REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”)
is entered into as of the ____ day of _______, 2011, by and among Green Power
Enterprises, Inc., a Cayman Islands limited life exempted company (the “Company”)
and the undersigned parties listed under Investor on the signature page hereto
(each, an “Investor” and collectively, the “Investors”).
WHEREAS,
the Investors currently hold all of the outstanding Ordinary Shares of the
Company issued prior to the consummation of the Company’s initial public
offering (the “Initial
Shares”);
WHEREAS,
certain of the Investors are privately purchasing 5,050,000 warrants
simultaneously with the consummation of the Company’s initial public offering
(the “Private
Placement Warrants”);
WHEREAS,
the Investors and the Company desire to enter into this Agreement to provide the
Investors with certain rights relating to the registration of the Initial Shares
and the Private Placement Warrants;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. The
following capitalized terms used herein have the following
meanings:
“Agreement”
means this Agreement, as amended, restated, supplemented, or otherwise modified
from time to time.
“Business
Combination” means the acquisition of direct or indirect ownership
through a merger, capital stock exchange or asset acquisition or other similar
type of transaction, of an operating business in the renewal energy industry
having a fair market value of at least 80% of the Company’s net assets at the
time of such acquisition.
“Commission”
means the Securities and Exchange Commission, or any other Federal agency then
administering the Securities Act or the Exchange Act.
“Ordinary
Shares” means the Ordinary Shares, par value $0.0001 per share, of the
Company.
“Company”
is defined in the preamble to this Agreement.
“Demand
Registration” is defined in Section 2.1.1.
“Demanding
Holder” is defined in Section 2.1.1.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder, all as the same shall
be in effect at the time.
“Form
S-3” is defined in Section 2.3.
“Indemnified
Party” is defined in Section 4.3.
“Indemnifying
Party” is defined in Section 4.3.
“Initial
Shares” is defined in the preamble to this Agreement.
“Private
Placement Warrants” is defined in the preamble to this
Agreement.
“Investor”
is defined in the preamble to this Agreement.
“Investor
Indemnified Party” is defined in Section 4.1.
“Maximum
Number of Shares” is defined in Section 2.1.4.
“Notices”
is defined in Section 6.3.
“Option
Securities” is defined in Section 2.1.4.
“Piggy-Back
Registration” is defined in Section 2.2.1.
“Register,”
“Registered”
and “Registration”
mean a registration effected by preparing and filing a registration statement or
similar document in compliance with the requirements of the Securities Act, and
the applicable rules and regulations promulgated thereunder, and such
registration statement becoming effective.
“Registrable
Securities” means (i) all of the Initial Shares or (ii) all of the
Private Placement Warrants (and underlying Ordinary Shares) owned or held by
Investors upon consummation of the Company’s initial public offering.
Registrable Securities include any warrants, shares of capital stock or other
securities of the Company issued as a dividend or other distribution with
respect to or in exchange for or in replacement of such Initial Shares and
Private Placement Warrants (and underlying Ordinary Shares). As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when: (a) a Registration Statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been sold, transferred, disposed of or exchanged in
accordance with such Registration Statement; (b) such securities shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent public distribution of them shall not require registration under the
Securities Act; (c) such securities shall have ceased to be outstanding, or (d)
the Securities and Exchange Commission makes a definitive determination to the
Company that the Registrable Securities held by any Holder may be sold in a
single sale without any volume or manner of sale limitations pursuant to Rule
144 (or any successor rule or regulation) under the Securities Act.
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“Registration
Statement” means a registration statement filed by the Company with the
Commission in compliance with the Securities Act and the rules and regulations
promulgated thereunder for a public offering and sale of equity securities, or
securities or other obligations exercisable or exchangeable for, or convertible
into, equity securities (other than a registration statement on Form S-4 or Form
S-8, or their successors, or any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another
entity).
“Release
Date” means the date on which Ordinary Shares are disbursed from escrow
pursuant to Section 3 of that certain Stock Escrow Agreement dated as of
___________, 2011 by and among the parties hereto and Continental Stock Transfer
& Trust Company.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall be
in effect at the time.
“Underwriter”
means a securities dealer who purchases any Registrable Securities as principal
in an underwritten offering and not as part of such dealer’s market-making
activities.
“Unit
Purchase Option” is defined in Section 2.1.4.
2. REGISTRATION
RIGHTS.
2.1 Demand
Registration.
2.1.1 Request for
Registration. At any time and from time to time on or after the date that
is (i) in the case of the Private Placement Warrants (or underlying Ordinary
Shares), after the Company consummates a Business Combination or (ii) in the
case of the Initial Shares, three months prior to the Release Date, (A) the
holders of a majority-in-interest of such Private Placement Warrants (or
underlying Ordinary Shares), Initial Shares or other Registrable Securities, as
the case may be, and (B) Xxxxxx & Xxxxxxx, LLC (“Xxxxxx”)
and the other underwriters in the Company’s initial public offering (“IPO”)
may each make one written demand for registration under the Securities Act of
all or part of their Private Placement Warrants (or underlying Ordinary Shares),
Initial Shares or other Registrable Securities, as applicable (a “Demand
Registration”). Any demand for a Demand Registration shall specify the
type and number of Registrable Securities proposed to be sold and the intended
method(s) of distribution thereof. The Company will notify all holders of
Registrable Securities of the demand, and each holder of Registrable Securities
who wishes to include all or a portion of such holder’s Registrable Securities
in the Demand Registration (each such holder including shares of Registrable
Securities in such registration, a “Demanding
Holder”) shall so notify the Company within fifteen (15) days after the
receipt by the holder of the notice from the Company. Upon any such request, the
Demanding Holders shall be entitled to have their Registrable Securities
included in the Demand Registration, subject to Section 2.1.4 and the provisos
set forth in Section 3.1.1. The Company shall not be obligated to effect more
than an aggregate of two (2) Demand Registrations under this Section 2.1.1 in
respect of all Registrable Securities.
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2.1.2 Effective
Registration. A registration will not count as a Demand Registration
until the Registration Statement filed with the Commission with respect to such
Demand Registration has been declared effective and the Company has complied
with all of its obligations under this Agreement with respect thereto; provided,
however, that if, after such Registration Statement has been declared effective,
the offering of Registrable Securities pursuant to a Demand Registration is
interfered with by any stop order or injunction of the Commission or any other
governmental agency or court, the Registration Statement with respect to such
Demand Registration will be deemed not to have been declared effective, unless
and until, (i) such stop order or injunction is removed, rescinded or otherwise
terminated, and (ii) a majority-in-interest, on an as converted to Ordinary
Share basis, of the Demanding Holders thereafter elect to continue the offering;
provided, further, that the Company shall not be obligated to file a second
Registration Statement until a Registration Statement that has been filed is
counted as a Demand Registration or is terminated.
2.1.3 Underwritten
Offering. If a majority-in-interest, on an as converted to Ordinary Share
basis, of the Demanding Holders so elect and such holders so advise the Company
as part of their written demand for a Demand Registration, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the form
of an underwritten offering. In such event, the right of any holder to include
its 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 to the extent provided herein. All
Demanding Holders proposing to distribute their Registrable Securities through
such underwriting shall enter into an underwriting agreement in customary form
with the Underwriter or Underwriters selected for such underwriting by a
majority-in-interest, on an as converted to Ordinary Share basis, of the holders
initiating the Demand Registration.
2.1.4 Reduction of
Offering. If the managing Underwriter or Underwriters for a Demand
Registration that is to be an underwritten offering advises the Company and the
Demanding Holders in writing that the dollar amount or number of shares of
Registrable Securities which the Demanding Holders desire to sell, taken
together with all other Ordinary Shares or other securities which the Company
desires to sell and the Ordinary Shares, if any, as to which registration has
been requested pursuant to written contractual piggy-back registration rights
held by other shareholders of the Company who desire to sell, exceeds the
maximum dollar amount or maximum number of shares that can be sold in such
offering without adversely affecting the proposed offering price, the timing,
the distribution method, or the probability of success of such offering (such
maximum dollar amount or maximum number of shares, as applicable, the “Maximum
Number of Shares”), then the Company shall include in such registration:
(i) first, the Registrable Securities as to which Demand Registration has been
requested by the Demanding Holders (pro rata in accordance with the number of
shares that each such Person has requested be included in such registration,
regardless of the number of shares held by each such Person (such proportion is
referred to herein as “Pro
Rata”)) that can be sold without exceeding the Maximum Number of Shares;
(ii) second, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clause (i), the Ordinary Shares or other securities
that the Company desires to sell that can be sold without exceeding the Maximum
Number of Shares; (iii) third, to the extent that the Maximum Number of Shares
has not been reached under the foregoing clauses (i) and (ii), the Ordinary
Shares or other securities registrable pursuant to the terms of the Unit
Purchase Option to be issued to Xxxxxx or its designees in connection with the
Company’s IPO on ______, 2011 (the “Unit
Purchase Option” and such registrable securities, the “Option
Securities”) as to which "piggy-back" registration has been requested by
the holders thereof, Pro Rata, that can be sold without exceeding the Maximum
Number of Shares; and (iv) fourth, to the extent that the Maximum Number of
Shares have not been reached under the foregoing clauses (i), (ii), and (iii),
the Ordinary Shares or other securities for the account of other persons that
the Company is obligated to register pursuant to written contractual
arrangements with such persons and that can be sold without exceeding the
Maximum Number of Shares.
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2.1.5 Withdrawal. If a
majority-in-interest, on an as converted to Ordinary Share basis, of the
Demanding Holders disapprove of the terms of any underwriting or are not
entitled to include all of their Registrable Securities in any offering, such
majority-in-interest of the Demanding Holders may elect to withdraw from such
offering by giving written notice to the Company and the Underwriter or
Underwriters of their request to withdraw prior to the effectiveness of the
Registration Statement filed with the Commission with respect to such Demand
Registration. If the majority-in-interest, on an as converted to Ordinary Share
basis, of the Demanding Holders withdraws from a proposed offering relating to a
Demand Registration, then such registration shall not count as a Demand
Registration provided for in Section 2.1. Notwithstanding any such
withdrawal, the Company shall pay all expenses incurred by the Demanding
Holders.
2.1.6 Cancellation of
Registration. A majority-in-interest, on an as converted to
Ordinary Share basis, of the Demanding Holders shall have the right to cancel a
proposed registration of Registrable Securities pursuant to Section 2.1 when (i)
in their discretion, market conditions are so unfavorable as to be seriously
detrimental to an offering pursuant to such registration or (ii) the request for
cancellation is based upon material adverse information or event relating to the
Company that was unknown to the Demanding Holders at the time of their written
request for a Demand Registration. Such cancellation of a
registration shall not be counted as one of the two Demand Registrations
provided for in Section
2.1.
2.2 Piggy-Back
Registration.
2.2.1 Piggy-Back Rights. If
at any time on or after the date the Company consummates a Business Combination
the Company proposes to file a Registration Statement under the Securities Act
with respect to an offering of equity securities, or securities or other
obligations exercisable or exchangeable for, or convertible into, equity
securities, by the Company for its own account or for shareholders of the
Company for their account (or by the Company and by shareholders of the Company
including, without limitation, pursuant to Section 2.1), other than a
Registration Statement (i) filed in connection with any employee stock option or
other benefit plan, (ii) for an exchange offer or offering of securities solely
to the Company’s existing shareholders, (iii) for an offering of debt that is
convertible into equity securities of the Company or (iv) for a dividend
reinvestment plan, then the Company shall (x) give written notice of such
proposed filing to the holders of Registrable Securities as soon as practicable
but in no event less than ten (10) days before the anticipated filing date,
which notice shall describe the amount and type of securities to be included in
such offering, the intended method(s) of distribution, and the name of the
proposed managing Underwriter or Underwriters, if any, of the offering, and (y)
offer to the holders of Registrable Securities in such notice the opportunity to
register the sale of such number of shares of Registrable Securities as such
holders may request in writing within five (5) days following receipt of such
notice (a “Piggy-Back
Registration”). The Company shall cause such Registrable Securities to be
included in such registration and shall use its best efforts to cause the
managing Underwriter or Underwriters of a proposed underwritten offering to
permit the Registrable Securities requested to be included in a Piggy-Back
Registration on the same terms and conditions as any similar securities of the
Company and to permit the sale or other disposition of such Registrable
Securities in accordance with the intended method(s) of distribution thereof.
All holders of Registrable Securities proposing to distribute their securities
through a Piggy-Back Registration that involves an Underwriter or Underwriters
shall enter into an underwriting agreement in customary form with the
Underwriter or Underwriters selected for such Piggy-Back
Registration.
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2.2.2 Reduction of
Offering. If the managing Underwriter or Underwriters for a Piggy-Back
Registration that is to be an underwritten offering advises the Company and the
holders of Registrable Securities in writing that the dollar amount or number of
Ordinary Shares which the Company desires to sell, taken together with Ordinary
Shares, if any, as to which registration has been demanded pursuant to written
contractual arrangements with persons other than the holders of Registrable
Securities hereunder, the Registrable Securities as to which registration has
been requested under this Section 2.2, and the Ordinary Shares, if any, as to
which registration has been requested pursuant to the written contractual
piggy-back registration rights of other shareholders of the Company, exceeds the
Maximum Number of Shares, then the Company shall include in any such
registration:
a) If
the registration is undertaken for the Company’s account: (A) first, the
Ordinary Shares or other securities that the Company desires to sell that can be
sold without exceeding the Maximum Number of Shares; (B) second, to the extent
that the Maximum Number of Shares has not been reached under the foregoing
clause (A), the Ordinary Shares or other securities, if any, comprised
of Registrable Securities and Option Securities, as to which
registration has been requested pursuant to the applicable written contractual
piggy-back registration rights of such security holders, Pro Rata, that can be
sold without exceeding the Maximum Number of Shares; and (C) third, to the
extent that the Maximum Number of shares has not been reached under the
foregoing clauses (A) and (B), the Ordinary Shares or other securities for the
account of other persons that the Company is obligated to register pursuant to
written contractual piggy-back registration rights with such persons and that
can be sold without exceeding the Maximum Number of Shares;
b) If
the registration is a “demand” registration undertaken at the demand of holders
of Option Securities, (A) first, the Ordinary Shares or other securities for the
account of the demanding persons, Pro Rata, that can be sold without exceeding
the Maximum Number of Shares; (B) second, to the extent that the Maximum Number
of Shares has not been reached under the foregoing clause (A), the Ordinary
Shares or other securities that the Company desires to sell that can be sold
without exceeding the Maximum Number of Shares; (C) third, to the extent that
the Maximum Number of Shares has not been reached under the foregoing clauses
(A) and (B), the shares of Registrable Securities, Pro Rata, as to which
registration has been requested pursuant to the terms hereof, that can be sold
without exceeding the Maximum Number of Shares; and (D) fourth, to the extent
that the Maximum Number of Shares has not been reached under the foregoing
clauses (A), (B) and (C), the Ordinary Shares or other securities for the
account of other persons that the Company is obligated to register pursuant to
written contractual arrangements with such persons, that can be sold without
exceeding the Maximum Number of Shares; and
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c)
If the registration is a “demand” registration undertaken at the demand of
persons other than either the holders of Registrable Securities or of Option
Securities, (A) first, the Ordinary Shares or other securities for the account
of the demanding persons that can be sold without exceeding the Maximum Number
of Shares; (B) second, to the extent that the Maximum Number of Shares has not
been reached under the foregoing clause (A), the Ordinary Shares or other
securities that the Company desires to sell that can be sold without exceeding
the Maximum Number of Shares; (C) third, to the extent that the Maximum Number
of Shares has not been reached under the foregoing clauses (A) and (B),
collectively the Ordinary Shares or other securities comprised of Registrable
Securities and Option Securities, Pro Rata, as to which registration has been
requested pursuant to the terms hereof and of the Unit Purchase Option, as
applicable, that can be sold without exceeding the Maximum Number of Shares; and
(D) fourth, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clauses (A), (B) and (C), the Ordinary Shares or other
securities for the account of other persons that the Company is obligated to
register pursuant to written contractual arrangements with such persons, that
can be sold without exceeding the Maximum Number of Shares.
2.2.3 Withdrawal. Any
holder of Registrable Securities may elect to withdraw such holder’s request for
inclusion of Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of such request to withdraw prior to the
effectiveness of the Registration Statement. The Company (whether on its own
determination or as the result of a withdrawal by persons making a demand
pursuant to written contractual obligations) may withdraw a Registration
Statement at any time prior to the effectiveness of such Registration Statement.
Notwithstanding any such withdrawal, the Company shall pay all expenses incurred
by the holders of Registrable Securities in connection with such Piggy-Back
Registration as provided in Section 3.3.
2.2.4 Registrations on Form
S-3. The holders of Registrable Securities may at any time and from time
to time, request in writing that the Company register the resale of any or all
of such Registrable Securities on Form S-3 or any similar short-form
registration which may be available at such time (“Form
S-3”); provided, however, that the Company shall not be obligated to
effect such request through an underwritten offering. Upon receipt of such
written request, the Company will promptly give written notice of the proposed
registration to all other holders of Registrable Securities, and, as soon as
practicable thereafter, effect the registration of all or such portion of such
holder’s or holders’ Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities or other
securities of the Company, if any, of any other holder or holders joining in
such request as are specified in a written request given within fifteen (15)
days after receipt of such written notice from the Company; provided, however,
that the Company shall not be obligated to effect any such registration pursuant
to this Section 2.3: (i) if Form S-3 is not available for such offering; or (ii)
if the holders of the Registrable Securities, together with the holders of any
other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any) at any
aggregate price to the public of less than $500,000. Registrations
effected pursuant to this Section 2.3 shall not be counted as Demand
Registrations effected pursuant to Section 2.1.
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3. REGISTRATION
PROCEDURES.
3.1 Filings; Information.
Whenever the Company is required to effect the registration of any Registrable
Securities pursuant to Section 2, the Company shall use its best efforts to
effect the registration and sale of such Registrable Securities in accordance
with the intended method(s) of distribution thereof as expeditiously as
practicable, and in connection with any such request:
3.1.1 Filing Registration
Statement. The Company shall use its best efforts to, as expeditiously as
possible after receipt of a request for a Demand Registration pursuant to
Section 2.1, prepare and file with the Commission a Registration Statement on
any form for which the Company then qualifies or which counsel for the Company
shall deem appropriate and which form shall be available for the sale of all
Registrable Securities to be registered thereunder in accordance with the
intended method(s) of distribution thereof, and shall use its best efforts to
cause such Registration Statement to become effective and use its best efforts
to keep it effective for the period required by Section 3.1.3; provided,
however, that the Company shall have the right to defer any Demand Registration
for up to thirty (30) days, and any Piggy-Back Registration for such period as
may be applicable to deferment of any demand registration to which such
Piggy-Back Registration relates, in each case if the Company shall furnish to
the holders a certificate signed by the President or Chairman of the Company
stating that, in the good faith judgment of the Board of Directors of the
Company, it would be materially detrimental to the Company and its shareholders
for such Registration Statement to be effected at such time; provided further,
however, that the Company shall not have the right to exercise the right set
forth in the immediately preceding proviso more than once in any 365-day period
in respect of a Demand Registration hereunder.
3.1.2 Copies. The Company
shall, prior to filing a Registration Statement or prospectus, or any amendment
or supplement thereto, furnish without charge to the holders of Registrable
Securities included in such registration, and such holders’ legal counsel,
copies of such Registration Statement as proposed to be filed, each amendment
and supplement to such Registration Statement (in each case including all
exhibits thereto and documents incorporated by reference therein), the
prospectus included in such Registration Statement (including each preliminary
prospectus), and such other documents as the holders of Registrable Securities
included in such registration or legal counsel for any such holders may request
in order to facilitate the disposition of the Registrable Securities owned by
such holders.
3.1.3 Amendments and
Supplements. The Company shall prepare and file with the Commission such
amendments, including post-effective amendments, and supplements to such
Registration Statement and the prospectus used in connection therewith as may be
necessary to keep such Registration Statement effective and in compliance with
the provisions of the Securities Act until all Registrable Securities and other
securities covered by such Registration Statement have been disposed of in
accordance with the intended method(s) of distribution set forth in such
Registration Statement or such securities have been withdrawn.
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3.1.4 Notification. After
the filing of a Registration Statement, the Company shall promptly, and in no
event more than two (2) business days after such filing, notify the holders of
Registrable Securities included in such Registration Statement of such filing,
and shall further notify such holders promptly and confirm such advice in
writing in all events within two (2) business days of the occurrence of any of
the following: (i) when such Registration Statement becomes effective; (ii) when
any post-effective amendment to such Registration Statement becomes effective;
(iii) the issuance or threatened issuance by the Commission of any stop order
(and the Company shall take all actions required to prevent the entry of such
stop order or to remove it if entered); and (iv) any request by the Commission
for any amendment or supplement to such Registration Statement or any prospectus
relating thereto or for additional information or of the occurrence of an event
requiring the preparation of a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of the securities covered by
such Registration Statement, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
promptly make available to the holders of Registrable Securities included in
such Registration Statement any such supplement or amendment; except that before
filing with the Commission a Registration Statement or prospectus or any
amendment or supplement thereto, including documents incorporated by reference,
the Company shall furnish to the holders of Registrable Securities included in
such Registration Statement and to the legal counsel for any such holders,
copies of all such documents proposed to be filed sufficiently in advance of
filing to provide such holders and legal counsel with a reasonable opportunity
to review such documents and comment thereon, and the Company shall not file any
Registration Statement or prospectus or amendment or supplement thereto,
including documents incorporated by reference, to which such holders or their
legal counsel shall object.
3.1.5 State Securities Laws
Compliance. The Company shall use its best efforts to (i) register or
qualify the Registrable Securities covered by the Registration Statement under
such securities or “blue sky” laws of such jurisdictions in the United States as
the holders of Registrable Securities included in such Registration Statement
(in light of their intended plan of distribution) may request and (ii) take such
action necessary to cause such Registrable Securities covered by the
Registration Statement to be registered with or approved by such other
governmental authorities as may be necessary by virtue of the business and
operations of the Company and do any and all other acts and things that may be
necessary or advisable to enable the holders of Registrable Securities included
in such Registration Statement to consummate the disposition of such Registrable
Securities in such jurisdictions; provided, however, that the Company shall not
be required to qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph or subject
itself to taxation in any such jurisdiction.
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3.1.6 Agreements for
Disposition. The Company shall enter into customary agreements
(including, if applicable, an underwriting agreement in customary form) and take
such other actions as are reasonably required in order to expedite or facilitate
the disposition of such Registrable Securities. The representations, warranties
and covenants of the Company in any underwriting agreement which are made to or
for the benefit of any Underwriters, to the extent applicable, shall also be
made to and for the benefit of the holders of Registrable Securities included in
such registration statement. No holder of Registrable Securities included in
such registration statement shall be required to make any representations or
warranties in the underwriting agreement except, if applicable, with respect to
such holder’s organization, good standing, authority, title to Registrable
Securities, lack of conflict of such sale with such holder’s material agreements
and organizational documents, and with respect to written information relating
to such holder that such holder has furnished in writing expressly for inclusion
in such Registration Statement.
3.1.7 Cooperation. The
principal executive officer of the Company, the principal financial officer of
the Company, the principal accounting officer of the Company and all other
officers and members of the management of the Company shall cooperate fully in
any offering of Registrable Securities hereunder, which cooperation shall
include, without limitation, the preparation of the Registration Statement with
respect to such offering and all other offering materials and related documents,
and participation in meetings with Underwriters, attorneys, accountants and
potential investors.
3.1.8 Records. The Company
shall make available for inspection by the holders of Registrable Securities
included in such Registration Statement, any Underwriter participating in any
disposition pursuant to such registration statement and any attorney, accountant
or other professional retained by any holder of Registrable Securities included
in such Registration Statement or any Underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, as shall
be necessary to enable them to exercise their due diligence responsibility, and
cause the Company’s officers, directors and employees to supply all information
requested by any of them in connection with such Registration
Statement.
3.1.9 Opinions and Comfort
Letters. The Company shall furnish to each holder of Registrable
Securities included in any Registration Statement a signed counterpart,
addressed to such holder, of (i) any opinion of counsel to the Company delivered
to any Underwriter and (ii) any comfort letter from the Company’s independent
public accountants delivered to any Underwriter. In the event no legal opinion
is delivered to any Underwriter, the Company shall furnish to each holder of
Registrable Securities included in such Registration Statement, at any time that
such holder elects to use a prospectus, an opinion of counsel to the Company to
the effect that the Registration Statement containing such prospectus has been
declared effective and that no stop order is in effect.
3.1.10 Earnings Statement.
The Company shall comply with all applicable rules and regulations of the
Commission and the Securities Act, and make available to its shareholders, as
soon as practicable, an earnings statement covering a period of twelve (12)
months, which earnings statement shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder.
3.1.11 Listing. The Company
shall use its best efforts to cause all Registrable Securities included in any
registration to be listed on such exchanges or otherwise designated for trading
in the same manner as similar securities issued by the Company are then listed
or designated or, if no such similar securities are then listed or designated,
in a manner satisfactory to the holders of a majority of the Registrable
Securities included in such registration.
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3.1.12 FINRA. The
Company shall cooperate with each holder of Registrable Securities participating
in the offering and each Underwriter, if any, and their respective legal counsel
in connection with any filings required to be made with the Financial Industry
Regulatory Authority.
3.1.13 Other
Actions. The Company shall (i) take all other steps reasonably
necessary to effect the registration of the Registrable Securities contemplated
hereby and reasonably cooperate with the holders of such Registrable Securities
to facilitate the disposition of such Registrable Securities pursuant thereto;
(ii) make all required filings of all prospectuses with the Commission within
the deadlines specified by the Securities Act; and (iii) make all required
filing fee payments in respect of any Registration Statement or prospectus used
under this Agreement (and any offering covered thereby) within the deadlines
specified by the Securities Act.
3.2 Obligation to Suspend
Distribution. Upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3.1.4(iii) or (iv), or,
in the case of a resale registration on Form S-3 pursuant to Section 2.3 hereof,
upon any suspension by the Company, pursuant to a written xxxxxxx xxxxxxx
compliance program adopted by the Company’s Board of Directors, of the ability
of all “insiders” covered by such program to transact in the Company’s
securities because of the existence of material non-public information, each
holder of Registrable Securities included in any registration shall immediately
discontinue disposition of such Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such holder
receives the supplemented or amended prospectus contemplated by Section
3.1.4(iv) (or if no supplemental pr amended prospectus is required, upon
confirmation from the Company that use of the prospectus is once again
permitted) or the restriction on the ability of “insiders” to transact in the
Company’s securities is removed, as applicable, and, if so directed by the
Company, each such holder will deliver to the Company all copies, other than
permanent file copies then in such holder’s possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice. If the Company shall give any such notice, the Company shall extend the
period during which such Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice pursuant to Sections 3.1.4(iii)
or (iv), to and including the date when the holders of such Registrable
Securities participating in the offering under such Registration Statement shall
have received the copies of the supplemented or amended prospectus contemplated
by and meeting the requirements of Section 3.1.4 (or if
no supplemental or amended prospectus is required, upon confirmation from the
Company that use of the prospectus is once again permitted).
11
3.3 Registration
Expenses. The Company shall bear all costs and expenses incurred in
connection with any registration of Registrable Securities under this Agreement,
and all expenses incurred in performing or complying with its other obligations
under this Agreement, whether or not the Registration Statement becomes
effective, including, without limitation: (i) all registration and filing fees;
(ii) fees and expenses of compliance with securities or “blue sky” laws
(including fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities); (iii) printing expenses; (iv) the
Company’s internal expenses (including, without limitation, all salaries and
expenses of its officers and employees); (v) the fees and expenses incurred in
connection with the listing of the Registrable Securities as required by Section
3.1.11; (vi) Financial Industry Regulatory Authority fees; (vii) fees and
disbursements of counsel for the Company and fees and expenses for independent
certified public accountants retained by the Company (including the expenses or
costs associated with the delivery of any opinions or comfort letters requested
pursuant to Section 3.1.9); (viii) the fees and expenses of any special experts
retained by the Company in connection with such registration and (ix) the fees
and expenses of one legal counsel selected by the holders of a
majority-in-interest of the Registrable Securities included in such
registration. The Company shall have no obligation to pay any underwriting
discounts or selling commissions attributable to the Registrable Securities
being sold by the holders thereof, which underwriting discounts or selling
commissions shall be borne by such holders. Additionally, in an
underwritten offering, all selling shareholders and the Company shall bear the
expenses of the Underwriter pro rata in proportion to the respective amount of
shares each is selling in such offering.
3.4 Information. The
holders of Registrable Securities shall provide such information as may
reasonably be requested by the Company, or the managing Underwriter, if any, in
connection with the preparation of any Registration Statement, including
amendments and supplements thereto, in order to effect the registration of any
Registrable Securities under the Securities Act pursuant to Section 2 and in
connection with the Company’s obligation to comply with Federal and applicable
state securities laws.
4. INDEMNIFICATION AND
CONTRIBUTION.
4.1 Indemnification by the
Company. The Company agrees to indemnify and hold harmless each Investor
and each other holder of Registrable Securities, and each of their respective
officers, employees, affiliates, directors, partners, members, attorneys and
agents, and each person, if any, who controls an Investor and each other holder
of Registrable Securities (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) (each, an “Investor
Indemnified Party”), from and against any expenses, losses, judgments,
claims, damages or liabilities, or any action or proceeding in respect thereof
(including reasonable costs of investigation and reasonable attorneys’ fees and
expenses), whether joint or several, arising out of or based upon any untrue
statement (or allegedly untrue statement) of a material fact contained in any
Registration Statement under which the sale of such Registrable Securities was
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained in the Registration Statement, or any
amendment or supplement to such Registration Statement, or arising out of or
based upon any omission (or alleged omission) to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or any violation by the Company of the Securities Act or any rule or regulation
promulgated thereunder applicable to the Company and relating to action or
inaction required of the Company in connection with any such registration; and
the Company shall promptly reimburse the Investor Indemnified Party for any
legal and any other expenses reasonably incurred by such Investor Indemnified
Party in connection with investigating and defending any such expense, loss,
judgment, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such expense,
loss, claim, damage or liability arises out of or is based upon any untrue
statement or allegedly untrue statement or omission or alleged omission made in
such Registration Statement, preliminary prospectus, final prospectus, or
summary prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by such
selling holder expressly for use therein. The Company also shall indemnify any
Underwriter of the Registrable Securities, their officers, affiliates,
directors, partners, members and agents and each person who controls such
Underwriter on substantially the same basis as that of the indemnification
provided above in this Section 4.1.
12
4.2 Indemnification by Holders
of Registrable Securities. Each selling holder of Registrable Securities
will, in the event that any registration is being effected under the Securities
Act pursuant to this Agreement of any Registrable Securities held by such
selling holder, indemnify and hold harmless the Company, each of its directors
and officers and each Underwriter (if any), and each other selling holder and
each other person, if any, who controls another selling holder or such
Underwriter within the meaning of the Securities Act, against any losses,
claims, judgments, damages or liabilities, whether joint or several, insofar as
such losses, claims, judgments, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or allegedly untrue
statement of a material fact contained in any Registration Statement under which
the sale of such Registrable Securities was registered under the Securities Act,
any preliminary prospectus, final prospectus or summary prospectus contained in
the Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or the alleged
omission to state a material fact required to be stated therein or necessary to
make the statement therein not misleading, if the statement or omission was made
in reliance upon and in conformity with information furnished in writing to the
Company by such selling holder expressly for use therein, and shall reimburse
the Company, its directors and officers, and each other selling holder or
controlling person for any legal or other expenses reasonably incurred by any of
them in connection with investigation or defending any such loss, claim, damage,
liability or action. Each selling holder’s indemnification obligations hereunder
shall be several and not joint and shall be limited to the amount of any net
proceeds actually received by such selling holder.
4.3 Conduct of Indemnification
Proceedings. Promptly after receipt by any person of any notice of any
loss, claim, damage or liability or any action in respect of which indemnity may
be sought pursuant to Section 4.1 or 4.2, such person (the “Indemnified Party”)
shall, if a claim in respect thereof is to be made against any other person for
indemnification hereunder, notify such other person (the “Indemnifying
Party”) in writing of the loss, claim, judgment, damage, liability or
action; provided, however, that the failure by the Indemnified Party to notify
the Indemnifying Party shall not relieve the Indemnifying Party from any
liability which the Indemnifying Party may have to such Indemnified Party
hereunder, except and solely to the extent the Indemnifying Party is actually
prejudiced by such failure. If the Indemnified Party is seeking indemnification
with respect to any claim or action brought against the Indemnified Party, then
the Indemnifying Party shall be entitled to participate in such claim or action,
and, to the extent that it wishes, jointly with all other Indemnifying Parties,
to assume control of the defense thereof with counsel satisfactory to the
Indemnified Party. After notice from the Indemnifying Party to the Indemnified
Party of its election to assume control of the defense of such claim or action,
the Indemnifying Party shall not be liable to the Indemnified Party for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that in any action in which both the
Indemnified Party and the Indemnifying Party are named as defendants, the
Indemnified Party shall have the right to employ separate counsel (but no more
than one such separate counsel) to represent the Indemnified Party and its
controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Indemnified Party against the
Indemnifying Party, with the fees and expenses of such counsel to be paid by
such Indemnifying Party if, based upon the written opinion of counsel of such
Indemnified Party, representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party, consent to entry of judgment or effect any settlement of any claim or
pending or threatened proceeding in respect of which the Indemnified Party is or
could have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such judgment or settlement includes an unconditional
release of such Indemnified Party from all liability arising out of such claim
or proceeding.
13
4.4 Contribution.
4.4.1 If the indemnification
provided for in the foregoing Sections 4.1, 4.2 and 4.3 is unavailable to any
Indemnified Party in respect of any loss, claim, damage, liability or action
referred to herein, then each such Indemnifying Party, in lieu of indemnifying
such Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, claim, damage, liability or action
in such proportion as is appropriate to reflect the relative fault of the
Indemnified Parties and the Indemnifying Parties in connection with the actions
or omissions which resulted in such loss, claim, damage, liability or action, as
well as any other relevant equitable considerations. The relative fault of any
Indemnified Party and any Indemnifying Party 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 such Indemnified Party or such Indemnifying
Party and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
4.4.2 The parties hereto
agree that it would not be just and equitable if contribution pursuant to this
Section 4.4 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding Section 4.4.1.
4.4.3 The amount paid or
payable by an Indemnified Party as a result of any loss, claim, damage,
liability or action referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 4.4, no holder of Registrable Securities shall be
required to contribute any amount in excess of the dollar amount of the net
proceeds (after payment of any underwriting fees, discounts, commissions or
taxes) actually received by such holder from the sale of Registrable Securities
which gave rise to such contribution obligation. 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.
14
5. UNDERWRITING AND
DISTRIBUTION.
5.1 Rule 144. The Company
covenants that it shall file any reports required to be filed by it under the
Securities Act and the Exchange Act and shall take such further action as the
holders of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holders to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 under the Securities Act, as such Rules may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission.
6. MISCELLANEOUS.
6.1 Other Registration
Rights. Except with respect to those securities issued or issuable upon
exercise of that certain Unit Purchase Option to be issued to Xxxxxx or its
designees in connection with the Company’s IPO, the Company represents and
warrants that no person, other than a holder of the Registrable Securities, has
any right to require the Company to register any shares of the Company’s capital
stock for sale or to include shares of the Company’s capital stock in any
registration filed by the Company for the sale of shares of capital stock for
its own account or for the account of any other person.
6.2 Assignment; No Third Party
Beneficiaries. This Agreement and the rights, duties and obligations of
the Company hereunder may not be assigned or delegated by the Company in whole
or in part. This Agreement and the rights, duties and obligations of the holders
of Registrable Securities hereunder may be freely assigned or delegated by such
holder of Registrable Securities in conjunction with and to the extent of any
transfer of Registrable Securities by any such holder. This Agreement and the
provisions hereof shall be binding upon and shall inure to the benefit of each
of the parties, to Xxxxxx and its successors and the permitted assigns of the
Investor or holder of Registrable Securities or of any assignee of the Investor
or holder of Registrable Securities. This Agreement is not intended to confer
any rights or benefits on any persons that are not party hereto other than as
expressly set forth in Article 4 and this Section 6.2.
6.3 Notices. All notices,
demands, requests, consents, approvals or other communications (collectively,
“Notices”)
required or permitted to be given hereunder or which are given with respect to
this Agreement shall be in writing and shall be personally served, delivered by
reputable air courier service with charges prepaid, or transmitted by hand
delivery, telegram, telex or facsimile, addressed as set forth below, or to such
other address as such party shall have specified most recently by written
notice. Notice shall be deemed given on the date of service or transmission if
personally served or transmitted by telegram, telex or facsimile; provided, that
if such service or transmission is not on a business day or is after normal
business hours, then such notice shall be deemed given on the next business day.
Notice otherwise sent as provided herein shall be deemed given on the next
business day following timely delivery of such notice to a reputable air courier
service with an order for next-day delivery.
15
To the
Company:
Xx Xxxx.
Xxxxx Xxxx
0000-00
Xxxxx
Brasilinvest
Plaza CEP 01452-002
Sao
Paulo, Brazil
Attn: Chairman
with a
copy to:
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx
XX 00000
Attn: Xxxxx
Xxxx Xxxxxx, Esq.
To an
Investor, to:
Rosewood
Partners
Xx Xxxx.
Xxxxx Xxxx
0000-00
Xxxxx
Brasilinvest
Plaza CEP 01452-002
Sao
Paulo, Brazil
Xxxxx
Xxxxxxx
Xx Xxxx.
Xxxxx Xxxx
0000-00
Xxxxx
Brasilinvest
Plaza CEP 01452-002
Sao
Paulo, Brazil
Xxxxxxxx
Xxxxxxx
Xx Xxxx.
Xxxxx Xxxx
0000-00
Xxxxx
Brasilinvest
Plaza CEP 01452-002
Sao
Paulo, Brazil
Xxxx xx
Xxxxxxx Sampaio Filho
Xx Xxxx.
Xxxxx Xxxx
0000-00
Xxxxx
Brasilinvest
Plaza CEP 01452-002
Sao
Paulo, Brazil
Xxxxxx
Xxxxxxx xx Xxxxxxx
Rua 01,
Number 900, Apt. 601, Edificio Notre Dame
Seton
Oeste, Brazil
00
Xxxxxxxxxx
Xxxxxxx
Xxxxx
Power Enterprises, Inc.
Xx Xxxx.
Xxxxx Xxxx
0000-00
Xxxxx
Brasilinvest
Plaza CEP 01452-002
Sao
Paulo, Brazil
6.4 Severability. This
Agreement shall be deemed severable, and the invalidity or unenforceability of
any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore, in lieu of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar in
terms to such invalid or unenforceable provision as may be possible that is
valid and enforceable.
6.5 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, and all of which taken together shall constitute one and the
same instrument.
6.6 Entire Agreement.
This Agreement (including all agreements entered into pursuant hereto and all
certificates and instruments delivered pursuant hereto and thereto) constitute
the entire agreement of the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous agreements, representations,
understandings, negotiations and discussions between the parties, whether oral
or written.
6.7 Modifications and
Amendments. No amendment, modification or termination of this Agreement
shall be binding upon any party unless executed in writing by the Company and
the holders of a majority in interest, on an as converted basis to Ordinary
Share basis, of the Registrable Securities. Notwithstanding the
foregoing, any and all parties must obtain the written consent of Xxxxxx to
amend or modify this Agreement.
6.8 Titles and Headings.
Titles and headings of sections of this Agreement are for convenience only and
shall not affect the construction of any provision of this
Agreement.
6.9 Waivers and
Extensions. Any party to this Agreement may waive any right, breach or
default which such party has the right to waive, provided that such waiver will
not be effective against the waiving party unless it is in writing, is signed by
such party, and specifically refers to this Agreement. Waivers may be
made in advance or after the right waived has arisen or the breach or default
waived has occurred. Any waiver may be conditional. No waiver of any breach of
any agreement or provision herein contained shall be deemed a waiver of any
preceding or succeeding breach thereof nor of any other agreement or provision
herein contained. No waiver or extension of time for performance of any
obligations or acts shall be deemed a waiver or extension of the time for
performance of any other obligations or acts.
17
6.10 Remedies Cumulative.
In the event that the Company fails to observe or perform any covenant or
agreement to be observed or performed under this Agreement, the Investor or any
other holder of Registrable Securities may proceed to protect and enforce its
rights by suit in equity or action at law, whether for specific performance of
any term contained in this Agreement or for an injunction against the breach of
any such term or in aid of the exercise of any power granted in this Agreement
or to enforce any other legal or equitable right, or to take any one or more of
such actions, without being required to post a bond. None of the rights, powers
or remedies conferred under this Agreement shall be mutually exclusive, and each
such right, power or remedy shall be cumulative and in addition to any other
right, power or remedy, whether conferred by this Agreement or now or hereafter
available at law, in equity, by statute or otherwise.
6.11 Governing Law. This
Agreement shall be governed by, interpreted under, and construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed within the State of New York, without giving effect to any
choice-of-law provisions thereof that would compel the application of the
substantive laws of any other jurisdiction. The parties hereto agree that any
action, proceeding or claim against it arising out of or relating in any way to
this Agreement shall be brought and enforced in the courts of the State of New
York or the United States District Court for the Southern District of New York,
and the parties hereto irrevocably submit to such jurisdiction, which
jurisdiction shall be exclusive. The parties hereto hereby waive any
objection to such exclusive jurisdiction and that such courts represent and
inconvenient forum.
6.12 Waiver of Trial by
Jury. Each party hereby irrevocably and unconditionally waives the right
to a trial by jury in any action, suit, counterclaim or other proceeding
(whether based on contract, tort or otherwise) arising out of, connected with or
relating to this Agreement, the transactions contemplated hereby, or the actions
of the Investor in the negotiation, administration, performance or enforcement
hereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
18
IN WITNESS WHEREOF, the parties have
caused this Registration Rights Agreement to be executed and delivered by their
duly authorized representatives as of the date first written above.
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By:
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INVESTORS:
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ROSEWOOD
PARTNERS
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By:
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Name:
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Title:
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Xxxxx
Xxxxxxx
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Xxxxxxxx
Xxxxxxx
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Xxxx
xx Xxxxxxx Xxxxxxx Xxxxx
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Xxxxxx
Xxxxxxx xx Xxxxxxx
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Xxxxxxxxxx
Xxxxxxx
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XXXXXX
& XXXXXXX, LLC
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By:
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Name:
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Title:
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