Exhibit 10.2
SHELF REGISTRATION RIGHTS AGREEMENT
October 1, 1998
To the Purchasers listed on
the signature pages hereof
Ladies and Gentlemen:
Xxxxxx Communications, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the members of Response Marketing Group, LLC
("RMG") and the shareholders of Response Analytics, Inc. ("Analytics"; and
collectively with RMG, the "RMG Entities") listed on the signature pages hereto
(collectively, the "Purchasers"), upon the terms set forth in the Agreement and
Plan of Merger dated October 1, 1998 by and among the Company, Xxxxxx XX
Acquisition, LLC, Xxxxxx XX Acquisition, LLC, RMG, Analytics, the members of RMG
and the shareholders of Analytics (the "Merger Agreement"), in the aggregate
1,498,848 shares of Common Stock, par value $0.001 per share, of the Company
(the "Common Stock") as consideration for all of the issued and outstanding
equity interests in RMG and Analytics. Pursuant to the terms of this Agreement,
the Company has agreed to cause a Shelf Registration Statement (as defined
below) to be filed covering 763,362 of the shares of Common Stock being issued
to the Purchasers pursuant to the Merger Agreement (such number of the shares of
Common Stock being referred to herein as the "Securities"). As an inducement to
the Purchasers to enter into the Merger Agreement and in accordance with the
terms thereof, the Company agrees with the Purchasers, (i) for the benefit of
the Purchasers and (ii) for the benefit of the holders of the Securities from
time to time (provided that the Company has received an opinion of counsel or
appropriate certification reasonably acceptable to it that the transfer from the
Purchaser to the holder of the Securities was effected in a transaction exempt
from the registration requirements of the Securities Act of 1933, as amended
(the "Securities Act")) (each of the foregoing a "Holder" and together the
"Holders") until such time as provided in Section 1(b) hereof, as follows:
NYFS01...:\07\74807\0046\1966\AGR9148S.41B
1. Shelf Registration. The Company shall take the following
actions:
(a) The Company shall, at its cost, prepare and, within 90 days
following the Closing Date under the Merger Agreement (but in no event prior to
the publication of at least 30 days of post-merger combined operations of the
Company and the RMG Entities), file with the United States Securities and
Exchange Commission (the "Commission"), and thereafter shall use its best
efforts to cause to be declared effective as soon as practicable, a registration
statement on Form S-3 (or other appropriate form) (the "Shelf Registration
Statement") covering the offer and sale of the Transfer Restricted Securities
(as defined below) by the Holders thereof from time to time in accordance with
the methods of distribution elected by such Holders and set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act (such registration
of the Securities being hereinafter referred to as a "Shelf Registration");
provided, however, that no Holder (other than a Purchaser) shall be entitled to
have the Securities held by it covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder. "Transfer Restricted Securities" means each
Security until (i) the date on which such Security has been effectively
registered under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (ii) the date on which such Security is distributed to
the public pursuant to Rule 144 under the Securities Act or is saleable pursuant
to Rule 144(k) under the Securities Act. The number of Transfer Restricted
Securities to be registered pursuant to the Shelf Registration hereunder shall
be apportioned among the Holders in proportion to the number of Transfer
Restricted Securities held by each such Holder, unless the Holders shall
otherwise agree.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective, in order to permit the prospectus
included therein to be lawfully delivered by the Holders of the relevant
Securities, until the earlier of (i) such time as all the Securities covered by
the Shelf Registration Statement have been sold pursuant thereto or (ii) 45 days
(in any case, such period being called the "Shelf Registration Period"). The
Company shall be deemed not to have used its best efforts to keep the Shelf
Registration Statement effective during the requisite period if it voluntarily
takes any action that would result in Holders of Securities covered thereby not
being able to offer and sell such Securities during that period, unless (i) such
action is required by applicable law or (ii) upon the occurrence of any event
contemplated by paragraph 2(b)(v) below, such action is taken by the Company in
good faith and for valid business reasons (not including avoidance of the
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Company's obligations hereunder) and the Company thereafter complies with the
requirements of paragraph 2(h) below.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause (other than information required to be
supplied by the selling Holders pursuant to this Agreement) (i) the Shelf
Registration Statement and the related prospectus and any amendment or
supplement thereto to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission thereunder, (ii) the Shelf Registration Statement and any amendment
thereto not to contain, when it becomes effective, an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any prospectus
forming a part of the Shelf Registration Statement, and any amendment or
supplement to such prospectus, not to contain, as of the date of such prospectus
or amendment or supplement, any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
2. Registration Procedures. In connection with the Shelf
Registration contemplated by Section 1 hereof the following provisions shall
apply:
(a) The Company shall (i) furnish to each Purchaser, prior to the
filing thereof with the Commission, a copy of the Shelf Registration Statement
and each amendment thereof and each amendment or supplement, if any, to the
prospectus included therein and (ii) include the names of the Holders who
propose to sell Securities pursuant to the Shelf Registration Statement, as
selling security holders, and the manner of distribution they have elected.
(b) The Company shall give written notice to the Purchasers and the
Holders (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied
by an instruction to suspend the use of the prospectus until the requisite
changes have been made):
(i) when the Shelf Registration Statement or any amendment
thereto has been filed with the Commission and when the Shelf Registration
Statement or any post-effective amendment thereto has become effective;
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(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to
make changes in the Shelf Registration Statement or the prospectus in
order that the Shelf Registration Statement or the prospectus do not
contain an untrue statement of a material fact nor omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the prospectus, in light of the
circumstances under which they were made) not misleading, which written
notice need not provide any detail as to the nature of such event.
(c) The Company shall use best reasonable commercial efforts to
obtain the withdrawal at the earliest possible time of any order suspending the
effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, at least one copy
of the Shelf Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so requests in
writing, all exhibits thereto (including those incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Securities included within the coverage of the Shelf
Registration Statement, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in the Shelf Registration
Statement and any amendment or supplement thereto as such person may reasonably
request. The Company consents, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto by each of the
selling Holders in
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connection with the offering and sale of the Securities covered by the
prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement.
(f) Prior to any public offering of the Securities pursuant to the
Shelf Registration Statement, the Company shall register or qualify or cooperate
with the Holders of the Securities included therein and their respective counsel
in connection with the registration or qualification of such Securities for
offer and sale under the securities or "blue sky" laws of such states of the
United States as any such Holder reasonably requests in writing and do any and
all other acts or things necessary or advisable to enable the offer and sale in
such jurisdictions of the Securities covered by the Shelf Registration
Statement; provided, however, that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to general service of
process or to taxation in any jurisdiction where it is not then so subject.
(g) The Company, at its own expense, shall cooperate with the
Holders of the Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to the Shelf
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as the Holders may request a reasonable period of
time prior to sales of the Securities pursuant to the Shelf Registration
Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 2(b) above during the period for which the Company is
required to maintain an effective Shelf Registration Statement, the Company
shall as promptly as practicable prepare and file a post-effective amendment to
the Shelf Registration Statement or an amendment or supplement to the related
prospectus and any other required document so that, as thereafter delivered to
Holders or purchasers of Securities, the prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated herein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, provided in the case
of paragraph (v) of Section 2(b) the Company's obligations pursuant to this
paragraph (h) may be suspended if the Board of Directors of the Company has
determined in good faith and using reasonable judgment that disclosure of
information sufficient to ensure that the Shelf Registration Statement and
related prospectus contain no such misstatement or omission would be
significantly and materially disadvantageous to the Company's financial
condition, business or prospects. If the Company notifies the Holders in
accordance with paragraphs (ii)
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through (v) of Section 2(b) above to suspend the use of the prospectus until the
requisite changes to the prospectus have been made, then the Holders shall
suspend use of such prospectus.
(i) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Shelf
Registration Statement, which statement shall cover such 12-month period.
(j) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of the Securities as the
Company may from time to time reasonably require for inclusion in the Shelf
Registration Statement, and the Company may exclude from such registration the
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(k) The Company will cause the Securities to be sold pursuant to the
Shelf Registration Statement to be listed on the New York Stock Exchange, Inc.
(the "NYSE") or, if not then listed on the NYSE, on the principal securities
exchange or market on which the Common Stock shall then be traded.
3. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance of its obligations under
Sections 1 and 2 hereof, whether or not the Shelf Registration Statement is
filed or becomes effective, provided that the Holders of the Securities covered
by the Shelf Registration shall bear the fees and disbursements of their
counsel.
4. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Holder, and each person, if any, who controls such Holder within
the meaning of the Securities Act or the Exchange Act (each Holder and such
controlling persons are referred to collectively as the "Indemnified Parties")
from and against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including, but not limited to, any losses,
claims, damages, liabilities
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or actions relating to purchases and sales of the Securities) to which each
Indemnified Party becomes subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement or prospectus or in
any amendment or supplement thereto or in any preliminary prospectus relating to
the Shelf Registration, or arise out of, or are based upon, the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and subject to
subsection (c) below, shall reimburse, as incurred, the Indemnified Parties for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that the Company shall not be liable in any
such case to the extent that such loss, claim, damage or liability arises out of
or is based upon (x) the use of any prospectus in violation of the last sentence
of Section 2(h) provided that the Company is in compliance with its obligations
pursuant to such Section, or (y) any untrue statement or alleged untrue
statement or omission or alleged omission made in the Shelf Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Shelf Registration made in reliance upon
and in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein.
(b) Each Holder, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act from and against any
losses, claims, damages or liabilities or any actions in respect thereof, to
which the Company or any such controlling person becomes subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to the Shelf Registration, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company by or
on behalf of such Holder specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, and to subsection (c)
below, shall reimburse, as incurred, the Company for any legal or
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other expenses reasonably incurred by the Company or any such controlling person
in connection with investigating or defending any loss, claim, damage, liability
or action in respect thereof.
(c) Promptly after receipt by an indemnified party under this
Section 4 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party, except to the
extent the indemnifying party is actually prejudiced by such failure. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party if the representation of both such parties by the same
counsel would constitute a conflict of interest). Notwithstanding the foregoing,
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there exists a conflict of interest between the indemnifying party and any
indemnified party or that there may be legal defenses available to it and other
indemnified parties which are different from or additional to, and inconsistent
or in conflict with, those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. After notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party
under this Section 4 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall have
employed separate counsel in accordance with the preceding sentence, (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action, or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party, and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii). No indemnifying party shall, without the prior
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written consent of the indemnified party, effect any settlement of any pending
or threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsections (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
relative fault of the parties shall be determined by reference to, among other
things, whether the 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 the Company on the one hand or such Holder or such other indemnified
party, as the case may be, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this Section 4(d), no Holder shall be
required to contribute any amount in excess of the net proceeds received by such
Holder from the sale of the Securities pursuant to the Shelf Registration
Statement. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this paragraph (d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the
sale of the Securities pursuant to the Shelf Registration Statement and shall
remain in full
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force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
5. Rules 144 and 144A. The Company shall file the reports required
to be filed by it under the Securities Act and the Exchange Act in a timely
manner and it will take such further action as any Holder of Transfer Restricted
Securities shall reasonably request to enable such holder to sell such
securities without registration, including, without limitation, making publicly
available the information necessary to permit sales of their securities pursuant
to Rules 144 and 144A. Notwithstanding the foregoing, nothing in this Section 5
shall be deemed to require the Company to register any of its securities
pursuant to the Exchange Act except as provided in this Agreement. The Company
shall upon written request of a Holder of Registrable Securities deliver to such
Holder a written statement as to its compliance with such request.
6. Miscellaneous. (a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, except by the Company
and the written consent of the Holders of a majority affected by such amendment,
modification, supplemented, waiver or consents.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
6(b), which address initially is, with respect to each Purchaser, the
address set forth in the Merger Agreement.
(ii) if to the Company, at its address as follows:
Xxxxxx Communications, Inc.
Two Democracy Center
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax No.: (000) 000-0000
Attn: Chief Financial Officer
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with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
and each Holder's registration rights are transferable to and may be exercised
by any person to whom Transfer Restricted Securities have been transferred
subject to Section 1(a) hereof.
(d) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
(g) Interpretation. Unless otherwise provided herein, any reference
to days shall be deemed to mean calendar days.
By the execution and delivery of this Agreement, the Company submits
to the nonexclusive jurisdiction of any federal or state court in the State of
New York.
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(h) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Purchasers and the Company in accordance with its terms.
Very truly yours,
XXXXXX COMMUNICATIONS, INC.
By: /s/ A. Xxxxxxx Xxxxxxx
------------------------------------
Name: A. Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
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The foregoing Shelf Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written.
THE PURCHASERS:
EACH MEMBER OF RESPONSE
MARKETING GROUP, LLC AND
EACH SHAREHOLDER OF RESPONSE
ANALYTICS, INC. RECEIVING
COMMON STOCK
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, III, solely in his
capacity as Equityholder
Representative and on behalf of
each member of Response
Marketing Group, LLC and each
shareholder of Response Analytics,
Inc. receiving Common Stock
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxxx X. Xxxxxx, solely in his
capacity as Equityholder
Representative and on behalf of
each member of Response
Marketing Group, LLC and each
shareholder of Response Analytics,
Inc. receiving Common Stock
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