Nevada
(State
or other jurisdiction
of
incorporation)
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000-53127
(Commission
File Number)
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75-3254381
(IRS
Employer
Identification
No.)
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1601
N. Sepulveda Blvd., #632
Manhattan
Beach, California
(Address
of principal executive offices)
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90266
(Zip
Code)
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EXHIBIT
NO.
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DESCRIPTION
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10.1
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Form
of Private Placement Subscription
Agreement
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GENESIS
BIOPHARMA, INC.
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||
By:
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/s/ Robert T. Brooke
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Robert
T. Brooke
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||
Dated:
January 3, 2011
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Chief
Executive Officer
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EXHIBIT
NO.
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DESCRIPTION
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10.1
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Form
of Private Placement Subscription
Agreement
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TO:
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GENESIS
BIOPHARMA, INC.
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(FORMERLY
FREIGHT MANAGEMENT CORP.)
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1.
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SUBSCRIPTION
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2.
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PAYMENT
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3.
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DOCUMENTS REQUIRED FROM
SUBSCRIBER
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4.
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CLOSING
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5.
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REPRESENTATIONS AND WARRANTIES OF THE
SUBSCRIBER
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(a)
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The
Subscriber understands that the Shares have not been registered under the
Securities Act, or any state securities laws, in reliance upon exemptions
from regulation for non-public offerings. The Subscriber
understands that the Shares or any interest therein may not be, and agrees
that the Shares or any interest therein will not be, resold or otherwise
disposed of by the undersigned unless the Shares are subsequently
registered under the Securities Act and under appropriate state securities
laws or unless the Company receives an opinion of counsel satisfactory to
it that an exemption from registration is
available;
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(b)
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The
Subscriber is acquiring the Shares for investment for its own account, not
as a nominee or agent, and not with the view to, or for resale in
connection with, any distribution thereof, and that such Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same. The Subscriber further represents that
it does not have any contract, undertaking, agreement or arrangement with
any person or entity to sell, transfer or grant participation to such
person or entity or to any third person or entity with respect to any of
the Shares;
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(c)
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The
Subscriber, or its purchaser representative, within the meaning of
Regulation D, Rule 501(h), promulgated by the Securities and Exchange
Commission (its “Purchaser Representative”), has substantial experience in
evaluating and investing in private placement transactions of securities
in companies similar to the Company and acknowledges that the Subscriber
or its Purchaser Representative, can protect its own
interests. The Subscriber or its Purchaser Representative has
such knowledge and experience in financial and business matters so that
the Subscriber or its Purchaser Representative is capable of evaluating
the merits and risks of its investment in the
Company;
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(d)
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The
Subscriber understands and acknowledges that an investment in the Company
is highly speculative and involves substantial risks. The
Subscriber can bear the economic risk of the Subscriber’s investment and
is able, without impairing the Subscriber’s financial condition, to hold
the Shares for an indefinite period of time and to suffer a complete loss
of such Investor’s investment;
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(e)
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The
Subscriber has had an opportunity to ask questions of, and receive answers
from, the officers of the Company concerning the Subscription Agreement,
the exhibits and schedules attached hereto and thereto and the
transactions contemplated by the Subscription Agreement, as well as the
Company’s business, management and financial affairs, which questions were
answered to its satisfaction. The Subscriber believes that it
has received all the information such Investor considers necessary or
appropriate for deciding whether to purchase the Shares. The
Subscriber understands that such discussions, as well as any information
issued by the Company, were intended to describe certain aspects of the
Company’s business and prospects, but were not necessarily a thorough or
exhaustive description. The Subscriber acknowledges that any
business plans prepared by the Company have been, and continue to be,
subject to change and that any projections included in such business plans
or otherwise are necessarily speculative in nature, and it can be expected
that some or all of the assumptions underlying the projections will not
materialize or will vary significantly from actual results. The
Subscriber also acknowledges that it is relying solely on its own counsel
and not on any statements or representations of the Company or its agents
for legal advice with respect to this
investment;
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(f)
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The
Subscriber is an “accredited investor” within the meaning of Regulation D,
Rule 501(a), promulgated by the Securities and Exchange Commission under
the Securities Act and shall submit to the Company such further assurances
of such status as may be reasonably requested by the
Company.;
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(g)
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The
residency of the Subscriber (or, in the case of a partnership or
corporation, such entity’s principal place of business) is correctly set
forth on the Subscriber’s signature page to this Subscription
Agreement;
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(h)
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The
Subscriber has all requisite power and authority to execute and deliver
the Subscription Agreement, to purchase the Shares hereunder and to carry
out and perform its obligations under the terms of the Subscription
Agreement. All action on the part of the Subscriber necessary
for the authorization, execution, delivery and performance of the
Subscription Agreement, and the performance of all of the Subscriber’s
obligations under the Subscription Agreement, has been taken or will be
taken prior to the Closing;
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(i)
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The
Agreement, when executed and delivered by the Subscriber, will constitute
valid and legally binding obligations of the Subscriber, enforceable in
accordance with their terms except: (i) to the extent that any
indemnification provisions contained herein may be limited by applicable
law and principles of public policy, (ii) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors’ rights generally,
and (iii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies or by general
principles of equity;
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(j)
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No
consent, approval, authorization, order, filing, registration or
qualification of or with any court, governmental authority or third person
is required to be obtained by the Subscriber in connection with the
execution and delivery of the Subscription Agreement by the Subscriber or
the performance of the Subscriber’s obligations
hereunder;
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(k)
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The
Subscriber has reviewed with its own tax advisors the U.S. federal, state,
local and foreign tax consequences of this investment and the transactions
contemplated by the Subscription Agreement. With respect to
such matters, the Subscriber relies solely on such advisors and not on any
statements or representations of the Company or any of its agents, written
or oral. The Subscriber understands that it (and not the
Company) shall be responsible for its own tax liability that may arise as
a result of this investment or the transactions contemplated by the
Subscription Agreement;
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(l)
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the
Subscriber is not aware of any advertisement of any of the Shares and is
not acquiring the Shares as a result of any form of general solicitation
or general advertising including advertisements, articles, notices or
other communications published in any newspaper, magazine or similar media
or broadcast over radio or television, or any seminar or meeting whose
attendees have been invited by general solicitation or general
advertising; and
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(m)
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The
Subscriber has been informed of and understands the
following:
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(i)
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There
are substantial restrictions on the transferability of the
Shares;
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(ii)
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No
federal or state agency has made any finding or determination as to the
fairness for public investment, nor any recommendation nor endorsement, of
the Shares;
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(n)
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None
of the following information has ever been represented, guaranteed, or
warranted to the Subscriber, expressly or by implication by any broker,
the Company, or agent or employee of the foregoing, or by any other
person:
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(i)
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The
approximate or exact length of time that the Subscriber will be required
to remain a holder of the Shares;
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(ii)
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The
amount of consideration, profit, or loss to be realized, if any, as a
result of an investment in the
Company;
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(iii)
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That
the past performance or experience of the Company, its officers,
directors, associates, agents, affiliates, or employees or any other
person will in any way indicate or predict economic results in connection
with the plan of operations of the Company or the return on the
investment;
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(o)
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The
Subscriber has not distributed any information relating to this investment
to anyone other than his purchaser representative, if any, and no other
person except such personal representative and the
Subscriber has used this
information;
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(a)
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This
Agreement is made by the Company with such Subscriber who is a Non-U.S.
person in reliance upon such Non-U.S. person’s representations, warranties
and covenants made in this Section
5.2;
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(b)
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Such
Non-U.S. person has been advised and acknowledges
that:
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(i)
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the
Shares have not been registered under the Securities Act, the securities
laws of any state of the United States or the securities laws of any other
country;
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(ii)
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in
issuing and selling the Shares to such Non-U.S. person pursuant hereto,
the Company is relying upon the “safe harbor” provided by Regulation S
and/or on Section 4(2) under the Securities
Act;
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(iii)
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it
is a condition to the availability of the Regulation S “safe harbor” that
the Shares not be offered or sold in the United States or to a U.S. person
until the expiration of a period of one year following the Closing Date;
notwithstanding the foregoing, prior to the expiration of one year after
the Closing (the “Restricted Period”), the Shares may be offered and sold
by the holder thereof only if such offer and sale is made in compliance
with the terms of this Agreement and either: (A) if the offer
or sale is within the United States or to or for the account of a U.S.
person (as such terms are defined in Regulation S), the securities are
offered and sold pursuant to an effective registration statement or
pursuant to Rule 144 under the Securities Act or pursuant to an exemption
from the registration requirements of the Securities Act; or (B) the offer
and sale is outside the United States and to other than a U.S.
person;
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(iv)
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As
used herein, the term “United States” means and includes the United States
of America, its territories and possessions, any State of the United
States, and the District of Columbia, and the term “U.S. person” (as
defined in Regulation S) means:
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A.
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a
natural person resident in the United
States;
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B.
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any
partnership or corporation organized or incorporated under the laws of the
United States;
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C.
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any
estate of which any executor or administrator is a U.S.
person;
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D.
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any
trust of which any trustee is a U.S.
person;
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E.
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any
agency or branch of a foreign entity located in the United
States;
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F.
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any
nondiscretionary account or similar account (other than an estate or
trust) held by a dealer or other fiduciary for the benefit or account of a
U.S. person;
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G.
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any
discretionary account or similar account (other than an estate or trust)
held by a dealer or other fiduciary organized, incorporated and (if an
individual) resident in the United States;
and
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H.
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a
corporation or partnership organized under the laws of any foreign
jurisdiction and formed by a U.S. person principally for the purpose of
investing in securities not registered under the Securities Act, unless it
is organized or incorporated, and owned, by accredited investors (as
defined in Rule 501(a) under the Securities Act) who are not natural
persons, estates or trusts.
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(c)
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Such
Non-U.S. person agrees that with respect to the Shares until the
expiration of the Restricted
Period:
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(i)
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such
Non-U.S. person, its agents or its representatives have not and will not
solicit offers to buy, offer for sale or sell any of the Shares or any
beneficial interest therein in the United States or to or for the account
of a U.S. person during the Restricted Period; notwithstanding the
foregoing, prior to the expiration of the Restricted Period, the Shares
may be offered and sold by the holder thereof only if such offer and sale
is made in compliance with the terms of this Agreement and
either: (A) if the offer or sale is within the United States or
to or for the account of a U.S. person (as such terms are defined in
Regulation S), the securities are offered and sold pursuant to an
effective registration statement or pursuant to Rule 144 under the
Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act; or (B) the offer and sale is outside
the United States and to other than a U.S. person;
and
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(ii)
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such
Non-U.S. person shall not engage in hedging transactions with regard to
the Shares unless in compliance with the Securities
Act.
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(d)
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Such
Non-U.S. person has not engaged, nor is it aware that any party has
engaged, and such Non-U.S. person will not engage or cause any third party
to engage, in any directed selling efforts (as such term is defined in
Regulation S) in the United States with respect to the
Shares.
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(e)
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Such
Non-U.S. person: (i) is domiciled and has its principal place
of business outside the United States; (ii) certifies it is not a U.S.
person and is not acquiring the Shares for the account or benefit of any
U.S. person; and (iii) at the time of the Closing Date, the Non-U.S.
person or persons acting on Non-U.S. person’s behalf in connection
therewith will be located outside the United
States.
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(f)
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At
the time of offering to such Non-U.S. person and communication of such
Non-U.S. person’s order to purchase the Shares and at the time of such
Non-U.S. Person’s execution of this Agreement, the Non-U.S. person or
persons acting on Non-U.S. person’s behalf in connection therewith were
located outside the United States.
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(g)
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Such
Non-U.S. person is not a “distributor” (as defined in Regulation S) or a
“dealer” (as defined in the Securities
Act).
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(h)
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Such
Non-U.S. person acknowledges that the Company shall make a notation in its
stock books regarding the restrictions on transfer set forth in this
Section 5.2 and shall transfer such shares on the books of the Company
only to the extent consistent
therewith.
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(i)
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If
the Subscriber is not a United States person, such Subscriber hereby
represents that such Subscriber is satisfied as to the full observance of
the laws of such Subscriber’s jurisdiction in connection with any
invitation to subscribe for the Shares, including (i) the legal
requirements within such Subscriber’s jurisdiction for the purchase of
Shares, (ii) any foreign exchange restrictions applicable to such
purchase, (iii) any governmental or other consents that may need to be
obtained and (iv) the income tax and other tax consequences, if any, that
may be relevant to the purchase, holding, redemption, sale or transfer of
such securities. Such Subscriber’s subscription and payment
for, and such Subscriber’s continued beneficial ownership of, the Shares,
will not violate any applicable securities or other laws of such
Subscriber’s jurisdiction.
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6.
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REPRESENTATIONS AND WARRANTIES WILL BE
RELIED UPON BY THE
COMPANY
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7.
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LEGENDING OF SUBJECT
SHARES
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8.
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COLLECTION OF PERSONAL
INFORMATION
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9.
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COSTS
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10.
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GOVERNING
LAW
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11.
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ATTORNEY’S
FEES
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12.
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SURVIVAL
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13.
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ASSIGNMENT
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14.
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EXECUTION
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15.
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SEVERABILITY
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16.
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ENTIRE
AGREEMENT
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17.
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NOTICES
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18.
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COUNTERPARTS
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(Name
of Subscriber - Please type or print)
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(Signature
and, if applicable, Office)
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(Address
of Subscriber)
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(City,
State or Province, Postal Code of Subscriber)
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(Country
of
Subscriber)
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By:
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Name:
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Title:
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