parties hereto.
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Pursuant to Section 3 of Annex I to the Agreement, please provide us with the
following information:
1.
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The exact name that your Shares and Warrants are to be registered in. You may use a nominee name if appropriate: | |||
2.
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The relationship between the Investor and the registered holder listed in response to item 1 above: | |||
3.
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The mailing address of the registered holder listed in response to item 1 above: | |||
4.
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The Social Security Number or Tax Identification Number of the registered holder listed in the response to item 1 above: | |||
5.
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Name of DTC Participant (broker-dealer at which the account or accounts to be credited with the Shares are maintained): | |||
6.
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DTC Participant Number: | |||
7.
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Name of Account at DTC Participant being credited with the Shares: | |||
8.
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Account Number at DTC Participant being credited with the Shares: | |||
