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EXHIBIT 4.4
THIS WARRANT AND ANY SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND NEITHER THIS WARRANT NOR ANY SUCH SHARES MAY BE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT.
WARRANT
To Purchase Common Stock of
STAFF LEASING, INC.,
a Florida corporation
THIS IS TO CERTIFY that [___________________ OR HIS REGISTERED
ASSIGNS], [__________ ______________, A _________________, HAVING ITS PRINCIPAL
PLACE OF BUSINESS AT ______________________________, OR ITS REGISTERED ASSIGNS],
is entitled upon the due exercise hereof at any time during the Exercise Period
(as hereinafter defined) to purchase _________ shares of Common Stock, $.01 par
value, of Staff Leasing, Inc., a Florida corporation (the "Company"), at an
exercise price of $___________ per share (the "Exercise Price"), as such price
may be adjusted pursuant to Article IV, and to exercise the other rights, powers
and privileges hereinafter provided, all on the terms and subject to the
conditions set forth herein. The foregoing Exercise Price and number of shares
of Common Stock purchasable hereunder are subject to adjustment as hereinafter
set forth.
ARTICLE I
DEFINITIONS
The terms defined in this Article I, whenever used in this Warrant,
shall have the following respective meanings:
"Adjustment Transaction" means any of (i) the declaration of a
dividend upon, or distribution in respect of, any of the Company's
capital stock, payable in Common Stock, Convertible Securities or Stock
Purchase Rights, (ii) the subdivision or combination by the Company of
its outstanding Common Stock into a larger or smaller number of shares
of Common Stock, as the case may be, (iii) any capital reorganization
or reclassification of the capital stock of the Company, (iv) the
consolidation or merger of the Company with or into another
corporation, (v) the sale or transfer of the property of the Company as
(or substantially as) an entirety, or (vi) any event as to which the
foregoing clauses are not
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strictly applicable but the failure to make an adjustment in the
Exercise Price hereunder would not fairly protect the purchase rights,
without dilution, represented by this Warrant.
"Affiliate" means, when used with respect to a specified
Person, any other Person directly or indirectly controlling, controlled
by, or under direct or indirect common control with the specified
Person. For purposes of this definition, "control" when used with
respect to any Person includes, without limitation, the direct or
indirect beneficial ownership of more than ten percent (10%) of the
outstanding voting securities or voting equity of such Person or the
power to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"Assignment" means the form of Assignment set forth on
Exhibit 1-A.
"Closing Date" means _______________, 1997.
"Commission" means the Securities and Exchange Commission or
another Federal agency from time to time administering the Securities
Act.
"Common Stock" means the Common Stock of the Company, $.01
par value.
"Company" has the meaning set forth on the cover page of this
Warrant and shall include any successor corporation.
"Convertible Securities" means evidences of indebtedness,
shares of stock or other securities which are convertible into or
exchangeable for, with or without payment of additional consideration,
additional shares of Common Stock, either immediately or upon the
arrival of a specified date or the happening of a specified event.
"Current Market Price" as to any security on any date
specified herein means the average of the daily closing prices for the
thirty (30) consecutive trading days before such date excluding any
trades which are not bona fide arm's length transactions. The closing
price for each day shall be (i) the mean between the closing high bid
and low asked quotations of any such security in the over-the-counter
market as shown by the National Association of Securities Dealers,
Inc., Automated Quotation System, or any similar system of automated
dissemination of quotations of securities prices then in common use, if
so quoted, as reported by any member firm of the New York Stock
Exchange selected by the Company, (ii) if not quoted as described in
clause (i), the mean between the high bid and low asked quotations for
any such security as reported by the National Quotation Bureau
Incorporated or any similar successor organization, as reported by any
member firm of the New York Stock Exchange selected by the Company, or
(iii) if any such security is listed or admitted for trading on any
national securities exchange, the last sale price of any such security,
or the mean of the closing bid and asked prices thereof if no such sale
occurred, in each case as officially reported on the principal
securities exchange on which any such security is listed. If any such
security is quoted on a national securities or central market system in
lieu of a market or quotation system described above, the closing price
shall be
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determined in the manner set forth in clause (i) of the preceding
sentence if bid and asked quotations are reported but actual
transactions are not, and in the manner set forth in clause (iii) of
the preceding sentence if actual transactions are reported.
"Exercise Period" means the period commencing on the Closing
Date and terminating on March 31, 2001.
"Initial Holder" means the Person whose name is set forth on
the cover page of this Warrant as the initial holder of this Warrant.
"Issuable Warrant Shares" means the number of shares of Common
Stock issuable from time to time upon exercise of this Warrant.
"Issued Warrant Shares" means (a) the cumulative total of the
shares of Common Stock issued from time to time upon exercise of this
Warrant, plus (b) any shares of Common Stock issued as a stock dividend
with respect to such shares or as part of a stock split affecting such
shares.
"Notice of Exercise" means the form of Notice of Exercise set
forth on Exhibit 1-B.
"Opinion of Counsel" means an opinion of counsel experienced
in Securities Act matters, chosen by the holder of this Warrant or the
holder of Issued Warrant Shares, which counsel may be counsel to such
holder, which is reasonably satisfactory to the Company.
"Payment Shares" has the meaning set forth in Section 2.2 the
definition of "Permitted Payment Methods".
"Permitted Payment Methods" means either of (i) wire transfer
of immediately available funds to an account in a commercial bank
located in the United States designated by the payee for such purpose;
(ii) delivery of a certified or official commercial bank check; (iii)
delivery of shares of Common Stock (duly endorsed for transfer to the
Company or accompanied by duly executed blank stock powers) having an
aggregate Current Market Price equal to the aggregate Exercise Price
for all shares of Common Stock to be purchased pursuant to this Warrant
and such Notice of Exercise; or (iv) directing the Company in writing
to withhold from the number of shares of Common Stock to be purchased
pursuant to this Warrant and such Notice of Exercise shares of Common
Stock having such aggregate Current Market Price.
"Person" means an individual, corporation, partnership,
limited liability company, trust, or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Rule 144" shall have the meaning set forth in Section 5.5
hereof.
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"Securities Act" means the Securities Act of 1933, as amended,
or any successor Federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect
from time to time.
"Stock Purchase Rights" means any warrants, options or other
rights to subscribe for, purchase or otherwise acquire any shares of
Common Stock or any Convertible Securities.
"Warrant" means this Warrant dated as of Closing Date issued
to the Initial Holder and all warrants issued upon the partial
exercise, transfer or division of, or in substitution for, any warrant.
"Warrant Shares" means the Issuable Warrant Shares plus the
Issued Warrant Shares.
Whenever used in this Warrant, any noun or pronoun shall be deemed to
include both the singular and plural and to cover all genders, and the words
"herein," "hereof," and "hereunder" and words of similar import shall refer to
this instrument as a whole, including any amendments hereto. Unless specified
otherwise, all Article, Section and Exhibit references shall be to the Articles,
Sections and Exhibits of or to this Warrant.
ARTICLE II
EXERCISE OF WARRANT
2.1 Right to Exercise. On the terms and subject to the conditions of
this Article II, the holder hereof shall have the right, at its option, to
exercise this Warrant in whole or in part at any time during the Exercise
Period.
2.2 Manner of Exercise; Issuance of Common Stock. To exercise this
Warrant, the holder hereof shall deliver to the Company (a) a Notice of Exercise
duly executed by such holder, (b) an amount equal to the aggregate Exercise
Price for all shares of Common Stock to be purchased pursuant to this Warrant
and such Notice of Exercise, and (c) this Warrant. At the option of such holder,
payment of the Exercise Price may be made by any of the Permitted Payment
Methods. The Company shall pay any and all documentary stamp or similar issue
taxes payable in respect of the issue of the Warrant Shares.
Upon receipt of the required deliveries, the Company shall, as promptly
as practicable but in any event within five Business Days thereafter, cause to
be issued and delivered to the holder hereof (or its nominee) or, subject to
Article V, the transferee designated in the Notice of Exercise, a certificate or
certificates representing shares of Common Stock equal to the aggregate number
of shares of Common Stock specified in the Notice of Exercise. Such certificate
or certificates shall be registered in the name of the holder hereof (or its
nominee) or in the name of such transferee, as the case may be.
2.3 Effectiveness of Exercise. Unless otherwise requested by the holder
hereof, this Warrant shall be deemed to have been exercised and such certificate
or certificates shall be deemed
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to have been issued, and the holder or transferee so designated in the Notice of
Exercise shall be deemed to have become the holder of record of such shares for
all purposes, as of the close of business on the date on which each of the
Notice of Exercise, payment of the Exercise Price and this Warrant are received
by the Company.
2.4 Fractional Shares. The Company shall not issue fractional shares of
Common Stock upon any exercise of this Warrant.
2.5 Continued Validity. A holder of shares of Common Stock issued upon
the exercise of this Warrant shall continue to be entitled to all rights to
which a holder of this Warrant is entitled pursuant to the provisions hereof
except such rights as by their terms apply solely to the holder of a Warrant.
The Company agrees and acknowledges that each such holder of shares of Common
Stock shall be and is hereby deemed to be a third party beneficiary of this
Warrant.
ARTICLE III
REGISTRATION, TRANSFER AND EXCHANGE
The Company shall keep at its principal office an open register in
which it shall provide for the registration, transfer and exchange of this
Warrant. The holder hereof and the Company shall take such actions as may be
necessary from time to time (or as may be reasonably requested by the other
party) to effect the proper registration of this Warrant or portions hereof in
connection with any transfer or exchange of this Warrant or portions hereof. All
Warrants issued upon any registration of transfer or exchange of Warrants shall
be the valid obligations of the Company, evidencing the same rights, and
entitled to the same benefits, as the Warrants surrendered upon such
registration of transfer or exchange.
Upon the Company's receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant, and, in
the case of any such loss, theft or destruction, upon the Company's receipt of
adequate security in the form of a lost security indemnity letter from holder,
or other security reasonably satisfactory to the Company or, in the case of any
such mutilation, upon the surrender of such Warrant, the Company will execute
and deliver, in lieu thereof, a new Warrant. The Company and any agent of the
Company may treat the Person in whose name this Warrant is registered on the
register kept at the principal office of the Company as the owner and holder
thereof for all purposes.
ARTICLE IV
ADJUSTMENT OF EXERCISE PRICE
4.1 General Statements of Intent. If any Adjustment Transaction shall
occur, the Exercise Price shall be adjusted by the Company so as to fairly
preserve, without dilution, the purchase rights represented by this Warrant in
accordance with the essential intent and purposes hereof. If the holder of this
Warrant disputes the adjustment of the Exercise Price made by the Company and
the parties cannot otherwise resolve the dispute promptly and in good faith,
then the Company shall
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appoint a firm of independent public accountants of recognized national standing
(which may be the regular auditors of the Company), which shall give their
opinion as to the adjustment, if any, to be made to the Exercise Price as the
result of the relevant Adjustment Transaction. Upon receipt of such opinion, the
Company shall promptly mail a copy thereof to the holder of this Warrant and
shall make the adjustment described therein.
Anything herein to the contrary notwithstanding, the Company shall not
be required to make any adjustment of the Exercise Price in the case of the
issuance of shares of Common Stock upon the exercise of this Warrant.
In case the Company after the date hereof shall propose to (i) pay any
dividend payable in stock to the holders of shares of Common Stock or to make
any other distribution to the holders of shares of Common Stock, (ii) offer to
the holders of shares of Common Stock rights to subscribe for or purchase any
additional shares of any class of stock or any other rights or options or (iii)
effect any reclassification of the Common Stock (other than a reclassification
involving merely the subdivision or combination of outstanding shares of Common
Stock), or any capital reorganization or any consolidation or merger (other than
a merger in which no distribution of securities or other property is to be made
to holders of shares of Common Stock), or any sale, transfer or other
disposition of its property, assets and business as an entirety or substantially
as an entirety, or the liquidation, dissolution or winding up of the Company,
then, in each such case, the Company shall mail to the holder of this Warrant
notice of such proposed action, which shall specify the date on which the stock
transfer books of the Company shall close, or a record shall be taken, for
determining the holders of Common Stock entitled to receive such stock dividends
or other distribution or such rights or options, or the date on which such
reclassification, reorganization, consolidation, merger, sale, transfer, other
disposition, liquidation, dissolution or winding up shall take place or
commence, as the case may be, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to receive securities or
other property deliverable upon such action, if any such date is to be fixed.
Such notice shall be mailed in the case of any action covered by clause (i) or
(ii) above at least ten (10) days prior to the record date for determining
holders of Common Stock for purposes of receiving such payment or offer, or in
the case of any action covered by clause (iii) above at least twenty (20) days
prior to the date upon which such action takes place and ten (10) days prior to
any record date to determine holders of Common Stock entitled to receive such
securities or other property. Failure to file any certificate or notice or to
mail any notice, or any defect in any certificate or notice pursuant to this
Section shall not affect the legality or validity of the adjustment of the
Exercise Price or the number of shares purchasable upon exercise of this
Warrant, or any transaction giving rise thereto.
ARTICLE V
RESTRICTIONS ON TRANSFER
5.1 Compliance with Securities Laws. The Initial Holder, by acceptance
hereof, agrees that this Warrant and the Issued Warrant Shares are being
acquired solely for its own account and not as a nominee for any other party and
not with a view toward the resale or distribution thereof and that it will not
offer, sell or otherwise dispose of this Warrant or any Issued Warrant Shares
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except under circumstances which will not result in a violation of any federal
or state securities laws. Upon the exercise of this Warrant, the Initial Holder
or any subsequent holder, as the case may be, shall confirm in writing, in a
form reasonably satisfactory to the Company, that the Issued Warrant Shares are
being acquired solely for its own account and not as a nominee for any other
party and not with a view toward resale or distribution thereof.
5.2 Notice of Proposed Transfer. In the event the Initial Holder or any
subsequent holder of this Warrant or of Issued Warrant Shares desires to
transfer in whole or in part this Warrant or any Issued Warrant Shares, such
holder shall give written notice thereof to the Company, prior thereto, and such
holder shall obtain an Opinion of Counsel, if requested by the Company, to the
effect that the proposed transfer may be effected without registration or
qualification under any federal or state securities or blue sky law. Such
counsel shall, as promptly as practicable, notify the Company and the holder of
such opinion and of the terms and conditions, if any, to be observed in such
transfer. Promptly upon receiving such written notice and the Opinion of
Counsel, if so requested, the Company, it if concurs with the Opinion of
Counsel, as promptly as practicable, shall notify the holder that such holder
may sell or otherwise dispose of this Warrant or the Issued Warrant Shares, all
in accordance with the terms of the notice delivered to the Company and this and
any other agreements between the Company and the holder. Any certificate
representing the Issued Warrant Shares (except a transfer pursuant to Rule
144(k)) shall bear a restrictive legend as to the applicable restrictions on
transferability in order to insure compliance with federal and state securities
laws, unless in the aforesaid Opinion of Counsel, such legend is not required in
order to insure compliance with the federal and state securities laws. The
Company may issue stop transfer instructions to its transfer agent in connection
with such restrictions.
5.3 Legend on Warrants and Certificates. Each Warrant shall bear a
legend in substantially the following form:
"This Warrant and any shares of Common Stock issuable upon the exercise
of this Warrant have not been registered under the Securities Act of
1933, as amended, and neither this Warrant nor any such shares may be
transferred in the absence of such registration or an exemption
therefrom under such Act."
In case any shares are issued upon the exercise in whole or in part of
this Warrant or are thereafter transferred, in either case under such
circumstances that no registration under the Securities Act is required, each
certificate representing such shares shall bear the following legend:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be
transferred in the absence of such registration or an exemption
therefrom under such Act. In addition, any transfer of these shares is
subject to the conditions specified in the Warrant dated as of
__________, 1997 originally issued by Staff Leasing, Inc. (the
"Company") to ___________________________________________, to purchase
shares of Common Stock, $.01 par value, of the Company. A copy of the
form of such Warrant is on file with the Secretary of the Company at
________________ and will be furnished without charge by the Company to
the holder of this certificate upon written request to the Secretary of
the Company at such address."
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5.4 Termination of Restrictions. The restrictions imposed under this
Article V upon the transferability of this Warrant, or of Issuable Warrant
Shares or Issued Warrant Shares, shall cease when (a) a registration statement
covering such Issuable Warrant Shares or Issued Warrant Shares becomes effective
under the Securities Act or (b) the Company receives an Opinion of Counsel that
such restrictions are no longer required in order to ensure compliance with the
Securities Act. When such restrictions terminate, the Company shall, or shall
instruct its transfer agent and registrar to, issue new certificates in the name
of the holder not bearing the legends required under Section 5.3.
5.5 Rule 144. After any initial public offering, the Company covenants
that it will file all reports required to be filed by it with the Commission,
and that it will take such further action as a holder may reasonably request,
all to the extent required from time to time to enable such holder to sell
Warrant or Warrant Shares without registration under the Securities Act pursuant
to Rule 144 ("Rule 144") (or any similar rule then in effect) promulgated by the
Commission under the Securities Act. Upon the request of a holder, the Company
will deliver to such holder a notice stating whether it has complied with such
requirements.
ARTICLE VI
MISCELLANEOUS
6.1 Nonwaiver. No course of dealing or any delay or failure to exercise
any right, power or remedy hereunder on the part of the holder hereof shall
operate as a waiver of or otherwise prejudice such holder's rights, powers or
remedies.
6.2 Holder Not a Stockholder. Prior to the exercise of this Warrant as
hereinbefore provided, the holder hereof shall not be entitled to any of the
rights of a stockholder of the Company, including, without limitation, the right
as a stockholder to (a) vote on or consent to any proposed action of the Company
or (b) receive (i) dividends or any other distributions made to stockholders,
(ii) notice of or attend any meetings of stockholders of the Company or (iii)
notice of any other proceedings of the Company (except as provided in Article
IV).
6.3 Notices. Any notice, demand or delivery to be made pursuant to the
provisions of this Warrant shall be sufficiently given or made if sent by first
class mail, postage prepaid, addressed to (a) the holder of this Warrant or
Issued Warrant Shares at its last known address appearing on the books of the
Company maintained for such purpose or (b) the Company at its principal office
at 600 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx 00000, Attention: President. The
holder of this Warrant and the Company may each designate a different address by
notice to the other pursuant to this Section 6.3.
6.4 Like Tenor. All instruments issued in substitution for this Warrant
shall at all times be substantially identical, except as to the Preamble.
6.5 Remedies. The Company stipulates that the remedies at law of the
holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate and that, to the
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fullest extent permitted by law, such terms may be specifically enforced by a
decree for the specific performance of any agreement contained herein or by an
injunction against a violation of any of the terms hereof or otherwise.
6.6 Successors and Assigns. This Warrant and the rights evidenced
hereby shall inure to the benefit of and be binding upon the successors and
assigns of the Company, the holder hereof and (to the extent provided herein)
the holders of Issued Warrant Shares, and shall be enforceable by any such
holder.
6.7 Modification and Severability. If, in any action before any court
or agency legally empowered to enforce any provision contained herein, any
provision hereof is found to be unenforceable, then such provision shall be
deemed modified to the extent necessary to make it enforceable by such court or
agency. If any such provision is not enforceable as set forth in the preceding
sentence, the unenforceability of such provision shall not affect the other
provisions of this Agreement, but this Agreement shall be construed as if such
unenforceable provision had never been contained herein.
6.8 Integration. This Warrant replaces all prior agreements, supersedes
all prior negotiations and constitutes the entire agreement of the parties with
respect to the transactions contemplated herein.
6.9 Amendment. This Warrant may not be modified or amended except by
written agreement of the Company and the holder hereof.
6.10 Headings. The headings of the Articles and Sections of this
Warrant are for the convenience of reference only and shall not, for any
purpose, be deemed a part of this Warrant.
6.11 GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY THE INTERNAL LAWS
(AS OPPOSED TO CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF FLORIDA.
IN WITNESS WHEREOF, this Warrant has been executed by the Company as of
__________, 1997.
STAFF LEASING, INC.
BY:
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NAME: XXXXXXX X. XXXXXXX
TITLE: PRESIDENT
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EXHIBIT 1-A
ASSIGNMENT FORM
(To be executed only upon the assignment
of the attached Warrant)
FOR VALUE RECEIVED, the undersigned registered holder of the attached warrant
hereby sells, assigns and transfers unto _________________________, whose
address is _______________ _______________, all of the rights of the undersigned
under the attached Warrant, with respect to __________________________shares of
Common Stock of Staff Leasing, Inc. (the "Company") and, if such shares of
Common Stock do not include all the shares of Common Stock issuable as provided
in the attached Warrant, requests that a new Warrant of like tenor for the
number of shares of Common Stock of the Company not being transferred hereunder
be issued in the name of and delivered to the undersigned, and does hereby
irrevocably constitute and appoint ______________________________ as
attorney-in-fact to register such transfer on the books of the Company
maintained for that purpose, with full power of substitution in the premises.
Dated: _______________, ____.
By:
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(Signature of Registered Holder)
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EXHIBIT 1-B
NOTICE OF EXERCISE FORM
(To be executed only upon partial or full
exercise of the attached Warrant)
The undersigned registered holder of the attached Warrant irrevocably exercises
the attached Warrant for and purchases _____ shares of Common Stock of Staff
Leasing, Inc. (the "Company") and herewith makes payment therefor in the amount
of _____________, all at the price and on the terms and conditions specified in
the attached Warrant[, and requests that a certificate (or _____ certificates in
denominations of _______________ shares) for the shares of Common Stock of the
Company hereby purchased be issued in the name of and delivered to (choose one)
(a) the undersigned or (b) ______________________________________, whose address
is ____________________________ ]. If such shares of Common Stock do not include
all the shares of Common Stock issuable as provided in the attached Warrant,
then the undersigned registered holder of the attached Warrant hereby requests
that a new Warrant of like tenor for the number of shares of Common Stock of the
Company not being purchased hereunder be issued in the name of and delivered to
the undersigned. [Having elected to satisfy $________ (the "Cashless Exercise
Amount") of the foregoing amount with shares of Common Stock that would
otherwise be issued pursuant to this Notice, the undersigned registered holder
hereby directs the Company to reduce the number of shares issued to the
undersigned registered holder by the number of Payment Shares (as defined in the
Warrant) sufficient to cover the Cashless Exercise Amount and requests that a
certificate (or ___ certificates in denominations of ______ shares) for the
balance of the shares of Common Stock of the Company hereby purchased be issued
in the name of and delivered to (choose one) (a) the undersigned or (b)
_____________, whose address is _______________________.]
Dated: _______________, _____.
By:
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(Signature of Registered Holder)
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