THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE
) is made and entered
into as of December 23, 2008 by and between SCOTT LAPORTA
), residing at 308
Laurel St., San Francisco, CA, 94118, on the one hand, and GLOBAL CONSUMER ACQUISITION CORP.
), located at 1370 Avenue of the Americas, 28th
Floor, New York
10019, on the other hand (collectively, the Parties
WHEREAS, Mr. LaPorta, through his counsel, provided GCAC, through its counsel, two letters
letter dated August 1, 2008 and a letter dated August 8, 2008, regarding his employment at
GCAC and raising various claims (the LaPorta Letters);
WHEREAS, GCAC and Mr. LaPorta wish to settle and resolve the disputes and potential
differences between GCAC and its affiliates, on the one hand, and Mr. LaPorta, on the other
hand, including, without limitation, disputes or potential differences that arise out of or
relate to Mr. LaPortas employment or termination of employment with GCAC, the LaPorta
Letters, and the terms of Mr. LaPortas employment term sheet with GCAC dated October 1,
2007, including the cover letter thereto signed by Mr. LaPorta, GCAC and, as to the option
grant, Hayground Cove Asset Management LLC (HCAM) (collectively, the GCAC
Employment Agreement); and
, as a material condition to the Parties entering into this Agreement, Mr. LaPorta
and HCAM will enter into a separate Settlement Agreement and Mutual Release
on or before the
Effective Date (the HCAM Settlement Agreement
NOW, THEREFORE, based on the foregoing and in consideration for the covenants and agreements
contained herein and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties, and each of them, agree to the following, except as otherwise
expressly set forth herein:
1. Termination of Employment; Payments.
(a) GCAC hereby confirms the termination of Mr. LaPorta without cause from his position as
Chief Executive Officer of GCAC, and Mr. LaPorta hereby resigns as a member of the Board of
Directors of GCAC (the Board) effective as of date of this Agreement, and GCAC hereby
accepts Mr. LaPortas resignation from the Board effective as of the date of this Agreement. As of
the date of this Agreement, Mr. LaPorta shall not hold any position with GCAC whether as an
employee or member of the Board, or otherwise, and shall not represent himself as being affiliated
with GCAC in any way.
(b) GCAC shall pay to Mr. LaPorta a severance payment in the sum of Two Hundred Forty-Seven
Thousand Nine Hundred Seventeen Dollars ($247,917), less applicable taxes, standard withholdings
and authorized deductions, within five (5) business days after the Effective Date (as defined in
Section 6 below), which amount Mr. LaPorta acknowledges and agrees constitutes the full amount of
any cash payments due to Mr. LaPorta under the GCAC
Employment Agreement or otherwise from GCAC. The aforesaid amount shall be paid to Mr.
LaPorta via a wire transfer pursuant to the instructions in Exhibit A attached hereto.
(c) GCAC agrees and acknowledges that: (i) Mr. LaPorta irrevocably and unconditionally
retains his option to purchase 495,000 shares of GCAC common stock from HCAM at an exercise price
of $.001 per share (the GCAC Option) under the terms of the GCAC Employment Agreement (as
modified herein) and his termination under the terms of this Agreement shall not constitute a
forfeiture of any part of such option; (ii) Mr. LaPorta shall be deemed to be fully vested in the
GCAC Option as of the Effective Date; provided, however, that Mr. LaPorta shall not
be entitled to exercise all or any portion of the GCAC Option until six (6) months following the
closing date of a Business Combination (as defined in GCACs Amended and Restated Certificate of
Incorporation) (the Exercise Date); and (iii) Mr. LaPorta shall have the right to
exercise the GCAC Option at any time on or after the Exercise Date.
(d) GCAC agrees and acknowledges that: (i) Mr. LaPorta irrevocably and unconditionally
retains all rights and title to the 25,000 GCAC founder shares (the Director Shares) he
received in connection with his service on the Board under the GCAC Employment Agreement and GCAC
hereby irrevocably and unconditionally relinquishes any and all rights under the GCAC Employment
Agreement or otherwise to redeem or repurchase the Director Shares; (ii) Mr. LaPorta irrevocably
and unconditionally retains all rights and title to the 1,000,000 warrants for GCAC stock (the
GCAC Warrants) he purchased and GCAC hereby irrevocably and unconditionally relinquishes
any and all rights under the GCAC Employment Agreement or otherwise to redeem or repurchase the
GCAC Warrants; and (iii) GCAC shall deliver the Director Shares to Mr. LaPorta within five (5)
business days after the Effective Date.
(e) Mr. LaPorta acknowledges the terms of the Letter Agreement, dated October 3, 2007, between
HCAM and GCAC (the Lock-Up Agreement), and further acknowledges that, notwithstanding the
provisions of this Agreement, the GCAC Option, the shares of GCAC stock that Mr. LaPorta may
acquire upon exercise of the GCAC Option and the Director Shares and the GCAC Warrants will be
subject to the terms of the Lock-Up Agreement.
(f) GCAC shall maintain directors and officers liability insurance that names Mr. LaPorta as
an insured under such policies for a period of six (6) years following the date of this Agreement
at a level (including, but not limited to, amounts, deductibles, scope and exclusions) commensurate
with that which is then applicable to GCACs most senior executives and directors; provided that
GCAC may substitute therefor a single premium tail coverage with respect to such directors and
officers liability insurance at a level (including, but not limited to, amounts, deductibles,
scope and exclusions) at least as favorable as in the existing policies of GCAC. GCAC shall
provide Mr. LaPorta with all indemnification rights to which Mr. LaPorta was entitled to receive as
an officer or director of GCAC or any affiliate thereof under any charter or organizational
documents of GCAC (or any affiliate thereof), under applicable law and/or under the Indemnification
Agreement, dated as of October 3, 2007, between GCAC and Mr. LaPorta (the Indemnification
Agreement). Nothing herein constitutes or shall be construed to be a limitation on the
release provided in Section 2 hereof.
(g) Mr. LaPorta agrees and acknowledges that, other than as specified in this
Section 1 or Section 1 of the HCAM Settlement Agreement: (x) GCAC has paid him for all
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salary, wages, overtime, bonuses, fees, payments, and any other compensation and benefits due
to Mr. LaPorta, if any, and has paid Mr. LaPorta for all incurred reimbursable expenses, if any,
whether due under the GCAC Employment Agreement or otherwise, owed by GCAC or any of the GCAC
Releasees (as defined in Section 2(a)); (y) Mr. LaPorta has no right to any further salary,
wages, overtime, bonus, fee, payment, or other compensation or benefit, to the reimbursement of any
further expenses, or to the reimbursement or payment of any of Mr. LaPortas attorneys fees from
GCAC or any of the GCAC Releasees; and (z) Mr. LaPorta has no ownership, partnership, or other
interest in GCAC or any GCAC Releasee. Nothing herein shall be deemed to affect Mr. LaPortas
vested rights, if any, in any 401(k) or other retirement programs.
(h) Mr. LaPorta agrees and acknowledges that: (x) Mr. LaPorta shall return all GCAC property,
including, but not limited to, any and all documents relating to GCAC and its business and any
property belonging to GCAC, within four (4) business days of the date of this Agreement, to GCACs
office at 1370 Avenue of the Americas, 28th Floor, New York
, New York
10019 and (y) he has no
continuing right to be provided by GCAC with office space, a company credit card, or any other
incidentals to employment, other than as specified in this Section 1
or Section 1 of the
HCAM Settlement Agreement.
(i) Mr. LaPorta agrees and acknowledges that his non-solicitation obligations under the GCAC
Employment Agreement survive this Agreement and the termination of the GCAC Employment Agreement.
Mr. LaPorta further agrees that he shall hold in confidence all confidential information relating
to the business and affairs of GCAC and any other GCAC Releasee and will not disclose any such
confidential information to any person except with the specific prior written consent of GCAC or as
otherwise may be required by law.
(j) Mr. LaPorta represents and warrants that he alone is responsible for all taxes, if any,
owed by Mr. LaPorta in connection with: (x) any payments or transfers to, or for the benefit of,
Mr. LaPorta pursuant to this Section 1; and (y) the GCAC Option, the Director Shares, and
the GCAC Warrants. Mr. LaPorta shall indemnify, and hereby agrees to indemnify, GCAC fully in
connection with any failure to pay any such taxes.
2. LaPorta Release.
(a) In consideration of the covenants set forth in this Agreement, and except as expressly set
forth herein, Mr. LaPorta for himself, his heirs, executors, successors and assigns (collectively
the LaPorta Releasors
) hereby knowingly and voluntarily releases, absolves and discharges
GCAC and each of its past, present and future officers, partners, attorneys, agents,
administrators, employee benefits plans or funds and the fiduciaries thereof, directors, employees,
shareholders, affiliates, representatives, or assigns and successors, past and present, including
but not limited to Jason N. Ader
, Andrew Nelson
, Robert M. Foresman
, Carl H. Hahn
, Philip A.
Marineau, Marc Soloway
and Steven Westly
(collectively the GCAC Releasees
) from all
rights, claims, demands, obligations, damages, losses, causes of action and suits of all kinds and
descriptions, legal and equitable, known and unknown (collectively, Claims
), that any of
the LaPorta Releasors may have or ever has had against the GCAC Releasees from the beginning of
time to the date of this Agreement, including, but not limited to, any such Claims
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arising out of, but not limited to, any right of Mr. LaPorta or of any person arising under any
law, statute, constitution, regulation, ordinance, duty, contract, covenant, or order, or any
liability in connection with his employment with GCAC, arising under or in connection with the GCAC
Employment Agreement or the LaPorta Letters, or for any act of age discrimination or other
impermissible form of harassment, retaliation or discrimination by the GCAC Releasees against Mr.
LaPorta or any other person, as prohibited by any state or federal statute or common law,
including, but not limited to, the Age Discrimination in Employment Act of 1967, the whistleblower
provision of the Sarbanes-Oxley Act of 2002, the Foreign Corrupt Practices Act of 1977, the
Employee Retirement Income Act of 1974, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, the Americans With Disabilities Act, 42 U.S.C. §§ 12101 et seq., the California
Employment and Housing Act, Cal. Govt Code §§ 12940 et seq., the Fair Labor Standards Act, 29
U.S.C. §§ 201 et seq., the California
Labor Code, and the California
Constitution, each as amended
(the LaPorta Released Matters
). In addition to the above, the LaPorta Released Matters
include, but are not limited to, Claims for employment discrimination, wrongful termination,
retaliation, constructive termination, violation of public policy, California
violations, breach of any express or implied contract, promissory estoppel, unjust enrichment,
breach of any implied covenant, fraud, intentional or negligent misrepresentation, emotional
distress, slander, libel, defamation and invasion of privacy. Each and all of the aforesaid Claims
are hereby fully and finally settled, compromised and released. Notwithstanding the aforementioned
provision, nothing herein shall preclude Mr. LaPorta from cooperating with any investigation by the
Equal Employment Opportunity Commission or any other agency responsible for enforcement of
employment laws; provided
, that Mr. LaPorta shall not be entitled to any
personal recovery as a result of any such action. Notwithstanding anything to the contrary in this Section 2(a)
, the LaPorta Released Matters
do not include, and do not effect a release of, any Claims that Mr. LaPorta may have arising from a
breach of this Agreement or that cannot be released or waived under applicable law, such as the
Workers Compensation Act, his rights to indemnification under any applicable law
(including, but not limited to, California
Labor Code Section 2802), GCACs Amended and Restated
Certificate of Incorporation, the Indemnification Agreement, or as acknowledged in Section
, or to vested accrued benefits earned under an employee benefit plan maintained by GCAC
and governed by the Employee Retirement Income Security Act of 1974.
(b) Mr. LaPorta further understands, acknowledges, and agrees that:
(1) This Section 2(b) constitutes a voluntary waiver of any and all substantive rights
and claims Mr. LaPorta has against the GCAC Releasees as of the date of this Agreement arising
under the Age Discrimination in Employment Act, 29 U.S.C. §§ 623 et seq. (the ADEA);
(2) Mr. LaPorta is waiving his substantive rights with respect to the LaPorta Released
Matters, including, but not limited to, his rights or claims under the ADEA, in exchange for
consideration, the value of which exceeds the payment or remuneration to which he was already
(3) Mr. LaPorta is hereby advised that he may consult and confirms that he has consulted with
an attorney of his choosing concerning this Agreement prior to executing it;
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(4) Mr. LaPorta has been afforded a period of at least twenty-one (21) days to consider the
terms of this Agreement, and in the event he should decide to execute this Agreement in fewer than
twenty-one (21) days, he has done so with the express understanding that he has been given and
declined the opportunity to consider this Agreement for a full twenty-one (21) days; and
(5) Mr. LaPorta may revoke this Section 2(b) of this Agreement at any time during the
seven (7) days following the date of execution of this Agreement, and this Section 2(b) of
the Agreement shall not become effective or enforceable until such revocation period has expired.
Mr. LaPorta understands and agrees that should he choose to exercise his revocation rights he will
not receive the cash payment and securities set forth in Section 1 of this Agreement.
3. GCAC Release.
In consideration of the covenants set forth in this Agreement, GCAC, for and on behalf of
itself and each of its respective past, present and future officers, partners, agents, attorneys,
administrators, employee benefits plans or funds and the fiduciaries thereof, directors, employees,
shareholders, affiliates, representatives, or assigns and successors, in their capacities as such,
including but not limited to Jason N. Ader
, Andrew Nelson
, Robert M. Foresman
, Carl H. Hahn
A. Marineau, Marc Soloway
and Steven Westly
(collectively the GCAC Releasors
knowingly and voluntarily release, absolve and discharge Mr. LaPorta, his heirs, successors and
assigns (collectively the LaPorta Releasees
) from all rights, claims, demands,
obligations, damages, losses, causes of action and suits of all kinds and descriptions, legal and
equitable, known and unknown, that any of the GCAC Releasors may have or ever has had against the
LaPorta Releasees from the beginning of time to the date of this Agreement, including, but not
limited to, any such rights, claims, demands, obligations, damages, losses, causes of action and
suits arising out of, but not limited to, any right of GCAC arising under any law, statute,
constitution, regulation, ordinance, duty, contract, covenant, or order, or any liability in
connection with Mr. LaPortas employment or service as a director with GCAC or arising under or in
connection with the GCAC Employment Agreement (the GCAC Released Matters
). Each and all
of the GCAC Released Matters are hereby fully and finally settled, compromised and released;
; that the GCAC Releasors do not release and the GCAC Released
Matters shall not include any claims of theft or fraud by Mr. LaPorta.
4. Unknown Claims.
With respect to the LaPorta Released Matters and the GCAC Released Matters, each of Mr.
LaPorta and GCAC acknowledges and agrees that there is a risk that subsequent to their respective
execution of this Agreement, either will incur or suffer damage, loss or injury to persons or
property that is in some way caused by or connected with Mr. LaPortas employment with GCAC or the
termination thereof, but that is unknown or unanticipated as of the date of this Agreement. Each
of Mr. LaPorta and GCAC does hereby specifically assume such risk and agrees that this Agreement
and the releases contained herein shall and do apply to all unknown or unanticipated results of any
and all matters caused by or connected with Mr. LaPortas employment with GCAC or the termination
thereof, as well as those currently known or anticipated, except as otherwise expressly stated
herein. Accordingly, each of Mr. LaPorta and
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GCAC acknowledges that he or it has read the provisions of California
Civil Code Section 1542,
which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN TO HIM OR HER
MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
and that, after consultation with its own counsel, each of the Parties hereby expressly waives,
relinquishes and forfeits all rights and benefits accorded by the provisions of California
Code Section 1542 and any and all provisions, rights, and benefits of any federal, state, or
foreign law, rule or common-law doctrine that is similar, comparable, equivalent, or identical to,
or which has the effect of, California
Civil Code Section 1542, and furthermore waives any rights
that he or it may have to invoke said provisions now or in the future with respect to the LaPorta
Released Matters or the GCAC Released Matters, as applicable.
5. No Lawsuits.
(a) Mr. LaPorta represents and agrees that, prior to the date of this Agreement, Mr. LaPorta
has not filed or submitted any complaints, charges or lawsuits of any kind with any court,
governmental or administrative agency or arbitrator against GCAC or any other GCAC Releasee
asserting any LaPorta Released Matters.
(b) GCAC represents and agrees that, prior to the date of this Agreement, neither GCAC, nor
any GCAC Releasor has filed or submitted any complaints, charges or lawsuits of any kind with any
court, governmental or administrative agency or arbitrator against Mr. LaPorta or any LaPorta
Releasee asserting any GCAC Released Matters.
6. Effective Date of This Agreement.
This Agreement shall become effective on the Effective Date, which shall be the
eighth calendar day after GCAC receives a copy of this Agreement executed by Mr. LaPorta,
provided that Mr. LaPorta has not revoked this Agreement before such date pursuant to
Section 2(b)(5) above and Mr. LaPorta and HCAM have each executed the HCAM Settlement
7. Non-Admission of Any Wrongdoing.
It is specifically understood and agreed that this Agreement does not constitute and is not to
be construed as an admission or evidence of: (i) any violation by Mr. LaPorta, the LaPorta
Releasees, GCAC, or the GCAC Releasees of any federal, state or municipal law, statute or
regulation, or principle of common law or equity; (ii) the commission by Mr. LaPorta, the LaPorta
Releasees, GCAC, or any GCAC Releasee of any other actionable wrong; or (iii) any wrongdoing of any
kind whatsoever on the part of Mr. LaPorta, the LaPorta Releasees, GCAC, or any GCAC Releasee, and
shall not be offered or used for that purpose. In addition, Mr. LaPorta and GCAC agree that no
Party is a prevailing party with respect to any claim, cause, proceeding or action with respect to
any of the LaPorta Released Matters or GCAC Released
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Matters. This settlement is of no precedential effect. Neither this Agreement, nor anything
contained in it, shall be introduced in any proceeding, except to enforce this Agreement or to
defend against any claim relating to the subject matter of the release contained herein or as
required by court order, subpoena or other legal process. Such introduction under these exceptions
shall be pursuant to an appropriate order protecting its confidentiality.
8. Assumption of Risk; Investigation of Facts.
(a) Each of Mr. LaPorta and GCAC hereby expressly assumes the risk of any mistake of fact or
that the facts might be other than or different from the facts now known or believed to exist, and
it is each of Mr. LaPortas and GCACs express intention to forever settle, adjust and compromise
any and all disputes concerning the LaPorta Released Matters and the GCAC Released Matters, finally
and forever, and without regard to who may or may not have been correct in their respective
understandings of the facts or the law relating thereto.
(b) In making and executing this Agreement, each of Mr. LaPorta and GCAC represents and
warrants that he or it, as applicable, has made such investigation of the facts and the law
pertaining to the matters described in this Agreement as he or it, as applicable, deems necessary,
and each of Mr. LaPorta and GCAC has not relied upon any statement or representation, oral or
written, made by any other party to this Agreement with regard to any of the facts involved in any
dispute or possible dispute between or among the Parties, or with regard to any of his rights or
asserted rights, or with regard to the advisability of making and executing this Agreement.
9. Ownership of Claims.
(a) Mr. LaPorta represents and warrants that no portion of any of the LaPorta Released Matters
and no portion of any recovery or settlement to which Mr. LaPorta might be entitled has been
assigned or transferred to any other person, firm, entity or corporation not a party to this
Agreement, in any manner, including by way of subrogation or operation of law or otherwise. If any
claim, action, demand or suit should be made or instituted against the GCAC Releasees or any of
them because of any such purported assignment, subrogation or transfer, Mr. LaPorta agrees to
indemnify and hold harmless the GCAC Releasee(s) against such claim, action, suit or demand,
including necessary expenses of investigation, attorneys fees and costs.
(b) GCAC represents and warrants that no portion of any of the GCAC Released Matters and no
portion of any recovery or settlement to which GCAC might be entitled has been assigned or
transferred to any other person, firm, entity or corporation not a party to this Agreement, in any
manner, including by way of subrogation or operation of law or otherwise. If any claim, action,
demand or suit should be made or instituted against the LaPorta Releasees or any of them because of
any such purported assignment, subrogation or transfer, GCAC agrees to indemnify and hold harmless
the LaPorta Releasee(s) against such claim, action, suit or demand, including necessary expenses of
investigation, attorneys fees and costs.
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Each of the Parties represents and agrees that no promises, statements or inducements have
been made to him or it that has caused him or it to sign this Agreement other than those expressly
stated in this Agreement.
This Agreement shall be binding upon each of Mr. LaPorta and GCAC and upon each of their
heirs, administrators, representatives, executors, successors and assigns, and shall inure to the
benefit of the LaPorta Releasees and the GCAC Releasees and to their parents, subsidiaries, heirs,
administrators, representatives, executors, successors and assigns, and each of their officers,
directors, employees, stockholders and any other GCAC Releasee.
Should any of the provisions in this Agreement be declared or be determined to be illegal or
invalid, all remaining parts, terms or provisions shall be valid, and the illegal or invalid part,
term or provision shall be deemed not to be a part of this Agreement.
13. Governing Law; Venue.
(a) This Agreement is made and entered into in the State of California
(b) This Agreement shall be interpreted, enforced and governed under the laws of California
without giving effect to the principles of conflict of laws.
(c) Any legal action brought hereunder or in connection herewith shall be brought in the
federal or state courts located within the County of San Francisco, California and, to the fullest
extent permitted by applicable law, any right of either Party to trial by jury with respect to any
claim or action arising out of this Agreement is waived.
14. Proper Construction.
(a) The language of all parts of this Agreement shall in all cases be construed as a whole
according to its fair meaning, and not strictly for or against any of the Parties. The Parties
have cooperated in the drafting and preparation of this Agreement and this Agreement shall not be
construed more favorably for or against any of the Parties.
(b) As used in this Agreement, the term or shall be deemed to include the term and/or and
the singular or plural number shall be deemed to include the other whenever the context so
indicates or requires.
(c) The section headings used in this Agreement are intended solely for convenience of
reference and shall not in any manner amplify, limit, modify or otherwise be used in the
interpretation of any of the provisions hereof.
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15. Entire Agreement.
This Agreement (and any other written agreement to the extent expressly referenced herein,
including, but not limited to, the Lock-Up Agreement, the Indemnification Agreement and GCACs
Amended and Restated Certificate of Incorporation) constitutes the entire agreement between and
among the Parties pertaining to Mr. LaPortas employment and termination thereof with GCAC and is
the final, complete and exclusive expression of the terms and conditions of their agreement. Any
and all prior agreements, representations, negotiations and understandings made by the Parties,
oral and written, express or implied, including but not limited to the GCAC Employment Agreement,
are hereby superseded and merged herein, except to the extent provisions of the GCAC Employment
Agreement survive termination as specifically stated herein. The terms of this Agreement govern if
any provision of this Agreement conflicts or is inconsistent with a previous agreement.
16. Execution in Counterparts.
This Agreement may be executed in counterparts and shall be deemed fully executed when each
party has signed and transmitted a counterpart to the other. All counterparts taken together shall
constitute a single agreement. A facsimile signature shall have the same force and effect of an
This Agreement may not be modified, altered or changed except upon express written consent
each of the Parties wherein specific reference is made to this Agreement.
All notices and other communications hereunder shall be in writing and shall be deemed given
if delivered personally or two (2) business days after being mailed by registered or certified mail
(return receipt requested) to the Parties at the addresses identified on the first page of this
Agreement (or at such other address for a Party as shall be specified by like notice) with a copy
to the following counsel:
Notices under this Agreement to GCAC should have copies sent to:
, NY 10036-8299
Attn: Peter J.W. Sherwin, Esq.
Jeffrey A. Horwitz, Esq.
Frank J. Lopez, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
, New York
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Attn: Paul Schnell, Esq.
Notices under this Agreement to Mr. LaPorta should have copies sent to:
OMelveny & Myers LLP
Two Embarcadero Center, 28th Floor
San Francisco, California 94111
Attn: Debra Belaga, Esq.
[Signature page follows.]
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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date hereof.
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