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EXHIBIT 10.8
REDEMPTION AND PUT AGREEMENT
This Redemption and Put Agreement ("Agreement") is made as of September
14, 1999, by and among Charter Communications Holding Company, LLC, a Delaware
limited liability company ("Charter LLC"), Xxxx X. Xxxxx, an individual
("Xxxxx") and ______________ ("Holder"), with reference to the following facts:
A Charter Communications Operating, LLC ("CCO"), a subsidiary of Charter
LLC, is a party to (1) that certain Purchase and Sale Agreement by and among the
persons or entities listed on the signature pages thereto as "Sellers," and
Xxxxxx Acquisition Partners, L.L.L.P. ("RAP"), dated April 26, 1999 (the "RAP
Agreement"), and (2) that certain Purchase and Sale Agreement by and among the
persons or entities listed on the signature pages thereto as "Sellers," and
InterLink Communications Partners, LLLP ("InterLink"), dated April 26, 1999 (the
"InterLink Agreement" and, together with the RAP Agreement, the "Purchase
Agreements"), pursuant to which CCO and certain of its affiliates have acquired
all of the outstanding equity of RAP and InterLink, respectively.
B Holder is a former owner of interests in RAP and/or InterLink and, in
connection with the transaction by which CCO acquired RAP and InterLink, Holder
was issued Class A Preferred Units of Charter LLC (the "Issued Units").
D As an inducement for Holder to contribute its interests in RAP and/or
InterLink to CCO in consideration of the Issued Units, Charter LLC agreed to
grant the Holder the Redemption Election provided for herein and Xxxxx agreed to
grant the Holder the Put Option provided for herein.
NOW, THEREFORE, in consideration of the respective covenants and
agreements of the parties and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged by each party), the
parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms have the
following meanings:
1.1 "Class A Preferred Contributed Amount" has the meaning given
that term in the Operating Agreement.
1.2 "Class A Preferred Return Amount" has the meaning given that
term in the Operating Agreement.
1.3 "Class A Preferred Units" has the meaning given that term in
the Operating Agreement.
1.4 "Closing Date" has the meaning given that term in the
Purchase Agreements.
1.5 "Interest Payment" means interest on the Redemption Purchase
Price or Put Purchase Price, as applicable, at a rate equal to eight percent
(8%) per annum, from and including the first day of the calendar quarter
following the date on which a Charter Notice was delivered, through and
including the date of such Redemption Closing or Put Closing.
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1.6 "Minimum Amount" means the lesser of (i) Issued Units for
which the Redemption Purchase Price under this Agreement is at least $1,000,000,
or (ii) all Issued Units that are subject to the Holder's Redemption Election
under this Agreement.
1.7 "Operating Agreement" means that certain Amended and Restated
Limited Liability Company Agreement of Charter LLC effective as of September 14,
1999 as amended from time to time.
2. Redemption Election.
Charter LLC hereby grants to the Holder the right and option (the
"Redemption Election"), exercisable from the date hereof through and including
the date of termination of the Redemption Election under Section 9 by written
notice delivered to Charter LLC and Xxxxx (the "Charter Notice"), to sell and to
permit any of the Holder's Permitted Transferees (as defined below) to sell to
Charter LLC or its designee, from time to time, on one or more occasions, all or
any portion of the Issued Units held by the Holder and its Permitted Transferees
that represents at least the Minimum Amount. Upon the delivery of the Charter
Notice, Charter LLC shall be obligated to buy or to cause its designee to buy
and, subject to Section 8.3, the Holder and the Permitted Transferees identified
in the Holder's notice pursuant to this Section 2 shall be obligated to sell,
the amount of the Issued Units held by the Holder and its Permitted Transferees
that is specified in the Charter Notice, at the price and upon the terms and
conditions specified in Section 3.
3. Redemption Purchase Price; Redemption Closing.
3.1 The purchase price to be paid upon any exercise of the
Redemption Election (the "Redemption Purchase Price") shall be the sum of (i)
the Class A Preferred Contributed Amount in respect of the Issued Units as to
which such Redemption Election has been exercised, and (ii) the Class A
Preferred Return Amount in respect of such Class A Preferred Units.
3.2 At each closing of the purchase and sale of the Issued Units
to Charter LLC or its designee (the "Redemption Closing"), (a) Charter LLC or
its designee shall pay to the Holder (for itself and on behalf of its Permitted
Transferees, if applicable) the sum of the Redemption Purchase Price and the
Interest Payment, if any, in immediately available funds by wire transfer or
certified bank check; and (b) the Holder shall deliver or cause to be delivered
to Charter LLC or its designee one or more certificates evidencing the Issued
Units to be purchased and sold at such Redemption Closing (if certificates
representing such Issued Units have been issued), together with duly executed
assignments separate from the certificate in form and substance reasonably
acceptable to Charter LLC to effectuate the transfer of such Issued Units to
Charter LLC or its designee, together with a certificate of the Holder and its
Permitted Transferee, if applicable, reaffirming the representations in Section
5.
3.3 Each Redemption Closing shall be held at the offices of Irell
& Xxxxxxx in Los Angeles, California, on (or before if Charter LLC so
determines) the last day of the calendar quarter following the date on which
Holder delivers the Charter Notice, or if the Charter Notice is delivered fewer
than fifteen (15) calendar days prior to the end of the calendar quarter, then
on the fifteenth day of the next calendar quarter (but effective as of the end
of the calendar quarter
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in which such Charter Notice was delivered), or at such other time and place as
the Holder and Charter LLC may mutually agree. If the Redemption Closing occurs
after the end of the calendar quarter in which such Charter Notice was
delivered, then at the Redemption Closing, in addition to the Redemption
Purchase Price, Charter LLC shall pay to Holder the Interest Payment. The Holder
and Charter LLC will cooperate so as to permit all documents required to be
delivered at the Redemption Closing to be delivered by mail, delivery service or
courier without requiring either party or its representatives to be physically
present at the Redemption Closing.
4. Put Option if Redemption Failure; Put Closing.
4.1 In the event the Holder delivers a Charter Notice in
accordance with Section 2 and either (a) the Redemption Closing has not occurred
by the date specified in Section 3.3 (other than as a result of the Holder's
delay or Holder's material breach of this Agreement), or (b) Charter LLC or its
designee notifies the Holder that, for any reason (other than the Holder's
material breach of this Agreement), Charter LLC or its designee is unwilling or
unable (for legal or other reasons), to purchase any Issued Units as to which a
Redemption Election has been exercised (a "Redemption Failure"), then the Holder
shall have the right and option (the "Put Option"), to sell and to permit any of
the Holder's Permitted Transferees to sell (provided such Permitted Transferees
were specified in the Charter Notice associated with such Redemption Failure) to
Xxxxx or his designee, all or any portion of the Issued Units specified in such
Charter Notice that Charter LLC failed, or was unwilling or unable, to redeem
(the "Put-Eligible Units").
4.2 If a Redemption Failure occurs and the Holder wishes to
exercise its Put Option as to any Put-Eligible Units, then promptly after such
Redemption Failure, the Holder shall deliver a written notice to Xxxxx stating:
(i) that the Holder wishes to exercise its Put Option, (ii) the number of Issued
Units that are Put-Eligible Units, (iii) the number of Put-Eligible Units as to
which the Put Option is being exercised, and (iv) the date on which the
Redemption Closing was to have occurred (an "Xxxxx Notice"). If a Redemption
Failure has occurred, then upon delivery of such Xxxxx Notice, Xxxxx shall be
obligated to buy or to cause his designee to buy and, subject to Section 8.3,
the Holder and the Permitted Transferees identified in the Charter Notice and
Xxxxx Notice shall be obligated to sell, the amount of the Put-Eligible Units
held by the Holder and such Permitted Transferees, at the price and upon the
terms and conditions specified in Section 4.3.
4.3 The closing of the purchase and sale of the Put-Eligible
Units to Xxxxx (the "Put Closing") shall occur in accordance with the following:
(a) The purchase price to be paid upon any exercise of the
Put Option (the "Put Purchase Price") shall be the sum of (i) the Class A
Preferred Contributed Amount in respect of the Put-Eligible Units as to which
such Put Option has been exercised, and (ii) the Class A Preferred Return Amount
in respect of such Class A Preferred Units.
(b) At each Put Closing, (a) Xxxxx or his designee shall
pay to the Holder (for itself and on behalf of its Permitted Transferees, if
applicable) the sum of the Put Purchase Price and the Interest Payment, if any,
in immediately available funds by wire transfer or certified bank check; and (b)
the Holder shall deliver or cause to be delivered to Xxxxx or his
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designee one or more certificates evidencing the Put-Eligible Units to be
purchased and sold at such Put Closing, together with duly executed assignments
separate from the certificate in form and substance reasonably acceptable to
Xxxxx to effectuate the transfer of such Put-Eligible Units to Xxxxx or his
designee, together with a certificate of the Holder and its Permitted
Transferee, if applicable, reaffirming the representations in Section 5.
(c) The purchase and sale of Put-Eligible Units shall be
effective as of the last day of the calendar quarter following the date on which
the Holder delivers the Charter Notice; provided, however, that the Put Closing,
which shall be held at the offices of Irell & Xxxxxxx in Los Angeles,
California, shall occur on the later of (i) the date that the Redemption Closing
was to have occurred but for the Redemption Failure, and (ii) five (5) business
days after the date on which the Xxxxx Notice was delivered (or at such other
time and place as the Holder and Xxxxx may mutually agree). If the Put Closing
occurs after the end of the calendar quarter in which such Charter Notice was
delivered, then at the Put Closing, in addition to the Put Purchase Price, Allen
shall pay to Holder the Interest Payment. The Holder and Xxxxx will cooperate so
as to permit all documents required to be delivered at the Put Closing to be
delivered by mail, delivery service or courier without requiring either party or
its representatives to be physically present at the Put Closing.
5. Representations of the Holder. The Holder represents and warrants (x)
to Charter LLC and any of its designees or assignees that on the date hereof and
at each Redemption Closing, and (y) to Xxxxx and any of his designees or
assignees that on the date hereof and at each Put Closing: (a) the Holder has
full power and authority to execute and deliver this Agreement and consummate
the transactions contemplated hereby; (b) this Agreement is the legal, valid and
binding obligation of the Holder, enforceable against the Holder in accordance
with its terms; (c) at each Redemption Closing or Put Closing, as applicable the
Holder or one of its Permitted Transferees will own all of the Issued Units
required to be purchased and sold at such Redemption Closing or Put Closing,
both of record and beneficially, free and clear of all liens, encumbrances or
adverse interests of any kind or nature whatsoever (including any restriction on
the right to vote, sell or otherwise dispose of the Issued Units), other than
those arising under applicable law and those arising under the Operating
Agreement; (d) upon the transfer of the Issued Units pursuant to Section 3 or 4,
as applicable, Charter LLC or Xxxxx (or their respective designees, as
applicable) will receive good title to the Issued Units, free and clear of all
liens, encumbrances and adverse interests created by the Holder, any Permitted
Transferee, or any of their respective predecessors-in-interest, other than
those arising under applicable law or those arising under the Operating
Agreement.
6. Representations of Charter LLC. Charter LLC represents and warrants
to the Holder and each Permitted Transferee that on the date hereof and at all
times hereafter through the Redemption Closing: (a) Charter LLC has full limited
liability company power and authority to execute and deliver this Agreement and
consummate the transactions contemplated hereby; (b) this Agreement constitutes
the legal, valid and binding obligation of Charter LLC, enforceable against
Charter LLC in accordance with its terms, except as the enforceability of this
Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or similar laws affecting creditors' rights generally or
by judicial discretion in the enforcement of equitable remedies; and (c) its
execution and delivery of this Agreement does not, and its performance of its
obligations under this Agreement will not, violate, conflict with or constitute
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breach of, or a default under, Charter LLC operating agreement, or any material
agreement, indenture or instrument to which it is a party or which is binding on
it, and will not result in the creation of any lien on, or security interest in,
any of his assets (other than such violations, breaches, defaults, liens or
security interests that would not materially and adversely affect its ability to
perform his obligations under this Agreement).
7. Representations of Xxxxx. Xxxxx represents and warrants to the Holder
and each Permitted Transferee that on the date hereof and at all times hereafter
through the Closing: (a) Xxxxx has full power and authority to execute and
deliver this Agreement and consummate the transactions contemplated hereby; (b)
this Agreement constitutes the legal, valid and binding obligation of Xxxxx,
enforceable against Xxxxx in accordance with its terms; (c) his execution and
delivery of this Agreement does not, and his performance of his obligations
under this Agreement will not, violate, conflict with or constitute a breach of,
or a default under, any material agreement, indenture or instrument to which he
is a party or which is binding on him, and will not result in the creation of
any lien on, or security interest in, any of his assets (other than such
violations, breaches, defaults, liens or security interests that would not
materially and adversely affect his ability to perform his obligations under
this Agreement); and (d) his Net Worth is and will be greater than $4 billion.
At the request of R&A Management, LLC, a Colorado limited liability company
("R&A"), made (on behalf of Holder together with all other holders receiving
similar put agreements in connection with the transactions under the Purchase
Agreements) no more frequently than once every 180 days, Xxxxx will within 10
days of such request deliver to R&A a certificate signed by him or his
attorney-in-fact as to the representation and warranty in clause (d) being true
and correct at such time. "Net Worth" means the excess of the fair market value
of Xxxxx'x assets over the aggregate amount of Xxxxx'x liabilities.
8. Adjustment for Exchange, Reorganizations, Stock Splits, etc.
8.1 If the Class A Preferred Units are increased, decreased,
changed into, or exchanged for a different number or kind of shares or
securities of Charter LLC through reorganization, recapitalization,
reclassification, dividend, split or reverse split, or other similar
transaction, an appropriate adjustment shall be made with respect to number and
kind of shares or securities subject to the Redemption Election and Put Option,
without change in the total price applicable to the unexercised portion of the
Redemption Election and Put Option but with a corresponding adjustment in the
price for unit of any security covered by the Redemption Election and Put
Option. Any shares or securities that become subject to the Redemption Election
and Put Option pursuant to this Section 8.1 shall constitute "Issued Units" for
purposes of this Agreement.
8.2 Upon a reorganization, merger or consolidation of Charter LLC
with one or more other corporations or entities (any of the foregoing, a
"Business Combination") pursuant to which the outstanding Class A Preferred
Units are converted into or exchanged for any other security ("Replacement
Securities"), the Redemption Election and Put Option shall cease to be
exercisable with respect to the securities that previously constituted "Issued
Units" and shall instead be automatically converted into an option to sell such
number of shares or units of Replacement Securities issued in exchange for the
Issued Units pursuant to such Business Combination at a price per share or unit
of Replacement Securities equal to the aggregate Redemption Purchase Price for
all Issued Units immediately prior to such effectiveness divided
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by the number of shares or units of Replacement Securities subject to the
Redemption Election immediately following such effectiveness. Any Replacement
Securities that become subject to the Redemption Election pursuant to this
Section 8.2 shall constitute "Issued Units" for purposes of this Agreement.
8.3 In the event of any proposed Business Combination pursuant to
which the outstanding Class A Preferred Units will be converted into a right to
receive consideration other than securities of Charter LLC or Replacement
Securities, (i) Charter LLC will provide notice thereof to the Holder at least
ten (10) days prior to consummation of such Business Combination and (ii) the
Redemption Election and Put Option will expire two days prior to such
consummation except with respect to any Issued Units that are specified in a
Charter Notice delivered by the Holder pursuant to Section 2 prior to such date.
If the Holder delivers a Charter Notice after its receipt of a notice from
Charter LLC pursuant to this Section 8.3, the purchase and sale of any of the
Issued Units specified in the Holder's notice may be conditioned at the Holder's
option on the consummation of the Business Combination described in Charter
LLC's notice pursuant to this Section 8.3.
9. Termination of Redemption Election and Put Option.
9.1 The Redemption Election and Put Option shall terminate on the
earliest of the following dates, except with respect to any Issued Units that
are specified in a Charter Notice delivered prior to such earliest date:
(a) five years from the Closing Date;
(b) the date on which the Issued Units are exchanged for
shares of common stock of Charter Communications, Inc. ("CCI") in connection
with CCI's initial public offering and pursuant to an agreement between Holder
and CCI; and
(c) the date specified in Section 8.3.
9.2 The Redemption Election and Put Option shall terminate as to
any Issued Units on the date on which such Issued Units are first transferred by
the Holder or any Permitted Transferee to a person or entity that is not a
"Permitted Transferee."
10. Miscellaneous.
10.1 Complete Agreement; Modifications. This Agreement
constitutes the parties' entire agreement with respect to the subject matter
hereof and supersedes all other agreements, representations, warranties,
statements, promises and understandings, whether oral or written, with respect
to the subject matter hereof. This Agreement may not be amended, altered or
modified except by a writing signed by both parties.
10.2 Additional Documents. Each party hereto agrees to execute
any and all further documents and writings and to perform such other actions
which may be or become necessary or expedient to effectuate and carry out this
Agreement.
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10.3 Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be sufficiently
given if delivered in person or transmitted by telecopy or similar means of
recorded electronic communication to the relevant party, addressed as follows
(or at such other address as either party shall have designated by notice as
herein provided to the other party):
If to the Holder, to the address set forth on the signature page
hereto.
If to Charter LLC:
Charter Communications Holding Company, LLC
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
with a copy to:
Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
If to Xxxxx:
x/x Xxxxxx Xxxxxxxxx
000xx Xxxxxx X.X., Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
with a copy to:
Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
Any such notice or other communication shall be deemed to have been given and
received on the day on which it is delivered or telecopied (or, if such day is
not a business day or if the notice or other communication is not telecopied
during business hours, at the place of receipt, on the next following business
day); provided, however, that any such notice or other communication shall be
deemed to have been given and received on the day on which it is sent if
delivery thereof is refused or if delivery thereof in the manner described above
is not possible because of the
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intended recipient's failure to advise the sending party of a change in the
intended recipient's address or telecopy number.
10.4 No Third-Party Benefits. None of the provisions of this
Agreement shall be for the benefit of, or enforceable by, any person or entity
that is not a party to this Agreement, other than any Permitted Transferees of
the Holder.
10.5 Waivers Strictly Construed. With regard to any power, remedy
or right provided herein or otherwise available to any party hereunder (a) no
waiver or extension of time shall be effective unless expressly contained in a
writing signed by the waiving party; and (b) no alternation, modification or
impairment shall be implied by reason of any previous waiver, extension of time,
delay or omission in exercise or other indulgence.
10.6 Severability. The validity, legality or enforceability of
the remainder of this Agreement shall not be affected even if one or more of the
provisions of this Agreement shall be held to be invalid, illegal or
unenforceable in any respect.
10.7 Undertakings. All authority herein conferred or agreed to be
conferred upon a party to this Agreement and all agreements of a party contained
herein shall survive the death or incapacity of such party (or any of them).
10.8 Successors and Assigns. Except as provided herein to the
contrary, this Agreement shall be binding upon and shall inure to the benefit of
the parties, their respective heirs, estates, personal representatives,
conservators, successors and permitted assigns.
10.9 Assignments.
(a) The Holder and any Permitted Transferee may transfer
some or all of its Issued Units to any of the following persons or entities
(each such person or entity, a "Permitted Transferee"), and the Permitted
Transferee shall thereupon have the rights provided in this Agreement:
(i) any person or entity that was among the
"Investors" who were party to that certain Contribution Agreement, dated as of
September 14, 1999, among such Investors, Charter Communications Operating, LLC,
Charter Communications Holding Company, LLC, and Xxxx Xxxxx;
(ii) any person or entity that, directly or
indirectly, through the ownership of voting securities, controls, is controlled
by, or is commonly controlled with the Holder;
(iii) a trust for the benefit of the equity owners
of the Holder and of which the trustee or trustees are one or more persons or
entities that either control, or are commonly controlled with, the Holder or are
banks, trust companies, or similar entities;
(iv) any person or entity for which the Holder is
acting as nominee or any trust controlled by or under common control with such
person or entity;
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(v) if the Holder is an individual, any charitable
foundation, charitable trust, or similar entity, the estate, heirs, or legatees
of the Holder upon the Holder's death, any member of the Holder's family, any
trust or similar entity for the benefit of the Holder or one or more members of
the Holder's family, or any entity controlled by the Holder or one or more
members of the Holder's family.
(b) The Holder may assign all its rights and delegate all
its obligations under this Agreement to any Permitted Transferee, and such
Permitted Transferee shall thereupon be deemed to be the "Holder" for purposes
of this Agreement.
(c) Charter LLC is entitled, in its sole discretion, to
assign its rights to purchase any Issued Units under this Agreement to one or
more entities controlled by Charter LLC, but no such assignment will relieve
Charter LLC of any of its obligations under this Agreement. Xxxxx is entitled,
in his sole discretion, to assign his rights to purchase any Issued Units under
this Agreement to one or more entities controlled by Xxxxx, but no such
assignment will relieve Xxxxx of any of his obligations under this Agreement.
10.10 Governing Law. This Agreement shall be governed by the laws
of the State of Delaware, without regard to any choice of law provisions of that
state or the laws of any other jurisdiction.
10.11 Headings. The Section headings in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
interpret the scope of this Agreement or of any particular Section.
10.12 Number and Gender. Throughout this Agreement, as the
context may require, (a) the masculine gender includes the feminine and neuter;
and the neuter gender includes the masculine and feminine; and (b) the singular
tense and number includes the plural, and the plural tense and number includes
the singular.
10.13 Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
10.14 Costs. Except as otherwise provided in this Agreement, each
party will bear his or its own costs in connection with the exercise of the
Holder's right under this Agreement and the purchase and sale of any Issued
Units pursuant to this Agreement.
10.15 Default. In the event of any legal action between the
parties arising out of or in relation to this Agreement, the prevailing party in
such legal action shall be entitled to recover, in addition to any other legal
remedies, all of his or its costs and expenses, including reasonable attorney's
fees, from the non-prevailing party, regardless of whether such legal action is
prosecuted to completion.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Redemption and
Put Agreement as of the date first set forth above.
CHARTER COMMUNICATIONS HOLDING COMPANY, LLC
By:___________________________________
Name:
Title:
____________________________________
Xxxx X. Xxxxx, by Xxxxxxx X. Xxxxx,
attorney-in-fact
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[SIGNATURE PAGE TO REDEMPTION AND PUT AGREEMENT]
HOLDER
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[ADDRESS]
