EXHIBIT 10.17
EXECUTION
FORM OF MANAGEMENT STOCK PURCHASE AGREEMENT
This MANAGEMENT STOCK PURCHASE AGREEMENT (this "Agreement") is dated as of
March __, 1999, by and between Derby Cycle Corporation, a Delaware corporation
(the "Company") and ______________ ("Employee").
This Agreement provides for the purchase by Employee of (a) ___ shares of
the Company's Class A Common Stock, par value $.01 per share (the "Class A
Common Stock") and (b) ___ shares of the Company's Class C Common Stock, par
value $.01 per share (the "Class C Common Stock;" and together with the Class A
Common Stock, the "Common Stock"), upon the terms and subject to the conditions
set forth herein. Capitalized terms used but not defined herein shall have the
meaning assigned to such terms in that certain Amended and Restated
Shareholders' Agreement dated February 3, 1999, by and among the Company and
certain shareholders of the Company (the "Shareholders' Agreement").
NOW, THEREFORE, in consideration of the mutual undertakings contained
herein, the parties agree as follows:
ARTICLE 1. PURCHASE OF STOCK.
1.1 Purchase and Sale of Stock. On the date hereof, the Company agrees to
sell Employee and Employee agrees to purchase from the Company (a) ___ shares of
Class A Common Stock and (b) __ shares of Class C Common Stock, all at a
purchase price of $1,000.00 per share for an aggregate purchase price of
$__________. Upon execution of this Agreement, (i) Employee will deliver to the
Company (A) a check for $__________ and (B) an executed promissory note in the
form attached hereto as Exhibit A in the principal amount of $__________, and
(ii) the Company shall deliver to Employee a certificate or certificates
representing the Common Stock.
1.2 Pledge of Stock. Employee hereby grants to the Company a security
interest in the Common Stock purchased by Employee hereunder to secure the
payment of the promissory note. In the event of Employee's death or disability
or in the event that Employee's employment with the Company or its subsidiaries
is terminated for any reason, the promissory note shall become immediately due
and payable, and Employee hereby authorizes the Company and its subsidiaries to
deduct such amount from any amount owed by the Company to Employee. Employee
shall be liable for any deficiency.
1.3 Shareholders' Agreement. The Company's obligations under this
Agreement are expressly conditioned upon Employee becoming a party to the
Shareholders' Agreement.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES.
2.1 Representations and Warranties of Employee. As a material inducement
to the Company to enter into this Agreement and sell the Common Stock, Employee
hereby represents and warrants to the Company that:
(a) (i) this Agreement constitutes a legal, valid and binding
obligation of Employee, enforceable against Employee in accordance with its
terms, (ii) the execution, delivery and performance of this Agreement by
Employee does not and will not conflict with, breach, violate or cause a
breach of or default under any agreement, contract, instrument, order,
judgment or decree to which Employee is a party or by which he is bound,
and (iii) Employee is not a party to or bound by any employment agreement
or noncompete agreement with any other person or entity.
(b) Employee is acquiring the Common Stock purchased hereunder or
acquired pursuant hereto for his own account with the present intention of
holding such securities for purposes of investment, and Employee has no
intention of selling such securities in a public distribution in violation
of the federal securities laws or any applicable state securities laws.
(c) Employee is financially able to bear the economic risk of an
investment in the Common Stock, including the total loss thereof.
(d) Employee is able to bear the economic risk of the investment in
the Common Stock for an indefinite period of time and Employee understands
that the Common Stock has not been registered under the Securities Act and
cannot be sold unless subsequently registered under the Securities Act or
an exemption from such registration is available.
(e) Employee has had an opportunity to ask questions and receive
answers concerning the terms and conditions of the purchase of the Common
Stock and has had full access to such other information concerning the
Company as Employee has requested. Employee has reviewed, or has had an
opportunity to review, the following documents: (i) the Company's
Certificate of Incorporation and Bylaws; (ii) all material information
provided by the Company or its subsidiaries to any person providing
financing to the Company or its subsidiaries, including, but not limited
to, the Company's pro forma balance sheet, as well as financial
projections, estimates, forecasts, budgets, summaries, reports and other
related documents.
(f) No commission, fee or other remuneration is to be paid or given
directly or indirectly, to any person or entity for soliciting Employee to
purchase the Common Stock.
(g) Employee is employed by the Company or one of its subsidiaries, is
sophisticated in financial matters and is able to evaluate the risks and
benefits of the investment in the Common Stock and has determined that such
investment in the Common Stock is suitable for Employee, based upon
Employee's financial situation and needs, as well as Employee's other
securities holdings.
2.2 Representations and Warranties of the Company. As a material
inducement to the Employee to enter into this Agreement and purchase the Common
Stock, the Company hereby represents and warrants that:
(a) this Agreement constitutes a legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms and the execution, delivery and performance of this Agreement by the
Company does not and will not conflict
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with, breach, violate or cause a default under any agreement, contract,
instrument, order, judgment or decree to which the Company is a party or by
which it is bound;
(b) the Company is a corporation duly organized, validly existing and
in good standing under the laws of Delaware and is qualified to do business
in every jurisdiction in which its ownership of property or conduct of
business requires it to qualify, except where the lack of such
qualification would not have a material adverse effect on the financial
condition of the Company. The Company has all requisite corporate power
and authority to carry out the transactions contemplated by this Agreement;
and
(c) as of immediately following the consummation of the transactions
contemplated hereby, all of the outstanding shares of the Common Stock
shall be duly and validly issued and authorized, fully paid, nonassessable
and free and clear of all encumbrances.
ARTICLE 3. TRANSFERABILITY
3.1 Transfer of Stock. No Common Stock held by Employee may be sold,
transferred, assigned, pledged or otherwise disposed of (a "Transfer") by
Employee other than as provided in Section 3.3 hereof. Any attempt by Employee
to Transfer any Common Stock in violation of this Article 3 shall be null and
void, and the Company shall not give any effect to such attempted Transfer in
the stock records of the Company.
3.2 Legend. Each certificate evidencing the Common Stock and each
certificate issued in exchange for or upon the transfer of the Common Stock (if
such shares remain Common Stock upon such transfer) will be stamped or otherwise
imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 (THE "ACT") OR ANY STATE SECURITIES LAW OR REGULATION.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
REPURCHASE OPTIONS AND OTHER PROVISIONS SET FORTH IN A MANAGEMENT
STOCK PURCHASE AGREEMENT BETWEEN DERBY CYCLE CORPORATION (THE
"COMPANY") AND EMPLOYEE DATED AS OF MARCH ___, 1999, AS AMENDED AND
MODIFIED FROM TIME TO TIME, A COPY OF WHICH MAY BE OBTAINED BY THE
HOLDER HEREOF AT THE COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT
CHARGE
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO THE
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT DATED AS OF FEBRUARY 3,
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1999, AMONG COMPANY AND CERTAIN SHAREHOLDERS THEREOF. A COPY OF SUCH
SHAREHOLDERS' AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE
COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST."
The Company will imprint such legends on certificates evidencing the Common
Stock outstanding prior to the date hereof. The legend set forth in the third
paragraph above shall be removed from the certificates pursuant to the terms of
the Shareholders' Agreement.
3.3 Transfer Restriction.
(a) Employee may not transfer the Common Stock held by Employee except
pursuant to (i) a Public Sale, (ii) a Sale of the Company, (iii) a Permitted
Transfer, (iv) Section 3.4 hereof, or (v) Section 3.5 hereof.
"Permitted Transfer" means a transfer (1) by will or the laws of descent or
(2) to Employee's spouse or lineal descendants (whether natural or adopted) and
any trust solely for the benefit of such Employee's spouse and/or immediate
family.
"Permitted Transferee" means any person who receives Common Stock in a
Permitted Transfer.
(b) Except pursuant to a Sale of the Company or a Public Sale,
Employee may not Transfer any Common Stock of the Company without first
delivering to the Company (i) a written notice setting forth the date, price and
other terms of such Transfer, which notice shall be delivered to the Company at
least thirty (30) days prior to the consummation of such Transfer and (ii) if
the Company so requests, (A) an opinion of counsel acceptable in form and
substance to the Company that registration under the Securities Act is not
required in connection with such Transfer, (B) a written agreement (reasonably
satisfactory to the Company), whereby the transferee agrees to (x) be bound by
the obligations applicable to the Employee hereunder (including, without
limitation, becoming a party to the Shareholders' Agreement and complying with
the restrictions on Transfer of Common Stock as set forth in this Section 3),
and (C) such further evidence as the Company may reasonably require to confirm
to the Company's satisfaction that such sale, transfer or disposition is in
compliance with the terms of this Agreement and the Shareholders' Agreement.
3.4 Right of First Refusal.
(a) After the seventh anniversary of the date hereof, Employee may
transfer Common Stock in accordance with the provisions of this Section 3.4. At
least 60 days prior to making any transfer, Employee shall deliver a written
notice (the "Sale Notice") to the Company. The Sale Notice will disclose in
reasonable detail the identity of the prospective transferee(s) and the terms
and conditions of the proposed transfer. Employee shall not consummate any
such transfer until 60 days after the Sale Notice has been delivered to the
Company, unless the Company has notified Employee in writing that it will not
exercise its rights under this Section 3.4. The date of the first to occur of
such events is referred to herein as (the "Authorization Date").
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(b) The Company may elect to purchase all or any portion of the Common
Stock to be transferred upon the same terms and conditions as those set forth in
the Sale Notice (the "Right of First Refusal") by delivering a written notice of
such election to Employee within 30 days after the receipt of the Sale Notice by
the Company (the "Election Notice"). If the Company has not elected to purchase
all of the Common Stock specified in the Sale Notice, Employee may transfer the
Common Stock not purchased by the Company to the prospective transferee(s) as
specified in the Sale Notice at a price and on terms no more favorable to the
transferee(s) thereof than specified in the Sale Notice during the 60-day period
immediately following the Authorization Date. Any Common Stock not so
transferred within such 60-day period must be reoffered to the Company in
accordance with the provisions of this Section 3.4 in connection with any
subsequent proposed transfer.
(c) The restrictions contained in this Section 3.4 will not apply with
respect to transfers of Common Stock pursuant to (i) a Public Sale, (ii) a Sale
of the Company, (iii) a Permitted Transfer, or (iv) Section 3.5 hereof.
3.5 Repurchase of Stock.
(a) In the event that Employee's employment with the Company is
terminated for any reason, the Common Stock held by Employee and Employee's
Permitted Transferees (collectively, the "Employee Group") will be repurchased
by the Company pursuant to the terms and conditions set forth in this Section
3.5 (the "Repurchase") at a price per share equal to the Fair Market Value
thereof determined as of the date of Employees termination (the "Termination
Date"); provided that, in the case of a termination for Cause by the Company or
a voluntary termination of employment by Employee (other than due to
Retirement), such Repurchase shall be at the option of the Company (the
"Repurchase Option").
(b) The Company shall exercise the Repurchase by delivery of written
notice (the "Repurchase Notice") to each member of the Employee Group. The
Repurchase Notice shall set forth the number of shares of Common Stock to be
acquired from each member of the Employee Group, the aggregate consideration to
be paid for such shares of Common Stock, and the time and place for the closing
of the transaction.
(c) The Company may exercise the Repurchase Option by delivery of
written notice (the "Repurchase Option Notice") to each member of the Employee
Group. The Repurchase Option Notice shall set forth the number of shares of
Common Stock to be acquired from each member of the Employee Group, the
aggregate consideration to be paid for such shares of Common Stock, and the time
and place for the closing of the transaction.
(d) The closing of the purchase of any shares of Common Stock pursuant
to the Repurchase or the Repurchase Option will take place on the date
designated by the Company in the Repurchase Notice or the Repurchase Option
Notice, as the case may be, which date will not be more than 45 days nor less
than 10 days after the delivery of such Repurchase Notice or the Repurchase
Option Notice, as the case may be. The Company will pay for the shares of
Common Stock to be purchased by delivering to each member of the Employee Group
a check in an amount equal to the aggregate purchase price for the shares of
Common Stock to be repurchased from such member of the Employee Group.
Notwithstanding the foregoing, in the event payment of the
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purchase price would cause a default under any material financing agreement of
the Company or any of its subsidiaries in effect from time to time (the
"Financing Agreements"), or is otherwise prohibited under applicable law, the
Company shall have the option of paying the purchase price with a subordinated
promissory note bearing interest at 6% per annum, due on the eighth anniversary
of the date of issuance, and payable upon the earlier to occur of the maturity
thereof or on the date of a Sale of the Company. In the event the issuance of
the subordinated promissory note is not permitted under the Financing Agreements
or applicable law, the Company may pay the purchase price for the shares of
Common Stock by the issuance of preferred stock bearing a dividend rate of 6%
per annum with redemption dates and payment restructuring similar to those set
forth in the subordinated promissory notes. If issuance of a subordinated
promissory note or the preferred stock is not permitted by the Financing
Agreements or applicable law, the Company may defer the repurchase until such
time as a form of payment described in this Section 3.5 is permitted under the
Financing Agreements and/or applicable law. If the Company determines that
withholding tax is required with respect to the Repurchase or the exercise of a
Repurchase Option, the Company shall withhold an amount equal to such
withholding tax from the purchase price. At the closing, each member of the
Employee Group will deliver the certificates representing the shares of Common
Stock to be sold, duly endorsed in form for transfer to the Company or its
designee, and the Company will be entitled to receive customary representations
and warranties from each member of the Employee Group regarding title to the
shares of Common Stock.
(e) In connection with any repurchase hereunder, the purchase price
payable by the Company shall be reduced, but not below zero, by any amounts
outstanding under any promissory notes issued by the Employee to acquire the
securities being purchased. The amounts due under such notes shall be deemed
paid to the extent of such reduction. In the event that (i) an Employee is
terminated for Cause or voluntarily terminates his employment (other than due to
Retirement), and (ii) the stock is not repurchased hereunder, the amounts due
under such promissory notes shall become immediately due and payable.
"Cause" shall mean (i) the commission of a felony or a crime involving
moral turpitude or the commission of any other act or omission involving
disloyalty, fraud or material dishonesty with respect to the Company or any of
its Subsidiaries or any of their customers or suppliers, (ii) conduct tending to
bring the Company or any of its Subsidiaries into substantial public disgrace or
disrepute, (iii) substantial and repeated failure to perform material duties as
reasonably directed by the Board of Directors or, (iv) gross negligence or
willful misconduct with respect to the Company or any of its Subsidiaries or (v)
any other material breach of this Agreement by the Employee if such breach is
not cured within 30 days of Employee receiving written notice of such breach;
provided that Cause shall not be deemed to exist unless (A) the Company provides
to the Employee a written notice specifying in detail the reasons for (and/or
breaches leading to) the existence of Cause within 30 days of becoming aware of
the existence of such Cause and (B) to the extent curable, the Employee has had
30 days after receipt of the Company's written notice to cure the existence of
any such Cause.
"Fair Market Value" per share on any given date means the average of the
closing price of the sales of such shares on all securities exchanges on which
such shares may at the time be listed, or, if there have been no sales on any
such exchange on any day, the average of the highest bid and lowest asked prices
on all such exchanges at the end of such day, or, if on any day such stock is
not so listed, the average of the representative bid and asked prices quoted on
the NASDAQ Stock Market as of 4:00 P.M., New York time, or, if on any day such
shares are not quoted on the NASDAQ Stock
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Market, the average of the highest bid and lowest asked prices on such day in
the domestic over-the-counter market as reported by the National Quotation
Bureau, Incorporated, or any similar organization. If at any time such shares
are not listed or quoted, the Fair Market Value per share shall be determined by
the Board of Directors or the compensation committee of the Board of Directors
(i) based on such factors as the members thereof, in the exercise of their
business judgment, consider relevant and (ii) consistent with fair market
valuation principles previously used by the Board of Directors to determine the
cost of the Common Stock acquired hereunder.
"Retirement" means the retirement after age 65 pursuant to the normal
retirement policy of the Company.
ARTICLE 4. GENERAL PROVISIONS.
4.1 Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
4.2 Entire Agreement. This Agreement and those documents expressly
referred to herein embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties hereto with respect to the subject
matter hereof written or oral, which may have related to the subject matter
hereof in any way.
4.3 Amendments and Waivers. Any provision of this Agreement may be
amended or waived only with the prior written consent of Employee and the
Company.
4.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT
TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE
OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
4.5 Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
4.6 Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement or of any term or provision hereof.
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4.7 Arbitration.
(a) Employee and the Company agree that the arbitration procedure set
forth below shall be the sole and exclusive method for resolving and remedying
claims for money damages arising out of this Agreement (the "Disputes").
Nothing in this Section 4.7 shall prohibit a party hereto from instituting
litigation to enforce any Final Determination (as defined below) or availing
itself of the other remedies set forth in Section 4.8 below. The parties
hereby agree and acknowledge that, except as otherwise provided in this Section
4.7 or in the Commercial Arbitration Rules of the American Arbitration
Association as in effect from time to time, the arbitration procedures and any
Final Determination hereunder shall be governed by, and shall be enforced
pursuant to the Uniform Arbitration Act and applicable provisions of New York
law.
(b) In the event that any party asserts that there exists a Dispute,
such party shall deliver a written notice to each other party involved therein
specifying the nature of the asserted Dispute and requesting a meeting to
attempt to resolve the same. If no such resolution is reached within ten
business days after such delivery of such notice, the party delivering such
notice of Dispute (the "Disputing Person") may, within 45 business days after
delivery of such notice, commence arbitration hereunder by delivering to each
other party involved therein a notice of arbitration (a "Notice of Arbitration")
and by filing a copy of such Notice of Arbitration with the appropriate office
of the American Arbitration Association. Such Notice of Arbitration shall
specify the matters as to which arbitration is sought, the nature of any
Dispute, the claims of each party to the arbitration and shall specify the
amount and nature of any damages, if any, sought to be recovered as a result of
any alleged claim, and any other matters required by the Commercial Arbitration
Rules of the American Arbitration Association as in effect from time to time to
be included therein, if any.
(c) The Company and Employee shall attempt to agree within 10 business
days on an arbitrator. If they are unable to agree, the Company and the Employee
each shall select one independent arbitrator expert in the subject matter of the
Dispute (the arbitrators so selected shall be referred to herein as "Company's
Arbitrator" and "Employee's Arbitrator," respectively). In the event that
either party fails to select an independent arbitrator as set forth herein
within 20 days from delivery of a Notice of Arbitration, then the matter shall
be resolved by the arbitrator selected by the other party. Company's Arbitrator
and Employee's Arbitrator shall select a third independent arbitrator expert in
the subject matter of the dispute, and the arbitrator so selected shall resolve
the matter according to the procedures set forth in this Section 4.7. If
Company's Arbitrator and Employee's Arbitrator are unable to agree on a third
arbitrator within 20 days after their selection, Company's Arbitrator and
Employee's Arbitrator shall each prepare a list of three independent
arbitrators. Company's Arbitrator and Employee's Arbitrator shall each have the
opportunity to designate as objectionable and eliminate one arbitrator from the
other arbitrator's list within 7 days after submission thereof, and the third
arbitrator shall then be selected by lot from the arbitrators remaining on the
lists submitted by Company's Arbitrator and Employee's Arbitrator.
(d) The arbitrator jointly selected by the Company and the Employee
pursuant (or the third arbitrator selected pursuant) to paragraph (c) will
determine the allocation of the costs and expenses of arbitration.
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(e) The arbitration shall take place in New York City and shall be
conducted under the American Arbitration Association rules as in effect from
time to time in the State of New York, except as otherwise set forth herein or
as modified by the agreement of all of the parties to this Agreement. The
arbitrator shall conduct the arbitration so that a final result, determination,
finding, judgment and/or award (a "Final Determination") is made or rendered as
soon as practicable, but in no event later than 90 business days after the
delivery of the Notice of Arbitration nor later than 10 days following
completion of the arbitration. The Final Determination must be agreed upon and
signed by the arbitrator. The Final Determination shall be final and binding on
all parties and there shall be no appeal from or reexamination of the Final
Determination, except for fraud, perjury, evident partiality or misconduct by an
arbitrator prejudicing the rights of any party and to correct manifest clerical
errors.
(f) Employee and the Company may enforce any Final Determination in
any state or federal court having jurisdiction over the dispute. For the
purpose of any action or proceeding instituted with respect to any Final
Determination, each party hereto hereby irrevocably submits to the jurisdiction
of such courts, irrevocably consents to the service of process by registered
mail or personal service and hereby irrevocably waives, to the fullest extent
permitted by law, any objection which it may have or hereafter have as to
personal jurisdiction, the laying of the venue of any such action or proceeding
brought in any such court and any claim that any such action or proceeding
brought in such court has been brought in an inconvenient forum. The foregoing
shall in no way prevent or prejudice the prevailing party's right to enforce a
Final Determination in any other jurisdiction (whether domestic or foreign).
(g) If any party shall fail to pay the amount of any damages, if any,
assessed against it within 10 days of the delivery to such party of such Final
Determination, the unpaid amount shall bear interest from the date of such
delivery at the maximum rate permitted by applicable usury laws. Interest on
any such unpaid amount shall be compounded semi-annually, computed on the basis
of a 360-day year consisting of twelve 30-day months and shall be payable on
demand. In addition, such party shall promptly reimburse the other party for
any and all costs or expenses of any nature or kind whatsoever (including, but
not limited to, all attorneys' fees) incurred in seeking to collect such damages
or to enforce any Final Determination.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Management Stock Purchase
Agreement as of the date set forth above.
DERBY CYCLE CORPORATION
By:
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Name:
Title:
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EXHIBIT A
PROMISSORY NOTE
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