UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): December 11, 2015
__________________________________________
Lakeland Industries, Inc.
(Exact name of registrant as specified in
its charter)
Delaware |
0-15535 |
13-3115216 |
(State or other jurisdiction |
(Commission |
(IRS Employer |
of incorporation) |
File Number) |
Identification No.) |
3555 Veterans Memorial Highway,
Suite C, Ronkonkoma, New York 11779-7410
(Address of principal executive offices)
(Zip Code)
Registrant’s telephone number, including
area code: (631) 981-9700
Not
Applicable
(Former Name or Former Address, if Changed
Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. |
Entry into a Material Definitive Agreement. |
The State of Bahia declared an
amnesty beginning November 1, 2015 and expiring December 18, 2015.
Lakeland Industries, Inc. (the
“Company”) entered into a Loan Agreement for VAT Payment, dated December 11, 2015 (the “Loan Agreement”),
with Lake Brasil Industria E Comercio De Roupas E Equipamentos De Protecao Individual LTDA (the Company’s former Brazilian
subsidiary and herein after referred to as “Qualytextil”) for the amount of R$ 8,584,012. (approximately US $2.29 million)
for the purpose of the Company providing funds necessary for Qualytextil to settle the two largest outstanding VAT claims with
the State of Bahia.
As disclosed in previous SEC
filings, the Company may be exposed to certain liabilities arising in connection with the prior operations of Qualytextil, including,
without limitation, from lawsuits pending in the labor courts in Brazil and VAT taxes. Settlement of the VAT claims under amnesty
would benefit the Company in that it eliminates these large VAT claims, which the Company believes will render the continued viability
of Qualytextil immaterial to the Company. It should also eliminate the possibility of the sale of Qualytextil being found
fraudulent on the basis of evading VAT claims and would subsequently eliminate the possibility of future encumbrance of the real
estate by the State of Bahia subsequent to VAT claims.
It is expected that Qualytextil
will complete the amnesty agreement with the State of Bahia on or before December 18, 2015.
US $250,000 in continuing business
incentives provided by Lakeland to Qualytextil in the Shares Transfer Agreement (pursuant to which the shares of Qualytextil were
transferred by Lakeland to a manager of that company) will be waived by Qualytextil as partial payment of the debt.
Repayment by Qualytextil of the
loan made to it by the Company will include the following elements:
R$ 3,395,947 (approximately US
$900,000) in VAT credits will become available to Qualytextil from the State of Bahia to be used against future VAT payments.
Qualytextil has agreed to pay amounts equal to this credit to the Company in accordance with monthly sales volume.
Qualytextil will transfer the
rights to a judicial deposit on a tax claim to the Company. There is a judicial deposit of R$ 3,012,326 (approximately
US $800,000), however, Qualytextil will continue to make monthly deposits to the judicial account until the case is ruled upon
by the regional Supreme Court of Brazil or the deposit is fully funded. Attorneys success fee will be deducted before any
disbursements to the Company or Qualytextil. However, while the lawyer handling this case tells us it is probable Qualytextil
will win this case, it may take years to resolve.
Credits of R$ 1,025,739 (approximately
US $275,000) relating to the above case may be generated if and when the case is resolved. Qualytextil has agreed to pay amounts
equal to this credit to the Company in accordance with monthly sales volume.
A minimum quarterly payment of
R$ 300,000 (approximately US $80,000) will be required commencing October 2016.
The foregoing description does not purport to be complete
and is qualified in its entirety by reference to the Loan Agreement which is attached hereto as Exhibit 10.1 and incorporated herein
by reference.
On December 11, 2015,
the Company and its wholly-owned subsidiary, Lakeland Protective Wear Inc. (together with the Company, the “Borrowers”),
also entered into a Third Amendment (the “Third Amendment”) to Loan and Security Agreement, dated as of June 28, 2013,
with AloStar Bank of Commerce relating to their senior revolving credit facility. The Third Amendment permits the Company to effectuate
the transactions contemplated by the Loan Agreement. In this respect, the Third Amendment allows the Borrowers to transfer to Qualytextil
a net amount of up to $2,500,000 in the aggregate from and after December 11, 2015 (all or part of which may be in the form of
a loan) for purposes of settling value-added tax claims and paying expenses incurred in connection therewith so long as, after
giving effect to any such transfer, availability under the Alostar facility is at least $3,000,000. Additionally, Borrowers may
transfer to Qualytextil a net amount of up to $500,000 in the aggregate from and after December 11, 2015 for purposes of settling
arbitration claims, paying contractual expenses and paying expenses incurred in connection with transfer of the stock of Qualytextil
so long as, after giving effect to any such transfer availability under the Alostar facility is at least $3,000,000.
The foregoing description the Third Amendment
does not purport to be complete and is qualified in its entirety by reference to the Third Amendment, which is attached hereto
as Exhibit 10.2 and incorporated herein by reference.
Item 9.01. |
Financial Statements and Exhibits. |
(d) |
Exhibits. |
|
|
10.1 |
The Loan Agreement (including the related Promissory Note). |
|
|
10.2 |
The Third Amendment |
.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
LAKELAND INDUSTRIES, INC. |
|
|
|
/s/ Christopher J. Ryan |
|
Christopher J. Ryan |
|
Chief Executive Officer & |
|
President |
Dated: December 17, 2015
Exhibit 10.1
LOAN AGREEMENT FOR VAT PAYMENT
This LOAN AGREEMENT
(this “Agreement”) is made as of December 11th, 2015 by and between the parties hereinafter:
One side, as “Lender”,
LAKELAND INDUSTRIES,
INC. (“Lakeland”), a Company duly organized under the laws of the State of Delaware, United States
of America, with its head office located at 3555 Veterans Memorial Hwy, Suite C, Ronkonkoma, NY, 11779-7410, herein represented
by its Legal Representative, CHRISTOPHER JAMES RYAN, American citizen, married, executive, Passport number 482515842, domiciled
in 136 W. Bayberry Road, Islip, NY, United States of America, ZIP code 11751;
On the other side, as
“Debtor”,
LAKE BRASIL INDÚSTRIA
E COMÉRCIO DE ROUPAS E EQUIPAMENTOS DE PROTEÇÃO INDIVIDUAL LTDA. (“Qualytextil”), a
company duly organized under the laws of Brazil, with its head office located at Rua Luxemburgo, 260, Lotes 82/83 – Bloco
O, Loteamento Granjas Rurais, Salvador – BA, Brazil, 41230-130, enrolled before the Brazilian Taxpayers Registry (C.N.P.J./M.F.)
under the Number 04.011.170/0001-22, herein represented by its Legal Representative, JACK ANTUNES NEMER (“JNemer”).
R E C I T A L S
WHEREAS, Qualytextil
wants to fulfill its debts with the State of Bahia related to the pending VAT tax cases taking financial advantages into the Amnesty
that is in place right now (as hereinafter defined).
WHEREAS, Qualytextil
acknowledges that it shall be responsible for the payment of any and all liabilities of Qualytextil, but does not have enough cash
to pay it right now and Lakeland recognizes that this is a unique chance to pay this with a very significant discount, and no other
chance like this may happen for years.
NOW, THEREFORE,
the Parties hereby agree to enter into this Agreement upon the following terms and provisions which are mutually agreed and accepted
by Parties as follows:
Article
I
DEFINITIONS
1.1 Defined
Terms
For the purposes of
this Agreement, the following terms shall have the following meanings:
“Multiplica”
means Multiplica Soluções Empresariais Ltda., a company duly organized under the laws of Brazil, with its head office
located at Rua Rego Barros, 570, apt. 104, block D, Bairro Jardim Vila Formosa, CEP 03460-000 and enrolled before the Brazilian
Taxpayers Registry (C.N.P.J./M.F.) under the Number 14.782.440/0001-52. Multiplica is a service provider that advises the management
of Qualytextil in relation to securing financing in order for Qualytextil to avoid cash flow constraints that are restricting its
return to profitability; assistance in negotiation and revision of VAT tax issues; and participating in a Managing Committee to
discuss and advise payment of invoices, financing of accounts receivable, factoring and negotiation with suppliers and banks.
“Person”
means any individual, corporation, limited liability company, partnership, firm, association, joint venture, joint stock company,
trust, unincorporated organization or other entity, or any government or regulatory, administrative or political subdivision or
agency, department or instrumentality thereof.
Article
II
SHARE TRANSFER AGREEMENT
2.1 Valid
of the share transfer agreement
The parties agree that this document
does not replace or cancel any of the obligations or provisions set forth in the Shares Transfer Agreement executed by and between
both parties, as well JNemer and Zap Comércio de Brindes Corporativos Ltda. (“Zap”) , dated June
18th 2015 (the “Shares Transfer Agreement”), except as otherwise herein expressly specified.
Article
III
VAT TAX LIABILITIES
3.1 Brazilian
Liabilities
Qualytextil and Lakeland
agrees that new amnesty presented now is a unique chance to have VAT tax liabilities paid off with a significant discount, that
will impact both sides in reducing their liabilities or contingent liabilities for the future.
After signing the Shares
Transfer Agreement, the state of Bahia initiated a substantial number of actions to collect the pending VAT taxes. These actions
were coincident with a new amnesty proposal that is quite different from all other previous offered and that represents a large
discount (the “Amnesty”).
The Amnesty period
runs from November 1ST , 2015 through December 18TH , 2015 and contains the following provisions:
| a. | 85% discount on fines and interest |
| b. | 50% discount on legal fees |
| 2. | Payment in 36 installments |
| a. | 60% discount on fines and interest |
| b. | 50% discount on legal fees |
According to table
1 attached, in conformance with the Amnesty provisions, Qualytextil shall pay the VAT taxes in respect of cases Nr. 108880.0301/09-8A
and 207140.0010/10-0A with total value of R$ 8,384,012.00 (eight million, Three hundred and eighty four thousand and twelve reais)
against a original value of R$ 17,597,930.00 (seventeen million, five hundred and ninety seven thousand and nine hundred and thirty
reais) that represents an over 50% discount.
Settlement of the VAT
Claims will make R$ 3,395,947.00 (three million, three hundred and ninety five thousand and nine hundred, forty seven reais) in
VAT credits available to Qualytextil to be used against future VAT payments of monthly sales volumes.
Article
IV
THE LOAN
4.1 LOAN
Lakeland will provide
a non-interest bearing loan to Qualytextil in the amount of R$ 8,584,012.00, (the “Loan”), in accordance
with the terms and conditions of this Agreement, to be utilized solely for the full and complete settlement of VAT claims Nr. 108880.0301/09-8A
and Nr. 207140.0010/10-0A. The Loan shall be evidenced by a NOTE in the form attached hereto as Exhibit A, which NOTE shall include
a provision, among others, relating to Events of Default.
Lakeland will wire
the funds, directly into the joint account held by Multiplica and Qualytextil. Upon receiving of the Loan amount, the entire amount
of the Loan shall be utilized to pay the VAT tax in accordance with the Lump Sum settlement option described in section 3.1, within
the period of the Amnesty described in section 3.1, and Qualytextil shall send written proof of payment to Lakeland within 72 hours
after the payment. To assure payment, Eduardo Tavares will hold the bank security token of Qualytextil until payments are concluded.
Qualytextil specifically agrees to allow Eduardo Tavares as a representative of Lakeland to direct the payments to pay the VAT
tax settlements as described in this Agreement and that Qualytextil will give Eduardo Tavares whatever assistance he may need and
not do anything to the contrary.
The full amount will
be repaid, as specified in Article IV, considering the items:
| 1. | R$ 3,395,947.00 (three million, three hundred and ninety five thousand and nine hundred, forty
seven reais) of VAT tax credits that this settlement will generate to Qualytextil, and it will pay back to Lakeland in accordance
to normal monthly sales volumes as specified hereunder. |
| 2. | R$ 950,000.00 (nive hundred and fifty thousand reais) that is equivalent to US$ 250,000.00 (two
hundred and fifty thousand united state dollars) in continuing business incentives provided by Lakeland to Qualytextil in section
2.5 (e) of the Shares Transfer Agreement is hereby waived by Qualytextil as partial payment of the debt. |
| 3. | R$ 4,238,065.00 (Four million and two hundred thirty eight thousand and sixty five reais), plus
the monthly payments described bellow, that will be secured with the PIS/COFINS claim Nr. 2006.33.00.017223-0, as collateral as
hereunder specified, which funds will be also utilized to make Loan repayments hereunder: |
| a) | R$ 3,012,326.00 (three million and twelve thousand and three hundred twenty six reais): Qualytextil
is transfering the rights to the judicial deposit on PIS/COFINS claim Nr. 2006.33.00.017223-0 to Lakeland. The current balance
of this judicial account is R$ 3,012,326.00, however, Qualytextil will continue to make monthly deposits to the judicial account
until the case is ruled upon by the Supreme Court or the deposit is fully funded. No deduction will be made from the Loan amount
in respect of this item until actual payment of funds is made to Lakeland. Other than as its use as a judicial deposit, Qualytextil
may take no action to give any third party rights to these funds (other than Lakeland) until the Loan is repaid in full. |
| b) | R$ 1,225,739 (one million and two hundred twenty five thousand and seven hundred thirty nine reais)
credits for PIS/COFINS taxes due to Qualytextil, related to the PIS/COFINS claims will be paid to Lakeland on a monthly basis in
accordance with monthly sales volume after success of the claim, or after the end of the payment of the VAT credits, as further
described elsewhere in this Agreement. |
According to the attorney’s
opinion dated Dec 4th, 2015 and attached to this document, Qualytextil success chances for this case is considered PROBABLE.
Article
V
TRANSFER OF CREDITS
5.1 TRANSFER
OF CREDITS
As set forth in Section
4.1.3(a), on the execution of this Agreement, Qualytextil expressly transfers to Lakeland the rights over the existing credits
on the judicial account linked to nr. 2006.33.00.017223-0 claim of the PIS/Cofins. This shall be deemed collateral for the Loan
until the Loan is repaid in full. To safeguard this treatment as collateral, Qualytextil agrees, within seven days of the date
hereof, to file this Agreement and/or such other appropriate documents with Nogueira Reis along with a request to have a co-signer
in the case of unfreezing of deposit. Such co-signer shall be chosen by Lakeland, and initially shall be Eduardo Tavares.
Current balance of
this judicial account is R$ 3,012,326.00 (three million and twelve thousand and three hundred twenty six reais).
Qualytextil will continue
to make monthly deposits to the judicial account until the case is ruled upon by the Supreme Court or the deposit is fully funded.
In case of success
(i.e. the funds are capable of been released), Lakeland and Qualytextil will take the necessary actions to release the funds and
Qualytextil must transfer this value to Lakeland into 72 hours up to the full amount owing on the Loan.
Attorneys success fee
will be deducted before any disbursements to Lakeland or Qualytextil
Article
VI
REPAYMENT OF THE LOAN
6.1 TOTAL
PAYMENT
The total of R$ 7,634,012
(seven million and six hundred and thirty four thousand and twelve reais) after taking consideration the R$ 950,000 deduction pursuant
to section 4.1.2, must be repaid to Lakeland in accordance with the following terms. No futher payments will be required once the
Loan is paid in full with each payment being made hereunder reducing the Loan amount owing to Lakeland:
6.2 VAT tax
credit
By paying the VAT tax
claims into the Amnesty Qualytextil will get a total of R$ 3,395,947.00 (three million, three hundred and ninety five thousand
and nine hundred, forty seven reais) as credits that can be used according it’s normal monthly sales volumes.
Qualytextil must pay
monthly, to Lakeland, the equivalent amount due to the State of Bahia (had there been no credit or offset) regarding the monthly
VAT tax up to the total amount above.
Qualytextil must present
to Lakeland, certified by the chief financial officer of Qualytextil, monthly, the calculation of the monthly values that should
be paid to the State of Bahia (had there been no credit of offset), within 20 days of the following month.
Qualytextil must then
pay to Lakeland the correspondent amount by no later then the month end following the month for which the sales were calculated.
Qualytextil will start
the payments immediately after achieving the break even point for its operations, but no later than October 31st, 2016.
Monthly cash flow statements, certified by the chief financial officer of Qualytextil, will be delivered to Lakeland within 20
days after the end of each month.
6.3 PIS/COFINS
tax credit
R$ 4,238,065.00 (Four
million and two hundred, thirty eight thousand and sixty five reais) related to the PIS/COFINS claim Nr. 2006.33.00.017223-0 is
required to be paid by Qualytextil to Lakeland as follows:
| a) | R$ 3.012.326,00 (three million and twelve thousand and three hundred twenty six reais), plus such
additional monthly deposits as are made, on the judicial deposit on PIS/COFINS claim Nr. 2006.33.00.017223-0 will be paid by Qualytextil
to Lakeland upon the success of the claim. Reference is made to sections 4.1.3(a) and 5.1 for additional provisions relating to
this credit. |
| b) | R$ 1.225.739 (one million and two hundred, twenty five thousand and seven hundred thirty nive reais)
that Qualytextil will get as credit of PIS/COFINS, in case of success of the claim, will be paid to Lakeland on a monthly basis
in accordance with monthly sales volume. Qualytextil must pay monthly, to Lakeland, the equivalent amount due to the PIS/COFINS
regarding the monthly tax (had there been no credit or offset) up to the total amount above. |
Qualytextil
must present to Lakeland, certified by the chief financial officer of Qualytextil, monthly, the calculation of the monthly values
that should be paid of PIS/COFINS, within 20 days of the following month.
Qualytextil
must pay to Lakeland the correspondent amount no later than the following month end, following the month for which the sales were
calculated.
6.4 Minimum
Quaterly Payments
Commencing with the three
month period ending October 31st 2016, to the extent that payments set forth in sections 6.2 and 6.3, for the three
month periods ended October 31st, January 31st, April 30th and July 31st, do not add
up to at least R$ 300,000, then Qualytextil shall pay to Lakeland an amount equal to R$ 300,000 less the amount paid pursuant to
sections 6.2 and 6.3 in such quarter. The first such payment shall be due on October 31st, 2016 and then on each January
31st, April 30th, July 31st and October 31st thereafter.
Once the Loan amount
is fully paid, no further payments shall be due in respect at the Loan pursuant to sections 6.1, 6.2, 6.3 and 6.4 and any collateral
given hereunder and not utilized will be assigned back to Qualytextil.
Article
VII
OTHER ITENS
7.1 DISTRIBUTION
GARANTEE
On the execution
of this Loan agreement the following condition included in section 2.4 of the Shares Transfer Agreement will become null and void
and Lakeland will have no other obligations to guarantee the payment of Qualytextil from Lakeland China.
“For the
period commencing on the Closing Date and ending three hundred and sixty five (365) days thereafter, Transferor shall also grant
to Lakeland Brazil a written guarantee with respect to the payment for all purchases made by Lakeland Brazil from Transferor’s
Affiliate in China, in the total amount of Sixty Four Thousand United States Dollars ($64,000.00). “
7.2 Continuing
Business Incentives
Qualytextil and
Lakeland agree that all Qualytextil’s need for additional funds to assure its regular operation during the first two (2)
years after the Closing Date as shown in the Valuation Report and the parties own studies was provided according to the Shares
Transfer Agreement up this date, and with this Loan to pay of the VAT tax debt, that is the principal debt of Qualytextil in Brazil,
returns Qualytextil the ability to participate on bids and helps assure its maintenance for several years.
7.3 Further
Assurances; Further Conveyances and Assumptions; Consent of Third Parties
(a) Lakeland
and Qualytextil acknowledge that, due to the obligations assumed under the terms of this Agreement, Lakeland needs to extend it’s
access to Qualytextil accounting books, as described and accordingly to the specified on the Shares Transfer Agreement for the
necessary period till the complete payment of the Loan.
(b) After payment
of the VAT tax debt, Lakeland releases Qualytextil from the obligation to maintain Multiplica as a financial advisor for a period
of at least two (2) years.
7.4 Administration
and Control of Qualytextil
(a) By executing
this, Lakeland and Qualytextil, consent and agree with the following changes on the Share Transfer Agreement:
JNemer can
transfer or sell his ownership of at least fifty percent (50%) of Qualytextil’s shares, provided that the Loan is repaid
in full. Lakeland will assign any remaining PIS/COFINS credits back over to Qualytextil when the Loan is paid in full.
Article
VIII
MISCELLANEOUS PROVISIONS
8.1 Notices
All notices and other
communications hereunder shall be in writing and shall be deemed to have been duly given upon receipt if (i) mailed by certified
or registered mail, return receipt requested, (ii) sent by Federal Express or other express carrier, fee prepaid, (iii) sent via
facsimile with receipt confirmed, or (iv) delivered personally, addressed as follows or to such other address or addresses of which
the respective party shall have notified the other.
(a) |
If to Transferor, to: |
LAKELAND INDUSTRIES, INC. |
|
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Attn: Charles Roberson |
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202 Pride Lane |
|
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Decatur, Alabama 35603 |
|
|
United States of America |
(b) |
If to Transferee, to: |
LAKE BRASIL INDÚSTRIA E COMÉRCIO DE ROUPAS E EQUIPAMENTOS DE PROTEÇÃO INDIVIDUAL LTDA. |
|
|
Attn: Jack Antunes Nemer |
|
|
Rua Luxemburgo, 260, Lotes 82/83 – Bloco O |
|
|
Loteamento Granjas Rurais, Salvador – BA, 41230-130, Brasil |
8.2 Expenses
Except as otherwise
provided in this Agreement, each party to this Agreement will bear all the fees, costs and expenses that are incurred by it or
him in connection with the transactions contemplated hereby, whether or not such transactions are consummated.
8.3 Assignment;
Binding Effect; Severability
This Agreement may
not be assigned by any party hereto without the other party’s written consent. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the successors, legal representatives and permitted assigns of each party hereto. The provisions
of this Agreement are severable, and in the event that any one or more provisions are deemed illegal or unenforceable the remaining
provisions shall remain in full force and effect unless the deletion of such provision shall cause this Agreement to become materially
adverse to either party, in which event the parties shall use reasonable best efforts to arrive at an accommodation that best preserves
for the parties the benefits and obligations of the offending provision.
8.4 Governing
Law
THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK IN THE UNITED STATES OF AMERICA,
AS TO ALL MATTERS, INCLUDING MATTERS OF VALIDITY, CONSTRUCTION, EFFECT, ENFORCEABILITY, PERFORMANCE AND REMEDIES.
8.5 Consent
to Jurisdiction
(a) Any dispute,
claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity
thereof, including the determination of the scope or applicability of this Agreement, shall be determined by arbitration administered
by the Arbitration Place located in Toronto, Ontario, Canada, in accordance with the Rules of Arbitration of the International
Chamber of Commerce rules with same rules established in section 9.6(a) of the Shares Purchase Agreement.
(b) Nothing
contained herein will be construed to exclude Lakeland, prior to the appointment of the Tribunal, from seeking provisional or emergency
remedies from any court of competent jurisdiction and such application shall not be deemed inconsistent with, or a waiver of, this
Agreement to arbitrate any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination,
enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement.
8.6 Execution
in Counterparts
This Agreement may
be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
8.7 No Third
Party Beneficiearies
Nothing in this Agreement,
express or implied, is intended to or shall (a) confer on any Person other than the parties hereto and their respective successors
or assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement or (b) constitute the parties
hereto as partners or as participants in a joint venture. This Agreement shall not provide third parties with any remedy, claim,
liability, reimbursement, cause of action or other right in excess of those existing without reference to the terms of this Agreement.
No Third Party shall have any right, independent of any right that exist irrespective of this Agreement, under or granted by this
Agreement, to bring any suit at law or equity for any matter governed by or subject to the provisions of this Agreement.
8.8 Specific
Performance
The parties agree that
irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek an injunction
or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in
any court in New York State, United States, this being in addition to any other remedy to which they are entitled at law or in
equity.
8.9 Jurisdiction
All parties hereto
consent to the jurisdiction in which actions may be brought pursuant to the Agreement.
IN WITNESS WHEREOF,
each party has caused this Agreement to be duly executed on its behalf by its duly authorized officer as of the date first written
above.
/s/ Chris Ryan
LAKELAND INDUSTRIES,
INC.
by Chris Ryan
Chief Executive Officer
/s/ Jack Antunes
Nemer
LAKE BRASIL INDÚSTRIA
E COMÉRCIO DE ROUPAS E EQUIPAMENTOS DE PROTEÇÃO INDIVIDUAL LTDA. (“QUALYTEXTIL”),
by Jack Antunes Nemer
Attorney
With respect to those provisions that constitute
an amendment to the Shares Transfer Agreement, JNemer and Zap agree thereto:
/s/ Jack
Antunes Nemer |
|
/s/ Jack Antunes Nemer |
Jack
Antunes Nemer |
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ZAP COMERCIO DE BRINDES |
|
|
CORPORATIVOS LTDA. |
|
|
By Jack Antunes Nemer, CEO |
WITNESSES:
1 |
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2. |
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Name: |
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Name: |
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I.D.: |
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I.D.: |
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C.P.F.: |
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C.P.F.: |
PROMISSORY NOTE
R$7,634,012
December 11th, 2015
FOR VALUE RECEIVED,
Lake Brasil Indústria e Comércio de Roupas e Equipamentos de Proteção Individual LTDA, a limited liability
company duly organized under the laws of Brazil, located at Rua Luxemburgo, 260, Lotes 82/83 – Bloco O, Loteamento Granjas
Rurais, Salvador-BA, Brazil, 41230-130 (“Qualytextil”), hereby promises to pay to the order of Lakeland Industries,
Inc., a Delaware corporation, located at 3555 Veterans Memorial Highway, Suite C, Ronkonkoma,
NY 11779 (“ Holder”), the principal sum of Seven Million, Six Hundred and Thirty-Four Thousand and Twelve Reals
(R$7,634,012.00), according to the terms hereof.
This Promissory Note is being issued in
connection with the Loan Agreement for VAT Payment, dated December 11th, 2015, between Holder and Qualytextil (the “Loan
Agreement”) and is referenced in Section 4.1 of the Loan Agreement.
The principal
balance of this Promissory Note shall become due and payable by Qualytextil to Holder in accordance with the terms set forth in
the Loan Agreement, unless earlier pre-paid in full.
This Promissory Note
shall be non-interest bearing, provided, however, any amount due and payable under this Promissory Note which is not paid when
due (whether at maturity, by acceleration, Events of Default or otherwise) shall bear interest until paid in full at the rate of
six percent (6%) per annum.
Prepayment
of all or a portion of the principal of this Promissory Note shall be permitted without premium or penalty.
Any of
the following events (“Events of Default”) shall constitute a default under the terms of this Note: (1) failure
of Qualytextil to pay or perform any obligations hereunder; (2) a material breach of any of the agreements, covenants, warranties
or representations made by Qualytextil and contained in the Loan Agreement, provided that written notice thereof is provided by
Holder to Qualytextil and Qualytextil fails to cure any such breach within 5 business days; (3) Qualytextil not paying its obligations
as they become due; or (4) dissolution, termination of existence, insolvency, appointment of a receiver or other custodian of any
part of the property of, assignment for the benefit of creditors by, or the commencement of any proceedings under any bankruptcy
or insolvency laws by or against, Qualytextil, provided, however that Qualytextil shall have ninety (90) days from the commencement
thereof to dismiss any such bankruptcy or insolvency proceeding not commenced by Qualytextil. Upon the occurrence of an Event of
Default, Holder may, by written notice to Qualytexil, declare this Promissory Note to be due and payable, whereupon this Promissory
Note, and all other amounts payable hereunder, shall become immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the
same to the contrary notwithstanding.
The failure
of Holder to exercise any right or remedy granted to it hereunder on any one or more instances shall not constitute a waiver of
any default by Holder, and all such rights and remedies shall remain continuously in force. No delay or omission in the exercise
or enforcement by Holder of any rights or remedies shall be construed as a waiver of any right or remedy of Holder; and no exercise
or enforcement of any such right or remedy shall be held to exhaust any other right or remedy of Holder.
All notices
and other communications hereunder shall be in writing and shall be deemed to have been duly given upon receipt if (i) mailed by
certified or registered mail, return receipt requested, (ii) sent by Federal Express or other express carrier, fee prepaid, (iii)
sent via facsimile with receipt confirmed, or (iv) delivered personally, addressed as follows or to such other address or addresses
of which the respective party shall have notified the other.
(a) If to Holder, to: |
LAKELAND INDUSTRIES, INC. |
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Attn: Charles Roberson |
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202 Pride Lane |
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Decatur, Alabama 35603 |
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United States of America |
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(b) If to Qualytextil, to: |
LAKE BRASIL INDÚSTRIA E COMÉRCIO DE ROUPAS E EQUIPAMENTOS DE PROTEÇÃO INDIVIDUAL LTDA. |
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Attn: Jack Antunes Nemer |
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Rua Luxemburgo, 260, Lotes 82/83 – Bloco O |
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Loteamento Granjas Rurais, Salvador – BA, 41230-130, Brasil |
The terms
and provisions hereof shall inure to the benefit of, and be binding upon, the respective successors and assigns of Qualytextil
and Holder. Qualytextil’s obligations under this Promissory Note may not be assigned without Holder’s prior written
consent.
If any one
or more of the provisions contained in this Promissory Note shall for any reason be held to be invalid, illegal or unenforceable,
such invalidity, illegality or unenforceability shall not affect any other provisions of this Promissory Note and this Promissory
Note shall be construed as of such invalid, illegal or unenforceable provision had never been contained herein.
This Promissory Note
may not be changed orally, but only by an instrument in writing duly executed by the parties against which enforcement of any waiver,
change, modification or discharge is sought.
This Promissory Note
has been made in, and its validity, construction and performance shall be governed in all respects by the laws of, the State of
New York.
[Signature Page Follows]
IN WITNESS WHEREOF,
the undersigned has caused this Promissory Note to be executed and delivered in New York on the date first written above.
|
LAKE BRASIL INDÚSTRIA E COMÉRCIO DE ROUPAS E EQUIPAMENTOS DE PROTEÇÃO INDIVIDUAL LTDA. |
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By: |
/s/ Jack Antunes Nemer |
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Name: Jack Antunes Nemer |
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Title: CEO |
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|
Exhibit 10.2
THIRD AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT
TO LOAN AND SECURITY AGREEMENT (this “Agreement”) is made and entered into as of December 11, 2015 by
and among LAKELAND INDUSTRIES, INC., a Delaware corporation (“Lakeland US”), LAKELAND PROTECTIVE WEAR
INC., a Canadian corporation (“Lakeland Canada”; Lakeland US and Lakeland Canada are sometimes referred
to herein individually as a “Borrower” and collectively as “Borrowers”), and ALOSTAR BANK
OF COMMERCE, a state banking institution incorporated or otherwise organized under the laws of the State of Alabama (“Lender”).
W I T N E
S S E T H:
WHEREAS, Borrowers
and Lender are parties to that certain Loan and Security Agreement dated as of June 28, 2013 (as amended, restated, supplemented,
or otherwise modified from time to time, the “Loan Agreement”); and
WHEREAS, Borrowers
and Lender desire to amend the Loan Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in
consideration of the foregoing premises, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Defined
Terms. All capitalized terms used herein and not otherwise expressly defined herein shall have the respective meanings given
to such terms in the Loan Agreement, as amended by this Agreement.
2. Investments
in Lakeland Brazil. The Loan Agreement is hereby amended by deleting Section 9.14 of the Loan Agreement and substituting
the following in lieu thereof:
9.14 Lakeland
Brazil. Without limiting the generality of anything contained in Section 9.1
or Section 9.9, loan, invest, distribute or otherwise transfer any money or any other
assets to Lakeland Brazil or Lake Brasil Industria e Comercio de Roupas e Equipamentos de Protecao Individual LTDA (“Qualytextil”),
the buyer of Lakeland Brazil; provided, however, that Borrowers may transfer to Qualytextil a net amount of up to $2,500,000 in
the aggregate from and after December 11, 2015 (all or part of which may be in the form of a loan) for purposes of settling value-added
tax claims and paying expenses incurred in connection therewith so long as, after giving effect to any such transfer, Availability
is at least $3,000,000 (it being agreed that, solely for the purposes of this paragraph, Availability shall be determined without
giving effect to the Maximum Revolver Facility Amount). Borrowers acknowledge and agree that any and all rights of Borrowers in
connection with any such loan, including all collateral therefor, constitute Collateral, and Borrowers shall cause all payments
with respect to any such loan to be made directly to Lender for application to the Obligations. Borrowers agree to provide to Lender,
promptly following any request by Lender from time to time, such information, documents and agreements as Lender may reasonably
request in connection with any such loan or any other transfer from any Borrower to Qualytextil. Additionally, Borrowers may transfer
to Lakeland Brazil a net amount of up to $500,000 in the aggregate from and after December 11, 2015 for purposes of settling arbitration
claims, paying contractual expenses and paying expenses incurred in connection with sale of the stock of Lakeland Brazil so long
as, after giving effect to any such transfer, Availability is at least $3,000,000 (it being agreed that, solely for the purposes
of this paragraph, Availability shall be determined without giving effect to the Maximum Revolver Facility Amount).
3. Minimum
Availability Covenant. The Loan Agreement is hereby amended by inserting the following new clause (d) in Item 16 of the
Terms Schedule:
(d) Borrowers
shall cause Availability to be at least $3,000,000 at all times (it being agreed that, solely for the purposes of this paragraph,
Availability shall be determined without giving effect to the Maximum Revolver Facility Amount).
4. Sale
of Real Estate. Borrowers have informed Lender that Borrowers intend to sell the real property enrolled before the Second Real
Estate Registry Office of the city of Salvador, State of Bahia, Brazil, under the numbers 780, 781, 75667 and 76982 (the “Brazilian
Real Estate”). Lender hereby consents to the sale of the Brazilian Real Estate so long as the net proceeds thereof are paid
directly to Lender for application to the Obligations.
5. New
Chief Financial Officer. Borrowers have informed Lender that Teri Hunt has replaced Gary Pokrassa as Chief Financial Officer
of each Borrower and Laidlaw, Adams & Peck, Inc. Accordingly, the Loan Agreement is hereby amended by deleting each reference
to “Gary Pokrassa” and substituting “Teri Hunt” in lieu thereof.
6. Costs
and Expenses. In consideration of the accommodations made by Lender hereunder, Borrowers agree to pay to Lender, on demand,
all costs and expenses of Lender in connection with the preparation, execution, delivery and enforcement of this Agreement and
the other Loan Documents and any other transactions contemplated hereby and thereby, including, without limitation, the fees and
out-of-pocket expenses of legal counsel to Lender. Without limiting any provision of the Loan Agreement, Borrowers hereby agree
that Lender may charge any amount due under this paragraph to Borrowers’ loan account as a Revolver Loan.
7. Representations
and Warranties of Borrowers. Borrowers represent and warrant that (a) no Event of Default exists; (b) the representations and
warranties of Borrowers contained in the Loan Agreement were true and correct in all material respects when made and continue to
be true and correct in all material respects on the date hereof (except to the extent such representations or warranties were made
with respect to a specific date, in which case they shall be true and correct in all material respects as of the such date); (c)
the execution, delivery and performance by Borrowers of this Agreement and the consummation of the transactions contemplated hereby
are within the corporate power of each Borrower, have been duly authorized by all necessary corporate action on the part of each
Borrower, do not violate any provisions of any law, rule or regulation or any provision of any order, writ, judgment, injunction,
decree, determination or award presently in effect in which any Borrower is named or any provision of the charter documents of
any Borrower, and do not result in a breach of or constitute a default under any agreement or instrument to which any Borrower
is a party or by which any Borrower or any of properties of any Borrower are bound; (d) this Agreement constitutes the legal, valid
and binding obligation of each Borrower, enforceable against each Borrower in accordance with its terms; (e) each Borrower is entering
into this Agreement freely and voluntarily with the advice of legal counsel of its own choosing; and (f) each Borrower has freely
and voluntarily agreed to the releases, waivers and undertakings set forth in this Agreement.
8. Reaffirmation
of Representations and Warranties. Each Borrower hereby restates, ratifies and reaffirms each and every term, condition, representation
and warranty heretofore made by such Borrower under or in connection with the execution and delivery of the Loan Agreement, as
amended hereby, and the other Loan Documents, as fully as though such representations and warranties had been made on the date
hereof and with specific reference to this Agreement and the Loan Documents (except to the extent such representations or warranties
were made with respect to a specific date, in which case they shall be true and correct in all material respects as of the such
date).
9. Reaffirmation
of Obligations. Each Borrower hereby ratifies and reaffirms the Loan Agreement and all of its obligations and liabilities thereunder,
except to the extent expressly modified by this Agreement. Each Borrower acknowledges and agrees that all terms and provisions,
covenants and conditions of the Loan Agreement, as amended hereby, shall be and remain in full force and effect and constitute
the legal, valid, binding and enforceable obligations of such Borrower in accordance with their respective terms as of the date
hereof.
10. No
Other Amendment. Each Borrower acknowledges that (a) except as expressly set forth herein, Lender has not agreed to (and has
no obligation whatsoever to discuss, negotiate or agree to) any restructuring, modification, amendment, waiver or forbearance with
respect to the Loan Agreement or any other Loan Document, (b) no understanding with respect to any other restructuring, modification,
amendment, waiver or forbearance with respect to the Loan Agreement or any of the terms thereof or of any other Loan Document shall
constitute a legally binding agreement or contract, or have any force or effect whatsoever, unless and until reduced to writing
and signed by an authorized representative of Borrowers and Lender, and (c) the execution and delivery of this Agreement has not
established any course of dealing among the parties hereto or created any obligation or agreement of Lender with respect to any
future restructuring, modification, amendment, waiver or forbearance with respect to the Obligations or any of the terms of the
Loan Documents.
11. Waiver
and Release. To induce Lender to enter into this Agreement and grant the accommodations set forth herein, each Borrower (a)
acknowledges and agrees that no right of offset, defense, counterclaim, claim or objection exists in favor of such Borrower against
Lender arising out of or with respect to the Loan Agreement, any other Loan Document, the Obligations, or any other arrangement
or relationship between Lender and one or more Borrowers, and (b) releases, acquits, remises and forever discharges Lender and
its affiliates and all of their past, present and future officers, directors, employees, agents, attorneys, representatives, successors
and assigns from any and all claims, demands, actions and causes of action, whether at law or in equity, whether now accrued or
hereafter maturing, and whether known or unknown, which such Borrower now or hereafter may have by reason of any manner, cause
or things to and including the date of this Agreement with respect to matters arising out of or with respect to the Loan Agreement,
any other Loan Document, the Obligations, or any other arrangement or relationship between Lender and one or more Borrowers.
12. No
Waiver. Neither this Agreement nor Lender’s continued making of Loans or other extensions of credit at any time extended
to Borrowers shall be deemed a waiver of or consent to any Event of Default.
13. Agreement
is a Loan Document. This Agreement shall constitute a “Loan Document” and the breach of any representation, warranty,
covenant or agreement by any Borrower hereunder shall constitute an Event of Default under the Loan Agreement.
14. Counterparts;
Facsimile or Electronic Signatures. This Agreement may be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which, when so executed and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same instrument. Delivery of an executed counterpart of this Agreement by telecopier
or e-mail shall be equally as effective as delivery of an original executed counterpart of this Agreement. Any party delivering
an executed counterpart of this Agreement by telecopier or e-mail also shall deliver an original executed counterpart of this Agreement,
but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of
this Agreement.
15. Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
16. Governing
Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia, other than its
laws respecting choice of law.
17. References.
Any reference to the Loan Agreement contained in any document, instrument or agreement executed in connection with the Loan Agreement,
shall be deemed to be a reference to the Loan Agreement as modified by this Agreement.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF,
the parties hereto have caused this Third Amendment to Loan and Security Agreement to be duly executed as of the date first above
written.
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BORROWERS: |
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LAKELAND INDUSTRIES, INC. |
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By: |
/s/ Teri Hunt |
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Name: |
Teri Hunt |
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Title: |
Chief Financial Officer |
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[SEAL] |
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LAKELAND PROTECTIVE WEAR INC. |
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By: |
/s/ Teri Hunt |
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Name: |
Teri Hunt |
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Title: |
Chief Financial Officer |
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[SEAL] |
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Accepted in Atlanta, Georgia: |
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LENDER: |
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ALOSTAR BANK OF COMMERCE |
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By: |
/s/ Wes Scott |
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Name: |
Wes Scott |
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Title: |
Vice President |
Third
Amendment to Loan and Security Agreement
ACKNOWLEDGMENT AND AGREEMENT OF GUARANTOR
Please refer to the
foregoing Third Amendment to Loan and Security Agreement (the “Agreement”). Capitalized terms used herein have
the meanings ascribed to such terms in the Agreement and in the Loan Agreement referred to therein.
Laidlaw Adams &
Peck Inc. (“Guarantor”) has guaranteed the indebtedness of Borrowers to Lender pursuant to that certain Continuing
Guaranty by Guarantor in favor of Lender dated as of June 28, 2013 (the “Guaranty”).
Guarantor hereby (a)
acknowledges receipt of the Agreement; (b) consents to the terms and execution of the Agreement; (c) reaffirms the obligations
of Guarantor to Lender pursuant to the terms of the Guaranty; and (d) acknowledges that Lender may amend, restate, extend,
renew or otherwise modify the Loan Agreement and any indebtedness or agreement of any Borrower, or enter into any agreement or
extend additional or other credit accommodations, without notifying or obtaining the consent of Guarantor and without impairing
the liability of Guarantor under the Guaranty for all of each Borrower’s present and future indebtedness to Lender.
Additionally, Guarantor,
in order to induce Lender to enter into the Agreement and grant the accommodations set forth therein, (y) acknowledges and agrees
that no right of offset, defense, counterclaim, claim or objection exists in favor of Guarantor against Lender arising out of or
with respect to the Loan Agreement, the Guaranty, any other Loan Document, the Obligations, or any other arrangement or relationship
between Lender and any Borrower or Guarantor, and (z) releases, acquits, remises and forever discharges Lender and its affiliates
and all of their past, present and future officers, directors, employees, agents, attorneys, representatives, successors and assigns
from any and all claims, demands, actions and causes of action, whether at law or in equity, whether now accrued or hereafter maturing,
and whether known or unknown, which any Borrower or Guarantor now or hereafter may have by reason of any manner, cause or things
to and including the date of this Agreement with respect to matters arising out of or with respect to the Loan Agreement, the Guaranty,
any other Loan Document, the Obligations, or any other arrangement or relationship between Lender and one or more Borrowers or
Guarantor.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF,
the Guarantor has caused this Acknowledgement and Agreement of Guarantor to be duly executed as of the date first above written.
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LAIDLAW ADAMS & PECK INC. |
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By: |
/s/ Teri Hunt |
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Name: |
Teri Hunt |
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Title: |
Chief Financial Officer |
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