EXHIBIT 10.15
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of this 30/th/ day of July 1999, by and among XXXXXXXX.XXX, INC., a
Delaware corporation (the "Company"), and the undersigned holders of Series E
Convertible Preferred Stock of the Company, (individually, a "Series E Holder"
and collectively, the "Series E Holders").
WHEREAS, pursuant to the terms of the Merger Agreement (the "Merger
Agreement") dated July 27, 1999, by and among the Company, SciQuest Merger
Subsidiary, Inc., a Delaware corporation ("Acquisition"), and Internet
Auctioneers International, Inc., a California corporation ("IAI"), the Series E
Holders are acquiring an aggregate of 114,595 shares (the "Shares") (plus cash
payments in lieu of fractional shares for a total aggregate value of 115,000
shares), of the Company's Series E Convertible Preferred Stock, no par value per
share (the "Series E Preferred Stock"); and
WHEREAS, the Company has agreed to provide the Series E Holders with
certain rights relating to the registration and sale of the Shares.
NOW, THEREFORE, in consideration of the covenants and promises contained
herein, the parties agree as follows:
ARTICLE 1 - REGISTRATION RIGHTS
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1.1 Definitions. For purposes of this Article 1, the following terms
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shall have the following respective meanings:
(a) "Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute enacted hereafter, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
(b) "Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Act.
(c) "Common Stock" shall mean the Class A Common Stock, no par value per
share, of the Company.
(d) The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Act and the declaration or ordering of effectiveness of such
registration statement by the Commission.
(e) "Registrable Securities" shall mean (i) shares of Common Stock issued
or issuable upon conversion of the Shares and (ii) any other shares of Common
Stock issued in respect of the Shares (on account of stock splits, stock
dividends, reclassifications, recapitalizations or similar
events); provided, however that shares of Common Stock which are Registrable
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Shares shall cease to be Registrable Shares (i) upon any sale pursuant to a
Registration Statement or Rule 144 under the Act, (ii) upon any sale in any
manner to a person or entity which, by virtue of Section 1.10 of this Agreement,
is not entitled to the rights provided by this Agreement, or (iii) with respect
to each Series E Holder, at such time as such Series E Holder's Registrable
Securities may be sold pursuant to Rule 144 without holding period or volume
limitations.
1.2 Piggyback Registration. Subject to Section 1.8 of this Agreement, if
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at any time the Company proposes to register any of its securities under the
Act, either for its own account or for the account of others, in connection with
the public offering of such securities solely for cash, on a registration form
that would also allow the registration of the Registrable Securities, the
Company shall, each such time, promptly give each Series E Holder written notice
of such proposed registration. This provision shall not apply to a registration
solely of securities issued or issuable in connection with any stock option plan
or other employee benefit plan or in connection with a merger or acquisition.
Upon receipt by the Company of the written request of any Series E Holder given
within twenty (20) days after mailing of any such notice by the Company, the
Company shall use its best efforts to cause to be included in such registration
under the Act all the Registrable Securities that each such Series E Holder has
requested be registered.
1.3 Obligations of the Company. Whenever required under this Agreement
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to use its best efforts to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the Commission a registration statement covering
such Registrable Securities and use its best efforts to cause such registration
statement to be declared effective by the Commission as expeditiously as
possible and to keep such registration effective until the earlier of (i) the
date when all Registrable Securities covered by the registration statement have
been sold or (ii) 180 days from the effective date of the registration
statement.
(b) Prepare and file with the Commission such amendments and post-
effective amendments to such registration statement as may be necessary to keep
such registration statement effective during the period referred to in Section
1.3(a) and to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement, and cause
the prospectus to be supplemented by any required prospectus supplement, and as
so supplemented to be filed with the Commission pursuant to Rule 424 under the
Act.
(c) Furnish to the selling Series E Holders such numbers of copies of such
registration statement, each amendment thereto, the prospectus included in such
registration statement (including each preliminary prospectus), and each
supplement thereto as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them.
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(d) Use its best efforts to register and qualify the Registrable
Securities under the securities laws of such jurisdictions in which the Company
shall also register securities to be sold by the Company pursuant to the same
registration under the Act.
(e) Promptly notify each selling Series E Holder of such Registrable
Securities at any time when a prospectus relating thereto is required to be
delivered under the Act of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading and, at the request of any such Series E Holder, the Company will
prepare promptly a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not misleading.
(f) Provide a transfer agent for all such Registrable Securities not later
than the effective date of such registration statement.
(g) Enter into underwriting agreements and related agreements in customary
form for any primary offering.
(h) Promptly notify the selling Series E Holders of Registrable Securities
and the underwriters, if any, of the following events and (if requested by any
such person) confirm such notification in writing: (1) the filing of the
prospectus or any prospectus supplement and the registration statement and any
amendment or post-effective amendment thereto and, with respect to the
registration statement or any post-effective amendment thereto, the declaration
of the effectiveness of such documents, (2) any requests by the Commission for
amendments or supplements to the registration statement or the prospectus or for
additional information, (3) the issuance of any stop order suspending the
effectiveness of the registration statement, and (4) the receipt by the Company
of any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction.
(i) Whenever any provision of this Agreement requires the Company to
furnish any information to the Series E Holders or the agents or representatives
of the Series E Holders, the Company may require any such person or entity to
execute and deliver a reasonable confidentiality agreement, agreement to refrain
from trading or any other agreement necessary or prudent to protect the Company
or its officers, directors and employees against xxxxxxx xxxxxxx liabilities and
may restrict access to confidential trade secret information.
1.4 Furnish Information. In the event of any registration by the
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Company, the Series E Holders shall furnish to the Company such information
regarding them, the Registrable Securities and other securities of the Company
held by them, and the intended method of disposition of such Registrable
Securities as the Company shall reasonably request and as shall be required in
connection with the action to be taken by the Company. It shall be a condition
precedent to the obligation of the Company to include any Registrable Securities
of an Series E
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Holder in a registration effected pursuant to this Agreement for such Series E
Holder to have provided the Company with such written information regarding the
registration of such Registrable Securities as the Company shall reasonably
request.
1.5 Suspension of Disposition of Registrable Securities. Each selling
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Series E Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 1.3(e) or 1.3(h)(2),
1.3(h)(3) or 1.3(h)(4) hereof, such Series E Holder will forthwith discontinue
disposition of Registrable Securities until such Series E Holder's receipt of
copies of a supplemented or amended prospectus contemplated by Section 1.3(e)
hereof, or until it is advised in writing by the Company that the use of the
prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the prospectus, or
in the case of Section 1.3(h)(2), 1.3(h)(3) or 1.3(h)(4), until the Company
notifies the Series E Holder in writing that sales of Registrable Securities may
continue. If so directed by the Company, such Series E Holder will deliver to
the Company (at the expense of the Company) all copies, other than permanent
file copies then in such Series E Holder's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
1.6 Expenses of Registration.
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The Series E Holders shall bear the fees and expenses of their own counsel
and shall bear any additional registration and qualification fees and expenses
(including underwriters' discounts and commissions and transfer taxes), and any
additional costs and disbursements of counsel for the Company that result solely
from the inclusion of Registrable Securities held by the Series E Holders in
such registration, with such additional expenses of the registration being borne
by all selling Series E Holders pro rata on the basis of the total number of
Registrable Securities so registered; provided, however, that if any such cost
or expense is attributable solely to one selling Series E Holder and does not
constitute a normal cost or expense of a registration, such cost or expense
shall be allocated solely to that selling Series E Holder. All other expenses
of such registrations shall be borne by the Company.
1.7 Underwriting Requirements; Priorities.
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(a) The Company shall have the right to select the investment banker(s)
and/or manager(s) to administer any offering to which this Agreement is
applicable. If a registration is an underwritten registration, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold at the desired price in such offering, the Company will
include in such registration (i) first, securities the Company proposes to sell,
(ii) second, the securities requested to be included therein by holders of
securities with contractual registration
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rights that are senior to those of the Series E Holders, pro rata among the
holders of such securities on the basis of the number of shares requested to be
included therein, (iii) third, the securities requested to be included therein
by Series E Holders and by the holders of securities with contractual
registration rights that are in parity with the rights of the Series E Holders,
pro rata among such Series E Holders and other holders on the basis of the
number of shares requested to be included therein, and (iv) fourth, other
securities requested to be included in such registration, including securities
to be sold by holders without contractual registration rights.
(b) No Series E Holder may participate in any underwritten registration
hereunder unless such Series E Holder (i) agrees to sell such Series E Holder's
securities on the basis provided in any underwriting arrangements approved by
the persons entitled hereunder to approve such arrangements and (ii) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
1.8 Limitation of the Company's Obligations.
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(a) The Company may, in its sole discretion, postpone or withdraw any
registration in which Registrable Securities have been included pursuant to this
Agreement without obligation to the Series E Holders.
(b) The Company shall not be obligated under this Agreement to register or
include in any registration Registrable Securities that any Series E Holder has
requested to be registered if the Company shall furnish such Series E Holder
with a written opinion of counsel reasonably satisfactory to such Series E
Holder, that all Registrable Securities that such Series E Holder holds may be
publicly offered, sold and distributed without registration under the Act
pursuant to Rule 144 promulgated by the Commission under the Act in any three-
month period without restriction as to the amount of securities that can be
sold.
(c) The Company may, in its sole discretion, grant to any owner of
securities of the Company registration rights of any kind or nature.
1.9 Lock-up Agreement. For so long as a Series E Holder has the right to
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have Registrable Securities included in any registration pursuant to this
Agreement, the Series E Holder agrees in connection with any registration of the
Company's securities, upon the request of the underwriters managing any
underwritten offering of the Company's securities, not to sell, make any short
sale of, pledge, grant any option for the purchase of or otherwise dispose of
any Registrable Securities (other than those included in the registration)
without the prior written consent of the Company or such underwriters, as the
case may be, during the seven (7) days prior to and during the 180-day period
beginning on the effective date of such registration, as the Company or the
underwriters may specify. This provision shall apply whether or not any
Registrable Securities of the Series E Holder are included in the offering.
1.10 Transfer of Registration Rights. Provided that the Company is given
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written notice by the Series E Holder at the time of such transfer stating the
name and address of the transferee and identifying the securities with respect
to which the rights under this Agreement are
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being assigned and such transferee agrees in writing to be bound by the terms of
this Agreement, the registration rights under this Agreement may be transferred
in whole or in part at any time to any transferee of Registrable Securities.
Upon such transfer, the transferee shall be deemed to be a Series E Holder for
all purposes hereunder.
1.11 Indemnification and Contribution. In the event any Registrable
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Securities are included in a registration statement under this Agreement:
(a) To the fullest extent permitted by law, the Company will, and hereby
does, indemnify and hold harmless each Series E Holder whose Registrable
Securities are included in a registration, each director, officer, partner,
employee, or agent for such Series E Holder, any underwriter (as defined in the
Act) for such Series E Holder, and each person, if any, who controls such Series
E Holder or underwriter within the meaning of the Act, against any losses,
claims, damages or liabilities, joint or several, to which they may become
subject under the Act and applicable state securities laws insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based on any untrue or alleged untrue statement of any material fact
contained in such registration statement, including any preliminary prospectus
or final prospectus contained therein or any amendments or supplements thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein in light of the
circumstances under which they were made or necessary to make the statements
therein not misleading or arise out of any violation by the Company of any rule
or regulation promulgated under the Act applicable to the Company and relating
to action or inaction required of the Company in connection with any such
registration; and will reimburse each such person or entity for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability, or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld)
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability or action to the extent that it arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in connection with such registration statement, preliminary prospectus,
final prospectus, or amendments or supplements thereto, in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by or on behalf of any such Series E Holder, underwriter
or controlling person.
(b) To the fullest extent permitted by law, each Series E Holder whose
Registrable Securities are included in a registration under this Agreement,
severally and not jointly, will, and hereby does, indemnify and hold harmless
the Company, each of its directors, each of its officers who have signed the
registration statement, each person, if any, who controls the Company within the
meaning of the Act, and any underwriter for the Company (within the meaning of
the Act), each other selling Series E Holder and each person, if any, who
controls such other selling Series E Holder or underwriter within the meaning of
the Act against any losses, claims, damages or liabilities, joint or several, to
which the Company or any such director, officer, controlling
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person, selling Series E Holder or underwriter may become subject, under the Act
and applicable state securities laws, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in such registration
statement, preliminary or final prospectus, or amendments or supplements
thereto, in reliance upon and in conformity with written information furnished
by such Series E Holder expressly for use in connection with such registration;
and each such Series E Holder will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer, controlling
person, selling Series E Holder or underwriter in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that the indemnity shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of such Series E Holder (which consent shall not be
unreasonably withheld).
In no event shall the liability by reason of this contractual indemnity of
any selling Series E Holder hereunder be greater than the dollar amount of the
proceeds received by such Series E Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation. Any Series E Holder
required to indemnify the Company as provided above shall cease to have the
right to participate in any other registration pursuant to this Agreement.
(c) In order to provide for just and equitable contribution to joint
liability under the Act in circumstances in which the indemnity provisions
provided for in this section are for any reason held to be unavailable to the
indemnified parties although applicable in accordance with its terms; then, in
each such case, the Company and such Series E Holder will contribute to the
aggregate losses, claims, damages or liabilities to which they may be subject
(after contribution from others) in such proportions as shall be appropriate to
reflect the relative fault of the Company, on the one hand, and the Series E
Holder, on the other hand, with such relative fault determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Series E Holder, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission; provided, however, that, in any such case,
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(A) no such Series E Holder will be required to contribute any amount in excess
of the proceeds to it of all Registrable Securities sold by it pursuant to such
registration statement, and (B) no person or entity guilty of fraudulent
misrepresentation, within the meaning of Section 11(f) of the Act, shall be
entitled to contribution from any person or entity who is not guilty of such
fraudulent misrepresentation.
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ARTICLE 2 - MISCELLANEOUS
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2.1 Amendments and Waivers. The provisions of this Agreement, including
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the provisions of this sentence, may be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may be given, by
written consent of the Company and the Series E Holders of at least seventy
percent (70%) of the outstanding Registrable Securities; provided, that this
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Agreement may be amended with the consent of the holders of less than all
Registrable Securities only in a manner which affects all Registration
Securities in the same fashion. No waivers of or exceptions to any term,
condition or provision of this Agreement, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver of any such term,
condition or provision.
2.2 Counterparts. This Agreement may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
2.3 Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
2.4 Notices. All notices required or permitted to be sent shall be sent
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to the addresses of the parties set forth on their respective signature pages,
or to such other address as any party shall provide to the other parties in a
notice sent in accordance with this Agreement. Any notice sent by registered or
certified mail, return receipt requested, or by Federal Express or other
reputable nationwide overnight delivery service, shall be deemed to have been
received by the party to whom it was sent upon receipt of confirmation of
delivery if sent by registered or certified mail and one day following the date
it was sent if sent by Federal Express or other reputable nationwide overnight
delivery service. Any notice sent by any other means shall be deemed to have
been received when it is actually received at the address provided above.
2.5 Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of North Carolina.
2.6 Severability. In the event that any one or more of the provisions
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contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
2.7 Entire Agreement. This Agreement is intended by the parties as a
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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. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the
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Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter. Nothing
in this Agreement shall preclude the Company from entering into any other
agreement having the same or different terms with any Series E Holder or any
third party with respect to registration rights or related matters.
2.8 Parties Benefited. Nothing in this Agreement, express or implied, is
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intended to confer upon any third party any rights, remedies, obligations or
liabilities.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement under seal
as of the date provided below:
THE COMPANY:
XXXXXXXX.XXX, INC.
By: /s/ M. Xxxxx Xxxxxxx
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Name: M. Xxxxx Xxxxxxx
Title: President and Chief Executive Officer
THE SERIES E HOLDERS:
/s/ Xxxx Atlas
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Xxxx Atlas
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
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