THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR TRANSFERRED
EXCEPT (i) UNDER COVER OF A REGISTRATION STATEMENT UNDER THE ACT
WHICH IS EFFECTIVE AND CURRENT WITH RESPECT TO THIS WARRANT OR SUCH
SHARES OF COMMON STOCK, AS THE CASE MAY BE, OR (ii) PURSUANT TO THE
WRITTEN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY TO
THE EFFECT THAT REGISTRATION UNDER SUCH ACT IS NOT REQUIRED WITH
RESPECT TO SUCH SALE OR TRANSFER.
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
Warrant for the Purchase of Shares of Common Stock
No. 7-9-96 100,000 shares of
September 16, 1996 Common Stock
FOR VALUE RECEIVED, PERMA-FIX ENVIRONMENTAL SERVICES, INC. (the
"Company"), a Delaware corporation, hereby certifies that MARVIN S.
ROSEN, or any permitted assignee thereof (the "Holder"), is entitled
to purchase from the Company, at any time in whole, or from time
to time in part, during the period commencing January 1, 1997, and
ending at 5:00 p.m. Eastern Standard Time on September 15, 1999 (the
"Exercise Period"), up to one hundred thousand (100,000) fully paid
and nonassessable shares of common stock, $.001 par value, of the
Company (the "Common Stock"), at a purchase price of $1.75 per
share; provided, however, that the number of shares of Common Stock
to be issued and delivered by the Company upon any exercise of this
Warrant and the purchase price to be paid for each such share shall
be subject to adjustment from time to time as hereinafter provided
in this Warrant. This Warrant and all warrants of like tenor which
may be issued by the Company in exchange or substitution for, or
upon the transfer or partial exercise of, this Warrant are
hereinafter collectively referred to as the "Warrants"; the shares
of Common Stock issuable and issued upon exercise of the Warrants
are hereinafter collectively referred to as the "Warrant Shares" and
the price payable for each of the Warrant Shares upon such exercise
is hereinafter referred to as the "Warrant Price".
1. Exercise of Warrant. This Warrant may be exercised, as a whole
at any one time or in part from time to time, during the Exercise
Period, by the Holder by the surrender of this Warrant (with the
subscription form at the end hereof duly executed by the Holder) at
the address set forth in Section 9 hereof, together with payment in
the manner hereinafter set forth, of an amount equal to the Warrant
Price in effect at the date of such exercise multiplied by the total
number of Warrant Shares to be purchased upon such exercise.
Payment for Warrant Shares shall be made by a cashier's or certified
check or money order, payable in New York Clearing House funds, to
the order of the Company. If this Warrant is exercised in part,
such exercise shall be for a whole number of Warrant Shares and the
Holder shall be entitled to receive a new Warrant covering the
number of Warrant Shares in respect of which this Warrant has not
been exercised. Upon any exercise and surrender of this Warrant,
the Company (a) will issue and deliver to the Holder a certificate
or certificates in the name of the Holder for the largest whole
number of Warrant Shares to which the Holder shall be entitled and,
if this Warrant is exercised in whole, in lieu of any fractional
Warrant Share to which the Holder otherwise might be entitled, cash
in an amount equal to the fair value of such fractional share
(determined in such reasonable manner as the Board of Directors of
the Company shall determine), and (b) will deliver to the Holder
such other securities and properties which the Holder may be
entitled to receive upon such exercise, or the proportionate part
thereof if this Warrant is exercised in part, pursuant to the
provisions of this Warrant.
2. Reservation of Warrant Shares.
2.1 The Company covenants and agrees that all Warrant Shares
which may be acquired by the Holder under this Warrant
will, when issued and upon delivery, be duly and validly
authorized and issued, fully paid and nonassessable, and
free from all restrictions on the sale or transfer
thereof, except such restrictions as may be imposed under
applicable federal and state securities laws and
applicable exchange on which the Common Stock may be
listed, and free and clear of all preemptive rights.
2.2 The Company covenants and agrees that it will, at all
times, reserve and keep available an authorized number of
shares of its Common Stock and other applicable
securities sufficient to permit the exercise in full of
this Warrant; and, if at the time the number of
authorized but unissued shares of Common Stock shall not
be sufficient to effect the exercise of this Warrant, the
Company will take such corporate action at its next
annual meeting of stockholders as may be necessary to
increase its authorized but unissued shares of Common
Stock to such number of shares as shall be sufficient for
such purpose, including, without limitation, engaging in
reasonable efforts to obtain the requisite stockholder
approval of any necessary amendment to its Certificate of
Incorporation.
3. Protection Against Dilution.
3.1 If, at any time or from time to time after the date of
this Warrant, the Company shall distribute pro rata to
all of the holders of its then outstanding shares of
Common Stock (a) securities, other than shares of Common
Stock or stock options, or (b) property, other than cash,
without payment therefor, then, and in each such case,
the Holder, upon the exercise of this Warrant, shall be
entitled to receive the securities and property which the
Holder would hold on the date of such exercise if, on the
date of this Warrant, the Holder had been the holder of
record of the number of shares of the Common Stock
subscribed for upon such exercise and, during the period
from the date of this Warrant to and including the date
of such exercise, had retained such shares and the
securities and properties receivable by the Holder during
such period.
3.2 If, at any time or from time to time after the date of
this Warrant, the Company shall (a) pay a dividend on its
Common Stock in shares of Common Stock, (b) subdivide its
outstanding shares of Common Stock into a greater number
of shares, (c) combine its outstanding shares of Common
Stock into a smaller number of shares, or (d) issue by
reclassification of its Common Stock any shares of any
other class of capital stock of the Company, the number
of Warrant Shares and the Warrant Price in effect
immediately prior to such event shall be adjusted so
that, upon exercise of this Warrant, the Holder shall be
entitled to purchase under this Warrant, without
additional consideration therefor, the number of shares
of Common Stock or other capital stock of the Company
which he would have owned or been entitled to purchase
immediately following the happening of any of the events
described above in this subsection 3.2 had this Warrant
been exercised and the Holder become the holder of record
of the Warrant Shares purchased upon such exercise
immediately prior to the record date fixed for the
determination of stockholders entitled to receive such
dividend or distribution or the effective date of such
subdivision, combination or reclassification at a Warrant
Price equal to the aggregate consideration which the
Holder would have had to pay for such Warrant Shares
immediately prior to such event divided by the number of
Warrant Shares the Holder is entitled to receive
immediately after such event. An adjustment made
pursuant to this subsection 3.2 shall become effective
immediately after the record date in the case of a
dividend or distribution and shall become effective
immediately after the effective date in the case of a
subdivision, combination or reclassification. If, as a
result of an adjustment made pursuant to this subsection
3.2, the Holder of this Warrant thereafter surrendered
for exercise shall become entitled to receive shares of
two or more classes of capital stock or shares of Common
Stock and any other class of capital stock of the
company, the Board of Directors (whose determination
shall be conclusive and shall be described in a written
notice to all holders of the Warrants promptly after such
adjustment) shall determine the allocation of the
adjusted Warrant Price between or among shares of such
classes of capital stock or shares of Common Stock and
such other class of capital stock.
3.3 In case of any consolidation or merger to which the
Company is a party, other than a merger or consolidation
in which the Company is the continuing or surviving
corporation, or in case of any sale or conveyance to
another entity of all or substantially all of the
property of the Company as an entirety or substantially
as an entirety, the Holder of this Warrant shall have the
right thereafter, upon exercise of this Warrant, to
receive the kind and amount of securities, cash or other
property which he would have owned or been entitled to
receive immediately after such consolidation, merger,
sale or conveyance had this Warrant been exercised
immediately prior to the effective date of such
consolidation, merger, sale or conveyance and in any such
case, if necessary, appropriate adjustment shall be made
in the application thereafter of the provisions of this
Section 3 with respect to the rights and interests of the
Holder of this Warrant to the end that the provisions of
this Section 3 thereafter shall be correspondingly
applicable, as nearly as may reasonably be, to such
securities and other property. Notice of any such
consolidation, merger, sale or conveyance, and of said
provisions so proposed to be made, shall be mailed to the
Holder not less than thirty (30) days prior to such
event. A sale of all, or substantially all, of the
assets of the Company for a consideration consisting
primarily of securities shall be deemed a consolidation
or merger for the foregoing purposes.
4. Fully Paid Stock; Taxes. The Company agrees that the shares
of the Common Stock represented by each and every certificate for
Warrant Shares delivered upon the exercise of this Warrant shall,
at the time of such delivery, be validly issued and outstanding,
fully paid and nonassessable, and not subject to preemptive rights,
and the Company will take all such actions as may be necessary to
assure that the par value or stated value, if any, per share of the
Common Stock is at all times equal to or less than the Warrant
Price. The Company further covenants and agrees that it will pay,
when due and payable, any and all federal and state stamp, original
issue or similar taxes which may be payable in respect of the
issuance of any Warrant Share or certificate therefor.
5. Registration Under Securities Act of 1933.
5.1 Subject to the terms of this Section 5, if, at any time
during the Exercise Period, the Company receives a
written request from the Holder (whether or not the
Holder theretofore shall have exercised this Warrant in
whole or in part), and provided that (a) at the time of
such request the Holder is the owner of, and/or has the
right pursuant to this Warrant to purchase, Warrant
Shares representing at least fifty percent (50%) of the
total number of Warrant Shares, and (b) the Company has
not theretofore included within the coverage of a
Registration Statement filed by the Company with the
Securities and Exchange Commission ("Commission") under
the Securities Act of 1933, as amended (the "Act"), which
Registration Statement has been declared effective by the
Commission, at least fifty percent (50%) of the Warrant
Shares, the Company promptly shall prepare and file with
the Commission a Registration Statement under the Act
covering all of the Warrant Shares theretofore issued and
which thereafter may be issuable upon the exercise of
Warrants (provided, that the audited financial statements
to be included in such Registration Statement shall be
the year-end financial statements customarily included in
the Company's Annual Report on Form 10-K under the
Securities Exchange Act of 1934 (the "Exchange Act"), and
provided further, that, if the request for registration
is received within three (3) months prior to the
commencement of a fiscal year of the Company, the Company
may delay the preparation and filing of such Registration
Statement for a period of not more than ninety (90) days
following the commencement of such fiscal year in order
to prepare and include in such Registration Statement
audited financial statements for the immediately
preceding fiscal year), shall use its reasonable efforts
to cause such Registration Statement to become effective
and to remain effective and current with respect to the
Warrant Shares for an aggregate period of one (1) year
(exclusive of any period during which the prospectus
included therein shall not meet the requirements of
Section 10 of the Act) and shall take all other action
necessary or appropriate to cause the prospectus included
therein to be available for the sale of Warrant Shares
from time to time during such period by the holders
thereof in ordinary brokerage transactions in the over-
the-counter market or on any national securities exchange
on which the Common Stock is then listed. The right to
demand the filing of a Registration Statement pursuant to
this subsection 5.1 shall be exercisable on one (1)
occasion only. The Holder's rights under this Section
5.1 shall expire and terminate at the earlier of (a) such
time as the Holder shall receive from counsel for the
Company a written opinion of such counsel that the Holder
has the right, pursuant to Rule 144 promulgated under the
Act, to sell as of the date of such opinion, any portion
of the Warrant Shares then held and/or purchasable upon
the exercise of this Warrant by the Holder, or (b) upon
a Registration Statement being declared effective by the
Commission in which the Company has included at least
fifty percent (50%) of the Warrant Shares within the
coverage of such Registration Statement.
5.2 Whenever the Company includes Warrant Shares in a
Registration Statement, the Company shall (a) furnish the
Holder of Warrant Shares included in such Registration
Statement and each underwriter of such Warrant Shares
with such copies of a current prospectus, including the
preliminary prospectus, conforming to the requirements of
Section 10 of the Act (and such other documents as each
such Holder or each such underwriter may reasonably
request), as such Holder(s) and underwriter(s) may
reasonably require in order to effectuate the offer and
sale of the Warrant Shares included in such Registration
Statement; (b) use its reasonable efforts to register or
qualify such Warrant Shares under the blue sky laws (to
the extent applicable) of such jurisdiction or
jurisdictions which the Company deems appropriate or
necessary, provided, however, that the Company shall not
be obligated to register or qualify any Warrant Shares
under those "blue sky" securities laws which the Company
deems are unduly burdensome in connection with such
registration or qualification of Warrant Shares in such
state; and, (iii) take such other actions as may be
reasonably necessary or advisable to enable such
Holder(s) and such underwriters to consummate the sale or
distribution in such jurisdiction or jurisdictions in
which such Holder(s) shall have reasonably requested that
the Warrant Shares be sold; provided, however, that the
Company shall not be required to qualify as a foreign
corporation or broker-dealer in any jurisdiction or to
file a consent to service of process in any jurisdiction
in any action other than one arising out of the offering
or sale of the Warrant Shares.
5.3 The Company shall pay all expenses incurred in connection
with any registration of the Warrant Shares pursuant to
the provisions of this Section 5, except underwriting
discounts, brokerage commissions, and applicable
insurance and transfer taxes relating to the sale of the
Warrant Shares are to be paid by the Holder, and, should
the Holder elect to be separately represented by counsel,
the fees and disbursements payable to such counsel for
the Holder shall be paid by the Holder.
5.4 In the event the Company includes any Warrant Shares in
a Registration Statement filed by the Company with the
Commission:
5.4.1 Except as otherwise provided in this Section
5.4, to the extent permitted by law, the
Company will indemnify and hold harmless the
Holder and each other entity or person, if any,
controlling the Holder within the meaning of
either Section 15 of the Act or Section 20 of
the Exchange Act (collectively, the
"Controlling Party"), against any losses,
claims, damages or liabilities to which the
Holder or the Controlling Party may become
subject under the Act, insofar as such losses,
claims, damage or liabilities (or actions in
respect thereof) arise out of, or are based on,
any untrue or alleged untrue statement of any
material fact contained in such Registration
Statement registering the Warrant Shares filed
by the Company with the Commission, including
any preliminary prospectus or final prospectus
contained therein or any amendments or
supplements thereto, or arise out of, or are
based upon, the omission or alleged omission to
state therein a material fact required to be
stated therein, or necessary to make the
statements therein not misleading or arise out
of any violation by the Company of any rule or
regulation promulgated under the Act applicable
to the Company and relating to action or
inaction required of the Company in connection
with any such registration; provided, however,
that the indemnity agreement contained in this
Section 5.4.1 shall not apply to amounts paid
in settlement of any such loss, claim, damage,
liability or action if such settlement is
effected without the consent of the Company
(which consent shall not be unreasonably
withheld) nor shall the Company be liable in
any such case for any such loss, claim, damage,
liability, or action to the extent that it
arises out of, or is based upon, any untrue
statement or alleged untrue statement or
omission or alleged omission made in connection
with such Registration Statement, preliminary
prospectus, final prospectus, or amendments or
supplements thereto, in reliance upon, and in
conformity with, written information furnished
expressly for use in connection with such
Registration Statement by the Holder, any
underwriter or Controlling Party thereof.
5.4.2 Except as otherwise provided in this Section
5.4, to the extent permitted by law, the Holder
will indemnify and hold harmless the Company,
each of its directors, each of its officers who
have signed the Registration Statement that
includes Warrant Shares, each person, if any,
who controls the Company within the meaning of
the Act or the Exchange Act, and each agent for
the Company against any losses, claims,
damages, or liabilities to which the Company or
any such director, officer, controlling person,
agent, or underwriter may become subject under
the Act, insofar as such losses, claims,
damages or liabilities (or actions in respect
thereto) arise out of, or are based upon, any
untrue statement or alleged untrue statement of
a material fact contained in such Registration
Statement, including any preliminary prospectus
or final prospectus contained therein or any
amendments or supplements thereto, or arise out
of, or are based upon, the omission or alleged
omission to state therein a material fact
required to be stated therein or necessary to
make the statements therein not misleading, in
each case to the extent, but only to the
extent, that such untrue statement or omission
or alleged untrue statement or omission was
made in such Registration Statement,
preliminary or final prospectus or amendments
or supplements thereto, in reliance upon, and
in conformity with, written information
furnished by, or on behalf of, the Holder for
use in connection with such Registration
Statement; provided, however, that the
indemnity agreement contained in this section
5.4.2 shall not apply to amounts paid in
settlement of any such loss, claim, damage,
liability or action if such settlement is
effected without the consent of the Holder
(which consent shall not be unreasonably
withheld), and that the obligation of the
Holder hereunder shall be limited to an amount
equal to the proceeds to the Holder of Warrant
Shares sold pursuant thereto.
5.4.3 Promptly after receipt by a person entitled to
indemnification pursuant to this Section 5.4
(an "Indemnified Party") of notice of the
commencement of any action, the Indemnified
Party will, if a claim in respect thereof is to
be made against the indemnifying party under
this Section 5.4, notify in writing the
indemnifying party of the commencement thereof,
but the omission so to notify the indemnifying
party will not relieve it from any liability
which it may have to the Indemnified Party
otherwise than under this Section. In case any
such claim or action is brought against an
Indemnified Party and it notifies the
indemnifying party of the commencement thereof,
the indemnifying party will be entitled to
participate in and, to the extent that it may
wish, jointly with any other indemnifying party
similarly notified, to assume the defense
thereof, subject to the provisions herein
stated, with counsel reasonably satisfactory to
the Indemnified Party, and after notice from
the indemnifying party to the Indemnified Party
of its election so to assume the defense
thereof, the indemnifying party will not be
liable to the Indemnified Party under this
Section 5.4 for any legal or other expenses
subsequently incurred by the Indemnified Party
in connection with the defense thereof. The
Indemnified Party shall have the right to
employ separate counsel in any such action and
to participate in the defense thereof, but the
fees and expenses of such counsel shall be paid
by the Indemnified Party, except that the
indemnifying party shall pay such reasonable
fees and expenses of such counsel only in the
event that (a) the employment of such counsel
has been specifically authorized in writing by
the indemnifying party and the indemnifying
party has agreed, in writing, to pay such fees
and expenses, or (b) the named parties to any
such action (including any impleaded parties)
include both the Indemnified Party or parties
and the indemnifying party and the Indemnified
Party has been advised by counsel for the
indemnifying party that there are defenses
available to it or them that the indemnifying
party or its counsel refuses to accept or
counsel for the indemnifying party reasonably
determines that there may be a conflict between
the position of the indemnifying party and the
Indemnified Party in conducting the defense of
such action, then counsel for the Indemnified
Party (at the indemnifying party's expense)
shall be entitled to conduct only that part of
the Indemnified Party's or parties' defense
that counsel for the indemnifying party
declines to, or cannot, conduct because of the
foregoing reasons, it being understood,
however, that the indemnifying party or parties
shall not, in connection with any one such
action or separate, but substantially similar
or related actions in the same jurisdiction
arising out of the same general allegations or
circumstances, be liable for the reasonable
fees and expenses of more than one (1) separate
firm of attorneys for all such Indemnified
Party or parties.
6. Investment Representation and Transferability.
6.1 By acceptance hereof, the Holder represents and warrants
that this Warrant is being acquired, and all Warrant
Shares to be purchased upon the exercise of this Warrant
will be acquired, by the Holder solely for the account of
such Holder, and not with a view to the fractionalization
and distribution thereof, and will not be sold or
transferred except in accordance with the applicable
provisions of the Act and the rules and regulations of
the Commission promulgated thereunder. The Holder
covenants and agrees that this Warrant and the Warrant
Shares will not be sold or transferred except under cover
of a Registration Statement under the Act which the
Commission has declared effective and which is current
with respect to such Warrant and the Warrant Shares or
pursuant to an opinion of counsel reasonably satisfactory
to the Company that registration under the Act is not
required in connection with such sale or transfer. Any
Warrant Shares issued upon exercise of this Warrant shall
bear the following legend:
The securities represented by this certificate
have not been registered under the Securities
Act of 1933, as amended, and are restricted
securities within the meaning thereof. Such
securities may not be sold or transferred
except pursuant to a Registration Statement
under such Act which is effective and current
with respect to such securities or pursuant to
an opinion of counsel reasonably satisfactory
to the issuer of such securities that such sale
or transfer is exempt from the registration
requirements of such Act.
6.2 The Holder agrees that the Company may refuse to permit
the sale, transfer or disposition of this Warrant or any
of the Warrant Shares unless there is in effect a
Registration Statement under the Act and any applicable
state securities law covering such transfer or the Holder
furnishes an opinion of counsel, reasonably satisfactory
to counsel for the Company, to the effect that such
registration is not required.
6.3 The Holder understands that under the Act, this Warrant
and the Warrant Shares must be held indefinitely unless
they are subsequently registered under the Act or unless
an exemption from such registration is available with
respect to any proposed transfer or disposition of the
Warrant or the Warrant Shares.
7. Loss, etc. of Warrant. Upon receipt of evidence satisfactory
to the Company of the loss, theft, destruction or mutilation of this
Warrant, and of indemnity reasonably satisfactory to the Company,
if lost, stolen or destroyed, and upon surrender and cancellation
of this Warrant, if mutilated, and upon reimbursement of the
Company's reasonable incidental expenses, the Company shall execute
and deliver to the Holder a new Warrant of like date, tenor and
denomination.
8. Warrant Holder Not Shareholder. This Warrant shall not be
deemed to confer upon the Holder any right to vote or to consent to
or receive notice as a shareholder of the Company, as such, in
respect of any matters whatsoever, or any other rights or
liabilities as a shareholder, prior to the exercise hereof.
9. Notices. Except as otherwise specified herein to the contrary,
all notices, requests, demands and other communications required or
desired to be given hereunder shall only be effective if given in
writing, by hand or fax, by certified or registered mail, return
receipt requested, postage prepaid, or by U. S. Express Mail
service, or by private overnight mail service (e.g., Federal
Express). Any such notice shall be deemed to have been given (a)
on the business day actually received if given by hand or by fax,
(b) on the business day immediately subsequent to mailing, if sent
by U.S. Express Mail service or private overnight mail service, or
(c) five (5) business days following the mailing thereof, if mailed
by certified or registered mail, postage prepaid, return receipt
requested, and all such notices shall be sent to the following
addresses (or to such other address or addresses as a party may have
advised the other in the manner provided in this Section 9) to:
If to the Company: Perma-Fix Environmental
Services, Inc.
1940 Northwest 67th Place
Gainesville, Florida 32606-1649
Attention: Dr. Louis F. Centofanti
Chief Executive Officer
Fax No.: (352) 373-0040
If to the Holder: Marvin S. Rosen
220 East 65th Street, Apt. 35E
New York, New York 10021
10. Headings. The headings of this Warrant have been inserted as
a matter of convenience and shall not affect the construction
hereof.
11. Applicable Law. This Warrant shall be governed by, and
construed in accordance with, the laws of the State of Delaware,
without giving effect to the principles of conflicts of law thereof.
IN WITNESS WHEREOF, this Warrant has been signed by the
parties hereto this 16th day of September, 1996.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By
______________________________
Dr. Louis F. Centofanti
Chief Executive Officer
(the "Company")
________________________________
MARVIN S. ROSEN
(the "Holder")
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SUBSCRIPTION
The undersigned, ________________________, pursuant to the
provisions of the foregoing Warrant, hereby agrees to subscribe for
and purchase ____________________ shares of the Common Stock of
PERMA-FIX ENVIRONMENTAL SERVICES, INC., covered by said Warrant, and
makes payment therefor in full at the price per share provided by
said Warrant pursuant to the terms of said Warrant.
Dated:____________________ Signature_______________________
Address_________________________
ASSIGNMENT
FOR VALUE RECEIVED, _________________________________ hereby
sells, assigns and transfers unto _________________________________
the foregoing Warrant and all rights evidenced thereby, and does
irrevocably constitute and appoint _________________________,
attorney, to transfer said Warrant on the books of PERMA-FIX
ENVIRONMENTAL SERVICES, INC.
Dated:____________________ Signature_______________________
Address_________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED, _________________________________ hereby
sells, assigns and transfers unto _________________________________
the right to purchase _________ shares of the Common Stock of PERMA-
FIX ENVIRONMENTAL SERVICES, INC. by the foregoing Warrant and all
rights evidenced thereby, and does irrevocably constitute and
appoint _________________________, attorney, to transfer that part
of said Warrant on the books of PERMA-FIX ENVIRONMENTAL SERVICES,
INC.
Dated:____________________ Signature_______________________
Address_________________________
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