SUBSCRIPTION AGREEMENT
June ___,
2010
0000
Xxxxxxxx Xxxxx, Xxxxx 000
Xx Xxxxxx
Xxxxx, XX 00000
Ladies
and Gentlemen:
The
undersigned (the “Investor”) hereby
confirms its agreement with Premier Power Renewable Energy, Inc., a Delaware
corporation (the “Company”), as
follows:
1. This
Subscription Agreement, including the Terms and Conditions for Purchase of
Shares attached hereto as Annex
I (collectively, this “Agreement”) is made
as of the date set forth below between the Company and the
Investor.
2. The
Company has authorized the sale and issuance to certain investors of up to an
aggregate of [_______] shares (the “Shares”) of its
common stock, par value $0.0001 per share (the “Common
Stock”).
3. The
offering and sale of the Shares (the “Offering”) are being
made pursuant to (a) an effective Registration Statement on Form S−1, No.
333−166362 (the “Registration
Statement”) filed by the Company with the Securities and Exchange
Commission (the “Commission”),
including the Prospectus contained therein (the “Prospectus”), and (b)
if applicable, certain “free writing prospectuses” (as that term is defined in
Rule 405 under the Securities Act of 1933, as amended (the “Act”)), that have
been or will be filed, if required, with the Commission and delivered to the
Investor on or prior to the date hereof (the “Issuer Free Writing
Prospectus”), containing certain supplemental information regarding the
Shares, the terms of the Offering and the Company.
4. The
Company and the Investor agree that the Investor will purchase from the Company
and the Company will issue and sell to the Investor the Shares set forth below
for the aggregate purchase price set forth below. The Shares shall be
purchased pursuant to the Terms and Conditions for Purchase of Shares attached
hereto as Annex I and
incorporated herein by this reference as if fully set forth
herein. The Investor acknowledges that the Offering is not being
underwritten by Xxxxxxxx Curhan Ford & Co. (“Xxxxxxxx” or the
“Placement
Agent”) and that there is no minimum offering amount.
5. The
manner of settlement of the Shares included in the Shares purchased by the
Investor shall be effected by crediting the account of the Investor’s prime
broker (as specified by such Investor on Exhibit A annexed hereto) with
the Depository Trust Company (“DTC”) through its
Deposit/Withdrawal At Custodian (“DWAC”) system,
whereby Investor’s prime broker shall initiate a DWAC transaction on the Closing
Date using its DTC participant identification number, and released by
[_____________________________], the Company’s transfer agent (the “Transfer Agent”), at
the Company’s direction. NO LATER THAN TWO (2) BUSINESS DAYS AFTER
THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY AND COMPLIANCE
BY THE COMPANY OF ALL CONDITIONS PRECEDENT TO CLOSING, THE INVESTOR
SHALL:
(I)
REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE
AGGREGATE PURCHASE PRICE FOR THE SHARES BEING PURCHASED BY THE INVESTOR TO THE
FOLLOWING ESCROW ACCOUNT:
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Escrow
Agent
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[__________]
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Beneficiary
Account:
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Account
#:
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[__________]
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Beneficiary
Bank:
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[__________]
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ABA:
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[__________]
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(II) DIRECT
THE BROKER−DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED WITH THE
SHARES ARE MAINTAINED TO SET UP A DWAC INSTRUCTING THE TRANSFER AGENT TO CREDIT
SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES, AND
IT IS THE
INVESTOR’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER OR CONFIRM THE
PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (B) ARRANGE FOR SETTLEMENT BY WAY
OF DWAC IN A TIMELY MANNER. IF THE INVESTOR DOES NOT DELIVER THE
AGGREGATE PURCHASE PRICE FOR THE SHARES OR DOES NOT MAKE PROPER ARRANGEMENTS FOR
SETTLEMENT IN A TIMELY MANNER, THE SHARES MAY NOT BE DELIVERED AT CLOSING TO THE
INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE CLOSING
ALTOGETHER.
6. The
Investor represents that, except as set forth below, (a) it has had no position,
office or other material relationship within the past three (3) years with the
Company or persons known to it to be affiliates of the Company, (b) it is not a
member of the Financial Industry Regulatory Authority, Inc. or an Associated
Person (as such term is defined under the NASD Membership and Registration Rules
Section 1011) as of the Closing, and (c) neither the Investor nor any group of
Investors (as identified in a public filing made with the Commission) of which
the Investor is a part in connection with the Offering of the Shares, acquired,
or obtained the right to acquire, 20% or more of the Common Stock (or securities
convertible into or exercisable for Common Stock) or the voting power of the
Company on a post-transaction basis. Exceptions:
[If no
exceptions, write “none.” If left blank, response will be deemed to be
“none.”]
7. The
Investor represents that it has received (or otherwise had made available to it
by the filing by the Company of an electronic version thereof with the
Commission) the Prospectus, dated [_________], which is a part of the Company’s
Registration Statement and the documents incorporated by reference therein
(collectively, the “Disclosure Package”),
prior to or in connection with the receipt of this Agreement. The
Investor acknowledges that, prior to the delivery of this Agreement to the
Company, the Investor will receive certain additional information regarding the
Offering, including pricing information (the “Offering
Information”). Such information may be provided to the
Investor by any means permitted under the Act, including a free writing
prospectus and oral communications.
8. No
offer by the Investor to buy Shares will be accepted and no part of the Purchase
Price will be delivered to the Company until the Investor has received the
Offering Information and the Company has accepted such offer by countersigning a
copy of this Agreement, and any such offer may be withdrawn or revoked, without
obligation or commitment of any kind, at any time prior to the Company (or the
Placement Agent on behalf of the Company) sending (orally, in writing or by
electronic mail) notice of its acceptance of such offer. An
indication of interest will involve no obligation or commitment of any kind
until the Investor has been delivered the Offering Information and this
Agreement is accepted and countersigned by or on behalf of the
Company.
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9. The
Company acknowledges that the only material, non-public information relating to
the Company it has provided to the Investor in connection with the Offering
prior to the date hereof is the existence of the Offering.
Number of
Shares:
Purchase
Price Per Share: $
Aggregate
Purchase Price: $
3
Please
confirm that the foregoing correctly sets forth the agreement between us by
signing in the space provided below for that purpose.
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INVESTOR
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By:
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Print
Name:
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Title:
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Address:
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Agreed
and Accepted
as of the
date first above written:
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By:
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Name:
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Title:
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ANNEX I
Terms and
Conditions for Purchase of Shares
1. Authorization and Sale of the
Shares. Subject to the terms and conditions of this Agreement,
the Company has authorized the sale of the Shares.
2. Agreement to Sell and Purchase the
Shares; Placement Agent.
2.1. At
the Closing (as defined in Section 3.1), the
Company will sell to the Investor, and the Investor will purchase from the
Company, upon the terms and conditions set forth herein, the number of Shares
set forth on the last page of the Agreement to which these Terms and Conditions
for Purchase of Shares are attached as Annex I (the “Signature Page”) for
the aggregate purchase price therefor set forth on the Signature
Page.
2.2. The
Company anticipates that other investors (the “Other Investors”)
will participate in the Offering, and expects to complete sales of Shares to
them. The Company agrees that such Other Investors will execute
substantially the same form of Subscription Agreement as this
Agreement. The Investor and the Other Investors are hereinafter
sometimes collectively referred to as the “Investors,” and this
Agreement and the Subscription Agreements executed by the Other Investors are
hereinafter sometimes collectively referred to as the “Agreements.”
2.3. Investor
acknowledges that the Company has agreed to pay Xxxxxxxx Curhan Ford & Co.
(“Xxxxxxxx” or
the “Placement
Agent”) a fee of six and one-half percent (6.5%) (the “Placement Fee”) in
respect of the sale of Shares to the Investor, plus reimbursements for fees and
expenses.
2.4. The
Company has entered into a Placement Agent Agreement, dated June [__], 2010 (the
“Placement
Agreement”), with the Placement Agent that contains certain
representations, warranties, covenants and agreements of the Company that may be
relied upon by the Investor, which shall be a third party beneficiary
thereof.
3. Closing and Delivery of the Shares
and Funds.
3.1. Closing. The
completion of the purchase and sale of the Shares (the “Closing”) shall occur
at a place and time (the “Closing Date”) to be
specified by the Company and Xxxxxxxx, and of which the Investors will be
notified in advance by Xxxxxxxx, in accordance with Rule 15c6-1 promulgated
under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). At the Closing, (a) the Company shall cause the
Transfer Agent to deliver to the Investor the number of Shares set forth on the
Signature Page registered in the name of the Investor or, if so indicated on the
Investor Questionnaire attached hereto as Exhibit A, in the name of a
nominee designated by the Investor and (b) the aggregate purchase price for the
Shares being purchased by the Investor will be delivered by or on behalf of the
Investor to the Company.
3.2. Conditions to the
Obligations of the Parties.
(a) Conditions to the Company’s
Obligations. The Company’s obligation to issue and sell the
Shares to the Investor shall be subject to: (i) the receipt by the Company of
the purchase price for the Shares being purchased hereunder as set forth on the
Signature Page and (ii) the accuracy of the representations and warranties made
by the Investor and the fulfillment of those undertakings of the Investor to be
fulfilled prior to the Closing Date.
(b) Conditions to the Investor’s
Obligations. The Investor’s obligation to purchase the Shares
will be subject to (x) the representations and warranties made by the Company in
the Agreements and the Placement Agreement shall be true and correct as of the
date hereof and as of the Closing Date and the Company shall have fulfilled
those undertakings of the Company required to be fulfilled prior to the Closing
Date, including without limitation, those contained in the Placement Agreement,
and (y) that the Placement Agent shall not have: (i) terminated the Placement
Agreement pursuant to the terms thereof or (ii) determined that the conditions
to the Closing in the Placement Agreement have not been
satisfied. The Investor’s obligations are expressly not conditioned
on the purchase by any or all of the Other Investors of the Shares that they
have agreed to purchase from the Company. The Investor understands
and agrees that, in the event that Xxxxxxxx in its sole discretion determines
that the conditions to the Closing in the Placement Agreement have not been
satisfied or if the Placement Agreement may be terminated for any other reason
permitted by such Agreement, then Xxxxxxxx may, but shall not be obligated to,
terminate such Agreement, which shall have the effect of terminating this
Subscription Agreement pursuant to Section 15
below. The Placement Agent shall not have the authority to amend or
modify the Company’s representations and warranties set forth in Section 3 of
the Placement Agreement or the closing conditions contained in Section 7 of the
Placement Agreement in a manner adverse to the Investor or waive any provisions
or conditions contained therein without the consent of the
Investor.
3.3. Delivery of Funds via
DWAC. No later then two (2) business days after
execution of this Agreement by the Investor and the Company, the Investor shall
remit by wire transfer the amount of funds equal to the aggregate purchase price
for the Shares being purchased by the Investor to the following escrow
account:
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Escrow
Agent
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[__________]
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Beneficiary
Account:
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Account
#:
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[__________]
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Beneficiary
Bank:
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[__________]
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ABA:
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[__________]
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3.4. Delivery of Shares via
DWAC. No later than one (2) business days after the execution
of this Agreement by the Investor and the Company, the Investor shall direct the
broker-dealer at which the account or accounts to be credited with the Shares
being purchased by such Investor are maintained, which broker/dealer shall be a
DTC participant, to set up a DTC Deposit/Withdrawal at Custodian (“DWAC”) delivery
system instructing [_____________________________], the Company’s “Transfer Agent”, to
credit such account or accounts with the Shares. Such DWAC
instruction shall indicate the settlement date for the deposit of the Shares,
which date shall be provided to the Investor by
Xxxxxxxx. Simultaneously with the delivery to the Company of the
funds held pursuant to Section 3.3 above,
the Company shall direct the Transfer Agent to credit the Investor’s account or
accounts with the Shares pursuant to the information contained in the
DWAC. The Shares purchased by such Investor shall be settled through
DWAC delivery system, no later than three (3) business days after the execution
of this Agreement by the Investor and the Company.
4. Representations, Warranties and
Covenants of the Investor.
The
Investor acknowledges, represents and warrants to, and agrees with, the Company
and the Placement Agent (as to itself), that:
A-2
4.1. The
Investor (a) is knowledgeable, sophisticated and experienced in making, and is
qualified to make decisions with respect to, investments in shares presenting an
investment decision like that involved in the purchase of the Shares, including
investments in securities issued by the Company and investments in comparable
companies, (b) has answered all questions on the Signature Page and the Investor
Questionnaire and the answers thereto are true and correct as of the date hereof
and will be true and correct as of the Closing Date and (c) in connection with
its decision to purchase the number of Shares set forth on the Signature Page,
has received and is relying only upon the Disclosure Package and the documents
incorporated by reference therein and the Offering Information.
4.2. (a)
No action has been or will be taken in any jurisdiction outside the United
States by the Company or the Placement Agent that would permit an offering of
the Shares, or possession or distribution of offering materials in connection
with the issue of the Shares in any jurisdiction outside the United States where
action for that purpose is required, (b) if the Investor is outside the United
States, it will comply with all applicable laws and regulations in each foreign
jurisdiction in which it purchases, offers, sells or delivers Shares or has in
its possession or distributes any offering material, in all cases at its own
expense and (c) the Placement Agent is not authorized to make and has not made
any representation, disclosure or use of any information in connection with the
issue, placement, purchase and sale of the Shares, except as set forth or
incorporated by reference in the Prospectus or any free writing
prospectus.
4.3. (a)
The Investor has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement, and (b) this Agreement constitutes a valid and binding
obligation of the Investor enforceable against the Investor in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ and
contracting parties’ rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as
to the enforceability of any rights to indemnification or contribution that may
be violative of the public policy underlying any law, rule or regulation
(including any federal or state securities law, rule or
regulation).
4.4. The
Investor understands that nothing in this Agreement, the Prospectus, the
Disclosure Package, the Offering Information or any other materials presented to
the Investor in connection with the purchase and sale of the Shares constitutes
legal, tax or investment advice. The Investor has consulted such
legal, tax and investment advisors and made such investigation as it, in its
sole discretion, has deemed necessary or appropriate in connection with its
purchase of Shares.
4.5. Since
the date on which the Placement Agent first contacted the Investor about the
Offering, the Investor has not disclosed any information regarding the Offering
to any third parties (other than its legal, accounting and other advisors) and
has not engaged in any purchases or sales involving the securities of the
Company (including, without limitation, any Short Sales involving the Company’s
securities). The Investor covenants that it will not engage in any
purchases or sales in the securities of the Company (including Short Sales)
prior to the time that the transactions contemplated by this Agreement are
publicly disclosed. The Investor agrees that it will not use any of
the Shares acquired pursuant to this Agreement to cover any short position in
the Common Stock if doing so would be in violation of applicable securities
laws. For purposes hereof, “Short Sales” include, without limitation,
all “short sales” as defined in Rule 200 promulgated under Regulation SHO under
the Exchange Act, whether or not against the box, and all types of direct and
indirect stock pledges, forward sales contracts, options, puts, calls, short
sales, swaps, “put equivalent positions” (as defined in Rule 16a−1(h) under the
Exchange Act) and similar arrangements (including on a total return basis), and
sales and other transactions through non-U.S. broker dealers or foreign
regulated brokers.
A-3
5. Survival of Representations,
Warranties and Covenants; Third Party
Beneficiary. Notwithstanding any investigation made by any
party to this Agreement or by the Placement Agent, all covenants, agreements,
representations and warranties made by the Company and the Investor herein will
survive the execution of this Agreement, the delivery to the Investor of the
Shares being purchased and the payment therefor. The Placement Agent
shall be a third party beneficiary with respect to the representations,
warranties and covenants of the Investor in Section 4
hereof.
6. Notices. All
notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile or (b) if delivered from outside the
United States, by International Federal Express or facsimile, and (c) will be
deemed given (i) if delivered by first-class registered or certified mail
domestic, three (3) business days after so mailed, (ii) if delivered by
nationally recognized overnight carrier, one (1) business day after so mailed,
(iii) if delivered by International Federal Express, two (2) business days after
so mailed and (iv) if delivered by facsimile, upon electronic confirmation of
receipt and will be delivered and addressed as follows:
(a) if
to the Company, to:
0000
Xxxxxxxx Xxxxx, Xxxxx 000
Xx Xxxxxx
Xxxxx, XX 00000
Attention:
Xxxxx Xxxxxxx
Facsimile:
[_______]
with
copies to:
Xxxxxxxxxx
& Xxxxx LLP
00000
Xxxxxxxx Xxxx., Xxxxx 000
Xxx
Xxxxxxx, XX 00000
Attention:
Xxxxx X. Xxxxx, Esq.
Facsimile:
[_______]
(b) if
to the Investor, at its address on the Signature Page hereto, or at such other
address or addresses as may have been furnished to the Company in
writing.
7. Changes. This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
8. Headings. The
headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this
Agreement.
9. Severability. In
case any provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein will not in any way be affected or
impaired thereby.
10. Governing Law. This
Agreement will be governed by, and construed in accordance with, the internal
laws of the State of New York, without giving effect to the principles of
conflicts of law that would require the application of the laws of any other
jurisdiction.
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11. Counterparts. This
Agreement may be executed in two or more counterparts, each of which will
constitute an original, but all of which, when taken together, will constitute
but one instrument, and will become effective when one or more counterparts have
been signed by each party hereto and delivered to the other
parties. The Company and the Investor acknowledge and agree that the
Company shall deliver its counterpart to the Investor along with the Prospectus
Supplement (or the filing by the Company of an electronic version thereof with
the Commission).
12. Confirmation of
Sale. The Investor acknowledges and agrees that such
Investor’s receipt of the Company’s signed counterpart to this Agreement,
together with the Prospectus Supplement (or the filing by the Company of an
electronic version thereof with the Commission), shall constitute written
confirmation of the Company’s sale of Shares to such Investor.
13. Press Release. The
Company and the Investor agree that the Company shall, prior to the opening of
the financial markets in New York City on the business day immediately after the
Closing Date, (a) issue a press release announcing the Offering and disclosing
all material information regarding the Offering and (b) file a Current Report on
Form 8-K with the Securities and Exchange Commission including a form of this
Agreement as an exhibit thereto. Notwithstanding the foregoing, the
Company shall not publicly disclose the name of the Investor or any affiliate or
investment adviser of the Investor, or include the name of the Investor or any
affiliate or investment adviser of any Investor in any press release or filing
with the Securities and Exchange Commission or any regulatory agency or trading
market, without the prior written consent of such Investor, except (i) as
required by federal securities law and (ii) to the extent such disclosure is
required by law or trading market regulations, in which case the Company shall
provide the Investor with prior written notice of such disclosure permitted
under this sub-clause (ii). From and after the issuance of the press
release described above, the Investor shall not be in possession of any
material, non public information received from the Company, any subsidiary of
the Company or any of their respective officers, directors or
employees.
14. Termination. In the
event that the Placement Agreement is terminated by the Placement Agent pursuant
to the terms thereof, this Agreement shall terminate without any further action
on the part of the parties hereto. The Investor shall have the right
to terminate this agreement if the Closing has not occurred on or before
__________ ___, 2010.
A-5
EXHIBIT
A
Investor
Questionnaire
Pursuant
to Section 3 of
Annex I to the
Agreement, please provide us with the following information:
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1.
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The
exact name that your Shares are to be registered in. You may
use a
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nominee
name if appropriate:
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2.
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The
relationship between the Investor and the registered holder listed
in
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response
to item 1 above:
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3.
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The
mailing address of the registered holder listed in response to item
1
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above:
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4.
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The
Social Security Number or Tax Identification Number of the
registered
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holder
listed in the response to item 1 above:
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5.
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Name
of DTC Participant (broker-dealer at which the account or accounts
to
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be
credited with the Shares are maintained):
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6.
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DTC
Participant Number:
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7.
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Name
of Account at DTC Participant being credited with the
Shares:
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8.
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Account
Number at DTC Participant being credited with the Shares:
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