EXHIBIT 4.1
COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into
as of May 10, 2007 (the "Effective Date"), by and between GERON CORPORATION, a
Delaware corporation having its principal place of business at 000 Xxxxxxxxxxxx
Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000 ("Geron"), and EXPONENT, INC., a Delaware
corporation having its principal place of business at 000 Xxxxxxxxxxxx Xxxxx,
Xxxxx Xxxx, XX 00000 ("Lessor").
X. Xxxxx and Lessor are the parties to that certain Lease Agreement
dated as of April 20, 2007 (the "Lease Agreement"), under which
Geron has agreed to lease certain office space (the "Property")
from Lessor in accordance with the terms of the Lease Agreement.
B. Pursuant to the Lease Agreement, Geron may pay the aggregate
rental fee for the Property (the "Rental Fee") due under the
Lease Agreement by delivery of shares of Geron's Common Stock
(the "Shares").
THE PARTIES AGREE AS FOLLOWS:
1. ISSUANCE OF SHARES; ADJUSTMENTS.
1.1 As payment of the Rental Fee, Geron will issue and deliver to
Lessor certificates for 210,569 Shares. Upon issuance and
delivery of the certificate(s) for the Shares, all Shares shall
be duly authorized and validly issued and represent fully paid
shares of Geron's Common Stock.
2. CLOSING; DELIVERY.
2.1 The consummation of the transaction contemplated by this
Agreement (a "Closing") shall be held at such time and place as
is mutually agreed upon between the parties, but in any event no
later than five (5) business days after the Effective Date hereof
(the "Closing Date"). At the Closing, Geron shall deliver to
Lessor one or more certificates representing all of the Shares,
which Shares shall be issued in the name of Lessor or its
designee and in such denominations as Lessor shall specify.
2.2 Geron's obligations to issue and deliver the stock certificate(s)
representing the Shares to Lessor at the Closing shall be subject
to the following conditions, which may be waived by Geron:
2.2.1 the covenants and obligations that Lessor is required to
perform or to comply with pursuant to this Agreement, at or
prior to the Closing, must have been duly performed and
complied with in all material respects; and
2.2.2 the representations and warranties made by Lessor herein
shall be true and correct in all material respects as of the
Closing Date.
2.3 Lessor's obligation to accept delivery of the stock
certificate(s) representing the Shares at the Closing shall be
subject to the following conditions, any one or more of which may
be waived by Lessor:
2.3.1 the covenants and obligations that Geron is required to
perform or to comply with pursuant to this Agreement, at or
prior to the Closing, must have been duly performed and
complied with in all material respects;
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2.3.2 Geron shall have available under its Certificate of
Incorporation sufficient authorized shares of Common Stock
to issue the Shares to Lessor; and
2.3.3 the representations and warranties made by Geron herein
shall be true and correct in all material respects as of the
closing date;
3. RESTRICTIONS ON RESALE OF SHARES.
3.1 Legends. Lessor understands and acknowledges that the Shares are
not registered under the Securities Act of 1933 (the "Act"), and
that under the Act and other applicable laws Lessor may be
required to hold such Shares for an indefinite period of time.
Each stock certificate representing Shares shall bear the
following legends:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). ANY TRANSFER
OF SUCH SECURITIES SHALL BE INVALID UNLESS A REGISTRATION
STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH TRANSFER OR, IN
THE OPINION OF COUNSEL REASONABLY ACCEPTABLE TO GERON, SUCH
REGISTRATION IS UNNECESSARY FOR SUCH TRANSFER TO COMPLY WITH THE
ACT. THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE TERMS
OF THE COMMON STOCK PURCHASE AGREEMENT BY AND BETWEEN LESSOR AND
LESSEE, DATED AS OF MAY 10, 2007. A COPY OF THE AGREEMENT CAN BE
OBTAINED FROM THE SECRETARY OF GERON."
3.2 Limits on Sales. Lessor agrees that if it decides to resell some
or all of the Shares, it will do so only through orderly sales
executed through a top tier brokerage house, and in an
appropriate manner based upon whether the shares are registered
or unregistered, i.e., on the Nasdaq National Market or in a Rule
144A or Rule 144 compliant transaction.
3.3 Removal of Legends. Any legend endorsed on a certificate
evidencing the Shares shall be removed, and Geron shall issue a
certificate without such legend to the holder of such Shares, if
such Shares are being sold pursuant to an effective registration
statement under the Act or pursuant to Rule 144 promulgated
thereunder, and the purchaser of Shares so sold may immediately
resell such Shares without restriction and without registration;
provided, however, that in the case of a sale pursuant to Rule
144, such holder of Shares shall provide such information as is
reasonably requested by Geron to ensure that such Shares may be
sold in reliance on Rule 144.
4. REGISTRATION RIGHTS
4.1 Geron agrees to make commercially reasonable efforts to file with
the Securities and Exchange Commission (the "Commission"), within
ten (10) business days after the Closing Date, a registration
statement under the Act (the "Registration Statement"), on Form
S-3 or other appropriate form, so as to permit a non-underwritten
public offering and resale of the Shares under the Act by Lessor.
Geron will exercise reasonable efforts to cause the form of the
Registration Statement all applicable requirements of the Act and
the regulations of the Commission thereunder. Geron agrees to
diligently pursue making the Registration Statement effective.
Geron will notify Lessor of the effectiveness of the Registration
Statement within one (1) business day of receiving notice from
the Commission.
4.2 Geron will maintain the Registration Statement and any
post-effective amendment thereto filed under this Section 4
effective under the Act until the earliest of (i) the date that
none of the Shares covered by such Registration Statement are
issued and outstanding, (ii) the date that all of the Shares have
been sold pursuant to such Registration Statement, (iii) the date
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Lessor receives an opinion of counsel from Geron, which counsel
shall be reasonably acceptable to Lessor, that all of the Shares
may be sold in any three month period under the provisions of
Rule 144, (iv) the date that all Shares have been otherwise
transferred to persons who may trade such Shares without
restriction under the Act, and Geron has delivered a new
certificate or other evidence of ownership for such securities
not bearing a restrictive legend, or (v) the date all Shares may
be sold at any time, without volume or manner of sale limitations
pursuant to Rule 144(k) or any similar provision then in effect
under the Act in the opinion of counsel to Geron, which counsel
shall be reasonably acceptable to Lessor.
4.3 Geron, at its expense, shall furnish to Lessor with respect to
the Shares registered under the Registration Statement such
reasonable number of copies of the Registration Statement,
prospectuses and preliminary prospectuses in conformity with the
requirements of the Act and such other documents as Lessor may
reasonably request, in order to facilitate the public sale or
other disposition of all or any of the Shares by Lessor,
provided, however, that the obligation of Geron to deliver copies
of prospectuses or preliminary prospectuses to Lessor shall be
subject to the receipt by Geron of reasonable assurances from
Lessor that Lessor will comply with the applicable provisions of
the Act and of such other securities or blue sky laws as may be
applicable in connection with any use of such prospectuses or
preliminary prospectuses.
4.4 All fees, disbursements and out-of-pocket expenses and costs
incurred by Geron in connection with the preparation and filing
of the Registration Statement under Section 4.1 and in complying
with applicable securities and Blue Sky laws (including, without
limitation, all attorneys' fees of Geron) shall be borne by
Geron. Lessor shall bear the cost of fees and expenses of
Lessor's counsel.
4.5 Geron will advise Lessor promptly after it shall receive notice
or obtain knowledge of the issuance of any stop order by the
Commission delaying or suspending the effectiveness of the
Registration Statement or of the initiation of any proceeding for
that purpose, and Geron will use its commercially reasonable
efforts to prevent the issuance of any stop order or to obtain
its withdrawal at the earliest possible moment if such stop order
should be issued. If any event or circumstance occurs that causes
the Registration Statement or any prospectus or supplement
therein to not comply with the Act or the rules and regulations
issued thereunder, Geron shall promptly notify Lessor and shall
promptly amend or supplement the Registration Statement and/or
prospectus so as to bring it into compliance with the Act and the
rules and regulations thereunder. Upon such notification by Geron
of the foregoing, Lessor will promptly suspend its offer and sale
of Shares until Geron has notified Lessor that it has prepared
and filed with the Commission a supplement or amendment to the
Registration Statement and has been notified of the effectiveness
of the Registration Statement, as supplemented or amended.
4.6 With a view to making available to Lessor the benefits of Rule
144 (or its successor rule) and any other rule or regulation of
the Commission that may at the time permit Lessor to sell the
Shares to the public without registration, Geron covenants and
agrees to: (i) make and keep public information available, as
those terms are understood and defined in Rule 144, until the
earliest of (A) such date as all of the Shares may be resold
pursuant to Rule 144(k) or any other rule of similar effect or
(B) such date as all of the Shares shall have been resold; and
(ii) file with the Commission in a timely manner all reports and
other documents required of Geron under the Act and under the
Securities Exchange Act of 1934 (the "Exchange Act"), as amended.
4.7 Lessor will cooperate with Geron in all respects in connection
with this Agreement, including timely supplying all information
reasonably requested by Geron (which shall include all
information regarding Lessor and proposed manner of sale of the
Shares required to be disclosed in any Registration Statement)
and executing and returning all documents reasonably requested in
connection with the registration and sale of the Nothing in this
Agreement shall obligate Lessor to consent to be named as an
underwriter in any Registration Statement.
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4.8 Geron shall prepare and file with the SEC such amendments and
supplements to the Registration Statement as may be necessary to
comply with the provisions of the Act with respect to the
disposition of all Shares covered by the Registration Statement;
provided, however, that before filing a registration statement or
any amendments or supplements thereto, or comparable statements
under securities or blue sky laws of any jurisdiction, Geron will
furnish to one counsel to be designated by Lessor, copies of all
such documents proposed to be filed.
5. INDEMNIFICATION.
5.1 Geron agrees to indemnify and hold harmless Lessor (and each
person, if any, who controls Lessor within the meaning of Section
15 of the Act, and each officer and director of Lessor) against
any and all losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), joint or several, directly or
indirectly based upon or arising out of (i) any untrue statement
or alleged untrue statement of any material fact contained in the
Registration Statement, any preliminary prospectus, final
prospectus or summary prospectus contained therein or used in
connection with the offering of the Shares, or any amendment or
supplement thereto, or (ii) any omission or alleged omission to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and Geron will
reimburse each such indemnified party for any legal or any other
expenses reasonably incurred by them in connection with
investigating, preparing, pursuing or defending any such loss,
claim, damage, liability, action or proceeding, except insofar as
any such loss, claim, damage, liability, action, proceeding or
expense (A) arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in
the Registration Statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information
furnished to Geron by Lessor or such other person expressly for
use in the preparation thereof, (B) the failure of Lessor to
comply with its covenants and agreements contained in Sections
7.1 or 7.5.2 hereof or (C) any misstatement or omission in any
prospectus that is corrected in any subsequent prospectus that
was delivered to Lessor prior to the pertinent sale or sales by
Lessor. Such indemnity shall remain in full force and effect,
regardless of any investigation made by such indemnified party
and shall survive the transfer of the Shares by Lessor.
5.2 Lessor agrees to indemnify and hold harmless Geron (and each
person, if any, who controls Geron within the meaning of Section
15 of the Act, each officer of Geron who signs the Registration
Statement and each director of Geron) from and against losses,
claims, damages or liabilities (or actions or proceedings in
respect thereof), joint or several, directly or indirectly based
upon or arising out of, (i) any failure of Lessor to comply with
the covenants and agreements contained in Sections 7.1 and 7.5.2
hereof or (ii) any untrue statement of a material fact contained
in the Registration Statement or any omission of a material fact
required to be stated in the Registration Statement or necessary
in order to make the statements in the Registration Statement not
misleading if such untrue statement or omission was made in
reliance upon and in conformity with written information
furnished to Geron by or on behalf of Lessor specifically for use
in preparation of the Registration Statement; provided, however,
that Lessor shall not be liable in any such case for (A) any
untrue statement or omission in the Registration Statement,
prospectus, or other such document which statement is corrected
by Lessor and delivered to Geron prior to the sale from which
such loss occurred, (B) any untrue statement or omission in any
prospectus which is corrected by Lessor in any subsequent
prospectus, or supplement or amendment thereto, and delivered to
Geron prior to the sale or sales from which a loss or liability
arose, or (C) any failure by Geron to fulfill any of its
obligations under Section 5.1 hereof.
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5.3 Promptly after receipt by any indemnified person of a notice of a
claim or the beginning of any action in respect of which
indemnity is to be sought against an indemnifying person pursuant
to this Section 5, such indemnified person shall notify the
indemnifying person in writing of such claim or of the
commencement of such action, but the omission to so notify the
indemnifying party will not relieve it from any liability which
it may have to any indemnified party under this Section 5 (except
to the extent that such omission materially and adversely affects
the indemnifying party's ability to defend such action) or from
any liability otherwise than under this Section 5. Subject to the
provisions hereinafter stated, in case any such action shall be
brought against an indemnified person, the indemnifying person
shall be entitled to participate therein, and, to the extent that
it shall elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such
indemnified party, shall be entitled to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified
person. After notice from the indemnifying person to such
indemnified person of its election to assume the defense thereof,
such indemnifying person shall not be liable to such indemnified
person for any legal expense subsequently incurred by such
indemnified person in connection with the defense thereof,
provided, however, that if there exists or shall exist a conflict
of interest that would make inappropriate, in the reasonable
opinion of counsel to the indemnified person, for the same
counsel to represent both the indemnified person and such
indemnifying person or any affiliate or associate thereof, the
indemnified person shall be entitled to retain its own counsel at
the expense of such indemnifying person; provided, however, that
no indemnifying person shall be responsible for the fees and
expenses of more than one separate counsel (together with
appropriate local counsel) for all indemnified parties. In no
event shall any indemnifying person be liable in respect to any
amounts paid in settlement of any action unless the indemnifying
person shall have approved the terms of such settlement. No
indemnifying person shall, without the prior written consent of
the indemnified person, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified person
is or could have been a party and indemnification could have been
sought hereunder by such indemnified person, unless such
settlement includes an unconditional release of such indemnified
person from all liability on claims that are the subject matter
of such proceeding.
5.5 The provisions of this Section 5 shall survive the termination of
this Agreement.
6. REPRESENTATIONS AND COVENANTS OF GERON.
Geron hereby represents, warrants and covenants to Lessor as follows:
6.1 Organization, Good Standing and Qualification. Geron is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite
corporate power and authority to carry on its business as now
conducted and as presently proposed to be conducted. Geron is
duly qualified to transact business and is in good standing as a
foreign corporation in each jurisdiction in which the failure to
so qualify would have a material adverse effect on its business
or properties.
6.2 Authorization. All corporate action on the part of Geron, its
officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the
performance of all obligations of Geron hereunder and the
authorization, issuance and delivery of the Shares has been taken
or will be taken prior to the Closing, and this Agreement, when
executed and delivered, will constitute the valid and legally
binding obligations of Geron, enforceable against Geron in
accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other laws of general application affecting
enforcement of creditors' rights generally, as limited by laws
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relating to the availability of specific performance, injunctive
relief or other equitable remedies. The execution and performance
by Geron of its obligations under this Agreement does not
conflict with (a) the charter or bylaws of Geron or (b) any law,
rule or regulation applicable to Geron which would have a
material adverse effect on Geron's performance of its obligations
hereunder, or to the best of Geron's knowledge as of the
Effective Date, does not cause a material breach under or default
of any material contract or agreement to which Geron is a party
or by which any of its material properties or assets are bound.
6.3 Valid Issuance of Common Stock. The Shares, when issued, sold and
delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly
authorized and issued, fully paid and nonassessable and free of
restrictions on transfer other than restrictions on transfer
under this Agreement and applicable state and federal securities
laws.
6.4 Legal Proceedings and Orders. There is no action, suit,
proceeding or investigation pending or threatened against Geron
that questions the validity of this Agreement or the right of
Geron to enter into this Agreement or to consummate the
transactions contemplated hereby, nor is Geron aware of any basis
for any of the forgoing. Geron is neither a party to nor subject
to the provisions of any order, writ, injunction, judgment or
decree of any court or government agency or instrumentality that
would affect the ability of Geron to enter into this Agreement or
to consummate the transactions contemplated hereby.
6.5 Securities Compliance. To the best of its knowledge as of the
Effective Date of this Agreement, Geron is in material compliance
with all applicable requirements of the Act, and the rules of the
Nasdaq National Market, and has made all filings required to be
made by it with the Commission.
7. REPRESENTATIONS AND ACKNOWLEDGMENTS OF LESSOR.
Lessor hereby represents, warrants, acknowledges and agrees that:
7.1 Investment. Lessor is acquiring the Shares for Lessor's own
account, and not directly or indirectly for the account of any
other person. Lessor is acquiring the Shares for investment and
not with a view to distribution or resale thereof, except in
compliance with the Act and any applicable state law regulating
securities.
7.2 Access to Information. Lessor has consulted with its own
attorney, accountant, or investment advisor as Lessor has deemed
advisable with respect to the investment and has determined its
suitability for Lessor. Lessor has had the opportunity to ask
questions of, and to receive answers from, appropriate executive
officers of Geron with respect to the terms and conditions of the
transactions contemplated hereby and with respect to the
business, affairs, financial condition and results of operations
of Geron. Lessor has had access to such financial and other
information as is necessary in order for Lessor to make a fully
informed decision as to investment in Geron, and has had the
opportunity to obtain any additional information necessary to
verify any of such information to which Lessor has had access.
Lessor acknowledges that neither Geron nor any of its officers,
directors, employees, agents, representatives, or advisors has
made any representation or warranty other than those specifically
expressed herein.
7.3 Business and Financial Expertise. Lessor further represents and
warrants that it has such business or financial expertise as to
be able to evaluate its investment in Geron and purchase of the
Shares.
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7.4 Speculative Investment. Lessor acknowledges that the
investment in Geron represented by the Shares is highly
speculative in nature and is subject to a high degree of risk
of loss in whole or in part; the amount of such investment is
within Lessor's risk capital means and is not so great in
relation to Lessor's total financial resources as would
jeopardize the personal financial needs of Lessor in the event
such investment were lost in whole or in part.
7.5 Unregistered Securities. Lessor acknowledges that:
7.5.1 Lessor must bear the economic risk of investment for an
indefinite period of time because the Shares have not been
registered under the Act and therefore cannot and will not
be sold unless they are subsequently registered under the
Act or an exemption from such registration is available.
Geron has made no agreements, covenants or undertakings
whatsoever to register any of the Shares under the Act,
except as provided in Section 4 above. Geron has made no
representations, warranties or covenants whatsoever as to
whether any exemption from the Act, including, without
limitation, any exemption for limited sales in routine
brokers' transactions pursuant to Rule 144 under the Act,
will become available and any such exemption pursuant to
Rule 144, if available at all, will not be available unless:
(i) a public trading market then exists in Geron's common
stock, (ii) Geron has complied with the information
requirements of Rule 144, and (iii) all other terms and
conditions of Rule 144 have been satisfied.
7.5.2 Transfer of the Shares has not been registered or qualified
under any applicable state law regulating securities and,
therefore, the Shares cannot and will not be sold unless
they are subsequently registered or qualified under any such
act or an exemption therefrom is available. Geron has made
no agreements, covenants or undertakings whatsoever to
register or qualify any of the Shares under any such act
except as provided in Section 4 above. Geron has made no
representations, warranties or covenants whatsoever as to
whether any exemption from any such act will become
available.
7.5.3 Lessor hereby certifies that it is an "Accredited Investor"
as that term is defined in Rule 501 under the Act.
8. TAX ADVICE. Lessor acknowledges that Lessor has not relied and will
not rely upon Geron or Geron's counsel with respect to any tax
consequences related to the ownership, purchase, or disposition of the
Shares. Lessor assumes full responsibility for all such consequences
and for the preparation and filing of all tax returns and elections
which may or must be filed in connection with the Shares.
9. NOTICES. Any notice, demand or other communication required or
permitted hereunder shall be in writing and shall be deemed to have
been duly given on the date of delivery if delivered personally or by
facsimile, or one day, not including Saturdays, Sundays, or national
holidays, after sending if sent by national overnight delivery
service, or five days, not including Saturdays, Sundays, or national
holidays, after mailing if mailed by first class United States mail,
certified or registered with return receipt requested, postage
prepaid, and addressed as follows:
To Geron at: Geron Corporation
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Lessor at: Exponent, Inc.
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telephone:
--------------------------
Facsimile:
--------------------------
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10. BINDING EFFECT. This Agreement shall be binding upon the heirs, legal
representatives and successors of Geron and of Lessor; provided,
however, that Lessor may not assign any rights or obligations under
this Agreement. Geron may not assign any of its rights or obligations
under this Agreement.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
12. INVALID PROVISIONS. In the event that any provision of this Agreement
is found to be invalid or otherwise unenforceable by a court or other
tribunal of competent jurisdiction, such invalidity or
unenforceability shall not be construed as rendering any other
provision contained herein invalid or unenforceable, and all such
other provisions shall be given full force and effect to the same
extent as though the invalid and unenforceable provision was not
contained herein.
13. COUNTERPARTS. This Agreement may be executed in any number of
identical counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
14. AMENDMENTS. This Agreement or any provision hereof may be changed,
waived, or terminated only by a statement in writing signed by the
party against whom such change, waiver or termination is sought to be
enforced.
15. FUTURE COOPERATION. Each of the parties hereto agrees to cooperate at
all times from and after the date hereof with respect to all of the
matters described herein, and to execute such further assignments,
releases, assumptions, amendments of the Agreement, notifications and
other documents as may be reasonably requested for the purpose of
giving effect to, or evidencing or giving notice of, the transactions
contemplated by this Agreement.
16. ENTIRE AGREEMENT. This Agreement and the Lease Agreement, constitute
the entire agreement of the parties pertaining to the Shares and
supersede all prior and contemporaneous agreements, representations,
and understandings of the parties with respect thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
Purchase Agreement as of the date first above written.
Geron Corporation
/s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
By: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
Lessor
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
By: Xxxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer and
Corporate Secretary
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