Yangzhou Economic and Technological Development Zone Pericom Asia Limited R&D Center Investment Agreement
EXHIBIT
10.1
Yangzhou
Economic and Technological Development Zone
Pericom
Asia Limited
R&D
Center Investment Agreement
This
R&D Center Investment Agreement (the “Agreement”) is entered into on December
1, 2009, by and between:
A. Administrative
Committee of Yangzhou Economic and Technological Development Zone (the “Committee”), which is the
government authority of Yangzhou Economic and Technological Development Zone
(the “Development
Zone”), and
B. Pericom
Asia Limited (the “Investor”), a company
registered in Hong Kong, with its principal business office at ▇▇▇▇▇▇ Commercial
Building, Room C, 13 F, No. 430 - 436 ▇▇▇▇▇▇ Road, Yau Ma Tei, Kowloon, Hong
Kong.
(referred
to individually as a “Party” and collectively as the
“Parties”)
Recitals
1. Whereas,
the Committee and Pericom Semiconductor Corporation ("Pericom"), with its
principal business address at ▇▇▇▇ ▇. ▇▇▇ ▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, entered into the Memorandum of Understanding on R&D Center
Investment (the “MOU”)
on October 19, 2009. Pursuant to the MOU, the Committee and Pericom reached
mutual understanding on (i) the investment and establishment of a research and
development center (the “R&D Center”) by Pericom or
its affiliated company in the Development Zone; and, (ii) the provision of the
investment incentives by the Committee to the R&D Center.
2. Whereas,
after due consideration, Pericom has decided that the Investor will make
investment in and establish the R&D Center as the foreign investor, i.e.,
shareholder, of the R&D Center.
Now,
therefore, for stipulation of the details regarding the Investor’s investment in
and establishment of the R&D Center, and upon friendly consultation and
negotiation, the Committee and the Investor mutually agree to the
following:
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1.
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Nature
and Industry Positioning of the R&D
Center
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1.1
The R&D Center shall be incorporated as a limited liability
company.
1.2 The
R&D Center proposes to engage in the research and development of the IC
design technologies related to the “high-speed serial connectivity” and the “XO
crystal oscillator” and the manufacture of the relevant products. The specific
business operation scope shall be that as approved by the examination
and approval authority and registered with the company registration
authority.
1.3 The
Committee acknowledges and recognizes that the R&D Center invested in by the
Investor conforms in entirety to the development and industry plan as well as
the industry positioning of the Development Zone, and the Committee shall
comprehend this R&D Center investment project based on the national policies
to support the development of high technology industry including the
semiconductor and integrated circuit industry, and the Committee shall
categorize the business activities of the R&D Center as the research,
development and manufacture of high technology core products.
1.4 Upon
the establishment of the R&D Center, the Committee shall treat the R&D
Center as the integrated circuit enterprise, and shall make
the incentive policy available to the R&D Center pursuant to the
Several Policies on Encouraging Development of Software and Integrated Circuit
Industry (Guo-Fa 2000 No. 18).
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2.
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Investment
Scale of the R&D Center
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2.1 The
total investment of the R&D Center is USD30,000,000, and the registered
capital of the R&D Center is USD21,000,000 ("Registered Capital"). The
actual amounts shall be the amounts approved by the examination and approval
authority and registered with the company registration authority.
2.2 The
Registered Capital of the R&D Center will be contributed by the Investor in
the forms permitted by the laws, including, without limitation, cash (via
foreign exchange), tangible assets (such as apparatus and equipment),
patents/intellectual properties/other intangible assets (including unpatented
know-how and technologies), other business assets owned by the Investor in China
(including, but not limited to , the shareholding interests of the Investor in
its other companies located in Shanghai, China), etc.
2.3 The
Investor may, in accordance with the actual business status of the R&D
Center, at its sole discretion, determine the form of and the timing to inject
into the R&D Center the deficit between the Registered Capital and total
investment amount of the R&D Center.
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2.4 The
constituent and time at which the Investor makes contribution of the Registered
Capital of the R&D Center shall be in compliance with the relevant national
laws. The Committee agrees that, in case the Investor faces difficulties and is
not able to make contribution of the Registered Capital of the R&D Center on
time, the Committee shall coordinate with the relevant examination and approval
authority of foreign investment and company registration authority to extend, to
the extent possible, the time limit on the capital contribution, and shall
ensure that all incentives and subsidies available hereunder to the R&D
Center shall not be adversely affected.
2.5 If
the Investor decides to transfer the ownership of its other business assets in
China to the R&D Center, the Committee shall assist and coordinate with
other relevant authorities to assist the Investor in making capital contribution
with such assets and to provide assistance of, including, without limitation,
the value appraisal and the title transfer of such assets. The Investor shall
have the right to retain the existence of its affiliated company in Shanghai,
China, and arrange such affiliated company to rent from the R&D Center the
real estate, including, without limitation, the business office leased by the
R&D Center.
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3.
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Establishment
of the R&D Center
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3.1 Investor
will attempt to file the application for the establishment of the R&D Center
on or before December 30, 2009. The aforesaid date is only for the Investor’s
reference for making an attempt to file the application and serves as the target
date which the Investor shall strive for. In case the Investor fails to file the
application on or before such date, the rights of the Investor under this
Agreement and the incentives to be available to the R&D Center after its
establishment shall not be adversely affected.
3.2 To
facilitate the smooth establishment of the R&D Center, the Committee shall
organize a specific panel to offer services related to the establishment and
registration of the R&D Center, and shall assist the Investor in filing the
application of the foreign investment in the establishment of the R&D
Center, conducting company registration, and proceeding with other relevant
registration procedures. The Investor shall provide the Committee with relevant
application documents and proactively cooperate with the Committee in the
application and other relevant procedures.
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4.
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Business
Office of the R&D Center
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4.1 The
Committee agrees to lease business offices with area of up to 4,000 square
meters to the R&D Center, and the rental payment for such a lease during the
first 7 years shall be zero. The detailed arrangements are: the Committee shall
first lease offices with area of 2,000 square meters to the R&D Center; in
case such measure of areas cannot satisfy the needs of the R&D Center, the
Committee shall, according to the request from the R&D Center and/or the
Investor, lease additional office areas to the R&D Center; provided that the
total areas of the offices to be leased to the R&D Center shall not exceed
4,000 square meters. The offices leased by the Committee are the roughcast
offices located in the Development Zone and the detailed address of the offices
shall be subject to the selection and decision by the Investor. After the first
7 years of the lease, the R&D Center shall have the right to decide whether
to renew the lease. If the R&D Center decides to renew the lease, the
Committee agrees to adopt the lowest rental applicable to the similar offices as
the rental of the renewed lease, and the R&D Center shall have the right of
first refusal to lease the offices under the same conditions. During a 3-year
period from the commencement of the lease, the Investor or the R&D Center
shall have the right to purchase the offices at cost and obtain the title and
ownership of the offices.
4.2 If
the Investor requests that the Committee build business office specifically for
the R&D Center, the Committee shall, in accordance with the Investor’s such
request, build such business offices, and lease, pursuant to Article 4.1 above,
the newly-built business offices to the R&D Center; provided that the
Investor shall provide the Committee in advance with the construction drawings
satisfactory to the Investor’s needs.
4.3 In
addition to the aforementioned office lease, the Committee agrees that before
the R&D Center moves to and uses the offices, the Committee shall make the
offices in the “Administrative Building of the Export Processing Zone” or the
“North Building of the New Light Source Center” available for the temporary use
by the R&D Center on a rent-free basis.
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5.
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Tax
Incentives at National Level
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5.1 The
Committee acknowledges and recognizes that the R&D Center project hereunder
is a high-technology project, and shall designate, after the establishment of
the R&D Center, specific officials to be responsible for the application for
recognition of the R&D Center as the “high-technology enterprise,” so as to
enable the R&D Center to obtain such recognition as soon as possible and
benefit from the preferential rate of the enterprise income tax at 15%
applicable to the high-technology enterprises; provided that the R&D Center
shall actively cooperate with the Committee in such application and prepare the
necessary application documents.
5.2 The
Committee shall assure that the following tax incentives at the national level
apply to the R&D Center:
a.
exemption of customs duty on the equipment
imported by the R&D Center;
b.
[*] of the research
and development fees actually incurred by the R&D Center in a certain year
may be deducted from the taxable income of the R&D Center in that year, and
if the research and development fees are in excess of the taxable income, the
portion that is not deducted in that year may be, subject to applicable tax
laws, brought forward and deducted in the following 5 years;
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c.
the employee education fund allocated by the R&D Center that is not in
excess of [*] of
the total taxable salaries of employees, may be deducted in calculation of the
taxable income of the R&D Center;
d.
if the research and development expenses actually incurred by the R&D Center
are in excess of [*] of the total sales
revenue of the R&D Center in a certain year, the Committee may offer awards
to the R&D Center from the tax contribution of the R&D
Center;
e.
tax refund rate at [*] is applicable to
the value-added tax by the R&D Center paid in its purchase of
domestically-manufactured equipment; and
f． exemption
of business tax on transfer of the technologies developed by the R&D
Center.
5.3 The
R&D Center shall have the right to determine, to the extent permitted by the
applicable laws, the depreciation period of its apparatus, manufacture-use
equipment, software and other fixed assets. The Committee shall ensure that the
following depreciation rules are applicable to the R&D Center, if the
R&D Center chooses to adopt the following depreciation rules, which are the
national policies on depreciation of equipment of research and development
centers:
a.
apparatus and equipment of value no greater than RMB300,000 per
piece may be amortized into management fees at one time or by installment;
provided that if any of such apparatus or equipment meets the
standard of a fixed asset, such apparatus or equipment shall be managed
separately but apply no depreciation;
b.
a shortened depreciation period or accelerated depreciation may be adopted
for an asset of the value over RMB300,000 per piece;
c.
upon approval by the competent tax authority, the amortization or depreciation
period of the software purchased by the R&D Center may be shortened
appropriately and the shortest period is 2 years; and,
d． upon
approval by the competent tax authority, the depreciation period of the
manufacture-use equipment of the R&D Center may be shortened and the
shortest period is 3 years.
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5.4 Should
any of the incentive policies above be subject to an approval by the relevant
government authority, e.g., the tax authority, the Committee shall coordinate
with such authorities to ensure and assure that such policies apply to the
R&D Center.
5.5 In
the event of any change to the national industrial policy that causes the change
of above incentive policies, the Committee shall ensure and assure that the
R&D Center obtains the best benefit from the national incentives policies to
the extent permitted by the applicable laws and regulations.
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6.
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Local
Tax Incentives
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6.1 The
“two years exemption and three years half deduction” incentive policy shall
apply to the “local reserve” retained by the Development Zone (as define in
Article 6.5, the “Local
Reserve”) of the income tax paid by the R&D Center, which shall be 8%
(the percentage shall be confirmed in accordance with the actual retained
amounts on an annual basis) of the tax payable by the R&D Center.
Specifically, the Committee shall refund in full amount to the R&D Center
the Local Reserve of the first 2 years following the first profit-making year of
the R&D Center; and the Committee shall refund in half amount to the R&D
Center the Local Reserve of the succeeding 3 years.
6.2 In
case any of the high-ranking managerial officers of the R&D Center
(including board directors, supervisors, president, vice president, finance
controller and other officers designated by the R&D Center) purchases
commodities of high value (vehicle and merchantable building), the paid purchase
price is deductable in full when calculating the Local Reserve of the individual
income tax paid by such officer, which shall be 8% (the percentage shall be
confirmed in accordance with the actual retained amounts) of the individual
income tax payable by such an officer.
6.3 The
Committee shall offer the high-ranking managerial officers of the R&D Center
to purchase units in the merchantable development located at “New Town Near
Southern Yangzhou Harbor” at the unit price of RMB2,500 per square meter, which
is equivalent to the construction costs of such units. The R&D Center may,
at its sole discretion, select the officers eligible to purchase such units not
exceeding 10% of the total employees or 10 units. (The area of each unit
hereunder shall be no larger than 120 square meters.)
6.4 The
Committee shall ensure and assure that any and all Local Reserve and subsidies
hereunder will be obtained by the R&D Center or its high-ranking managerial
officers within 6 months upon their payments of the relevant
taxes.
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6.5 The
“Local Reserve” herein shall refer to the amount of taxes allocated and
distributed to the Development Zone after the allocation and distribution of the
collected taxes by and among the China central government and the local
governments at various levels.
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7.
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Local
Award Fund
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7.1 The
Committee acknowledges and recognizes that the R&D Center is the leading IC
design chain enterprise in the Development Zone, and conforms to the policies
encouraging the development of the IC industry promulgated by the nation,
Jiangsu Province and Yangzhou City. For such reason and to encourage the
establishment of the R&D Center in the Development Zone as soon as possible,
the Committee shall provide the R&D Center with the “technology development
supporting fund” by installments amounting to [*] in accordance with
the scheduled process of the R&D Center project and the following
schedule:
a.
awarding [*] within 15 days of
the date on which the paid-in capital of the R&D Center reaches
USD6,000,000;
b.
awarding [*] within 15 days of
the date on which the paid-in capital of the R&D Center reaches
USD13,000,000;
c.
awarding [*]
within 15 days of the date on which the paid-in capital of the R&D Center
reaches USD21,000,000.
7.2 Upon
its establishment, the R&D Center shall actively cooperate with the
Committee in application for various supporting funds offered by the nation,
Jiangsu Province, Yangzhou City and the Development Zone and prepare the
relevant application documents. In case the R&D Center obtains and actually
receives any supporting fund offered by the nation, Jiangsu Province, Yangzhou
City or the Development Zone, the R&D Center shall pay to the Committee the
amount, which shall in no case be greater than the amount of the “technology
development supporting fund” awarded by the Committee and actually received by
the R&D Center.
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8.
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Primary
Education, Talent Attraction and Freedom of Religious
Belief
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8.1 The
Committee shall ensure and assure that the children of the employees of the
R&D Center can enroll in the schools in the Development Zone. If the
children of the employees of the R&D Center desire to be enrolled in the key
middle or junior schools in Yangzhou City, the academic department of the
Development Zone shall coordinate to organize the entry test for such children
according to the rules of such key schools and cause such key schools to enroll
such children as their priority.
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8.2 The
Committee shall ensure and assure that the policies of the nation, Jiangsu
Province, Yangzhou City and the Development Zone regarding attraction of talent
apply to the technology talent and foreign experts recruited by the R&D
Center, and shall be responsible for creation of a better living and working
environment for the high-technology talent recruited by the R&D
Center.
8.3 The
Committee respects the religious belief of the employees of the R&D Center,
and agrees to ensure and assure that the employees of the R&D Center may
engage in religious activities permitted by the applicable laws within the area
of the office of the R&D Center.
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9.
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Application
of Investment Incentives
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9.1 In
addition to the project of the R&D Center hereunder, any and all the
investment incentives hereunder shall apply to all other similar research and
development center projects invested in or introduced by the
Investor.
9.2 If
any enterprise of the type and investment scale similar to the R&D Center
incorporated in the Development Zone is eligible for any investment incentives
more preferential than those hereunder available to the R&D Center, the
Committee shall provide such more preferential incentives to the R&D
Center.
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10.
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Relevant
Services
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10.1 The
Committee shall coordinate and organize the Technology Bureau, the Commodity
Inspection Bureau, the Customs Office, the Taxation Bureau and other relevant
authorities to establish specific service units to coordinate and resolve
various issues or problems as may occur in the process of the investment project
hereunder, so as to ensure and assure that the investment project can be carried
out efficiently, smoothly and in a timely manner.
10.2 The
Investment Promotion Bureau, the “Three Centers” and the Economy Development
Bureau shall establish the “project service panel,” and in a diligent manner and
according to their respective duties, provide professional and thorough services
in all phases of the investment project hereunder, i.e., the pre-incorporation
procedures including the negotiation, examination and approval, and registration
of the R&D Center, the intra-incorporation affairs including the lease of
the offices, the decoration of the offices, the recruitment of employees by the
R&D Center, the coordination with relevant provincial and/or municipal
authorities, and the post affairs including the supporting funds application and
specific operation affairs.
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11.
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Confidentiality
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11.1 Any
provisions of this Agreement and existence thereof shall be the confidential
information of the Parties, and shall not be disclosed to any third party,
unless for the purpose of performing this Agreement, or as otherwise required by
the applicable laws or by the rules of the Securities and Exchange Commission
(U.S.A.) and NASDAQ applying to the Investor. In case either Party makes any
disclosure in breach of this Article 11 and causes the losses of the other
Party, the disclosing Party shall be liable for the relevant legal
liabilities.
11.2 This
Article 11 shall survive any termination of this Agreement.
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12.
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Breach
of Agreement
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In the
event of any breach of any provisions hereunder by a Party, such Party shall
make correction of its breach within 30 days upon its receipt of the other
Party’s request for such correction, and the breaching Party shall compensate
the other Party its losses suffered from such breach, including without
limitation, the loss of profit and/or interest that other Party may gain and/or
should have gained if the breach had not occurred.
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13.
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Governing
Law and Dispute Resolution
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13.1 This
Agreement shall be governed by the laws of the People's Republic of China,
without giving effect to principles of conflicts of laws.
13.2 In
case of any dispute between the Parties arising from the interpretation or
performance of this Agreement, the Parties shall cooperate to reach an amiable
resolution of such dispute. In case the dispute cannot be resolved through the
consultation by the Parties, any Party may initiate a lawsuit at a court having
the jurisdiction over the dispute to resolve the dispute by
litigation.
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14.
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Assignable
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14.1 The
rights and obligations of the Investor hereunder may, without the consent from
the Committee, be assigned by the Investor to a wholly-owned subsidiary of
Pericom Semiconductor Corp., or to a company whose 51% or higher shareholding is
directly or indirectly controlled by Pericom Semiconductor Corp. For the
avoidance of doubt, the “control” referred to in this Article 14 shall mean
control by shares (shareholding interests), agreements, voting rights and/or
other means. Any of the above assignment shall not affect any incentives
hereunder available to the R&D Center.
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14.2 Upon
the establishment of the R&D Center (i.e., acquisition of its business
license issued by the company registration authority), all the incentives
hereunder available to the R&D Center shall apply to the R&D Center
automatically with no need to have any document signed by the
Committee, the Investor or the R&D Center.
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15.
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Miscellaneous
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15.1 This
Agreement shall constitute the entire agreement between the Parties on the
subject matter hereunder, and supersedes any and all previous agreements and
understanding.
15.2 In
case any provision hereunder is in violation of any laws and regulations, such a
provision shall be invalid automatically without affecting other provisions
hereunder. If the invalidation of the said provision affects the performance of
this Agreement, the Parties shall make amicable negotiation, and in accordance
with the purpose of this Agreement, enter into a provision to substitute for
such invalid provision.
15.3 This
Agreement is written in both Chinese and English with the same legal effect, and
in the event of any discrepancy between the Chinese version and the English
version, the Chinese version shall prevail.
15.4 Any
amendment or supplementation to this Agreement shall not take effect without the
written consent by both Parties.
15.5 This
Agreement shall take effect upon the execution by both Parties. This Agreement
shall be executed in four originals, and each Party shall hold two
originals.
[Below
is left blank intentionally]
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In
witness whereof, the Committee and Pericom Asia Limited have caused their
respectively authorized representatives to execute this Agreement on the date
first mentioned above.
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Administrative
Committee
Yangzhou
Economic and Technological Development Zone
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Pericom
Asia Limited
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Authorized
Representative (signature)
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Authorized
Representative
(signature)
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