Exhibit 99.2
VOTING AGREEMENT
This Voting Agreement is entered into as September 9, 2001, by and
between CRANE MERGERCO HOLDINGS, INC., a Delaware corporation ("PARENT"), and
the undersigned ("STOCKHOLDER").
RECITALS
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A. Parent, Crane Mergerco Holdings, Inc., a Delaware corporation and
wholly-owned subsidiary of Parent ("MERGER SUB") and American Coin
Merchandising, Inc., a Delaware corporation (the "COMPANY"), are entering into a
Merger Agreement (the "MERGER AGREEMENT") which provides (subject to the
conditions set forth therein) for the merger of Merger Sub with and into the
Company (the "MERGER").
B. In order to induce Parent and Merger Sub to enter into the Merger
Agreement, Stockholder is entering into this Voting Agreement.
AGREEMENT
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The parties to this Voting Agreement, intending to be legally
bound, agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Voting Agreement:
(a) "COMPANY COMMON STOCK" means the shares of the Company's
common stock, par value $.01 per share.
(b) "EXPIRATION DATE" means the earlier of (i) the date upon which
the Merger Agreement is terminated, or (ii) the date upon which the Merger
becomes effective.
(c) Stockholder shall be deemed to "OWN" or to have acquired
"OWNERSHIP" of a security if Stockholder: (i) is the record owner of such
security; or (ii) is the "beneficial owner" of such security (within the meaning
of Rule 13d-3 under the Securities Exchange Act of 1934, as amended).
(d) "PERSON" means any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or (iii) governmental authority.
(e) "SUBJECT SECURITIES" means: (i) all securities of the Company
(including all shares of Company Common Stock, all debt or securities
convertible into or exchangeable for Company Common Stock, and all options,
warrants and other rights to acquire shares of Company Common Stock) Owned by
Stockholder as of the date of this Agreement; and (ii) all additional securities
of the Company (including all additional shares of Company Common Stock, all
debt or securities convertible into or exchangeable for Company Common Stock,
and all additional options, warrants and other rights to acquire shares of
Company
Common Stock) of which Stockholder acquires Ownership during the period from the
date of this Agreement through the Expiration Date.
(f) A Person shall be deemed to have effected a "TRANSFER" of a
security if such Person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers or otherwise disposes of such
security or any interest in such security; or (ii) enters into an agreement or
commitment contemplating the possible sale of, pledge of, encumbrance of, grant
of an option with respect to, transfer of or disposition of such security or any
interest therein.
(g) Unless otherwise defined in this Voting Agreement, all
capitalized terms used but not defined in this Voting Agreement shall have the
meanings ascribed to such terms in the Merger Agreement.
2. TRANSFER OF SUBJECT SECURITIES
2.1 TRANSFEREE OF SUBJECT SECURITIES TO BE BOUND BY THIS AGREEMENT.
Stockholder agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Stockholder shall not cause or permit any
Transfer of any of the Subject Securities to be effected unless each Person to
which any of such Subject Securities, or any interest in any of such Subject
Securities, is or may be transferred shall have: (a) executed a counterpart of
this Voting Agreement and a proxy in the form attached hereto as Exhibit A (with
such modifications as Parent may reasonably request); and (b) agreed to hold
such Subject Securities (or interest in such Subject Securities) subject to all
of the terms and provisions of this Voting Agreement.
2.2 TRANSFER OF VOTING RIGHTS. Stockholder agrees that, during the
period from the date of this Voting Agreement through the Expiration Date,
Stockholder shall ensure that: (a) none of the Subject Securities is deposited
into a voting trust; and (b) with respect to the Subject Securities, no proxy is
granted, and no voting agreement or similar agreement is entered into.
3. VOTING SHARES.
3.1 VOTING AGREEMENT. Stockholder agrees that, during the period from
the date of this Voting Agreement through the Expiration Date:
(a) at any meeting of stockholders of the Company, however called,
Stockholder shall (unless otherwise directed in writing by Parent) cause all
outstanding shares of Company Common Stock (and any other Subject Securities
having a vote thereon) that are Owned by Stockholder as of the record date fixed
for such meeting to be voted in favor of the approval and adoption of the Merger
Agreement and the approval of the Merger, and in favor of each of the other
actions contemplated by the Merger Agreement; and
(b) in the event written consents are solicited or otherwise sought
from stockholders of the Company with respect to the approval or adoption of the
Merger Agreement, with respect to the approval of the Merger or with respect to
any of the other actions contemplated by the Merger Agreement, Stockholder shall
(unless otherwise directed in writing by Parent) cause to be executed, with
respect to all outstanding shares of Company Common
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Stock (and any other Subject Securities having a vote thereon) that are Owned by
Stockholder as of the record date fixed for the consent to the proposed action,
a written consent or written consents to such proposed action.
3.2 PROXY; FURTHER ASSURANCES.
(a) Contemporaneously with the execution of this Voting Agreement:
(i) Stockholder shall deliver to Parent a proxy in the form attached hereto as
Exhibit A, which shall be irrevocable to the fullest extent permitted by law,
with respect to all outstanding shares of Company Common Stock (and any other
Subject Securities having a vote thereon) that are Owned by Stockholder as of
the date hereof (the "PROXY"); and (ii) Stockholder shall cause to be delivered
to Parent an additional proxy (in the form attached hereto as Exhibit A)
executed on behalf of the record owner of any outstanding shares of Company
Common Stock (and any other Subject Securities having a vote thereon) that are
owned beneficially (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934), but not of record, by Stockholder.
(b) Stockholder shall, at his own expense, perform such further
acts and execute such further documents and instruments as may reasonably be
required to vest in Parent the power to carry out and give effect to the
provisions of this Voting Agreement.
4. WAIVER OF APPRAISAL RIGHTS; MERGER CONSIDERATION. Stockholder hereby
irrevocably and unconditionally waives, and agrees to cause to be waived and to
prevent the exercise of, any rights of appraisal, any dissenters' rights and any
similar rights relating to the Merger or any related transaction that
Stockholder or any other Person may have by virtue of the ownership of any
outstanding shares of Company Common Stock (or other Subject Securities) Owned
by Stockholder. Stockholder has knowledge of the current financial and business
condition and prospects of the Company and has been given the opportunity to ask
the Company and Parent questions and to receive answers from Parent concerning
the terms and conditions of the Merger, in each case, as is necessary for
Stockholder to adequately evaluate the value of the Company and the Merger, and
its resulting economic effects, and Stockholder's entering into this Voting
Agreement. Accordingly, Stockholder acknowledges and agrees that the Merger
Consideration is fair to the Stockholder from a financial standpoint.
5. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder hereby
represents and warrants to Parent as follows:
5.1 AUTHORIZATION. Stockholder has the absolute and unrestricted right,
power, authority and capacity to execute and deliver this Voting Agreement and
the Proxy and to perform his obligations hereunder and thereunder. This Voting
Agreement and the Proxy have been duly executed and delivered by Stockholder and
constitute legal, valid and binding obligations of Stockholder, enforceable
against Stockholder in accordance with their terms, subject to (i) laws of
general application relating to bankruptcy, insolvency and the relief of
debtors, and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies.
5.2 NO CONFLICTS OR CONSENTS.
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(a) The execution and delivery of this Voting Agreement and the
Proxy by Stockholder do not, and the performance of this Voting Agreement and
the Proxy by Stockholder will not: (i) conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to Stockholder or by which he
or any, of his properties is or may be bound or affected; or (ii) result in or
constitute (with or without notice or lapse of time) any breach of or default
under, or give to any other Person (with or without notice or lapse of time) any
right of termination, amendment, acceleration or cancellation of, or result
(with or without notice or lapse of time) in the creation of any encumbrance or
restriction on any of the Subject Securities or the right to vote same pursuant
to, any agreement to which Stockholder is a party or by which Stockholder or any
of his affiliates or properties is or may be bound or affected.
(b) The execution and delivery of this Voting Agreement and the
Proxy by Stockholder do not, and the performance of this Voting Agreement and
the Proxy by Stockholder will not, require any consent or approval of any
Person.
5.3 TITLE TO SECURITIES. As of the date of this Voting Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding shares of Company Common Stock set forth under the
heading "Shares Held of Record" on the signature page hereof; (b) Stockholder
holds (free and clear of any encumbrances or restrictions) the options, warrants
and other rights to acquire shares of Company Common Stock set forth under the
heading "Options and Other Rights" on the signature page hereof; (c) Stockholder
Owns the additional securities of the Company set forth under the heading
"Additional Securities Beneficially Owned" on the signature page hereof; and (d)
Stockholder does not directly or indirectly Own any shares of capital stock or
other securities of the Company, or any option, warrant or other right to
acquire (by purchase, conversion, exercise, exchange or otherwise) any shares of
capital stock or other securities of the Company, other than the shares and
options, warrants and other rights set forth on the signature page hereof.
5.4 ACCREDITED INVESTOR. Stockholder is a director of the Company and
either (i) has an individual net worth (or joint net worth with such person's
spouse) in excess of $1,000,000, (ii) had an individual income in excess of
$200,000 in each of the two most recent years and who reasonably expects to have
an individual income in excess of $200,000 in the current year or (iii) had
joint income, including any income attributable to his or her spouse or to
property owned by his or her spouse, in excess of $300,000 in each of the two
most recent years and who reasonably expects to have such joint income in excess
of $300,000 in the current year.
5.5 ACCURACY OF REPRESENTATIONS. Stockholder's representations and
warranties in this Voting Agreement are complete and accurate in all respects as
of the date of this Voting Agreement, and Stockholder covenants that such
representations and warranties will be accurate in all respects at all times
through the Expiration Date and will be accurate in all respects as of the date
of the consummation of the Merger as if made on such date.
6. ADDITIONAL COVENANTS OF STOCKHOLDER.
6.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Stockholder shall (at Stockholder's sole expense) execute and
deliver, or cause to be executed and delivered, such additional transfers,
assignments, endorsements, proxies,
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consents and other instruments, as Parent may request for the purpose of
carrying out and furthering the intent of this Voting Agreement.
6.2 RELEASE. Stockholder, on behalf of himself and his principals,
heirs, estate, executors, administrators, representatives, successors, and
assigns, hereby fully and forever releases and discharges Parent and its
affiliates, the Company and its affiliates, and each of their respective
officers, directors, shareholders, employees, agents, servants, representatives
and attorneys, and their respective successors and assigns and predecessors in
interest (collectively, "AFFILIATES"), from all actions, claims, demands,
losses, expenses, obligations and liabilities related to or arising in
connection with (a) any actions and/or omissions of Parent or the Company or any
of their Affiliates before the date hereof in any way related to the sale of the
Company (other than obligations of the Company to indemnify the Stockholder) and
(b) the execution and performance of the Merger Agreement, other than with
respect to Stockholder's receipt of his portion of the aggregate Merger
Consideration. Stockholder further covenants and agrees to not, directly or
indirectly, initiate, institute, maintain or further prosecute or participate
in, encourage, induce, or assist, any claim, lawsuit, action or other proceeding
against the Company or Parent or their respective Affiliates, for any relief
whatsoever (i) if the Merger Agreement is consummated in accordance with its
terms (other than with respect to Stockholder's receipt of his portion of the
aggregate Merger Consideration) or (ii) to stop, hinder or delay the Merger;
PROVIDED, HOWEVER, that nothing in this Voting Agreement shall limit or affect
any rights and obligations, including any applicable fiduciary duties, that
Stockholder may have under applicable law in such Stockholder's capacity as an
officer or director of the Company.
7. MISCELLANEOUS.
7.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, covenants and agreements made by Stockholder in
this Voting Agreement shall survive the consummation of the Merger, and the
termination of this Agreement shall not relieve any party from any liability for
any breach of any representation, warranty or covenant contained in this
Agreement which results in such termination.
7.2 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Voting Agreement shall be paid by the party
incurring such costs and expenses.
7.3 NOTICES. Except as otherwise expressly stated, every notice,
demand, consent, or other communication required or permitted under this Voting
Agreement will be valid only if it is in writing (whether or not this Agreement
expressly states that it must be in writing) and delivered personally or by
commercial courier, or first-class, postage-prepaid, United States mail (whether
or not certified or registered, and regardless of whether a return receipt is
requested or received by the sender), and addressed, if to Parent, to the
address listed underneath its signature to this Voting Agreement; and, if to
Stockholder, to the address listed underneath such Stockholder's signature to
this Voting Agreement. A validly given notice, demand, consent, or other
communication will be effective on the earlier of its receipt, if
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delivered personally or by commercial courier, or the third day after it is
postmarked by the United States Postal Service, if delivered by first-class,
postage-prepaid, United States mail.
7.4 SEVERABILITY. If any provision of this Voting Agreement or any part
of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or y enforceability of any other provision of this Voting Agreement.
Each provision of this Voting Agreement is separable from every other provision
of this Voting Agreement, and each part of each provision of this Voting
Agreement is separable from every other part of such provision.
7.5 ENTIRE AGREEMENT. This Voting Agreement, the Proxy and any other
documents delivered by the parties in connection herewith constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all concurrent and prior agreements and understandings
between the parties with respect thereto. No addition to or modification of any
provision of this Voting Agreement shall be binding upon either party unless
made in writing and signed by both parties.
7.6 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Voting Agreement nor any of the interests or obligations hereunder may be
assigned or delegated by Stockholder and any attempted or purported assignment
or delegation of any of such interests or obligations shall be void. Subject to
the preceding sentence, this Voting Agreement shall be binding upon Stockholder
and his heirs, estate, executors, personal representatives, successors and
assigns, and shall inure to the benefit of Parent and its successors and
assigns. Without limiting any of the restrictions set forth in Section 2 or
elsewhere in this Voting Agreement, this Voting Agreement shall be binding upon
any Person to whom any Subject Securities are Transferred. Nothing in this
Voting Agreement is intended to confer on any Person (other than Parent and its
successors and assigns) any rights or remedies of any nature.
7.7 SPECIFIC PERFORMANCE. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Voting Agreement or
the Proxy was not performed in accordance with its specific terms or was
otherwise breached. Stockholder agrees that, in the event of any breach or
threatened breach by Stockholder of any covenant or obligation in this Voting
Agreement or in the Proxy, Parent shall be entitled (in addition to any other
remedy that may be available to it, including monetary damages) to seek and
obtain (a) a decree or order of specific performance to enforce the observance
and performance of such covenant or obligation, and (b) an injunction
restraining such breach or threatened breach. Stockholder further agrees that
neither Parent nor any other Person shall be required to obtain, furnish or post
any bond or similar instrument in connection with or as a condition to obtaining
any remedy referred to in this Section 8.8, and Stockholder irrevocably waives
any right Stockholder may have to require the obtaining, furnishing or posting
of any such bond or similar instrument.
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7.8 NON-EXCLUSIVE REMEDIES. The rights and remedies of Parent under
this Voting Agreement are not exclusive of or limited by any other rights or
remedies which it may have, whether at law, in equity, by contract or otherwise,
all of which shall be cumulative (and not alternative). Without limiting the
generality of the foregoing, the rights and remedies of Parent under this Voting
Agreement, and the obligations and liabilities of Stockholder under this Voting
Agreement, are in addition to their respective rights, remedies, obligations and
liabilities under common law requirements and under all applicable statutes,
rules and regulations. Nothing in this Voting Agreement shall limit any of
Stockholder's obligations, or the rights or remedies of Parent, under any
Affiliate Agreement between Parent and Stockholder; and nothing in any such
Affiliate Agreement shall limit any of Stockholder's obligations, or any of the
rights or remedies of Parent, under this Voting Agreement.
7.9 GOVERNING LAW; VENUE.
(a) This Voting Agreement and the Proxy shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware (without giving effect to principles of conflicts of laws).
(b) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS VOTING AGREEMENT OR THE
ENFORCEMENT OF ANY PROVISION OF THIS VOTING AGREEMENT.
7.10 COUNTERPARTS. This Voting Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument.
7.11 CAPTIONS. The captions contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
7.12 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Voting Agreement or the enforcement of any provision of this
Voting Agreement is brought against Stockholder, the prevailing party shall be
entitled to recover reasonable attorneys' fees, costs and disbursements (in
addition to any other relief to which the prevailing party may be entitled).
7.13 WAIVER. No failure on the part of Parent to exercise any power,
right, privilege or remedy under this Voting Agreement, and no delay on the part
of Parent in exercising any power, right, privilege or remedy under this Voting
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. Parent shall not be deemed to have waived any claim
available to Parent arising out of this Voting Agreement, or any power, right,
privilege or remedy of Parent under this Voting Agreement, unless the waiver of
such claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of
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Parent; and any such waiver shall not be applicable or have any effect except in
the specific instance in which it is given.
7.14 CONSTRUCTION.
(a) For purposes of this Voting Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Voting Agreement.
(c) As used in this Voting Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation"
(d) Except as otherwise indicated, all references in this Voting
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Voting Agreement and Exhibits to this Voting Agreement.
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IN WITNESS WHEREOF, Parent and Stockholder have caused this Voting
Agreement to be executed as of the date first written above.
CRANE MERGERCO HOLDINGS, INC.
By:________________________________________
Name:
Title:
Address: [_______________________]
[_______________________]
Facsimile: [_____________________]
STOCKHOLDER:
Signature: ________________________________
Printed Name:______________________________
Address:___________________________________
___________________________________________
Facsimile:_________________________________
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Shares Held of Record Options and Other Rights Additional Securities Beneficially Owned
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder of American Coin Merchandising, Inc., a
Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent
permitted by law) appoints and constitutes [______________] and Crane Mergerco
Holdings, Inc., a
Delaware corporation ("PARENT"), and each of them, the
attorneys and proxies of the undersigned with full power of substitution and
resubstitution, to the full extent of the undersigned's rights with respect to
(i) the outstanding shares of capital stock of the Company owned of record by
the undersigned as of the date of this proxy, which shares are specified on the
final page of this proxy, and (ii) any and all other shares of capital stock of
the Company which the undersigned may acquire on or after the date hereof. (The
shares of the capital stock of the Company referred to in clauses "(i)" and
"(ii)" of the immediately preceding sentence are collectively referred to as the
"Shares.") Upon the execution hereof, all prior proxies given by the undersigned
with respect to any of the Shares are hereby revoked, and the undersigned agrees
that no subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with the Voting Agreement, dated as of the date hereof, between
Parent and the undersigned (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Merger Agreement, dated as of the date
hereof, among Parent, Crane Mergerco, Inc. and the Company (the "Merger
Agreement").
Each of the attorneys and proxies named above will be empowered, and
may exercise this proxy, to vote the Shares at any time until the earlier to
occur of the termination of the Merger Agreement or the effective time of the
merger contemplated thereby (the "Merger") at any meeting of the stockholders of
the Company, however called, or in connection with any solicitation of written
consents from, stockholders of the Company, in favor of the approval and
adoption of the Merger Agreement and the approval of the Merger, and in favor of
each of the other actions contemplated lay the Merger Agreement.
The undersigned may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the undersigned (including any
transferee of any of the Shares).
If any provision of this proxy or any part of any such provision is
held under any circumstances to be invalid or unenforceable in any jurisdiction,
then (a) such provision or part thereof shall, with respect to such
circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and. enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this
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proxy. Each provision of this proxy is separable from every other provision of
this proxy, and each part of each provision of this proxy is separable from
every other part of such provision.
This proxy shall be construed in accordance with, and governed in all
respects by, the laws of the State of
Delaware (without giving effect to
principles of conflicts of laws).
This proxy shall terminate upon the earlier of the valid termination of
the Merger Agreement or the Effective Time of the Merger.
Dated:
_________________________________
Signature
_________________________________
Printed Name
Number of shares of common stock of
the Company owned of record as of
the date of this proxy:
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