STOCK PURCHASE AGREEMENT
This
Stock Purchase Agreement (this "AGREEMENT") is dated as of December 27, 2010, by
and between Sanswire Corp., a Delaware corporation (the "COMPANY"), and Xxxxxxx
X. Xxxxx (the "PURCHASER"); and
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to
Section 4(2) of the Securities Act (as defined below), and Rule 506 promulgated
thereunder, the Company desires to issue and sell to the Purchaser, and the
Purchaser, desires to purchase from the Company, 3,333,333 shares of Common
Stock (as defined below) at the Closing.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and the Purchaser agree as
follows:
ARTICLE
I. DEFINITIONS
1.1
DEFINITIONS. In addition to the terms defined elsewhere in this Agreement, for
all purposes of this Agreement, the following terms have the meanings indicated
in this Section 1.1:
"BUSINESS
DAY" means any day except Saturday, Sunday and any day which shall be a federal
legal holiday or a day on which banking institutions in the State of New York
are authorized or required by law or other governmental action to
close.
"CLOSING"
means the closing of the purchase and sale of Shares pursuant to Section
2.1.
"COMMON
STOCK" means the common stock of the Company, $0.00001 par value per share, and
any securities into which such common stock may hereafter be
reclassified.
"EXCHANGE
ACT" means the Securities Exchange Act of 1934, as amended.
"LIENS"
means a lien, charge, security interest, encumbrance, right of first refusal,
preemptive right or other restriction.
"PURCHASE
PRICE" equals $250,000.
"PERSON"
means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or subdivision thereof) or other entity
of any kind.
"RULE
144" means Rule 144 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Securities and Exchange Commission (the
“SEC”) having substantially the same effect as such Rule.
"SECURITIES
ACT" means the Securities Act of 1933, as amended.
"SHARES"
means the 3,333,333 shares of Common Stock issued to the Purchaser pursuant to
this Agreement.
"TRADING
DAY" means (i) a day on which the Common Stock is traded on a trading market, or
(ii) if the Common Stock is not quoted on a trading market, a day on which the
Common Stock is quoted in the over-the-counter market as reported by Pink OTC
Markets Inc. (or any similar organization or agency succeeding its functions of
reporting prices); provided, that in the event that the Common Stock is not
listed or quoted as set forth in (i) and (ii) hereof, then Trading Day shall
mean a Business Day.
ARTICLE
II. PURCHASE AND SALE
2.1
CLOSING. On the terms and subject to the conditions set forth in this
Agreement, at the Closing, the Purchaser shall purchase from the Company, and
the Company shall issue and sell to the Purchaser, 3,333,333 shares of Common
Stock for the Purchase Price, which Purchase Price the Parties agree Purchaser
has previously paid to the Company in connection with that certain Escrow and
Stock Purchase Agreement dated September 29, 2010 by and among the Purchaser,
the Company and Xxxxxxx & Xxxxxxxxxx LLP. Upon satisfaction of the
conditions set forth in Section 2.2, the Closing shall occur at the offices of
the Company.
2.2
CLOSING CONDITIONS; DELIVERIES.
(a) As a
condition to the Purchaser’s obligations hereunder, at the Closing, the Company
shall deliver or cause to be delivered to the Purchaser the
following:
(i) this
Agreement duly executed by the Company; and
(ii) a
certificate evidencing the Shares registered in the name of the
Purchaser.
(b) As a
condition to the Company’s obligations hereunder, at the Closing (unless
otherwise noted below), the Purchaser shall deliver or cause to be delivered to
the Company the following:
(i) this
Agreement duly executed by the Purchaser; and
(ii) the
Purchase Price for the Shares, which Purchase Price the Parties agree Purchaser
has previously paid to the Company in connection with that certain Escrow and
Stock Purchase Agreement dated September 29, 2010 by and among the Purchaser,
the Company and Xxxxxxx & Xxxxxxxxxx LLP.
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ARTICLE
III. REPRESENTATIONS AND WARRANTIES
3.1
REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
makes the following representations and warranties as of the date hereof to the
Purchaser:
(a)
ORGANIZATION. The Company is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization (as applicable).
(b)
AUTHORIZATION; ENFORCEMENT. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations hereunder. The execution
and delivery of this Agreement by the Company and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the
Company in connection herewith. This Agreement has been duly executed by the
Company and, when delivered in accordance with the terms hereof, will constitute
the valid and binding obligation of the Company enforceable against the Company
in accordance with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies, and (iii) in so far as indemnification and contribution
provisions may be limited by applicable law.
(c) NO
CONFLICTS. The execution, delivery and performance of this Agreement by the
Company, the issuance and sale of the Shares and the consummation by the Company
of the transactions contemplated hereby do not and will not conflict with or
violate any provision of the Company's certificate of incorporation, bylaws or
other organizational or charter documents.
(d)
ISSUANCE OF THE SHARES. The Shares are duly authorized and, when issued and paid
for in accordance with this Agreement, will be duly and validly issued, fully
paid and nonassessable, free and clear of all Liens.
The
Purchaser acknowledges and agrees that the Company does not make and has not
made any representations and warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this Section
3.1.
3.2
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby represents
and warrants as of the date hereof to the Company as follows:
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(a)
AUTHORITY. The Purchaser is an individual with full right, power and authority
to enter into and to consummate the transactions contemplated by this Agreement
and otherwise to carry out its obligations hereunder. This Agreement has been
duly executed by the Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of the Purchaser, enforceable against it in accordance with its
terms, except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
(b)
INVESTMENT INTENT. The Purchaser understands that the Shares are
"restricted securities" and have not been registered under the Securities Act or
any applicable state securities law and may not be offered for sale, sold,
assigned or transferred unless (i) subsequently registered under the Securities
Act, or (ii) the Purchaser shall have delivered to the Company an opinion of
counsel in a form acceptable to the Company to the effect that such Shares to be
sold, assigned or transferred may be sold, assigned or transferred pursuant to
an exemption from such registration, or (iii) the Purchaser provides the Company
with assurances and proper documentation including an opinion of counsel that
such Shares can be sold, assigned or transferred pursuant to Rule 144 or Rule
144A promulgated under the Securities Act (or a successor rule
thereto). The Purchaser is acquiring the Shares as principal for its
own account for investment purposes only and not with a view to or for
distributing or reselling such Shares or any part thereof, has no present
intention of distributing any of such Shares and has no arrangement or
understanding with any other Persons regarding the distribution of such Shares.
The Purchaser does not have any agreement or understanding, directly or
indirectly, with any Person to distribute any of the Shares. The Purchaser
understands that any sale of the Shares made in reliance on Rule 144 may be made
only in accordance with the terms of Rule 144, and further, if Rule 144 is not
applicable, any resale of the Shares under circumstances in which the seller (or
the Person through whom the sale is made) may be deemed to be an underwriter (as
that term is defined in the Securities Act) may require compliance with some
other exemption under the Securities Act or the rules and regulations of the SEC
promulgated thereunder The Purchaser further understands that neither
the Company nor any other Person is under any obligation whatsoever to register
the Shares under the Securities Act or any state securities laws or to comply
with the terms and conditions of any exemption thereunder.
(c)
PURCHASER STATUS. At the time the Purchaser was offered the Shares, it was, and
at the date hereof, it is, an "accredited investor" as defined in Rule 501(a)
under the Securities Act. The Purchaser is not required to be registered as a
broker-dealer under Section 15 of the Exchange Act.
(d)
EXPERIENCE OF THE PURCHASER. The Purchaser, either alone or together with its
representatives, has such knowledge, sophistication and experience in business
and financial matters so as to be capable of evaluating the merits and risks of
the prospective investment in the Shares, and has so evaluated the merits and
risks of such investment. The Purchaser is able to bear the economic risk of an
investment in the Shares and, at the present time, is able to afford a complete
loss of such investment.
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(e)
GENERAL SOLICITATION. The Purchaser is not purchasing the Shares as a result of
any advertisement, article, notice, website posting or other communication
regarding the Shares published in any newspaper, magazine or similar media or
broadcast over television, internet or radio or presented at any seminar or any
other general solicitation or general advertisement.
(f)
RELIANCE ON EXEMPTIONS. The Purchaser understands that the Shares are being
offered and sold to it in reliance on specific exemptions from the registration
requirements of the United States federal and state securities laws and that the
Company is relying on the truth and accuracy of, and the Purchaser’s compliance
with, the representations, warranties, agreements, acknowledgements and
understandings of the Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of the Purchaser to acquire
the Shares.
(g)
INFORMATION. The Purchaser and its advisors have been furnished with
all materials relating to the business, finances and operations of the Company
and all materials relating to the offer and sale of the Shares which have been
requested by the Purchaser. The Purchaser and its advisors have been
afforded the opportunity to ask questions of the Company. The
Purchaser understands that its investment in the Shares involves a high degree
of risk. The Purchaser has sought such accounting, legal and tax
advice as it has considered necessary to make an informed investment decision
with respect to its acquisition of the Shares.
(h) NO
GOVERNMENTAL REVIEW. The Purchaser understands that no United States
federal or state agency or any other government or governmental agency has
passed on or made any recommendation or endorsement of the Shares or the
fairness or suitability of the investment in the Shares nor have such
authorities passed upon or endorsed the merits of the offering of the
Shares.
(i)
CERTAIN TRADING ACTIVITIES. The Purchaser has not directly or indirectly, nor
has any Person acting on behalf of or pursuant to any understanding with the
Purchaser, engaged in any transaction in the securities of the Company
(including without limitation, any short sales (as defined in Rule 200
promulgated under the Exchange Act) involving the Company’s securities) during
the period commencing as of the time that such Purchaser was first contacted by
the Company regarding the specific investment in the Company contemplated by
this Agreement and ending immediately prior to the execution of this Agreement
by the Purchaser.
The
Company acknowledges and agrees that the Purchaser does not make or has not made
any representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in this Section 3.2.
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ARTICLE
IV. OTHER AGREEMENTS OF THE PARTIES
4.1
TRANSFER RESTRICTIONS.
(a) The
Purchaser hereby agrees that the Shares may only be disposed of in compliance
with state and federal securities laws. In connection with any transfer of
Shares other than pursuant to an effective registration statement or Rule 144,
to the Company or to an Affiliate of a Purchaser, the Company shall require the
transferor thereof to provide to the Company an opinion of counsel, the form and
substance of which opinion shall be satisfactory to the Company, to the effect
that such transfer does not require registration of such transferred Shares
under the Securities Act. As a condition of transfer, any such transferee shall
agree in writing to be bound by the terms of this Agreement and shall have the
rights and obligations of a Purchaser under this Agreement.
(b) The
Purchaser agrees to the imprinting, so long as is required by this Section
4.1(b), of a legend on any of the Shares in the following form:
THESE
SHARES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE TRANSFERRED, OFFERED, SOLD OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION
OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE
ACCEPTABLE TO THE COMPANY.
(c)
Certificates evidencing the Shares shall not be required to contain any legend
(including the legend set forth in Section 4.1(b)), (i) while a registration
statement covering the resale of such security is effective under the Securities
Act, or (ii) following any sale of such Shares pursuant to Rule 144 (assuming
the transferor is not an affiliate of the Company), or (iii) if such Shares are
eligible for sale under Rule 144 (provided that the Purchaser provides the
Company with reasonable assurances and proper documentation including an opinion
of counsel that such Shares are eligible for sale, assignment or transfer under
Rule 144), or (iv) if such legend is not required under applicable requirements
of the Securities Act (including judicial interpretations and pronouncements
issued by the Staff of the SEC). The Company agrees that following such time as
such legend is no longer required under this Section 4.1(c), it will, following
the delivery by the Purchaser to the Company or the Company's transfer agent of
a certificate representing Shares issued with a restrictive legend (such date,
the "LEGEND REMOVAL DATE") (endorsed or with stock powers attached, signature
guaranteed, and otherwise in a form necessary to affect the reissuance and/or
transfer, if applicable) and proper documentation, including an opinion of
counsel when required, related thereto, deliver or cause to be delivered to the
Purchaser a certificate representing such Shares that is free from all
restrictive and other legends. The Company may not make any notation on its
records or give instructions to any transfer agent of the Company that enlarge
the restrictions on transfer set forth in this Section.
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(d) The
Purchaser agrees that the removal of the restrictive legend from certificates
representing Shares as set forth in this Section 4.1 is predicated upon the
Company's reliance that the Purchaser will sell any Shares pursuant to either
the registration requirements of the Securities Act, including any applicable
prospectus delivery requirements, or an exemption therefrom, and that such
legends will be removed only with proper documentation, including an opinion of
counsel when required, provided to the Company or its transfer
agent.
4.2 COMMERCIALLY
REASONABLE EFFORTS. Subject to the terms and conditions of this
Agreement, each of the parties will use its commercially reasonable efforts in
good faith to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or desirable, or advisable under applicable
laws, so as to permit consummation of the transactions contemplated hereby as
promptly as practicable and otherwise to enable consummation of the transactions
contemplated hereby and shall use commercially reasonable efforts to cooperate
with the other party to that end.
ARTICLE
V. MISCELLANEOUS
5.1 FEES
AND EXPENSES. Unless otherwise provided herein, each party shall pay all the
fees and expenses of its advisers, counsel, accountants and other experts, if
any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
5.2
ENTIRE AGREEMENT. This Agreement, together with the exhibits and schedules
tereto, contains the entire understanding of the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings,
oral or written, with respect to such matters, which the parties acknowledge
have been merged into such documents, exhibits and schedules. Except
as specifically set forth herein, neither the Company nor the Purchaser makes
any representations, warranties, covenants and undertakings with respect to the
matters set forth herein.
5.3
NOTICES. Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be in writing and shall be deemed given
and effective on the earliest of (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number set forth on
the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a
Trading Day, (b) the next Trading Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number set
forth on the signature pages attached hereto on a day that is not a Trading Day
or later than 6:30 p.m. (New York City time) on any Trading Day, (c) the second
Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (d) upon actual receipt by the party to whom such
notice is required to be given. The address for such notices and communications
shall be as set forth on the signature pages attached hereto.
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5.4
AMENDMENTS; WAIVERS. No provision of this Agreement may be waived or amended
except in a written instrument signed, in the case of an amendment, by the
Company and the Purchaser or, in the case of a waiver, by the party against whom
enforcement of any such waiver is sought. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right.
5.5
CONSTRUCTION. The headings herein are for convenience only, do not constitute a
part of this Agreement and shall not be deemed to limit or affect any of the
provisions hereof. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party. Each and every reference
to share prices, shares of Common Stock and any other numbers in this Agreement
that relate to the Common Stock, shall automatically be adjusted for stock
splits, stock combinations and other similar transactions that occur with
respect to the Common Stock after the date of this Agreement.
5.6
SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and permitted assigns.
The Company may not assign this Agreement or all or any of its rights or
obligations hereunder without the prior written consent of the Purchaser, except
an assignment in the case of a business combination where the Company is not the
surviving entity, or a sale of all or substantially all of the assets of the
Company, to the entity which is the survivor of such business combination or the
purchaser in such sale. The Purchaser may not assign this Agreement or any or
all of its rights or obligations hereunder without the prior written consent of
the Company; provided, however, that the Purchaser may assign any or all of its
rights under this Agreement to any Person to whom the Purchaser assigns or
transfers any Shares, provided such transfer is in compliance with all federal
and state securities laws and the transferee agrees in writing to be bound, with
respect to the transferred Shares, by the provisions hereof that apply to the
"Purchaser".
5.7 NO
THIRD-PARTY BENEFICIARIES. This Agreement is intended for the benefit of the
parties hereto and their respective successors and permitted assigns and is not
for the benefit of, nor may any provision hereof be enforced by, any other
Person.
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5.8
GOVERNING LAW. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Delaware, without
regard to the principles of conflicts of law thereof. Each party agrees that all
legal proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement (whether brought against a party
hereto or its respective affiliates, directors, officers, shareholders,
employees or agents) shall be commenced exclusively in the state and federal
courts sitting in Brevard County, Florida. Each party hereto hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting in
Brevard County, Florida, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed,
and hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is improper. Each party
hereto hereby irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by delivering a copy
thereof via overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. Each party hereto (including
its affiliates, agents, officers, directors and employees) hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby. If either party shall
commence an action or proceeding to enforce any provisions of this Agreement,
then the prevailing party in such action or proceeding shall be reimbursed by
the other party for its attorneys' fees and other costs and expenses incurred
with the investigation, preparation and prosecution of such action or
proceeding.
5.9
SURVIVAL. The representations and warranties herein shall survive the Closing
and delivery of the Shares.
5.10
EXECUTION. This Agreement may be executed in two or more counterparts, all of
which when taken together shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is delivered by
facsimile transmission or by an email which contains a portable document format
(.pdf) file of an executed signature page, such signature shall create a valid
and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such facsimile or .pdf file
signature page were an original thereof.
5.11
SEVERABILITY. If any provision of this Agreement is held to be invalid or
unenforceable in any respect, the provision that would otherwise be invalid or
unenforceable shall be deemed amended to apply to the broadest extent that it
would be valid and enforceable and the validity and enforceability of the
remaining terms and provisions of this Agreement shall not in any way be
affected or impaired thereby.
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5.12
REPLACEMENT OF SHARES. If any certificate or instrument evidencing any Shares is
mutilated, lost, stolen or destroyed, the Company shall issue or cause to be
issued in exchange and substitution for and upon cancellation thereof, or in
lieu of and substitution therefore, a new certificate or instrument, but only
upon receipt of evidence satisfactory to the Company of such loss, theft or
destruction and customary and reasonable indemnity, if requested. The applicants
for a new certificate or instrument under such circumstances shall also pay any
reasonable third-party costs associated with the issuance of such replacement
Shares.
5.13
REMEDIES. In addition to being entitled to exercise all rights provided herein
or granted by law, including recovery of damages the Purchaser and the Company
will be entitled to specific performance under this Agreement. The parties agree
that monetary damages may not be adequate compensation for any loss incurred by
reason of any breach of obligations described in the foregoing sentence and
hereby agrees to waive in any action for specific performance of any such
obligation the defense that a remedy at law would be adequate.
5.14
HEADINGS; GENDER. The headings of this Agreement are for convenience
of reference and shall not form part of, or affect the interpretation of this
Agreement. Unless the context clearly indicates otherwise, each
pronoun herein shall be deemed to include the masculine, feminine, neuter,
singular and plural forms thereof. The terms “including,” “includes,”
“include” and words of like import shall be construed as broadly as if followed
by the words “without limitation.” The terms “herein,” “hereunder,”
“hereof” and words of like import refer to this entire Agreement instead of just
the provision in which they are found.
(SIGNATURE
PAGE FOLLOWS)
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IN
WITNESS WHEREOF, the parties hereto have caused this Stock Purchase Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
|
By:
|
Name: Xxxxx
X. Xxxxxxxx
Title: President
and Chief Executive Officer
Address
for Notice:
Xxxxx
Xxxx 000, Xxxxxxxx X0-000X, Xxxx 0000
Xxxxxxx
Xxxxx Xxxxxx, XX 00000
Mailing
Address:
Mail
Code: SWC
Xxxxxxx
Xxxxx Xxxxxx, XX 00000
Attn:
General Counsel
Fax:
000-000-0000
PURCHASER
|
Xxxxxxx
X. Xxxxx
|
Address
for Notice:
000 Xxxxx
000 Xxxxxx
Xxxxx
Xxxxxx, XX 00000
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