Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of this 12th day of December, 2003 by and between NexMed, Inc.,
a Nevada corporation (the "Company"), and the "Purchasers" named in that
Purchase Agreement of even date herewith by and between the Company and the
Purchasers (the "Purchase Agreement").
The parties hereby agree as follows:
1. Certain Definitions
As used in this Agreement, the following terms shall have the
following meanings:
"Common Stock" shall mean the Company's common stock, par value
$0.001 per share.
"Investor" and "Investors" shall mean the Purchaser(s) identified
in the Purchase Agreement and any transferee of the Purchaser(s) who is a
permitted assignee of any Notes or Registrable Securities.
"Notes" shall mean the Company's 5% Convertible Notes Due May
2007 issued and sold to the Purchasers pursuant to the Purchase Agreement.
"Prospectus" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Register," "registered" and "registration" refer to a
registration made by preparing and filing a registration statement or similar
document in compliance with the 1933 Act (as defined below), and the declaration
or ordering of effectiveness of such registration statement or document.
"Registrable Securities" shall mean (a) the Underlying Shares
(without regard to any limitations on beneficial ownership contained in the
Notes) or other securities issued or issuable to each Holder or its permitted
transferee or designee (i) upon conversion of the Notes, or (ii) upon any
distribution with respect to, any exchange for or any replacement of such Notes
or (iii) upon any conversion, exercise or exchange of any securities issued in
connection with any such distribution, exchange or replacement; (b) securities
issued or issuable upon any stock split, stock dividend, recapitalization or
similar event with respect to the
foregoing; and (c) any other security issued as a dividend or other distribution
with respect to, in exchange for or in replacement of the securities referred to
in the preceding clauses.
"Registration Statement" shall mean any registration statement
filed under the 1933 Act of the Company that covers the resale of any of the
Registrable Securities pursuant to the provisions of this Agreement, amendments
and supplements to such Registration Statement, including post-effective
amendments, all exhibits and all material incorporated by reference in such
Registration Statement.
"SEC" means the U.S. Securities and Exchange Commission.
"1933 Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
2. Registration.
(a) Registration Statements. Promptly following the closing of
the purchase and sale of the Notes contemplated by the Purchase Agreement (the
"Closing Date") (but no later than thirty (30) days after the Closing Date), the
Company shall prepare and file with the SEC one Registration Statement on Form
S-3 (or, if Form S-3 is not then available to the Company, on such form of
registration statement as is then available to effect a registration for resale
of the Registrable Securities, subject to the Investor's consent) covering the
resale of the Registrable Securities in an amount equal to 130% of the number of
shares of Common Stock necessary to permit the conversion in full of the Notes.
Such Registration Statement also shall cover, to the extent allowable under the
1933 Act and the Rules promulgated thereunder (including Rule 416), such
indeterminate number of additional shares of Common Stock resulting from stock
splits, stock dividends or similar transactions with respect to the Registrable
Securities. No securities shall be included in the Registration Statement other
than the Registrable Securities without the consent of the Investors holding a
majority of the Registrable Securities (on an as-converted basis), which consent
shall not be unreasonably withheld. The Registration Statement (and each
amendment or supplement thereto, and each request for acceleration of
effectiveness thereof) shall be provided in accordance with Section 3(c) to the
Investor and its counsel prior to its filing or other submission. In the event
any Registrable Securities are not covered by the Registration Statement, the
Company shall promptly amend such Registration Statement or prepare and file
with the SEC a new Registration Statement in accordance with the terms hereof in
order to cause such Registrable Securities to be covered by a Registration
Statement.
(b) Expenses. The Company will pay all expenses associated with
each registration, but excluding discounts, commissions, fees of underwriters,
selling brokers, dealer managers or similar securities industry professionals.
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(c) Effectiveness.
(i) The Company shall use its best efforts to have each
Registration Statement declared effective as soon as practicable, but in no
event later than the earlier of (a) 120 days following the Closing Date (or the
date of the occurrence of additional Registrable Securities, as the case may be)
and (b) 5 days following the date on which the SEC notifies the Company or its
counsel that the Registration Statement is not subject to any further review. In
connection therewith, the Company shall respond to all SEC comments on the
Registration Statement and file any amendments to the Registration Statement
within 15 business days following any date on which the SEC furnishes comments
to, asks questions of, or requests further information from, the Company or its
counsel with respect to the Registration Statement or any part thereof or any
document incorporated by reference therein. After any Registration Statement is
declared effective by the SEC, the Company shall cause such Registration
Statement to remain effective in accordance with the terms hereof, subject to
permitted suspension of such effectiveness only for Allowed Delays (as defined
below). On or prior to the date any Registration Statement is declared effective
by the SEC, the Company shall cause the Registrable Securities to be
specifically listed or included for quotation on the Nasdaq National Market
System, the Nasdaq Small Cap Market, the New York Stock Exchange or the American
Stock Exchange, and maintain such listing and quotation for the Registrable
Securities and the Common Stock in general.
(ii) For not more than twenty (20) consecutive Trading Days
(as defined in the Notes) and for a total of not more than thirty (30) Trading
Days in any twelve (12) consecutive month period, the Company may delay the
disclosure of material non-public information concerning the Company, by
terminating or suspending effectiveness of any registration contemplated by this
Section not containing such information, the disclosure of which at the time is
not, in the good faith opinion of the Company, in the best interests of the
Company (an "Allowed Delay"); provided, that the Company shall promptly (a)
notify the Investor in writing of the existence of (but in no event, without the
prior written consent of the Investor, shall the Company disclose to the
Investor any of the facts or circumstances regarding) material non-public
information giving rise to an Allowed Delay, and (b) advise the Investor in
writing to cease all sales under the Registration Statement until the end of the
Allowed Delay. The duration of the Registration Period will be extended by the
number of days of any and all Allowed Delays.
(d) Underwritten Offering. If any offering pursuant to a
Registration Statement pursuant to Section 2(a) hereof involves an underwritten
offering, the Company shall have the right to select an investment banker and
manager to administer the offering, which investment banker or manager shall be
reasonably satisfactory to the Investor.
3. Company Obligations. The Company will use its best efforts to effect
the registration of the Registrable Securities in accordance with the terms
hereof, and pursuant thereto the Company will, as expeditiously as possible:
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(a) use its best efforts to cause such Registration Statement to
become effective and to remain continuously effective for a period (the
"Registration Period") that will terminate upon the earlier of the date on which
all Registrable Securities, covered by such Registration Statement, as amended
from time to time (i) have been sold or (ii) become available for resale without
registration or limitation pursuant to Rule 144(k) of the 1933 Act.
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement and the Prospectus as
may be necessary to keep the Registration Statement effective for the period
specified in Section 3(a) and to comply with the provisions of the 1933 Act and
the 1934 Act with respect to the distribution of all Registrable Securities;
provided that, at least three (3) days prior to the filing of a Registration
Statement or Prospectus, or any amendments or supplements thereto, the Company
will furnish to the Investor copies of all documents proposed to be filed;
(c) permit counsel designated by the Investor to review each
Registration Statement and all amendments and supplements thereto no fewer than
five (5) business days prior to their filing with the SEC and not file any
document to which such counsel reasonably objects on the basis that such
document contains a material misstatement or omission;
(d) furnish to the Investor and its legal counsel (i) promptly
after the same is prepared and publicly distributed, filed with the SEC, or
received by the Company, one copy of any Registration Statement and any
amendment thereto, each preliminary prospectus and Prospectus and each amendment
or supplement thereto, and each letter written by or on behalf of the Company to
the SEC or the staff of the SEC, and each item of correspondence from the SEC or
the staff of the SEC, in each case relating to such Registration Statement
(other than any portion of any thereof which contains information for which the
Company has sought confidential treatment, and provided that such items shall be
redacted prior to delivering to the Investor and its counsel to the extent
necessary to avoid disclosure of material non-public information concerning the
Company), and (ii) such number of copies of a Prospectus, including a
preliminary prospectus, and all amendments and supplements thereto and such
other documents as such Investor may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such Investor;
(e) in the event the Company selects an underwriter for the
offering, the Company shall enter into and perform its reasonable obligations
under an underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
underwriter of such offering;
(f) if required by the underwriter, at the request of the
Investor, the Company shall furnish, on the date that Registrable Securities, as
applicable, are delivered to an underwriter, if any, for sale in connection with
the Registration Statement (i) an opinion, dated as of such date, from counsel
representing the Company for purposes of such Registration Statement, in form,
scope and substance as is customarily given in an underwritten public offering,
addressed to the underwriter and the Investor and (ii) a letter, dated such
date, from the Company's independent certified public accountants in form and
substance as is customarily
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given by independent certified public accountants to underwriters in an
underwritten public offering, addressed to the underwriter and the Investor;
(g) make reasonable effort to prevent the issuance of any stop
order or other suspension of effectiveness and, if such order is issued, obtain
the withdrawal of any such order at the earliest possible moment;
(h) prior to any public offering of Registrable Securities, use
its reasonable best efforts to register or qualify or cooperate with the
Investor and its counsel in connection with the registration or qualification of
such Registrable Securities for offer and sale under the securities or blue sky
laws of such jurisdictions as the Investor reasonably requests in writing and do
any and all other reasonable acts or things necessary or advisable to enable the
distribution in such jurisdictions of the Registrable Securities covered by the
Registration Statement, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions, or to become subject to any tax in any such state or jurisdiction
where it is not otherwise subject;
(i) cause all Registrable Securities covered by a Registration
Statement to be listed on each securities exchange, interdealer quotation system
or other market on which similar securities issued by the Company are then
quoted or listed;
(j) immediately notify the Investor, at any time when a
Prospectus relating to the Registrable Securities is required to be delivered
under the Securities Act, upon discovery that, or upon the happening of any
event as a result of which, the Prospectus included in such Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing, and at the request of any such holder, promptly prepare and
furnish to such holder a reasonable number of copies of a supplement to or an
amendment of such Prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such Prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing; and
(k) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC under the 1933 Act and the 1934 Act, take such
other actions as may be reasonably necessary to facilitate the registration of
the Registrable Securities hereunder; and make available to its security
holders, as soon as reasonably practicable, but not later than the Availability
Date (as defined below), an earnings statement covering a period of at least
twelve months, beginning after the effective date of each Registration
Statement, which earnings statement shall satisfy the provisions of Section
11(a) of the 1933 Act (for the purpose of this subsection 3(l), "Availability
Date" means the 45th day following the end of the fourth fiscal quarter that
includes the effective date of such Registration Statement, except that, if such
fourth
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fiscal quarter is the last quarter of the Company's fiscal year, "Availability
Date" means the 90th day after the end of such fourth fiscal quarter).
4. Obligations of the Investor.
(a) It shall be a condition precedent to the obligations of the
Company to complete the registration pursuant to this Agreement with respect to
the Registrable Securities, that the Investor shall furnish in writing to the
Company such information regarding itself, the Registrable Securities held by it
and the intended method of disposition of the Registrable Securities held by it,
as shall be reasonably required to effect the registration of such Registrable
Securities, and shall execute such documents in connection with such
registration as the Company may reasonably request. At least fifteen (15)
business days prior to the first anticipated filing date of any Registration
Statement, the Company shall notify the Investor of the information the Company
requires from the Investor if the Investor elects to have any of the Registrable
Securities included in the Registration Statement. The Investor shall provide
such information to the Company at least ten (10) business days prior to the
first anticipated filing date of such Registration Statement if the Investor
elects to have any of the Registrable Securities included in the Registration
Statement.
(b) The Investor, by its acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of a Registration
Statement hereunder, unless such Investor has notified the Company in writing of
its election to exclude all of its Registrable Securities from the Registration
Statement, in which case the Investor shall be deemed to have waived its rights
to have Registrable Securities registered under this Agreement, unless the
Investor has good cause for such an election.
(c) In the event the Company determines to engage the services of
an underwriter, the Investor agrees to enter into and perform its obligations
under an underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
managing underwriter of such offering and take such other actions as are
reasonably required in order to expedite or facilitate the dispositions of the
Registrable Securities.
(d) The Investor agrees that, upon receipt of any notice from the
Company of the happening of any event rendering a Registration Statement no
longer effective, the Investor will immediately discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities, until the Investor's receipt of the copies of the
supplemented or amended prospectus filed with the SEC and declared effective
and, if so directed by the Company, the Investor shall deliver to the Company
(at the expense of the Company) or destroy (and deliver to the Company a
certificate of destruction) all copies in the Investor's possession of the
prospectus covering the Registrable Securities, current at the time of receipt
of such notice.
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(e) The Investor may not participate in any underwritten
registration hereunder unless it (i) agrees to sell the Registrable Securities
on the basis provided in any underwriting arrangements in usual and customary
form entered into by the Company, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements, and (iii) agrees to pay its pro rata share of all underwriting
discounts and commissions and any expenses in excess of those payable by the
Company pursuant to the terms of this Agreement.
5. Indemnification.
(a) Indemnification by Company. The Company agrees to indemnify
and hold harmless, to the fullest extent permitted by law the Investor, its
officers, directors, stockholders and employees and each person who controls
such Investor (within the meaning of the 0000 Xxx) against all losses, claims,
damages, liabilities, costs (including, without limitation, reasonable
attorney's fees) and expenses imposed on such person caused by (i) any untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or any preliminary prospectus or any amendment or
supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are based upon any
information furnished in writing to the Company by such Investor, expressly for
use therein, or (ii) any violation by the Company of any federal, state or
common law, rule or regulation applicable to the Company in connection with any
Registration Statement, Prospectus or any preliminary prospectus, or any
amendment or supplement thereto, and shall reimburse in accordance with
subparagraph (c) below, each of the foregoing persons for any legal and any
other expenses reasonably incurred in connection with investigating or defending
any such claims. The foregoing is subject to the condition that, insofar as the
foregoing indemnities relate to any untrue statement, alleged untrue statement,
omission or alleged omission made in any preliminary prospectus or Prospectus
that is eliminated or remedied in any Prospectus or amendment or supplement
thereto, the above indemnity obligations of the Company shall not inure to the
benefit of any indemnified party if a copy of such corrected Prospectus or
amendment or supplement thereto had been made available to such indemnified
party and was not sent or given by such indemnified party at or prior to the
time such action was required of such indemnified party by the 1933 Act and if
delivery of such Prospectus or amendment or supplement thereto would have
eliminated (or been a sufficient defense to) any liability of such indemnified
party with respect to such statement or omission. Indemnity under this Section
5(a) shall remain in full force and effect regardless of any investigation made
by or on behalf of any indemnified party and shall survive the permitted
transfer of the Registrable Securities.
(b) Indemnification by Holder. In connection with any
registration pursuant to the terms of this Agreement, the Investor will furnish
to the Company in writing such information as the Company reasonably requests
concerning the holders of Registrable Securities or the proposed manner of
distribution for use in connection with any Registration Statement or Prospectus
and agrees to indemnify and hold harmless, to the fullest extent permitted by
law, the Company, its directors, officers, employees, stockholders and each
person who controls the
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Company (within the meaning of the 0000 Xxx) against any losses, claims,
damages, liabilities and expense (including reasonable attorney's fees)
resulting from any untrue statement of a material fact or any omission of a
material fact required to be stated in the Registration Statement or Prospectus
or preliminary prospectus or amendment or supplement thereto or necessary to
make the statements therein not misleading, to the extent, but only to the
extent that such untrue statement or omission is contained in any information
furnished in writing by such Investor to the Company specifically for inclusion
in such Registration Statement or Prospectus or amendment or supplement thereto
and that such information was substantially relied upon by the Company in
preparation of the Registration Statement or Prospectus or any amendment or
supplement thereto. In no event shall the liability of an Investor be greater in
amount than the dollar amount of the proceeds (net of all expense paid by such
Investor and the amount of any damages such holder has otherwise been required
to pay by reason of such untrue statement or omission) received by such Investor
upon the sale of the Registrable Securities included in the Registration
Statement giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any person entitled
to indemnification hereunder shall (i) give prompt notice to the indemnifying
party of any claim with respect to which it seeks indemnification and (ii)
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party; provided that any person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person unless (a) the
indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person or (c) in the reasonable
judgment of any such person, based upon written advice of its counsel, a
conflict of interest exists between such person and the indemnifying party with
respect to such claims (in which case, if the person notifies the indemnifying
party in writing that such person elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim on behalf of such person); and
provided, further, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
hereunder, except to the extent that such failure to give notice shall
materially adversely affect the indemnifying party in the defense of any such
claim or litigation. It is understood that the indemnifying party shall not, in
connection with any proceeding in the same jurisdiction, be liable for fees or
expenses of more than one separate firm of attorneys at any time for all such
indemnified parties. No indemnifying party will, except with the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect of such claim or litigation.
(d) Contribution. If for any reason the indemnification provided
for in the preceding paragraphs (a) and (b) is unavailable to an indemnified
party or insufficient to hold it harmless, other than as expressly specified
therein, then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party
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as a result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable considerations. No
person guilty of fraudulent misrepresentation within the meaning of Section
11(f) of the 1933 Act shall be entitled to contribution from any person not
guilty of such fraudulent misrepresentation. In no event shall the contribution
obligation of a holder of Registrable Securities be greater in amount than the
dollar amount of the proceeds (net of all expenses paid by such holder and the
amount of any damages such holder has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission)
received by it upon the sale of all the Registrable Securities sold by such
indemnified party which were covered by the relevant Registration Statement or
Prospectus contained therein.
6. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended only by
a writing signed by the parties hereto. The Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if the Company shall have obtained the written consent to such amendment,
action or omission to act, of the Investor.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made as set forth in the Purchase Agreement.
(c) Assignments and Transfers by Investor. This Agreement and all
the rights and obligations of the Investor hereunder may not be assigned or
transferred to any transferee or assignee except to a holder of any Notes or
Registrable Securities which is a permitted assignee pursuant to the assignment
provisions of such instruments.
(d) Assignments and Transfers by the Company. This Agreement may
not be assigned by the Company without the prior written consent of Investor,
except that without the prior written consent of the Investor, but after notice
duly given, the Company shall assign its rights and delegate its duties
hereunder to any successor-in-interest corporation, and such
successor-in-interest shall assume such rights and duties, in the event of a
merger or consolidation of the Company with or into another corporation or the
sale of all or substantially all of the Company's assets.
(e) Benefits of the Agreement. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
permitted 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.
(f) Counterparts. This Agreement may be executed 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.
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(g) 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.
(h) Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms to the fullest extent permitted by law.
(i) Further Assurances. The parties shall execute and deliver all
such further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
(j) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
(k) Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to principles of conflicts of law.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
THE COMPANY: NEXMED, INC.
By: /s/ Xxxxxx X. Xxx
-----------------
Name: Xxxxxx X. Xxx
Title: Vice President and Secretary
THE INVESTORS: THE TAIL WIND FUND LTD.
By: TAIL WIND ADVISORY AND
MANAGEMENT LTD., as
investment manager
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: CEO
SOLOMON STRATEGIC HOLDINGS, INC.
By: /s/ Xxxxxx X. XxxXxxxxx
-----------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Director
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