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EXHIBIT 10.2
SHAREHOLDERS AGREEMENT
This Shareholders Agreement ("Agreement") is entered into as of October
31, 1998 by and among Digital Asset Management, Inc. (the "Company"), a Delaware
corporation, those investors in the Company listed on Exhibit A attached hereto
(the "Investors" and each individually referred to as an "Investor") and those
Stockholders of the Company listed on Exhibit B attached hereto (the
"Stockholders" and each individually referred to as a "Stockholder"). The
Investors and the Stockholders are sometimes hereinafter collectively referred
to as the "Holders."
RECITALS:
WHEREAS, each Stockholder currently owns that number of shares of the
Company's common stock, par value $.01 per share (the "Common Stock"), set forth
beside the Stockholder's name on Exhibit B attached hereto; and
WHEREAS, each Investor is purchasing from the Company that number of
shares of the Company's Preferred Stock, par value of $.01 per share ("Preferred
Stock"), shown beside such Investor's name on Exhibit A attached hereto,
pursuant to that certain Stock Purchase Agreement entered into by and between
the Company and the Investors dated of even date herewith (the "Purchase
Agreement");
WHEREAS, to induce the Investors to purchase such shares of the
Preferred Stock from the Company and to enter into the Stock Purchase Agreement,
each Holder has agreed to grant the Company and the other Holders certain rights
of first refusal as set forth herein with respect to the shares of the Company's
stock currently owned or hereinafter acquired by the Holder;
NOW THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1. COLLATERAL PLEDGE. A Holder may pledge shares of capital stock of
the Company owned by such Holder as collateral security for a loan; provided any
sale, transfer or other disposition of the stock so pledged upon foreclosure or
otherwise shall be subject to the terms and conditions of this Agreement and the
right of first refusal purchase option in favor of the Company and the other
Holders as set forth herein.
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2. RESTRICTIONS ON TRANSFER.
(a) Except as provided in Section 1, no shares of capital
stock of the Company, now owned or hereinafter acquired, may be sold, assigned,
conveyed, pledged, hypothecated or otherwise transferred by any Holder,
voluntarily, involuntarily, by operation of law or otherwise (collectively, a
"Disposition"), without the prior written consent of the other Stockholders
holding a majority of the shares of the Common Stock and the Preferred Stock
issued and outstanding.
(b) Except as otherwise provided in Section 1 or 2 (a), prior
to any Disposition of shares of capital stock of the Company by any Holder, the
registered holder of such stock (the "Transferor") shall first provide written
notice of the intended Disposition to the Company and the other Holders (the
"Disposition Notice"). The Disposition Notice shall set forth all of the terms
of the proposed Disposition, including price and payment terms for any sale, the
name and address of the proposed transferee, the number of shares involved in
the proposed Disposition, and the date on which the transaction is to occur,
which date shall not be earlier than forty-five (45) days from the date of the
notice. The date of the Disposition Notice shall hereinafter be referred to as
the "Notice Date."
(c) For a period of thirty (30) days after the Notice Date,
the Company shall have the right of first refusal option to purchase all, but
not less than all, of the shares of capital stock of the Transferor on the same
terms and conditions identified in the Disposition Notice, which option shall
lapse and expire if not exercised in writing within said 30-day period by vote
of the Board of Directors of the Company (without participation by the
Transferor). In the event said option is exercised, the closing shall take place
at the principal office of the Company within thirty (30) days after notice of
the intent to exercise is given; provided however, unless the parties agree
otherwise, the closing in all events shall take place within sixty (60) days of
the Notice Date.
(d) In the event the foregoing option is not exercised by the
Company as provided above, then the shares of stock of the Transferor identified
in the Disposition Notice shall become subject to a second option in favor of
the other Holders to purchase all, but not less than all, of such stock on the
same terms and conditions, which option shall lapse and expire if not exercised
by written notice to the Transferor prior to the forty-fifth (45th) day
following the Notice Date.(1) In the event the other Holders exercise said
option, the closing shall take place at the principal office of the Company
within thirty (30) days after notice of the intent to exercise; provided
however, unless the parties agree otherwise, the Closing in all events shall
take place within seventy-five (75) days of the Notice Date.
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(1) In the event the Company exercises its option and wrongfully fails to
close the transaction as set forth above, the other Holders shall have the right
to exercise the foregoing option for a period of fifteen (15) days after receipt
of written notice of the Company's default.
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(e) In the event more than one other Holder exercises the
foregoing option, each such other Holder shall have the right to purchase a
"proportionate share" of such stock based upon the ratio expressed as a
percentage of (i) the number of shares of capital stock of the Company owned by
the Holder to (ii) the total number of shares of capital stock of the Company
owned by all Holders (other than the Transferor) electing to exercise the option
with the Investor's shares being considered on an as converted basis. If one or
more of the Holders (individually or as a group) fails to purchase all of the
Transferor's stock identified in the Disposition Notice then no purchase shall
be made pursuant to the option unless other non-defaulting Holders agree to
purchase all such shares of stock.
(f) In the event neither the Company nor the other Holders
exercise their respective options as provided above, then the Transferor may
proceed to complete the Disposition to the prospective purchaser or other
transferee identified in the Disposition Notice, but only in accordance with the
terms stated in such notice. If the Transferor shall fail to complete such
Disposition within one hundred twenty (120) days following the Notice Date, and
if the Transferor still intends to complete said Disposition, the Transferor
shall be required to provide another Disposition Notice to the Company and the
other Holders, and the Company and the other Holders shall each have another
right of first refusal option to purchase such shares as provided above, prior
to the consummation of any such intended Disposition. Any purchaser or other
transferee acquiring the offered shares shall be automatically bound by the
terms of this Agreement and shall be required to join in, execute, and deliver a
counterpart of this Agreement as a condition to the issuance by the Company of a
stock certificate in such person's name.
(g) Notwithstanding anything contained herein to the contrary,
each Investor may transfer its shares of stock in the Company, without complying
with Section 2, to a company controlled by or under common control with such
Investor, provided the transferee agrees in writing to be bound by the terms of
this Agreement and the transferring Investor provides written notice of such
transfer to the other Holders within thirty (30) days after such transfer.
3. PARALLEL EXIT RIGHTS. In the event of a proposed Disposition by sale
where the right-of-first refusal periods set forth in Section 2 shall expire
without all shares subject to such right having been accepted, each Holder (with
the Investor's shares considered on an as-converted basis) shall have the right
(a "Parallel Exit Right") to require the selling Holder to reduce the number of
shares to be sold by him or it and have the purchaser purchase from the Holders
electing to exercise a Parallel Exit Right the number of shares derived by
multiplying the total number of shares of Common Stock owned by the Holders
electing the Parallel Exit Rights (with the Investor's shares considered on an
as-converted basis) by a fraction, the numerator of which is the total number of
shares of Common Stock owned by the electing Holder and the denominator of which
is the total number of shares of Common Stock (on an as-converted basis) owned
by all of the electing Holders and the selling Holder. The purchase of the
electing Holders shares shall be on the same terms and conditions, provided each
of the electing Holders gives written notice of their election to the transferor
no later than five (5) days prior to the closing. The provisions of Section 2
shall not apply with respect to any shares which may be
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sold pursuant to the exercise of a Parallel Exit Right.
4. TERMINATION OF EMPLOYMENT. In the event any Stockholder's employment
with the Company terminates, all of such Stockholder/former employee's shares of
stock in the Company shall immediately become subject to an option to purchase
such stock in favor of the Company first, and the other Holders second for a
period of ninety (90) days following such Stockholder/former employee's
termination of employment. Notwithstanding the foregoing, such option shall not
be exercisable with respect to the shares of stock owned by Xxxx Xxxxx ("Xxxxx")
in any of the following circumstances: (a) Xxxxx is terminated without "cause"
(as defined in Xxxxx'x employment agreement with the Company); or (b) Xxxxx'x
employment with the Company terminates due to a "disability" (as defined in
Xxxxx'x employment agreement with the Company); or (c) Xxxxx voluntarily leaves
the Company after the contractual term of employment because the Company has not
offered him a new contract on terms (including salary, bonus and benefits) at
least as favorable as those contained in his existing employment contract. If
all the shares of stock of such Stockholder/former employee are not purchased by
the Company, the other Holders shall have the right to purchase such stock as
provided in Section 2. The purchase price and terms of payment shall be
determined pursuant to Sections 8 and 9. In the event of a termination of
employment by reason of death, the provisions of Section 7 shall control.
5. DIVORCE. If a Stockholder shall become a party to a divorce
proceeding and pursuant to any court order or decree in such proceeding all or
any portion of the Stockholder's stock in the Company is awarded to the
Stockholder's former spouse, the stock so awarded shall immediately become
subject to an option to purchase on the part of the Company first, and the other
Holders second, for an aggregate period of ninety (90) days after written notice
of such order or decree is provided to the Company and the other Holders in the
manner provided in Section 2 as in the case of any proposed Disposition. If all
of the shares of stock so awarded are not purchased by the Company, the other
Holders shall have the right to purchase such stock as provided in Section 2.
The purchase price and terms of payment shall be determined pursuant to Sections
8 and 9.
6. BANKRUPTCY OR INSOLVENCY. If in connection with any bankruptcy or
insolvency proceeding involving any Holder, any court order or decree is issued
for the Disposition of any shares of stock of the Company, all of such shares of
stock shall immediately become subject to an option to purchase in favor of the
Company first and the other Holders second, for an aggregate period of ninety
(90) days after written notice of such court order or decree is provided to the
other Holders in the manner provided in Section 2 as in the case of any proposed
Disposition. If all such shares of stock are not purchased by the Company, the
other Stockholders and Investors shall have the right to purchase such stock as
provided in Section 2. The purchase price and term of payment shall be
determined pursuant to Sections 8 and 9.
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7. DEATH. Upon the death of a Stockholder (the "Decedent"), all of the
shares of stock in the Company owned by the Decedent or to which the Decedent or
his personal representative shall be entitled, shall become subject to an option
to purchase on the part of the Company first, and the other Holders second, for
a period of one hundred twenty (120) days following the date of the Decedent's
death. If all of such stock is not purchased and redeemed by the Company, the
other Holders shall have the right to purchase such stock as provided in Section
2. The purchase price and terms of payment shall be determined pursuant to
Sections 8 and 9; PROVIDED, HOWEVER, notwithstanding the provisions of Section 9
to the contrary, if the Company exercises its option to purchase the shares and
the Company receives any proceeds from any policy of insurance on the life of
the Decedent, such proceeds, to the extent of the purchase price, shall be paid
to the Decedent's personal representative as a credit to the purchase price. In
the event neither the Company nor the other Holders elect to exercise the
foregoing option following the death of the Decedent, the Decedent's personal
representative shall have the right to cause the Company to purchase such stock
for the purchase price determined pursuant to Section 8, with the proceeds equal
in value, to the extent required, to any life insurance received by the Company
by reason of the death of the Decedent payable immediately to the Decedent's
estate and the balance, if any, of the purchase price over and above the
proceeds of the life insurance, being payable in twenty-four (24) equal monthly
installments beginning the month after the insurance proceeds are paid. Any such
election by the Decedent's personal representative shall be made in writing not
less than one hundred fifty (150) days following the date of the Decedent's
death.
8. PURCHASE PRICE. The purchase price for any shares of capital stock
of the Company purchased pursuant to this Agreement shall be equal to the
purchase price contained in any bona fide offer to purchase such shares which
the Transferor proposes to accept, as identified in the Disposition Notice, or
in the absence of such bona fide offer or in situations other than proposed
Dispositions involving a sale, the purchase price for such stock shall be equal
to the "fair market value" of such stock. "Fair market value" shall mean and
refer to the price at which the stock would change hands between a willing buyer
and willing seller, neither under any compulsion to buy or sell, and both having
reasonable knowledge of the relevant facts. If the parties involved cannot agree
on the fair market value of the stock, the fair market value shall be determined
by an appraiser mutually acceptable to such parties. In the event the parties
involved are unable to agree on an appraiser, the seller, on the one hand, and
the purchaser, on the other hand, shall each select an appraiser, and such two
appraisers shall first attempt to determine the fair market value by mutual
agreement, but if they are unable to agree, such appraisers shall select a third
appraiser and the fair market value shall be determined by average of the two
closest appraisals. The appraiser shall use one or more valuation methods that
in his professional judgment most appropriately reflect the value of the stock.
Any valuation so determined shall be binding and conclusive absent manifest
error. The cost of such appraisal shall be borne equally by the seller, on the
one hand, and the purchaser, on the other hand.
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9. PAYMENT OF PURCHASE PRICE. In situations involving proposed
Dispositions by sale, the purchase price for any shares of stock purchased
pursuant to this Agreement shall be paid upon the same terms and conditions
(including, as near as possible, security terms) as contained in the bona fide
offer to purchase such shares received by the Transferor and identified in the
Disposition Notice. In the absence of any such bona fide offer, or in situations
other than proposed Dispositions involving a sale, the purchase price shall be
paid in twenty-four (24) equal monthly installments commencing on the closing
date of such sale or transfer unless agreed otherwise by the parties.
10. SECURITY FOR PAYMENT OF PURCHASE PRICE. Whenever the purchase price
for any shares of capital stock purchased pursuant to this Agreement is to be
paid in installments, such shares of capital stock shall be pledged to the
seller as collateral security until full payment of the purchase price, and all
certificates representing such shares of capital stock shall be delivered to the
seller to hold in the capacity of a secured party as collateral for such
indebtedness. The seller/secured party shall have all the rights and remedies of
a secured creditor under the Uniform Commercial Code as adopted under the laws
of the State of Delaware.
11. RESTRICTIVE LEGENDS. Each certificate representing shares of
capital stock in the Company shall be stamped or otherwise imprinted with the
restrictive legend set forth below, or a legend substantially equivalent
thereto, to be placed upon any certificate(s) or other documents or instruments
evidencing ownership of stock by the Holder:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY OTHER
APPLICABLE STATE SECURITIES LAWS IN RELIANCE UPON THE REPRESENTATION OF
THE REGISTERED HOLDER HEREOF THAT THESE SECURITIES HAVE BEEN PURCHASED
WITH INVESTMENT INTENT AND NOT FOR RESALE OR WITH A VIEW TO
DISTRIBUTION. THE SECURITIES REPRESENTED HEREBY MAY NOT BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
REGISTRATION OR THE AVAILABILITY OF EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933 AS AMENDED AND APPLICABLE STATE SECURITIES
LAWS. IN ADDITION, THIS CERTIFICATE IS TRANSFERABLE ONLY UPON
COMPLIANCE WITH THE PROVISIONS OF THE SHAREHOLDERS AGREEMENT AND THE
VOTING AGREEMENT BY AND AMONG THE COMPANY AND ALL ITS STOCKHOLDERS,
COPIES OF WHICH ARE ON FILE AT THE OFFICE OF THE COMPANY. ANY TRANSFER
CONTRARY TO THE ABOVE INSTRUCTIONS IS VOID AB INITIO."
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12. ISSUANCE OF ADDITIONAL SHARES BY THE COMPANY. Nothing contained
herein shall restrict or otherwise prohibit the Company from issuing any
additional shares of capital stock or other securities in any manner allowed by
applicable law; provided however, before any additional shares of stock of the
Company are issued in the future, (i) each Holder, whether an Investor or a
Stockholder, shall first be given the opportunity for a period of at least
thirty (30) days to subscribe for and purchase a pro-rata portion of any such
additional shares of stock or other securities proposed to be offered (upon the
same terms and conditions as proposed to be offered to third parties) in order
to maintain their relative percentage ownership, with each Preferred
Stockholder's share to be calculated on an as converted basis, and (ii) any new
shareholder (if not a signatory to this Agreement), shall be required to become
a party to and execute and deliver a counterpart of this Agreement prior to the
issuance of any stock certificate representing such shares. Notwithstanding the
foregoing, the following issuances of capital stock of the Company shall not be
subject to the provisions of this Section 12: (a) the issuance of 1,250 or fewer
shares of Preferred Stock to one or more investors for not less than $1,000 per
share; (b) the issuance of 220 shares of Common stock to Xxxxx and/or his
designees pursuant to the option contained in Xxxxx'x employment agreement with
the Company; and (c) the issuance of 3,090 shares of Common Stock reserved for
issuance under the Company's 1998 Stock Option Plan, dated as of the date
hereof.
13. ADDITIONAL STOCK HEREAFTER ACQUIRED. The terms of this Agreement
shall be applicable to any additional shares of stock of the Company acquired
hereafter by any Holder.
14. MAJOR DECISIONS. In addition to any voting requirements established
by law, or the Company's Certificate of Incorporation or Bylaws, the prior
written consent of the Stockholders owning a majority of the shares of Common
Stock issued and outstanding at that time and each Investor (provided such
Investor owns shares of the Capital Stock representing at least fifteen percent
(15%) of the voting power of the Company) shall be required in connection with
the following: (i) any change by the Company in the primary focus of the
Company's Business Plan, attached hereto as Exhibit C; (ii) a merger, sale or
recapitalization of the Company; or (iii) any amendment to the Certificate of
Incorporation or the Bylaws of the Company which would materially adversely
affect the rights of either of the Investors.
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15. TERMINATION. This Agreement shall terminate and all rights and
obligations of the parties hereto shall cease (i) upon the written agreement of
all Investors and of the Stockholders who hold a majority of the shares of
capital stock of the Company then held by the Stockholders, (ii) upon the
voluntary dissolution of the Company by vote of the Holders in accordance with
applicable law, (iii) upon the consummation of the first sale of securities of
the Company to the public pursuant to an effective registration statement filed
by the Company under the Securities Act of 1933, as amended, or (iv) immediately
prior to closing of any consolidation or merger of the Company or any sale of
all or substantially all of the Company's assets. In addition, if any Holder
ceases to be a Stockholder or Investor in the Company, such Holder shall
thereafter not have any further rights hereunder, other than (i) the right to
receive full payment of the purchase price for any shares of stock sold by such
Holder pursuant to this Agreement and (ii) rights as a secured creditor as
provided herein until such purchase price is paid in full.
16. MISCELLANEOUS.
(a) FURTHER ASSURANCES. The parties agree that from time to
time hereafter, upon request, each of them will execute, acknowledge and deliver
such other documents and instruments, and take such further action, as may be
reasonably necessary to carry out the intent of this Agreement.
(b) BINDING EFFECT AND BENEFIT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto, and their
respective heirs, executors, administrators, personal representatives,
successors and permitted assigns. Except as otherwise provided herein, the
rights and obligations pursuant to this Agreement are not assignable without the
other Holders' prior written consent. Otherwise, this Agreement is not intended
to create any rights for the benefit of any third party.
(c) MODIFICATION. No term or provision contained herein may be
modified, amended or waived except by written agreement or consent signed by the
party to be bound thereby; provided however, consent of the Stockholders, who
hold a majority of the shares of all the capital stock of the Company then held
by Stockholders, shall constitute the consent of the Stockholders.
(d) SEVERABILITY. If any portion of this Agreement is held
invalid, illegal or unenforceable, such determination shall not impair the
enforceability of the remaining terms and provisions contained herein, provided
the purposes, intent and objects of this Agreement may be attained and achieved
through the enforcement of such remaining terms and provisions.
(e) WAIVER. No waiver of a breach or violation of any term or
provision of this agreement shall operate or be construed as a waiver of any
subsequent breach or limit or restrict any right or remedy otherwise available.
Any waiver must be in writing.
(f) RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies
expressed
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herein are cumulative and not exclusive of any rights and remedies otherwise
available.
(g) GENDER AND NUMBER. Throughout this Agreement, the
masculine shall include the feminine and neuter and the singular shall include
the plural and vice versa as the context requires.
(h) HEADINGS AND CAPTIONS. Subject headings and captions are
included for convenience purposes only and shall not affect the interpretation
of this Agreement.
(i) NOTICE. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing, and either
(i) delivered in person, (ii) sent by express mail or other overnight delivery
service providing receipt of delivery, or (iii) mailed by certified or
registered mail, postage prepaid, return receipt requested as follows:
(A) If to the Company, addressed or delivered in
person to the President of the Company at the principal office of the Company,
with a copy to each member of Board of Directors of the Company at their last
known address appearing in the records of the Company.
(B) If to any Stockholder or Investor, addressed or
delivered in person to such Stockholder or Investor at the Stockholder's or
Investor's last known address appearing in the Company's stock records.
Any party may change such party's address for notice at any time by
written notice to all other parties hereto. Any such notice or communication
shall be deemed to have been made when actually received.
(j) SPECIFIC PERFORMANCE. The parties hereto recognize that
the Company's stock is a unique asset. Accordingly, in the event of a breach of
this Agreement, any non-breaching party shall be entitled to specific
performance of the covenants contained herein, in addition to any other remedy
to which such party may be entitled hereunder, or otherwise at law or in equity.
(k) ENTIRE AGREEMENT. This document constitutes the entire
agreement of the parties and supersedes any and all other prior agreements, oral
or written, with respect to the subject matter contained herein.
(l) GOVERNING LAW. This Agreement shall be subject to and
governed by the laws of the State of Delaware.
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IN WITNESS WHEREOF, the parties have executed this agreement effective
as of the day and year aforesaid.
Company:
Digital Asset Management, Inc.
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx, President
ATTEST:
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, Secretary
Investors:
Acxiom Corporation
/s/ Xxxx Xxxxxxxx
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By: Xxxx Xxxxxxxx, Group Leader
PC411, Inc.
/s/ X. Xxxxxx Xxxxxxxx III
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By: X. Xxxxxx Xxxxxxxx III
Vice President and Chief Financial Officer
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Stockholders:
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
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Xxxxxx Xxxxxxxxxx
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
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