EXHIBIT 99.1
Form of Securities Purchase Agreement
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (the "PURCHASE AGREEMENT" or
"AGREEMENT") is made effective as of January 26, 2007 (the "Effective Date"), by
and among ASI Technology Corporation, a Nevada corporation located at 000
Xxxxxxxx Xxxxxxx Xxxxx, Xxxxx #000, Xxxxxxxxx, Xxxxxx 00000 (the "COMPANY" OR
THE "Corporation"), and each investor who may become a party to this Agreement
as contemplated in Section 1.3 below as of the Effective Date and from time to
time subsequently as listed from time to time on Exhibit A attached hereto, each
of whom is hereinafter referred to as an "INVESTOR."
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Shares.
1.1 Sale of Shares.
(a) Subject to the terms and conditions of this Agreement,
each Investor agrees, severally, to purchase and the Company agrees to sell and
issue to each Investor, that number of shares of the Company's Common Stock set
forth on Schedule 1 below each Investor's name on the signature page hereto. The
per share purchase price of the Common Stock is $0.45 per share.
(b) The shares of Common Stock sold to the Investors pursuant
to this Agreement are hereinafter referred to as the "SHARES or SECURITIES."
1.2 Closing The initial purchase and sale of the Shares as set
forth on the signature page shall take place at the Company's offices at the
address indicated above at 10:00 A.M., effective as of the Effective Date or at
such other time and place as the Company shall determine (which time and place
shall be designated as the "INITIAL CLOSING"). Within thirty (30) days after the
Initial Closing, the Company shall deliver to each Investor purchasing Shares at
the Initial Closing a certificate representing the Shares, which such Investor
is purchasing against delivery to the Company by such Investor of a check or
wire transfer in the aggregate amount of the purchase price therefor payable to
the Company's order as identified on the signature page.
1.3 SUBSEQUENT SALES. At any time on, or before, March 31, 2007
(the "Final Closing Date"), the Company may sell any amount of additional Shares
(each such sale a "Subsequent Closing"). All such sales shall be made
substantially on the terms and conditions set forth in this Agreement. Any
shares sold pursuant to this Section 1.3 shall be deemed to be "Shares" for all
purposes under this Agreement and any purchasers thereof shall be deemed to be
"Investors" for all purposes under this Agreement. Should any such sales be
made, the Company shall prepare and distribute to the Investors a revised
Exhibit A to this Agreement within thirty (30) days after the Final Closing Date
reflecting such sales. Such Investors shall become signatories to this
Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants the following as of the Initial Closing to each
Investor, except as set forth on the Schedule of Exceptions attached hereto as
Exhibit B and incorporated herein by reference:
2.1 CORPORATE ORGANIZATION AND STANDING. The Corporation is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada. The Corporation has the requisite corporate power to
carry on its business as presently conducted, and as proposed or contemplated to
be conducted in the future, and to enter into and carry out the provisions of
this Agreement and the transactions contemplated under this Agreement.
2.2 AUTHORIZATION. All corporate action on the part of the
Corporation, its directors and shareholders necessary for the authorization,
execution, delivery and performance of this Agreement by the Corporation and the
performance of all of the Corporation's obligations hereunder has been taken.
This Agreement, when executed and delivered by the Corporation, shall constitute
a valid and binding obligation of the Corporation, enforceable in accordance
with its terms, except as may be limited by principles of public policy, and
subject to laws of general application relating to bankruptcy, insolvency and
the relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies. The Shares, when issued in
compliance with the provisions of this Agreement, will be validly issued, fully
paid and non-assessable
2.3 NO BREACH. The issue and sale of the Shares by the Corporation
does not and will not conflict with and does not and will not result in a breach
of any of the terms of the Corporation's incorporating documents or any
agreement or instrument to which the Corporation is a party. The consummation of
the transactions or performance of the obligations contemplated by this
Agreement will not result in a breach of any term of, or constitute a default
under, any statute, indenture, mortgage, or other agreement or instrument to
which the Corporation or any of its subsidiaries is or are a party or by which
any of them is or are bound.
2.4 PENDING OR THREATENED CLAIMS. Neither the Corporation nor any
of its subsidiaries is a party to any action, suit or proceeding which could
materially affect its business or financial condition, and no such actions,
suits or proceedings are contemplated or have been threatened.
2.5 BROKERS AND FINDERS. No agent, broker, investment banker or
other firm or person acting on behalf or under the authority of the Company is
or shall be entitled to any broker's or finder's fee or any other commission or
similar fee from the Company in connection with any of the transactions
contemplated by this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. Each Investor
severally and not jointly hereby represents and warrants that:
3.1 AUTHORIZATION. When executed and delivered by the Investor, and
assuming execution and delivery by the Company, this Agreement and Warrant
constitute its valid and legally binding obligations, enforceable in accordance
with their terms. If Investor is a corporation, partnership, trust or estate:
(i) the individual executing and delivering this Agreement on behalf of the
Investor has been duly authorized and is duly qualified to execute and deliver
this Agreement on behalf of Investor in connection with the purchase of the
Shares and (ii) the signature of such individual is binding upon Investor. Each
Investor represents that it has full power and authority to enter into this
Agreement.
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3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made with
each Investor in reliance upon such Investor's representation to the Company,
which by such Investor's execution of this Agreement such Investor hereby
confirms, that the Securities will be acquired for investment for such
Investor's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that such Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, each Investor further
represents that such Investor does not have any contract, undertaking, agreement
or arrangement with any person to sell, transfer or grant participation to such
person or to any third person, with respect to any of the Securities.
3.3 DISCLOSURE OF AND ACCESS TO INFORMATION. The Investor has had
an opportunity to discuss the Corporation's business, management and financial
affairs with its management and to obtain any additional information which the
Investor has deemed necessary or appropriate for deciding whether or not to
purchase the Securities, and has had an opportunity to receive, review and
understand the disclosures and information regarding the Company's financial
statements, capitalization and other business information as set forth in the
Company's filings with the Securities and Exchange Commission (the "SEC
Filings") which are all incorporated herein by reference, together with all
exhibits referenced therein. The Investor acknowledges that no representations
or warranties, oral or written, have been made by the Company or any agent
thereof except as set forth in this Agreement.
3.4 INVESTMENT EXPERIENCE. The Investor has such knowledge and
experience in financial and business matters, including investments in other
start-up companies, that it is capable of evaluating the merits and risks of the
investment in the Securities, and it is able to bear the economic risk of such
investment. Further, the individual executing this Agreement has such knowledge
and experience in financial and business matters that he/it is capable of
utilizing the information made available to him/it in connection with the
offering of the Securities, of evaluating the merits and risks of an investment
in the Securities and of making an informed investment decision with respect to
the Securities, including assessment of the Risk Factors set forth in the SEC
Filings which are incorporated herein by reference.
3.5 RESTRICTED SECURITIES. Such Investor understands that the
Shares it is purchasing are characterized as "restricted securities" under the
federal securities laws inasmuch as they are being acquired from the Company in
a transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Securities Act only in certain limited circumstances. In this connection,
each Investor represents that it is familiar with Rule 144, as presently in
effect, and understands the resale limitations imposed thereby and by the Act.
The Investor is aware that there is currently a very limited "over-the-counter"
public market for the Company's common stock shares which are eligible for such
sales. There is no guarantee that a more established public market will develop
at any time in the future. The Investor understands that the Securities are all
unregistered and may not presently be sold in even this limited public market.
The Investor understands that the Securities cannot be readily sold or
liquidated in case of an emergency or other financial need. The Investor has
sufficient liquid assets available so that the purchase and holding of the
Securities will not cause it undue financial difficulties.
3.6 ACCREDITED INVESTOR. The Investor is an "accredited investor"
as that term is defined in Regulation D promulgated by the Securities and
Exchange Commission. The term "Accredited Investor" under Regulation D refers
to:
(i) A person or entity who is a director or executive officer
of the Corporation;
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(ii) Any bank as defined in Section 3(a)(2) of the Securities
Act, or any savings and loan association or other institution as defined in
Section 3(a)(5)(A) of the Securities Act whether acting in its individual or
fiduciary capacity; any broker or dealer registered pursuant to Section 15 of
the Exchange Act; insurance Corporation as defined in Section 2(13) of the
Securities Act; investment Corporation registered under the Investment
Corporation Act of 1940; or a business development Corporation as defined in
Section 2(a)(48) of that Act; Small Business Investment Corporation licensed by
the U.S. Small Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958; any plan established and maintained by a state,
its political subdivisions, or any agency or instrumentality of a state or its
political subdivisions for the benefit of its employees, if such plan has total
assets in excess of $5,000,000; employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974, if the investment decision is
made by a plan fiduciary, as defined in Section 3(21) of such Act, which is
either a bank, savings and loan association, insurance Corporation, or
registered investment adviser, or if the employee benefit plan has total assets
in excess of $5,000,000 or, if a self-directed plan, with investment decision
made solely by persons that are accredited investors;
(iii) Any private business development Corporation as defined
in Section 202(a)(22) of the Investment Advisers Act of 1940;
(iv) Any organization described in Section 501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the Securities
offered, with total assets in excess of $5,000,000;
(v) Any natural person whose individual net worth, or joint
net worth with that person's spouse, at the time of his purchase exceeds
$1,000,000;
(vi) Any natural person who had an individual income in excess
of $200,000 during each of the previous two years or joint income with that
person's spouse in excess of $300,000 in each of those years and has a
reasonable expectation of reaching the same income level in the current year;
(vii) Any trust, with total assets in excess of $5,000,000,
not formed for the specific purpose of acquiring the Securities offered, whose
purchase is directed by a person who has such knowledge and experience in
financial and business matters that he is capable of evaluating the merits and
risks of the prospective investment; or (viii) Any entity in which all of the
equity owners are accredited investors.
As used in this Section 3.6, the term "net worth" means the excess of total
assets over total liabilities. For the purpose of determining a person's net
worth, the principal residence owned by an individual should be valued at fair
market value, including the cost of improvements, net of current encumbrances.
As used in this Section 3.6, "income" means actual economic income, which may
differ from adjusted gross income for income tax purposes. Accordingly, the
undersigned should consider whether it should add any or all of the following
items to its adjusted gross income for income tax purposes in order to reflect
more accurately its actual economic income: Any amounts attributable to
tax-exempt income received, losses claimed as a limited partner in any limited
partnership, deductions claimed for depletion, contributions to an XXX or Xxxxx
retirement plan, and alimony payments
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3.7 ECONOMIC RISK. Such Investor understands that an investment in
the Company involves substantial risks. Such Investor understands all of the
risks related to the purchase of the Securities. Such Investor further
understands that the purchase of the Securities will be a highly speculative
investment. Such Investor is able, without impairing the Investor's financial
condition, to hold the Securities for an indefinite period of time and to suffer
a complete loss of the Investor's investment.
3.8 BROKERS OR FINDERS. The Company has not, and will not, incur,
directly or indirectly, as a result of any action taken by such Investor, any
liability for brokerage or finders' fees or agents' commissions or any similar
charges in connection with this Agreement.
3.9 TAX LIABILITY. It has reviewed with its own tax advisors the
federal, state, local and foreign tax consequences of this investment and the
transactions contemplated by this Agreement. It relies solely on such advisors
and not on any statements or representations of the Company or any of its
agents. It 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 this Agreement.
3.10 FURTHER LIMITATIONS ON DISPOSITION. Without in any way
limiting the representations set forth above, each Investor further agrees not
to make any disposition of all or any portion of the Shares unless and until:
(a) There is then in effect a Registration Statement under the
Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement; or
(b) (i) Such Investor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii) if
requested by the Company, such Investor shall have furnished the Company with an
opinion of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of such shares under the Act, provided
that the Company will not require opinions of counsel for transactions made
pursuant to Rule 144 of such Act; or
3.11 LEGENDS. It is understood that the certificates evidencing the
Shares may bear one or all of the following legends:
(a) THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE
SECURITIES LAWS, AND MAY BE OFFERED AND SOLD ONLY IF SO REGISTERED OR AN
EXEMPTION FROM REGISTRATION IS AVAILABLE. THE HOLDER OF THESE SHARES MAY BE
REQUIRED TO DELIVER TO THE COMPANY, IF THE COMPANY SO REQUESTS, AN OPINION OF
COUNSEL (REASONABLY SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY) TO THE
EFFECT THAT AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (OR
QUALIFICATION UNDER STATE SECURITIES LAWS) IS AVAILABLE WITH RESPECT TO ANY
TRANSFER OF THESE SHARES THAT HAS NOT BEEN SO REGISTERED (OR QUALIFIED).
THE COMPANY IS AUTHORIZED TO ISSUE MORE THAN ONE CLASS OF STOCK. A COPY
OF THE PREFERENCES, POWERS, QUALIFICATIONS AND RIGHTS OF EACH CLASS AND SERIES
WILL BE PROVIDED TO EACH SHAREHOLDER WITHOUT CHARGE, UPON WRITTEN REQUEST.
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER, INCLUDING A "LOCK-UP" PROVISION RESTRICTING THE
TRANSFER OF THE SECURITIES FOR A PERIOD OF TIME NOT TO EXCEED ONE HUNDRED EIGHTY
(180) DAYS FROM THE EFFECTIVE DATE OF THE CORPORATION'S PUBLIC OFFERING.
(b) Any legend required by the laws of applicable state.
4. LOCK-UP. The Investor acknowledges and agrees that the Securities
may be subject to certain restrictions on transfer following a registered public
offering of the Corporation's securities as provided in this Section 4. In
connection with any registration of the Corporation's securities, the Investor
agrees, upon the request of the underwriters managing such offering of the
Company's securities, if applicable, or the Company if there are no
underwriters, not to sell, make any short sale of, loan, grant any option for
the purchase of, or otherwise dispose of any Shares (other than those included
in the registration) without the prior written consent of the Corporation and,
if applicable, such underwriters, as the case may be, for such period of time,
not to exceed thirty (30) days before and one hundred eighty (180) days, after
the effective date of such registration as the Corporation or the underwriters
may specify; provided, however, that all executive officers, directors and
shareholders holding more than 1% of the fully diluted capital stock of the
Corporation are subject to the same restrictions as the Investor. The
Corporation and underwriters may request such additional written agreements in
furtherance of such standoff in the form reasonably satisfactory to the
underwriter and the Investor. The Corporation may also impose stop-transfer
instructions with respect to the shares subject to the foregoing restrictions
until the end of said one hundred eighty (180) day or shorter period.
Contemporaneous with the execution of this Agreement.
5. CONDITIONS OF INVESTOR'S OBLIGATIONS AT THE CLOSING. The obligations
of each Investor under Section 1.2 of this Agreement are subject to the
fulfillment on or before the Initial Closing of each of the following
conditions, the waiver of which shall not be effective against the Investor
unless consented to in writing thereto:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in Section 2 shall be true on and as of the
date of the Initial Closing.
5.2 PERFORMANCE. The Company shall have performed and complied with
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Initial
Closing.
5.3 SATISFACTION. All corporate and legal proceedings taken by the
Company in connection with the transactions contemplated by this Agreement and
all documents relating to such transactions shall be satisfactory to the
Investors in the reasonable exercise of their judgment.
5.4 BLUE SKY/FEDERAL. The Company shall have obtained all necessary
Blue Sky and Federal law permits and qualifications, or have the availability of
exemptions therefrom, required by any state for the offer and sale of the
Shares.
5.5 CONSENTS, PERMITS, AND WAIVERS. The Company shall have obtained
any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by this Agreement (except for such
as may be properly obtained subsequent to the Initial Closing).
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5.6 LEGAL INVESTMENT. Subject in part to the truth and accuracy of
the Investors' representations set forth in this Agreement, the sale and
issuance of the Shares to the Investors shall be legally permitted by all
securities laws and regulations to which the Investors and the Company are
subject.
6. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT THE CLOSING. The
obligations of the Company to each Investor under this Agreement are subject to
the fulfillment on or before the Initial Closing or each Subsequent Closing, as
applicable, of each of the following conditions, the waiver of which shall not
be effective unless consented to in writing by the Company:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of each Investor contained in Section 3 shall be true on and as of
the date of the applicable Closing in which such Investor purchases the Shares.
6.2 PAYMENT OF PURCHASE PRICE. Such Investor to the applicable
Closing shall have delivered the consideration set forth on the signature page.
6.3 BLUE SKY/FEDERAL. The Company shall have obtained all necessary
Blue Sky and Federal law permits and qualifications, or have the availability of
exemptions therefrom, required by any state for the offer and sale of the
Shares.
7. Intentionally omitted.
8. Miscellaneous.
8.1 SURVIVAL OF WARRANTIES. The warranties, representations and
covenants of the Company and Investors contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Investors or the Company. In
particular, the warranties and representations of the Company in Section 2 shall
survive for a period of one year after the Initial Closing.
8.2 SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
8.3 GOVERNING LAW/VENUE. This Agreement shall be governed by and
construed under the laws of the State of Nevada as applied to agreements among
Nevada residents entered into and to be performed entirely within Nevada,
without reference to the conflict of laws. Venue for all purposes hereunder
shall be Las Vegas, Nevada.
8.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.5 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
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8.6 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and, except as otherwise noted herein,
shall be deemed effectively given upon personal delivery, delivery by nationally
recognized courier, by facsimile to a telephone number provided by the receiving
party or upon deposit with the United States Post Office, (by first class mail,
postage prepaid) addressed: (a) if to the Company, at the address set forth on
the first page of this Agreement (or at such other address as the Company shall
have furnished to the Investors in writing) and (b) if to a Investor, at the
latest address of such person on the Company's records, which as of the
Effective Date shall be deemed to be the address on Schedule 1.
8.7 FINDER'S FEE. Each party represents that it neither is nor will
be obligated for any finders' fee or commission in connection with this
transaction. Each Investor agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Investor or any of its officers, partners,
employees, or representatives is responsible.
8.8 EXPENSES. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement (including any exhibit or
schedule hereto), the prevailing party shall be entitled to reasonable
attorney's fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
8.9 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), by the holders of a majority of the Shares. Any amendment or
waiver effected in accordance with this Section 8.9 shall be binding upon each
Investor and each holder of any securities purchased under this Agreement at the
time outstanding (including securities into which such securities are
convertible), each future holder of all such securities, and the Company.
8.10 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision will be deemed
amended to conform to applicable law so as to be valid, legal and enforceable in
such jurisdiction, and the validity, legality and enforceability of such
provision will not be affected or impaired thereby in any other jurisdiction; if
such provision cannot be amended without altering materially the intention of
the parties, such provision shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
8.11 STOCK SPLITS. All references to numbers of shares in this
Agreement shall be appropriately adjusted to reflect any stock dividend, split,
combination or other recapitalization of shares by the Company occurring after
the Effective Date.
8.12 ENTIRE AGREEMENT. This Agreement and the Exhibits, Schedules
and the other documents referred to herein constitute the entire agreement
between the parties hereto pertaining to the subject matter hereof, and any and
all other written or oral agreements existing between the parties hereto are
expressly canceled.
8.13 CONFIDENTIAL INFORMATION. The Investor agrees that any
information not currently set forth in the Company's SEC Filings may be treated
by the Corporation as confidential with respect to the Company or its activities
("Confidential Information"). The Investor understands and agrees that such
Confidential Information may not be disclosed to any third party or used by the
Investor for purposes of trading in the Company's publicly traded stock until
such Confidential Information is publicly disclosed by the Company or no longer
deemed in writing by the Company to be Confidential Information.
[THE REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY.]
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SIGNATURE PAGE TO
ASI TECHNOLOGY CORPORATION 2007 SECURITIES PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY"
ASI TECHNOLOGY CORPORATION
By: /s/ XXXXX X. XXXXX
President
"INVESTOR"
Signature:____________________________
By:___________________________________
Title:________________________________
Address:
______________________________________
______________________________________
SCHEDULE 1
Number of Shares: ______________________________________
Aggregate Share Purchase Price: ______________________________________
Price per share: $0.45
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Accepted By: ______________ Closing Date: __________________________
