REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into this 31st day of May, 2006, by and between GAMCO Investors, Inc., a
StateplaceNew York corporation ("GBL"), and Frederick J. Mancheski and David M.
Perlmutter (individually, a "Seller" and collectively, the "Sellers").
RECITALS
Mario J. Gabelli ("Gabelli"), GGCP, Inc. ("GGCP") and Sellers are
parties to that certain Settlement and Stock Purchase Agreement dated May 31,
2006 (the "Purchase Agreement") pursuant to which Gabelli is acquiring Sellers'
ownership interest in GGCP for consideration that includes an aggregate of
2,141,149 shares (the "Class B Shares") of GBL's Class B Common Stock, $.001 par
value.
GBL and Mancheski, and GBL and Perlmutter, are parties to those
certain Exchange and Standstill Agreements, dated May 31, 2006 (the "Exchange
and Standstill Agreements"), pursuant to which the Class B Shares are to be
exchanged for an aggregate of 2,141,149 shares (the "Class A Shares") of GBL's
Class A Common Stock, $.001 par value (the "Class A Common Stock").
GBL, Mancheski, Perlmutter, Gabelli and GGCP are parties to that
certain Stipulation and Order of Settlement, dated May 31, 2006 (the
"Stipulation of Settlement").
NOW, THEREFORE, in consideration of the premises and the covenants,
agreements, representations and warranties set forth herein, and for other good
and valuable consideration, the parties agree as follows:
1. Definitions. As used in this Agreement:
(a) "Advice" shall mean advice contained in a writing.
(b) "Board" shall mean the Board of Directors of GBL.
(c) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(d) "Exchange Act" shall mean the Securities Exchange Act of
1934, 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.
(e) The term "Prospectus" means a prospectus forming a part of
the Registration Statement.
(f) The terms "register," "registered" and "registration" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of
effectiveness of such registration statement by the Commission.
(g) "Registrable Securities" shall mean the Class A Shares
received by the Sellers in the exchange referred to in the recitals, as well as
any securities issued as a dividend or other distribution with respect to, or in
exchange or in replacement of, such Class A Shares.
(h) "Rule 144" shall mean Rule 144 promulgated under the
Securities Act or any similar rule enacted hereafter, as the same shall be in
effect from time to time.
(i) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute enacted hereafter, and the rules and
regulations promulgated thereunder, all as the same shall be in effect from time
to time.
(j) "Transferee" shall have the meaning provided in Section 19
hereof.
2. Registration on Form S-3. GBL, at its sole cost and expense,
shall prepare and file with the Commission, within 30 days after the date
hereof, a registration statement on Form S-3 pursuant to Rule 415 under the
Securities Act, or, in the event that Form S-3 is unavailable to GBL, a
registration statement on such other form (in either event, the "Registration
Statement"), covering the resale of the Registrable Securities owned by each
Seller and/or by each Transferee (as hereinafter defined) of a Seller, and shall
use its best efforts: (i) to cause the Registration Statement to become
effective as promptly thereafter as possible; and (ii) to maintain the
effectiveness of the Registration Statement until the earlier of (i) three years
after the effective date of the Registration Statement (plus any extensions of
such effectiveness required by Section 5 hereof), or (ii) until each Seller
(which term shall not include Transferees) has sold any remaining Registrable
Securities (the "Registration Period"),
3. Registration Procedures. In connection with the registration
of any Registrable Securities, GBL shall, as expeditiously as possible:
(a) Prepare and file with the Commission such pre-effective and
post-effective amendments and supplements to the Registration Statement and the
prospectus used in connection with the Registration Statement, and/or file such
reports under the Exchange Act, as may be necessary to cause the Registration
Statement to become effective, to keep the Registration Statement continuously
effective during the Registration Period and not misleading, and as may
otherwise be required or applicable under, and to comply with the provisions of,
the Securities Act with respect to the disposition of all Registrable Securities
covered by the Registration Statement during the Registration Period.
(b) Furnish to the Sellers such number of copies of the
Prospectus, and each amendment or supplement thereto, in conformity with the
requirements of the Securities Act, and such other documents as the Sellers may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
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(c) Promptly notify the Sellers: (i) when a Prospectus or any
Prospectus supplement or post-effective amendment is proposed to be filed and,
with respect to any post-effective amendment, when the same has become
effective, (ii) of any request by the Commission or any other federal or state
governmental authority for amendments or supplements to a Registration Statement
or a Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) of the
receipt by GBL of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, and (v) of the occurrence of any event or
circumstance that makes any statement made in the Registration Statement or
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in the Registration Statement, Prospectus or documents so that, in the
case of the Registration Statement and any amendment or supplement thereto, it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(d) Make every reasonable effort to avoid the issuance of, or,
if issued, obtain the withdrawal of, any order suspending the effectiveness of a
Registration Statement, or the lifting of any suspension of the qualification
(or exemption from qualification) of any of the Registrable Securities for sale
in any jurisdiction, at the earliest practicable moment.
(e) If requested by the Sellers with respect to not less than
50% of the Registrable Securities, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as such holders
reasonably request be included therein regarding such holders or the plan of
distribution of the Registrable Securities and (ii) make all required filings of
the Prospectus supplement or such post-effective amendment as soon as
practicable after GBL has received notification of such matters to be
incorporated in such Prospectus supplement or post-effective amendment;
provided, however, that GBL shall not be required to take any action pursuant to
this Section 3(e) that would, in the opinion of counsel to GBL, violate
applicable law.
(f) Upon the occurrence of any event contemplated by Section
3(c), as promptly as practicable, prepare and deliver to the Sellers any
required supplement or amendment, including a post-effective amendment, to the
Registration Statement or a supplement to the Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and file any
other required document, including such reports as may be required to be filed
under the Exchange Act, so that, as thereafter delivered, the Prospectus will
not contain 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,
in light of the circumstances under which they were made, not misleading.
(g) Use its best efforts to cause all Registrable Securities the
resale of which is registered under cover of the Registration Statement to be
listed on the New York Stock Exchange or such other securities exchange or
automated quotation system, if any, as is then the principal securities exchange
or automated quotation system on which the GBL Class A Common Stock is then
listed.
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(h) Use its best efforts to cause all Registrable Securities
registered by the Registration Statement to be registered or qualified under the
securities or "blue sky" laws of Nevada, Connecticut, New York and such other
states as the Sellers shall reasonably request; provided, however, that GBL
shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action that would subject it to
general service of process in any such jurisdiction where it is not then so
subject or to subject itself to any material tax in any such jurisdiction where
it is not then so subject.
(i) Cooperate with the Sellers to facilitate the timely
preparation and delivery of certificates representing the Registrable Securities
to be sold pursuant to the Registration Statement free of any restrictive
legends and in such denominations and registered in such names as the Sellers
may reasonably request a reasonable period of time prior to sales of the
Registrable Securities pursuant to the Registration Statement.
(j) Deliver to the Sellers, promptly upon the issuance thereof
by the Commission, written evidence of the registration of the Registrable
Securities.
4. Obligation to Furnish Information. It shall be a condition
precedent to the obligations of GBL to take any action pursuant to this
Agreement with respect to the Registrable Shares of a Seller that such Seller or
any transferee of such Seller shall have furnished to GBL such information
regarding it, the Registrable Securities held by it, and the intended method of
disposition of such Registrable Securities as GBL shall reasonably request and
as shall be required in connection with the action to be taken by GBL, and shall
advise GBL promptly in the event of any material change in the information
previously provided.
5. Delay or Suspension of Registration Statement.
(a) If there is material non-public information regarding GBL
that the Board reasonably determines not to be in GBL's best interest to
disclose and that GBL is not otherwise required to disclose, GBL may (x)
postpone or suspend filing of the Registration Statement for a period not to
exceed 90 consecutive days or (y) postpone or suspend effectiveness of a
Registration Statement for a period not to exceed 90 consecutive days; provided
that GBL may not postpone or suspend effectiveness of a registration statement
under this Section 5(a) for more than 120 days in the aggregate during any
consecutive 12-month period; and provided, further, that no such postponement or
suspension shall be permitted for consecutive 90 day periods arising out of the
same set of facts, circumstances or transactions except that, notwithstanding
the foregoing, GBL may suspend the Registration Statement for longer periods as
to a Seller if such Seller is eligible to sell his Shares under Rule 144 in the
full amounts permitted by the Exchange and Standstill Agreement between such
Seller and GBL.
(b) Upon receipt of any notice from GBL to the Sellers of the
happening of any event of the kind described in Section 5(a), each Seller shall
forthwith discontinue disposition of Registrable Securities under the
Registration Statement until such Seller's receipt of copies of a supplemented
or amended Prospectus contemplated by Section 3(f), or until it has received an
Advice from GBL that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus. If so directed by GBL, each Seller shall deliver to
GBL (at the expense of GBL) all copies, other than permanent file copies then in
each Seller's possession, of the Prospectus current at the time of receipt of
such notice. In the event GBL shall give any such notice, the Registration
Period shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 3(c) or 5(a)
to and including the date when the Sellers shall have received the copy of the
supplemented or amended prospectus contemplated by Section 3(f) or the Advice;
provided, that in no event shall the Registration Period be extended beyond the
time when it would otherwise terminate pursuant to Section 2 hereof.
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6. Expenses of Registration. All expenses incurred in connection
with the registration pursuant to Section 2 (excluding any underwriters'
discounts and commissions and fees and disbursements of counsel for the
Sellers), including, without limitation all registration and qualification fees,
and fees and disbursements of counsel for GBL, shall be borne by GBL.
7. Indemnification.
(a) To the full extent permitted by law, GBL shall, and hereby
does indemnify and hold harmless each Seller, each director, officer, partner,
agent for each Seller (including the Sellers' Agent), any underwriter (as
defined in the Securities Act), and each person, if any, who controls each
Seller, or underwriter within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Securities Act, the Exchange Act, and applicable state
law 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 the Registration Statement,
including any preliminary Prospectus or final Prospectus 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 circumstance under which it was made or necessary to make the statements
therein not misleading, or arise out of any violation by GBL of any rule or
regulation promulgated under the Securities Act applicable to GBL and relating
to action or inaction required of GBL in connection with any such registration;
and shall reimburse each such person for any legal or other expenses reasonably
incurred by him in connection with investigating or defending any such loss,
claim, damage, liability or action. The indemnity agreement contained in this
Section 7 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 GBL (which consent shall not be unreasonably withheld) nor shall GBL be
liable to a Seller, underwriter or controlling person 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 an alleged untrue statement or omission or alleged
omission made in connection with the Registration Statement, preliminary
Prospectus, final Prospectus, or amendments or supplements thereto, in reliance
upon and in conformity with information furnished by such Seller in writing for
use in connection with such registration by or on behalf of such Seller,
underwriter or controlling person.
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(b) To the full extent permitted by law, each Seller shall
indemnify and hold harmless GBL, each of its directors, each of its officers who
have signed the registration statement, each person, if any, who controls GBL
within the meaning of the Securities Act, and any underwriter for GBL (within
the meaning of the Securities Act), against any losses, claims, damages or
liabilities, joint or several, to which GBL or any such director, officer,
controlling person or underwriter may become subject, under the Securities 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
the Registration Statement, including any preliminary Prospectus or final
Prospectus 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 the Registration Statement, preliminary
or final Prospectus, or amendments or supplements thereto, in reliance upon and
in conformity with information furnished in writing by such Seller for use in
connection with such registration. The indemnity agreement contained in this
Section 7 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 Seller (which consent shall not be unreasonably withheld).
(c) In no event shall the liability of any Seller under Section
7(b) be greater than the lesser of (a) its pro rata portion of any liability
based on the total liability of all Sellers similarly situated, or (b) the
dollar amount of the net proceeds received by such Seller upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(d) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action or actual knowledge of a
claim that would, if asserted, give rise to a claim for indemnity hereunder,
such indemnified party shall, if a claim in respect thereof is to be made
against any indemnifying party under this Section 7, notify the indemnifying
party in writing of the commencement thereof or knowledge thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with qualified counsel. The
failure to notify an indemnifying party promptly of the commencement of any such
action or of the knowledge of any such claim, if materially prejudicial to his
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 7, but the omission so to
notify the indemnifying party shall not relieve him of any liability that he may
have to any indemnified party otherwise than under this Section.
(e) If the indemnification provided for in this Section 7 is for
any reason, other than pursuant to the terms thereof, held to be unavailable to
an indemnified party in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of GBL and each
Seller in connection with the statements or omission that resulted in such
losses, claims, damages, liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact relates to information supplied by GBL or a
Seller and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. GBL and each
Seller agree that it would not be just and equitable if contribution pursuant to
this Section 7(e) were determined by pro rata allocation or by any other method
of allocation that does not take account of the equitable considerations
referred to above in this Section 7(e). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this Section 7(e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim, but shall be subject, in the case of a Seller, to the limitation of
Section 7(c) above. No person guilty of fraudulent misrepresentation within the
meaning of Section 11(d) of the Securities Act shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. No
party shall be liable for contribution with respect to any loss, claim, damage,
liability, or action if such settlement is effected without the prior written
consent of such party, which consent shall not be reasonably withheld.
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8. Termination. This Agreement shall terminate upon either
(i) the expiration of the Registration Period, provided that the rights and
obligations of the parties pursuant to Section 7 shall survive such termination
or (ii) the termination of the Purchase Agreement, in which event this Agreement
shall immediately become void as set forth in Section 7.2 of the Purchase
Agreement.
9. Rule 144. During the Registration Period, GBL shall use
its best efforts to file the reports required to be filed by it under the
Exchange Act in a timely manner and, if at any time GBL is not required to file
such reports, it shall, upon the request of any Seller, use its best efforts to
make publicly available other information so long as is necessary to permit
sales pursuant to Rule 144. GBL shall take such further action as any Seller may
reasonably request, all to the extent required from time to time to enable such
Seller to sell Registrable Securities without registration under the Securities
Act pursuant to the exemption provided by Rule 144 under the Securities Act.
Upon the request of any Seller, GBL shall deliver to the Sellers' Agent a
written statement as to whether it has complied with such information
requirements.
10. Remedies. In case any one or more of the covenants and/or
agreements set forth in this Agreement shall have been breached by GBL or the
Sellers, the Sellers or GBL (as the case may be) may proceed to protect and
enforce its rights either by suit in equity and/or by action at law, including,
but not limited to, an action for damages as a result of any such breach and/or
an action for specific performance or injunctive relief with respect to any such
covenant or agreement contained in this Agreement.
11. Notices. All notices, requests, demands or other
communications provided for or permitted to be given pursuant to this Agreement
shall be in writing and shall be deemed to have been duly given when delivered
personally (which personal delivery shall include delivery by responsible
overnight courier), or five days after being sent by registered or certified
mail, return receipt requested, postage prepaid:
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If to GBL to:
GAMCO Investors, Inc.
One Corporate Center
Rye, New York 10580
Attention: James E. McKee
with a copy to:
Skadden Arps Slate Meagher & Flom LLP
4 Times Square
New York, New York 10036
Attention: Richard T. Prins
If to the Sellers to:
Frederick J. Mancheski
1060 Vegas Valley Drive
Las Vegas, Nevada 89109
and
David M. Perlmutter
470 Bellwood Avenue
Sleepy Hollow, New York 10951
with copies to:
Collier Halpern, Newberg, Nolletti & Bock, LLP
One North Lexington Avenue
White Plains, NY 10601
Attention: Philip M. Halpern
Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C.
565 Fifth Avenue
New York, New York 10017
Attention: Barbara Moses
By giving to the other parties at least five days' written notice thereof, any
party hereto shall have the right from time to time and at any time during the
term of this Agreement to change his respective address and each party shall
have the right to specify as his address any other address within the United
States of America.
12. Grant of Other Registration Rights. From time to time, GBL
may grant registration rights to any other holder or prospective holder of any
of the capital stock of GBL.
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13. Binding Agreement. This Agreement and each provision herein
shall be binding upon and applicable to, and shall inure to the benefit of, GBL,
the Sellers, their heirs, permitted assigns and legal representatives.
14. Consents and Waivers. No consent or waiver, express or
implied, by any party hereto of the breach, default or violation by any other
party hereto of his obligations hereunder shall be deemed or construed to be a
consent or waiver to or of any other breach, default or violation of the same or
any other obligations of such party hereunder. Failure on the part of any party
hereto to complain of any act of any of the other parties or to declare any of
the other parties hereto in default, irrespective or how long such failure
continues, shall not constitute a waiver by such party of his rights hereunder.
15. Applicable Law and Consent to Jurisdiction.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflicts of law thereof
(b) The parties hereto hereby irrevocably submit to the
exclusive jurisdiction of Supreme Court of the State of New York, or the United
States District Court, Southern District of New York (but only to the extent
that jurisdiction is exclusively federal), in each case sitting in Westchester
County, New York, over any action or proceeding arising out of or relating to
this Agreement and the transactions contemplated hereby and each of the parties
hereto hereby irrevocably agrees that all claims in respect to such action or
proceeding shall be heard and determined in such New York state or federal
court. Each of the parties hereto agrees that if any such action is filed in or
transferred to the Supreme Court of the State of New York, Westchester County,
they will request referral of the action to Justice Linda A. Jamieson. Each of
the parties hereto hereby irrevocably waives, to the fullest extent legally
possible, the defense of an inconvenient forum to the maintenance of such action
or proceeding.
16. Prior Agreements; Amendments. This Agreement supersedes any
prior or contemporaneous understanding or agreement among the parties hereto
respecting the subject matter hereof. There are no arrangements, understandings
or agreements, oral or written, among such parties relating to the subject
matter of this Agreement, except those fully expressed herein and in the
Exchange and Standstill Agreements and the Stipulation of Settlement. No change
or modification of this Agreement shall be valid or binding upon the parties
hereto unless such change or modification or waiver shall be in writing and
signed by the parties hereto, and such change or modification shall be binding
on all holders of Registrable Securities.
17. Headings. The headings and captions in this Agreement are
included for purposes of convenience only and shall not affect the construction
or interpretation of any of its provisions.
18. Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but all
of which when taken together shall constitute one and the same instrument.
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19. Transfer of Rights and Obligations. This Agreement and the rights
and obligations of any Seller under this Agreement may be transferred by any
Seller to a spouse, ancestor or lineal descendant, to a trust for the benefit of
any of the foregoing, or to any legal entity, all of the outstanding voting or
equity interests with respect to which are owned or controlled by such Seller
and/or such family members or family trusts (any such permitted transferee being
referred to herein as a "Transferee"). As a condition precedent to any such
transfer, any such Transferee must provide written notice of such assignment to
GBL, which notice shall at a minimum include the name and address of such
Transferee, the Registrable Securities with respect to which such transfer is to
occur and the number, if any, of other shares of Class A Common Stock held by
such Transferee and agree in writing to be bound by the terms of this Agreement.
20. Third Party Beneficiaries. GBL hereby acknowledges that the
Transferees are express third party beneficiaries of the obligations of GBL
hereunder.
21. Gender. As used in this Agreement, the neuter gender shall
include the masculine and feminine genders and the masculine gender shall
include the feminine and neuter genders, the singular shall include the plural
and the word "person" shall include a corporation, firm, company, trust and
other form of association or entity.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered on the date first above written.
GAMCO INVESTORS, INC.
By:
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Name:
Title:
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FREDERICK J. MANCHESKI
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DAVID M. PERLMUTTER
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