AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF KADMON HOLDINGS, LLC
Exhibit 3.5
AMENDMENT NO. 2
TO
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
This Amendment No. 2 (“Amendment”), dated as of August 28, 2015 (the “Amendment Date”), to the Second Amended and Restated Limited Liability Company Agreement, dated as of June 27, 2014, as amended (the “Agreement”), of Kadmon Holdings, LLC, a Delaware limited liability company (the “Company”), is executed as of the Amendment Date by Members constituting the Required Holders (as defined below). Each capitalized term used but not defined herein shall have the meaning ascribed to such term in the Agreement.
WHEREAS, Section 14.2 of the Agreement provides, in pertinent part, that the Agreement may be amended if such amendment is in writing and approved by the Board of Managers and, in the case of an amendment that is specific to certain provisions of the Agreement, with the prior written consent of the holders satisfying the requirements for a Special Approval Vote (the “Required Holders”);
WHEREAS, the Board of Managers has approved this Amendment and the Members signatory hereto desire to amend the Agreement in accordance with Section 14.2 of the Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned, intending to be legally bound, hereby agree as follows:
Section 1. Amendments to the Agreement.
(a) Section 6.2(f) of the Agreement is hereby amended and restated in its entirety to read as follows (with deletions indicated by strikethrough and additions indicated by double underline):
(f) The preemptive rights established by this Section 6.2 shall have no application to Membership Interests: (i) issued pursuant to any warrants, options or other instruments convertible into or exchangeable for Units issued after the date of this Agreement, provided that the preemptive rights established by this Section 6.2 applied with respect to the initial sale or grant by the Company of such warrants, options or other instruments; (ii) issued for consideration other than cash pursuant to the acquisition of another business pursuant to a merger, consolidation, acquisition or similar business combination; (iii) issued to strategic partners, or in connection with the establishment of strategic relationships, in each case including any Affiliate of the Company; (iv) issued or issuable to employees, advisors or consultants, including in connection with, or pursuant to, one or more of the Company’s incentive plans (including the Company’s Incentive Plan) in effect from time to time, but not including those issued or issuable to advisors and
consultants in (ix) below; (v) issued to the holders of Class B Units, Class C Units and Class D Units upon conversion of such Class B Units or Class C Units or Class D Units in connection with a Conversion Event; (vi) consisting of Class A Units issued concurrently with the funding of the term loans by the Lenders (as defined in the Credit Agreement) pursuant to the Credit Agreement; (vii) consisting of the warrants entered into on June 17, 2013 (and Class A Units issuable upon exercise of such warrants) and senior secured convertible loans issued concurrently with the funding of a senior secured convertible credit agreement entered into on June 17, 2013 and amended to increase the original principal amount thereunder by $14 million on December 20, 2013 (and Class A Units issuable upon conversion of such senior secured convertible loans), provided that such warrants (and the warrant agreements entered into concurrently therewith) and such senior secured convertible loans (and the senior secured convertible credit agreement entered into concurrently therewith) shall not be further amended in any way that would increase the number of Units issuable thereunder or decrease the strike or conversion price therein other than (A) any such amendment to the senior secured convertible loans entered into on or prior to December 31, 2014 (as so amended, the “Amended Convertible Loan Agreement”) to provide for (x) additional senior secured convertible loans up to $10 million in original principal amount and (y) a reduction of the conversion price on the aggregate principal amount of all loans issued under the senior secured convertible loan agreement to the lesser of $12.00 and 84.75% of the price per unit (or equivalent security) in the Company’s initial public offering (the “IPO Price”), subject to further adjustment as provided in the Amended Convertible Loan Agreement and (B) any such amendment to the warrants and/or warrant agreements entered into on or prior to December 31, 2014 (the warrants as so amended, the “Amended Warrants”) to provide for the immediate vesting (in full) of such warrants and a reduction in the strike price of such warrants to the lesser of $9.50 and 85% of the IPO Price, subject to further adjustment as provided in such Amended Warrants (with any Class A Units issuable and issued under the Amended Warrants (and warrant agreements) and the senior secured convertible credit loans (and senior secured convertible credit agreement) as the result of such amendments and such additional senior secured convertible loans also being exempt from the pre-emptive rights established by Section 6.2); (viii) issued in a transaction that values the equity of the Company (prior to such transaction) in excess of the greater of $500,000,000 or $10.00 per Class A Unit (appropriately adjusted for stock splits, stock dividends, recapitalizations, stock combinations or like transactions occurring after June 17, 2013); (ix) consisting of those Class A Units issuable under (a) the Class A Unit Purchase Warrants No. 1 and No. 2, dated October 31, 2011, and (b) Class A Unit Purchase Warrant Nos. 4 through 35 each dated April 16, 2013 (including in each case ((a) and (b)) the issuance of such Class A Unit Purchase Warrants), which in each case ((a) and (b)) shall not be amended after June 17, 2013 in any way that would increase the number of Units issuable thereunder or decrease the strike or conversion price therein; (x) Class E Units of any series with an aggregate Class E Original Issue Price of up to $75,000,000; (xi) Class A Units issued to holders of Class E
Units upon conversion of such Class E Units; and (xii) consisting of the warrants (and Class A Units issuable upon exercise of such warrants), senior secured convertible loans (and Class A Units issuable upon conversion of such senior secured convertible loans) which amend and restate certain loans described in clause (vii) above, and second-lien convertible PIK notes (and Class A Units issuable upon conversion of such notes), each entered into on or about August [ ], 2015 (and any second-lien convertible PIK notes (the “Delayed PIK Notes”) issued within 60 days after such date on terms that are otherwise the same in all material respects as such initially issued second-lien convertible PIK notes), provided that such warrants (and the warrant agreements entered into concurrently therewith), such senior secured convertible loans (and the senior secured convertible credit agreement entered into concurrently therewith), and such second-lien convertible PIK notes shall not be amended after their initial issuance (except to provide for the issuance of the Delayed PIK Notes) in any way that would increase the number of Units issuable thereunder or decrease the strike or conversion price therein; provided, however, that the Membership Interests issued pursuant to clauses (ii), (iii) and (iv) of this Section 6.2(f) shall not exceed, in the aggregate, 20% of the outstanding Class A Units on a Fully-Diluted Basis; provided further, that the Membership Interests issued pursuant to clause (iv) of this Section 6.2(f) shall not (x) exceed, in the aggregate, 7.5% of the outstanding Class A Units on a Fully-Diluted Basis, (y) be issued in any form other than options to purchase Class A Units under the Company’s incentive plans at a strike price no less than the low range of the price per Class A Unit as determined by an independent third party appraisal firm of national repute within three months of any such issuance and (z) be issued or granted to any Person who is not an active employee or director of the Company at the time of such issuance or grant (provided that no such issuance or grant shall be made to Xxxxxx X. Xxxxxx). In no event shall any Member, the Company or Affiliate of the Company or any Member be entitled to receive Membership Interests pursuant to items (ii) or (iii) without the approval of Members holding a majority of the outstanding Class A Units (including holders of Class E Units voting on an as-converted basis determined pursuant to Section 3.1(h)(ii)(B)(II)), excluding from such approval vote any holders of Class A Units or Class E Units who (or whose Affiliates) would receive Membership Interests under such issuance.
(b) The ten Business Day prior notice requirement contained in the definition of “Special Approval Vote” is hereby waived, solely with respect to the foregoing amendment, and such waiver shall be deemed an amendment of such definition solely with respect to the foregoing amendment.
(c) Section 9.1 of the Agreement is hereby amended and restated in its entirety to read as follows (with deletions indicated by strikethrough and additions indicated by double underline):
9.1 Prohibited Transfers. No Member shall sell, assign, convey, give, pledge, hypothecate, encumber or otherwise transfer (collectively, “Transfer”) any of its Units, except in accordance with the terms of this
Agreement (including compliance with Section 9.2 below); provided, however, that a Member may Transfer Units to a Permitted Transferee at any time, subject to the other provisions of this Agreement (including Section 3.1(g)(iii)). Any purported Transfer other than pursuant to and in compliance with this Section 9 shall be null and void and of no effect whatsoever. No Transfer of Units shall be effective or valid under this Section 9 unless and until the transferee executes and delivers to the Company a Joinder Agreement.
(d) Section 9.5 of the Agreement is hereby amended and restated in its entirety to read as follows (with deletions indicated by strikethrough and additions indicated by double underline):
9.5 Admission to Membership. Any Person that is not already a party to this Agreement who acquires any Units shall, on or before the Transfer or issuance to it of Units (and as a condition thereto), sign and deliver to the Company a Joinder Agreement substantially in the form and on the terms of Exhibit B hereto (a “Joinder Agreement”), and shall thereby become a party to this Agreement.
Section 2. Additional Consents. To the extent that the consent of any Member signatory hereto is required, pursuant to any agreement with the Company, for the Company’s execution and delivery of the agreements and instruments described in clause (xii) above or its performance of the transactions contemplated thereby, such consent is hereby granted by such Member. To the extent that any Member signatory hereto would otherwise be entitled to preemptive rights, anti-dilution protection, or other similar rights as a result of the Company’s execution and delivery of the agreements and instruments described in clause (xii) above or its performance of the transactions contemplated thereby, such rights are hereby waived.
Section 3. Full Force and Effect. Except as expressly provided for in this Amendment, all of the terms and conditions of the Agreement shall continue in full force and effect. This Amendment is limited as written and shall not be deemed to be an amendment, modification or supplement of, or a consent to or waiver of any other term or condition of the Agreement or any other document.
Section 4. Conflict. In the event of any conflict between the terms and conditions of this Amendment and the Agreement, this Amendment shall govern and prevail in all respects.
Section 5. Effect of Amendment. From and after the execution of this Amendment, any reference to the Agreement shall be deemed to be a reference to the Agreement as amended by this Amendment.
Section 6. Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF. ANY ACTION OR PROCEEDING AGAINST THE PARTIES RELATING IN
ANY WAY TO THIS AGREEMENT MAY BE BROUGHT AND ENFORCED EXCLUSIVELY IN THE COURTS OF THE STATE OF DELAWARE OR (TO THE EXTENT SUBJECT MATTER JURISDICTION EXISTS THEREFOR) THE U.S. DISTRICT COURT FOR THE DISTRICT OF DELAWARE, AND THE PARTIES IRREVOCABLY SUBMIT TO THE JURISDICTION OF BOTH SUCH COURTS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING.
Section 7. Headings and Captions. All headings and captions contained in this Amendment are inserted for convenience only and shall not be deemed a part of this Amendment.
Section 8. Counterparts. This Amendment may be executed in counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one and the same agreement. This Amendment may be executed and delivered via telecopier machine or other form of electronic delivery by the parties, which shall be deemed for all purposes as an original.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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ADENA Estate Inc |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Aeon Multi-Opportunity Fund I, LLC |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Aeon Multi-Opportunity Fund II, LLC |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Aeon Multi-Opportunity Fund I, Cayman |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Aigle Healthcare Partners II, LLC |
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/s/ [Illegible] |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Alpha Spring Limited |
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/s/ Zan Shengda |
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Zan Shengda |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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BPC OPPORTUNITIES FUND LP |
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Beach Point Capital Management LP, |
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its Investment Advisor |
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Executive Managing Director |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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BEACH POINT TOTAL RETURN MASTER FUND LP |
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Beach Point Capital Management LP, |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Xxxxxxx Partners, LLC |
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Partner & COO |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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FALCON FLIGHT LLC |
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FALCON PERCH L.P. |
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XXXXXX, LTD. |
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Xxxxxx X. Xxxxxxx, President |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Farallon Capital AA Investors, L.P. |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Farallon Capital Institutional Partners II, L.P. |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Farallon Capital Institutional Partners III, L.P. |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Farallon Capital Institutional Partners, L.P. |
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Managing Member |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Farallon Capital Partners, L.P. |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Kaomon I, LLC |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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GoldenTree Master Fund, Ltd. |
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GoldenTree Asset Management, LP |
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Director - Bank Debt |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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GoldenTree Entrust Master Fund SPC on behalf of and for the |
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account of Segregated Portfolio 1 |
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GoldenTree Asset Management, LP |
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Director - Bank Debt |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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GN3 SIP LIMITED |
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GoldenTree Asset Management, LP |
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Director - Bank Debt |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Moelis Asset Management LP |
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Xxxxxx X. Xxxxxx |
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Senior Vice President & Senior Counsel |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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PennartPark Investment Corporation |
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/s/ Aviv Efrat |
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Aviv Efrat |
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Chief Financial Officer |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Perceptive Life Sciences Master Fund Ltd |
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/s/ Xxxxxx Xxxxxxx |
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Xxxxxx Xxxxxxx |
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PM/CEO |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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SBI Holdings, Inc. |
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/s/ Yoshitaka Kitao |
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Yoshitaka Kitao |
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Representative Director, President & CEO |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Xxxxxx Xxxxx |
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/s/ Xxxxxx Xxxxx |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Third Level LLC |
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Please print or type name of Member above |
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By: |
/s/ Xxxx Xxxxxxxxxx |
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Xxxx Xxxxxxxxxx |
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Title: |
Manager |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Titan Perc, Ltd |
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By: |
/s/ Xxxxxx Xxxx |
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Xxxxxx Xxxx |
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Director |
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Amendment as of the day and year first above written.
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Xxxxxxx X. Xxxxxxxxx, MD |
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/s/ Xxxxxxx X. Xxxxxxxxx, MD |
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Unfiled Notes Page 6
