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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
SILVER DINER, INC.
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(Name of Issuer)
Common Stock, par value, $.00074
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(Title of Class of Securities)
827655 10 1
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(CUSIP Number)
Ms. Catherine Britton Arnold Westerman, Esquire
8706 Brook Road Arent Fox Kinter Plotkin & Kahn, PLLC
McLean, Virginia 22102 1050 Connecticut Avenue, N.W.
(703)-442-8430 Washington, D.C. 20036-5339
(202)-857-6243
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
January 13, 1999
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
Check the following box if a fee is being paid with the statement [_]. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Potential persons who are to respond to the collection of information contained
in this form are not required to respond unless the form displays a currently
valid OMB control number.
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CUSIP NO. 827655 10 1
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY).
Catherine Britton
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS BK
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION United States of America
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NUMBER OF 7. SOLE VOTING POWER 2,489,612
SHARES -----------------------------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER 0
OWNED BY -----------------------------------------------------------
EACH 9. SOLE DISPOSITIVE POWER 2,489,612
REPORTING -----------------------------------------------------------
PERSON 10. SHARED DISPOSITIVE POWER 0
WITH
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,116,087
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 42.75%
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14. TYPE OF REPORTING PERSON*
IN
* Pursuant to Rule 13d-5 of the Securities Exchange Act of 1934, the amount of
Common Shares reported in Item 11 includes the beneficial ownership of the
Common Shares owned by the Group referred to in Item 4 of this Amendment No.2.
Ms. Britton disclaims beneficial ownership of 2,626,475 Common Shares reported
in Item 11 above. See-- Item 4 of this Amendment No. 2.
This Amendment No. 2 to Schedule 13D (this "Amendment No. 2") is filed by
Catherine Britton with respect to the common stock, par value $.00074 per share
("Common Shares"), of Silver Diner, Inc., a
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Delaware corporation (the "Issuer"), and amends the Schedule 13D filed by Ms.
Britton on April 16, 1997 (the "Statement") and Amendment No. 1 to Schedule 13D
filed by Ms. Britton on December 18, 1998 ("Amendment No. 1"). All capitalized
terms used and not defined herein shall have the meanings ascribed to them in
Amendment No. 1.
Item 3. Source and Amount of Funds or Other Consideration
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Item 3 is hereby deleted in its entirety and is amended as follows:
On April 7, 1997, Ms. Britton's husband, Robert T. Giaimo, who is Chairman
of the Board, a director and President of the Issuer, transferred to Ms. Britton
for estate planning purposes, for no consideration, 1,611,154 Common Shares.
Concurrent with the transfer of the Common Shares to Ms. Britton, Mr. Giaimo
assigned to Ms. Britton, and Ms. Britton agreed to be bound by a stock option
agreement between Mr. Giaimo and Clinton A. Clark ("Stock Option Agreement"),
pursuant to which Mr. Giaimo granted an option to Mr. Clark to acquire 20,003
Common Shares exercisable at $3.60 per share at any time prior to April 4, 2005.
A copy of the Stock Option Agreement was filed as Exhibit 1 to the Statement and
is incorporated herein by this reference.
On December 15, 1998, Ms. Britton purchased 750,000 Common Shares at $0.77
per share (the "Britton Shares"). Ms. Britton purchased the Britton Shares with
funds made available from the parents of Mr. Giaimo. No decision has been made
as to whether these funds will be treated as a loan or as a gift. Since her
purchase of the Britton Shares, Ms. Britton has acquired additional Common
Shares as a member of the Group referred to in Item 4 of this Amendment No. 2.
As was the case with the purchase of the Britton Shares, Ms. Britton purchased
these Common Shares with funds made available from the parents of Mr. Giaimo,
and no decision has been made as to whether these funds will be treated as a
loan or a gift. (See - Item 4 of this Amendment No. 2).
Item 4. Purpose of Transaction
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Item 4 is hereby deleted in its entirety and is amended as follows:
Mr. Giaimo and his wife, believing that the Common Shares represented an
investment opportunity, identified blocks of Common Shares held by several
institutions. Accordingly, Mr. Giaimo contacted these institutions to ascertain
whether the blocks he identified were available for sale. Mr. Giaimo realized
that
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neither he nor his wife had sufficient funds to purchase all of the Common
Shares held by such institutions if they became available for sale. Thus, in the
early part of December, 1998, Mr. Giaimo asked several directors, officers and
consultants of the Issuer if they were potentially interested in participating
in the acquisition to the extent additional funds were needed.
Although one institution was not interested in selling, Mr. Giaimo
continued his discussions with another institution, and on December 15, 1998,
this institution agreed to sell the Common Shares which were purchased by Ms.
Britton.
At approximately the same time, Mr. Giaimo asked Charles Steiner, a
director of the Issuer, Ype Von Hengst, a director and Vice President of the
Issuer, Patrick Meskell, an officer of the Issuer, Timothy Cusick, an officer of
the Issuer, William Rulon-Miller, a principal of Janney Montgomery Scott Inc.
and a consultant to the Issuer, George Mavrikes, a business advisor to the
Issuer and Robert Pincus, the President and Chief Executive Officer of Franklin
National Bank, a lender to the Issuer (the "Group") to join with him and his
wife to acquire Common Shares either in blocks or in over-the-counter open
market purchases at prevailing prices on an ongoing basis. Although the Group
was formed at the behest of Mr. Giaimo, he does not intend to personally
participate in the acquisitions made by the Group. Likewise, Mr. Steiner does
not intend personally to participate in the acquisition made by the Group. Mr.
Steiner owns a 25% interest in and is the managing partner of the Steiner Family
Partnership, which owns 557,907 Common Shares representing approximately 4.82%
of the outstanding Common Shares as reported on the Issuer's Form 10-Q dated
November 18, 1998. The Steiner Family Partnership will purchase Common Shares
with available funds.
The members of the Group agreed to invest collectively $552,500 (the "Group
Investment") to purchase Common Shares. The amount each member of the Group has
agreed to invest is as follows: the Steiner Family Partnership-- $187,500;
Catherine Britton-- $125,000; Patrick Meskell-- $60,000; Robert Pincus--
$50,000; George Mavrikes-- $25,000; Timothy Cusick-- $10,000; Ype Von Hengst--
25,000; Michael Collier-- $10,000; and William Rulon-Miller-- 10,000.
Notwithstanding the foregoing, each Group member reserves the right to purchase
additional Common Shares of the Issuer at any time in private or market
transactions depending on market conditions and such Group member's evaluation
of the Issuer's business and financial condition.
Mr. Steiner will use funds of the Steiner Family Partnership to purchase
Common Shares. Mr. Hengst will borrow on an unsecured basis his investment from
Mr. Giaimo and the balance from a
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national bank. Likewise, Mr. Cusick will borrow on an unsecured basis half of
the funds he plans to invest from Mr. Giaimo and the balance from a national
bank. As was the case with the purchase of the Britton Shares, Ms. Britton will
purchase Common Shares with funds made available from the parents of Mr. Giaimo,
and no decision has been made as to whether these funds will be treated as an
unsecured loan or as a gift. The other members of the Group will use their
personal funds to purchase Common Shares.
The Group intends to acquire Common Shares from time to time at prevailing
rates through open market transactions or block purchases on an ongoing basis,
depending on market conditions and subject to compliance with all applicable
securities laws and regulations. No time limit has been established for the
completion of the Group's acquisition of the Common Shares. The Group may
discontinue its acquisition strategy at any time. When the Group Investment has
been exhausted, the Group's existence will terminate immediately.
The formation of the Group is the event which required Ms. Britton to file
Amendment No.1. Rule 13d-5 of the Securities Exchange Act of 1934 (the "Act")
provides, in pertinent part, "When two or more persons agree to act together for
the purpose of acquiring, holding, voting or disposing of equity securities of
an issuer, the group formed thereby shall be deemed to have acquired beneficial
ownership, for purposes of Sections 13(d) and 13(g) of the Act, as of the date
of such agreement, of all equity securities of that issuer beneficially owned by
any such persons." The Group was formed for the purpose of pooling funds to
enable the members of the Group to acquire additional Common Shares through open
market transactions or block purchases. Each member of the Group retains the
sole and absolute power to vote or dispose of any Common Shares acquired or held
by such Group member, and there are no arrangements, agreements or
understandings among the members of the Group with respect to the voting or
disposition of the Common Shares acquired by any member of the Group, the
business and operations of the Issuer or the control of the Issuer. Any Common
Shares purchased by a Group member will be held in the account of such Group
member. Accordingly, each member of the Group disclaims beneficial ownership of
the Common Shares owned by the other members of the Group, and the filing of
this Amendment No. 2 and Amendment No. 1 should not be construed as an admission
that Ms. Britton is the beneficial owner of the Common Shares owned by the other
members of the Group.
Except as set forth in this Item 4, and except for plans or proposals of
the Issuer in which Ms. Britton may participate in her capacity as a director of
the Issuer, neither Ms. Britton nor, to her knowledge, any other member of the
Group have any plans or proposals which relate to or would result in:
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(a) The acquisition by any person of additional securities of the Issuer,
or the disposition of securities of the Issuer;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation involving the Issuer or any of its subsidiaries;
(c) A sale or transfer of a material amount of assets of the Issuer or of
any of its subsidiaries;
(d) Any change in the present Board or management of the Issuer, including
any plans or proposals to change the number or term of directors or to fill any
existing vacancies on the Board;
(e) Any material change in the present capitalization or dividend policy of
the Issuer;
(f) Any other material change in the Issuer's business or corporate
structure;
(g) Changes in the Issuer's charter or bylaws or other actions which may
impede the acquisition of control of the Issuer by any person;
(h) Causing a class of securities of the Issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
(i) A class of equity securities of the Issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934, as amended; or
(j) Any action similar to any of those enumerated above.
On December 16, 1998, Ms. Britton acquired 4,350 Common Shares, reflecting
her proportionate share of the 15,000 Common Shares purchased by the Group
members for $0.6875 per share. On December 22, 1998, Ms. Britton acquired 2,900
Common Shares, reflecting her proportionate share of the 10,000 Common Shares
acquired by the Group for $0.8125 per share. On December 23, 1998, Ms. Britton
acquired 1,740 Common Shares, reflecting her proportionate share of the 6,000
Common Shares acquired by the Group for $0.8750 per share. On December 24,
1998, Ms. Britton acquired 8,120 Common Shares, reflecting her proportionate
share of the 28,000 Common Shares acquired by the Group for $0.7913 per
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share. On December 29, 1998, Ms. Britton acquired 2,900 Common Shares,
reflecting her proportionate share of the 10,000 Common Shares acquired by the
Group for $0.7700 per share. On December 31, 1998, Ms. Britton acquired 2,900
Common Shares, reflecting her proportionate share of the 10,000 Common Shares
acquired by the Group for $0.8125 per share. On January 13, 1998, Ms. Britton
acquired 103,548 Common Shares, reflecting her portion of the 350,000 Common
Shares acquired by the Group. As a result of these acquisitions and the
acquisition of the Britton Shares by Ms. Britton, the Common Shares which each
member of the Group owns beneficially and of record is as follows:
<TABLE>
<CAPTION>
Group Member Common Shares (1)
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<S> <C>
Robert Giaimo 420,000 (2)(10)
Catherine Britton 2,501,612 (3)(10)
Charles Steiner 624,907 (4)(10)
Robert Pincus 39,655
William Rulon-Miller 7,915
George Mavrikes 52, 953 (5)(10)
Michael Collier 84,049 (6)(10)
Patrick Meskell 122,577 (7)(10)
Timothy Cusick 57,328 (8)(10)
Ype Von Hengst 297, 498 (9)(10)
</TABLE>
(1) Since there are no arrangements, agreements or understandings among the
members of the Group with respect to the voting or disposition of the
Common Shares acquired by any member of the Group, the business and
operations of the Issuer or the control of the Issuer, the number of
Common Shares set forth opposite the name of each Group member in the
above table does not include the Common Shares owned by each of the other
members of the Group.
(2) The 420,000 Common Shares owned by Mr. Giaimo beneficially and of
record include the following: (a) 300,000 Common Shares directly owned by
Mr. Giaimo; and (b) 120,000 Common Shares subject to options granted to
Mr. Giaimo under the Stock Option Plan. The 420,000 Common Shares owned by
Mr. Giaimo beneficially and of record do not include: (a) 478,334 Common
Shares owned of record by four persons who were principals of Food
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Trends Acquisition Corporation ("FTAC") prior to the merger of FTAC with
and into Silver Diner Development, Inc. ("SDDI") (the "Merger"), which are
subject to a voting agreement ("FTAC Affiliate Voting and Lockup
Agreement"); (b) 102,135 Common Shares which are subject to a voting
agreement and are owned of record by GKN Securities Corp. and/or certain
assignees thereof ("GKN Voting and Lockup Agreement"); and (c) 555,005
Common Shares owned of record by stockholders of the Issuer that are
subject to voting agreements. The voting rights described in clause (b) of
the preceding sentence have been granted to Mr. Giaimo pursuant to the GKN
Voting and Lockup Agreement provides that Mr. Giaimo has an irrevocable
right to vote such Common Shares with respect to all matters in which
stockholder approval is required under the Delaware General Corporation
Law, including, without limitation, voting such stockholders' Common
Shares in favor of nominees to the Board of Directors of the Issuer and
for or against any an all matters that may come before the Issuer's
stockholders for a vote. The proxy continues until the earlier of three
years after the consummation of the Merger or the sale of the Common
Shares by such stockholders to a non-affiliate in a bona fide transaction
for value. The voting rights described in clause (c) above have been
granted to Mr. Giaimo pursuant to the voting agreements that grant to Mr.
Giaimo an irrevocable right to vote with respect to all matters in which
stockholder approval is required under the Delaware General Corporation
Law, including, without limitation, voting such stockholders' Common
Shares in favor of nominees to the Board of Directors of the Issuer and
for or against any and all matters that may come before the Issuer's
stockholders for a vote. The appointment survives until the earliest of
five years after the consummation of the Merger, the public offering of
Common Shares by the Issuer from which the Issuer realizes $15 million or
more, or the death of the stockholder. The 420,000 Common Shares owned
beneficially and of record by Mr. Giaimo do not include any Common Shares
owned by Ms. Catherine Britton, Mr. Giaimo's spouse, or Common Shares
issuable upon the exercise of certain outstanding stock option agreements
("Options") that will be subject to the terms of Voting and Lockup
Agreements between the holders of such Options and Mr. Giaimo. Mr. Giaimo
disclaims beneficial ownership of Common Shares beneficially owned by
Catherine Britton.
(3) Includes options for 12,000 Common Shares under the 1996 Non-Employee
Director Stock Option Plan. Also includes 20,003 Common Shares subject to
options granted to Mr. Clinton A. Clark by Mr. Robert T. Giaimo pursuant
to a stock option agreement between such parties, which agreement was
assigned by Mr. Giaimo to, and assumed by, Ms. Britton.
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Does not include 420,000 Common Shares beneficially owned by Mr. Giaimo,
Ms. Britton's spouse, or the 1,135,474 Common Shares Mr. Giaimo has the
power under the voting agreements discussed in Note (2) above. Ms. Britton
disclaims beneficial ownership of the Common Shares beneficially owned by
Mr. Giaimo.
(4) Includes 577,907 Common Shares held of record by the Steiner Family
Partnership (the "Partnership"). Charles Steiner, a director of the
Issuer, owns a 25% interest in and is the managing partner of the
Partnership. In addition to the Common Shares Mr. Steiner owns
beneficially through his equity interest in the Partnership, Mr. Steiner
also owns beneficially (a) 50,000 Common Shares held by the Branch Group,
Inc. 401(k) Profit Sharing Plan (Mr. Steiner is sole trustee of the Branch
Group, Inc. 401(k) Profit Sharing Plan and one of a number of
beneficiaries thereof, holding an approximate 7% interest in the plan);
(b) 5,000 Common Shares subject to options granted to Mr. Steiner under
the 1991 Stock Option Plan; and (c) 12,000 Common Shares subject to
options granted to Mr. Steiner under the 1996 Non-Employee Directors Stock
Option Plan. By virtue of his position in the Partnership, Mr. Steiner may
be deemed to own beneficially all of the Common Shares held of record by
Partnership. Except to the extent of his 25% interest in the Partnership,
Mr. Steiner disclaims beneficial ownership of the Common Shares held of
record by the Partnership.
(5) Includes options to purchase 33,336 Common Shares under the Second
Amended and Restated 1991 Stock Option Plan.
(6) Includes (a) options to purchase 26,069 Common Shares under the Second
Amended and Restated 1991 Stock Option Plan; and (b) options to purchase
6,123 Common Shares under the 1991 Consultant Stock Option Plan.
(7) Includes: (a) options to purchase 20,003 Common Shares under the Earned
Ownership Plan; (b) options to purchase 30,004 Common Shares under the
1991 Stock Option Plan; and (c) options to purchase 30,000 Common Shares
under the Stock Option Plan.
(8) Includes: (a) options to purchase 11,667 Common Shares under the 1991
Stock Option Plan; (b) options to purchase 3,849 Common Shares under the
Earned Ownership Plan; and (c) options to purchase 30,000 Common Shares
under the Stock Option Plan.
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(9) Includes options to purchase 45,000 Common Shares under the Stock
Option Plan. 182,881 Common Shares owned by Mr. Hengst are subject to the
terms of a voting agreement described in clause (e) of Note 2.
(10) Unless otherwise stated in Notes 2 through 9 above, all references to
options are to options exercisable currently and within 60 days of
January 20, 1998.
Item 5. Interest in Securities of the Issuer.
------------------------------------
Item 5 is hereby deleted in its entirety and is amended as follows:
The information contained in Item 4 of this Amendment No. 2 with respect to
the Common Shares beneficially owned by Ms. Britton is incorporated herein by
reference.
Ms. Britton has the sole power to vote and dispose of 2,489,612 Common
Shares, representing approximately 21.50% of the outstanding Common Shares,
based on the number of Common Shares outstanding as reported on the Form 10-Q.
Because there are no arrangements, agreements or understandings among the
members of the Group with respect to the voting or disposition of the Common
Shares acquired by any member of the Group, the business and operations of the
Issuer or the control of the Issuer, the number of Common Shares beneficially
owned by Ms. Britton does not include the Common Shares owned by the other
members of the Group.
Other than as described in this Amendment No. 2, no transactions in Common
Shares were effected by Ms. Britton during the sixty days prior to the date of
this Amendment No.2.
Item 6. Contracts, Agreements, Understandings and Relationships
with Respect to Securities of the Issuer.
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Item 6 is hereby deleted in is entirety and amended as follows:
The information contained in Item 3 of this Amendment No. 2 with respect to
the Stock Option Agreement is incorporated herein by reference.
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The information contained in Item 4 of this Amendment No. 2 pertaining to
any arrangements, agreements or understandings among the members of the Group is
incorporated herein by reference.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Amendment No. 2 is true, complete
and correct.
Date: January 25, 1999 /s/ Catherine Britton
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Catherine Britton
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