EXHIBIT 10.31
NATCO GROUP INC.
SENIOR MANAGEMENT
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT is entered into this 11th day of December, 2002 by and
between NATCO GROUP INC., a Delaware corporation (the "Company"), and Xxxxx X.
Xxxx, Xx. (the "Executive").
WHEREAS, the Company's Board of Directors (the "Board") has determined
that it is in the best interests of the Company and its stockholders to ensure
that the Company and its affiliates will have the continued dedication of the
Executive, notwithstanding the possibility, threat or occurrence of a
termination of the Executive's employment in certain circumstances, including
following a Change in Control as defined herein. The Board believes it is
imperative to diminish the inevitable distraction of the Executive by virtue of
the personal uncertainties and risks created by a pending or threatened
termination of the Executive's employment in such circumstances and to provide
the Executive with compensation and benefits arrangements upon such a
termination which ensure that the compensation and benefits expectations of the
Executive will be satisfied and which are competitive with those of other
corporations who may seek to employ the Executive.
NOW, THEREFORE, in order to accomplish these objectives, the Board has
caused the Company to enter into this Agreement with the Executive, and it is
hereby agreed as follows:
1. Definitions. For purposes of this Agreement, the following terms will
have the following meanings unless otherwise expressly provided in this
Agreement:
(a) Board. "Board" means the Board of Directors of the Company.
(b) Cause. "Cause" means:
(i) the Executive's willful and continued failure to
substantially perform the Executive's duties with the
Company or its affiliates (other than any such failure
resulting from the Executive's incapacity due to physical
or mental illness), after a written demand for substantial
performance is delivered to the Executive by the Company
which specifically identifies the manner in which the
Company believes that the Executive has not substantially
performed his or her duties;
(ii) the final conviction of the Executive of, or an entering of
a guilty plea or a plea of no contest by the Executive, to
a felony or of a misdemeanor involving moral turpitude; or
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(iii) the willful engaging by the Executive in illegal conduct or
gross misconduct which is materially and demonstrably
injurious to the Company.
For purposes of this definition, no act or failure to act
on the part of the Executive shall be considered "willful"
unless it is done, or omitted to be done, by the Executive
in bad faith or without a reasonable belief that the action
or omission was in the best interests of the Company or its
affiliates. Any act, or failure to act, based on authority
given pursuant to a resolution duly adopted by the Board,
the instructions of a more senior officer of the Company or
the advice of counsel to the Company or its affiliates will
be conclusively presumed to be done, or omitted to be done,
by the Executive in good faith and in the best interests of
the Company and its affiliates.
(c) Change in Control. A "Change in Control" means the occurrence of
any one of the following events:
(i) the Company is not the surviving entity in any merger or
consolidation (or survives only as a subsidiary of an
entity);
(ii) the Company sells, leases or exchanges or agrees to sell,
lease or exchange all or substantially all of its assets to
any other person or entity;
(iii) the Company is to be dissolved and liquidated;
(iv) any person or entity, including a "group" as contemplated
by Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended, acquires or gains ownership or control
(including, without limitation, power to vote) of more than
50% of the outstanding shares of the Company's voting stock
(based upon voting power); or
(v) as a result of or in connection with a contested election
of Directors, the persons who were Directors of the Company
before such election shall cease to constitute a majority
of the Board.
(d) Date of Termination means the date specified in a Notice of
Termination pursuant to paragraph 3 hereof, or the Executive's last date
as an active employee of the Company and its affiliates before a
termination of employment due to death, Disability, or other reason, as
the case may be.
(e) Director. "Director" means an individual elected to the Board by
the stockholders of the Company or by the Board under applicable
corporate law who is serving on the Board on the date of this Agreement
or who is elected to the Board after such date.
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(f) Disability. "Disability" means the Executive's total and permanent
disability as defined under the terms of the Company's long-term
disability plan in effect on the Date of Termination.
(g) Effective Period. The "Effective Period" means the 24-month period
following any Change in Control.
(h) Good Reason. "Good Reason" means, unless the Executive has
consented in writing thereto, the occurrence of any of the following:
(i) the assignment to the Executive of any duties inconsistent
with the Executive's position, including any material
change in status, title, authority, duties or
responsibilities or any other action which results in a
material diminution in such status, title, authority,
duties or responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company or the
Executive's employer promptly after receipt of notice
thereof given by the Executive;
(ii) a reduction by the Company or the Executive's employer of
the Executive's base salary;
(iii) the relocation of the Executive's office to a location more
than 35 miles from its location as of the Commencement
Date;
(iv) following a Change in Control, unless a plan providing a
substantially similar compensation or benefit is
substituted, (A) the failure by the Company or any of its
affiliates or successors to continue in effect any material
fringe benefit or compensation plan, retirement plan, life
insurance plan, health and accident plan or disability plan
in which the Executive is participating prior to the Change
in Control, or (B) the taking of any action by the Company
or any of its affiliates or successors which would
adversely affect the Executive's participation in or
materially reduce his benefits under any of such plans or
deprive him of any material fringe benefit; or
(v) following a Change in Control, the failure of the Company
or the affiliate of the Company by which the Executive is
employed, or any affiliate which directly or indirectly
owns or controls any affiliate by which the Executive is
employed, to obtain the assumption in writing of the
Company's obligation to perform this Agreement by any
successor to all or substantially all of the assets of the
Company or such affiliate within fifteen (15) days after a
reorganization, merger, consolidation, sale or other
disposition of assets of the Company or such affiliate.
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(vi) any purported termination of the Executive's employment by
the Company which is not effected pursuant to a Notice of
Termination satisfying the requirements of paragraph 3
hereof; and for purposes of this Agreement, no such
purported termination shall be effective.
For purposes of this Agreement, any determination of "Good Reason"
made by the Executive in good faith based upon his reasonable
belief and understanding shall be conclusive.
2. Term. The term ("Term") of this Agreement shall commence on the date
first above written (the "Commencement Date") and, unless terminated earlier as
provided hereunder, shall continue through the third anniversary of the
Commencement Date (the "Termination Date"); provided, however, that commencing
on the anniversary of the Commencement Date (the "Extension Date") and on each
subsequent Extension Date each year thereafter, the term of this Agreement shall
automatically be extended for one additional year, unless at least 90 days prior
to such Extension Date, the Company shall have given notice that it does not
wish to extend this Agreement. Upon the occurrence of a Change in Control during
the term of this Agreement, including any extensions thereof, this Agreement
shall automatically be extended until the end of the Effective Period and may
not be terminated by the Company during such time.
3. Notice of Termination.
(a) Any termination of the Executive's employment by the Company, or
by any affiliate of the Company by which the Executive is employed, for
Cause, or by the Executive for Good Reason shall be communicated by
Notice of Termination to the other party hereto given in accordance with
paragraph 11 of this Agreement. For purposes of this Agreement, a "Notice
of Termination" for termination of employment for Cause or for Good
Reason means a written notice which (i) is given at least thirty (30)
days prior to the Date of Termination; (ii) indicates the specific
termination provision in this Agreement relied upon, (iii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment
under the provision so indicated, (iv) specifies the employment
termination date; and (v) allows the recipient of the Notice of
Termination at least thirty (30) days to cure the act or omission relied
upon in the Notice of Termination. The failure to set forth in the Notice
of Termination any fact or circumstance which contributes to a showing of
Good Reason or Cause will not waive any right of the party giving the
Notice of Termination hereunder or preclude such party from asserting
such fact or circumstance in enforcing its rights hereunder.
(b) A Termination of Employment of the Executive will not be deemed to
be for Cause unless and until there has been delivered to the Executive a
copy of a resolution duly adopted by the affirmative vote of not less
than three-quarters of the entire membership of the Board at a meeting of
the Board called and held for such purpose (after reasonable notice is
provided to the Executive and the Executive is given an opportunity,
together with counsel, to be heard before the Board), finding that, in
the
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good faith opinion of the Board, the Executive has engaged in the conduct
described in paragraph 1(b) hereof, and specifying the particulars of
such conduct.
(c) A Termination of Employment of the Executive will not be deemed to
be for Good Reason unless the Executive gives the Notice of Termination
provided for herein within twelve (12) months after the Executive has
actual knowledge of the act or omission of the Company constituting such
Good Reason.
4. Obligations of the Company Upon Termination of Executive's Employment
Following a Change in Control
(a) If, during the Effective Period, the Company terminates the
Executive's employment other than for Cause or the Executive terminates
employment with the Company for Good Reason, the Company will pay the
following to the Executive as soon as practicable following the Date of
Termination, but in no event later than thirty (30) days, or such period
otherwise specifically provided, thereafter:
(i) cash in the amount of the Executive's annual base salary
through the Date of Termination to the extent not
theretofore paid, including amounts due for accrued but
unused vacation time;
(ii) cash in the amount of the annual bonus earned by the
Executive through the Date of Termination based on the
Company's performance through such date and prorationed by
multiplying such bonus amount by the fraction obtained by
dividing the number of days in the year through the Date of
Termination by 365, payable no later than sixty (60) days
following the Date of Termination;
(iii) cash in an amount equal to the product of two times the
Executive's annual base salary at the greater of (A) the
rate in effect at the time Notice of Termination is given
or (B) the rate in effect immediately preceding the Change
in Control, payable in a lump sum;
(iv) a lump sum cash amount equal to the product of two times
the target annual bonus at the greater of (A) the target
annual bonus in effect at the time Notice of Termination is
given or (B) the target annual bonus in effect immediately
preceding the Change in Control;
(v) the continuation of the provision of health insurance,
dental insurance and life insurance benefits for a period
of two years following the Date of Termination to the
Executive and the Executive's family at least equal to and
to the same extent as those which would have been provided
to them in accordance with the plans, programs, practices
and policies of the Company as in effect and applicable
generally to other peer executives and their families
during the 90-day period immediately preceding the
Effective Period or on the Date of Termination, at the
election of the
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Executive; provided, however, that if the Executive becomes
re-employed with another employer and is eligible to
receive medical or other welfare benefits under another
employer provided plan, the medical and other welfare
benefits described herein will be secondary to those
provided under such other plan during such applicable
period of eligibility.
(b) "Compensation" Under Retirement Plans. Any and all amounts paid
under this Agreement in the amount of or otherwise in respect of the
Executive's annual base salary and bonuses, whether or not deferred under
a deferred compensation plan or program, are intended to be and will be
"Compensation" for purposes of determining Compensation under any and all
retirement plans sponsored or maintained by the Company or by any
affiliate controlled by the Company.
(c) Deferred Bonus Under Natco Group Inc. Target Bonus Plan. The
benefits provided under this paragraph 4 are intended to be in addition
to and separate from any and all bonus compensation amounts earned under
the Natco Group Inc. Target Bonus Plan ("Target Bonus Plan"), the payment
of which has been deferred under the terms of the Target Bonus Plan. Any
and all such deferred bonus compensation shall be payable at the time and
in the manner provided for (or elected) under the terms of the Target
Bonus Plan.
(d) Effect of Death or Disability. If the Executive's employment is
terminated by reason of the Executive's death or Disability during the
Term of this Agreement, this Agreement shall terminate automatically on
the date of death or, in the event of Disability, on the Date of
Termination. In the event of the Executive's death following the
Executive's Date of Termination, but prior to the payment of the
severance payments and benefits provided under paragraph 4 hereof, if
any, such payments and benefits will be paid to the Executive's surviving
spouse, or if the Executive has no surviving spouse, then to the
Executive's estate.
(e) Exclusivity of Severance. The severance payments and benefits
provided for under this Agreement are separate and apart from and, to the
extent they are actually paid, will be in lieu of any payment under any
policy or plan of the Company or any of its affiliates regarding
severance payments generally.
5. Mitigation of Damages. The Executive will not be required to mitigate
damages or the amount of any payment provided for under this Agreement by
seeking other employment or otherwise. Except as otherwise specifically provided
in this Agreement, the amount of any payment provided for under this Agreement
will not be reduced by any compensation earned by the Executive as the result of
self-employment or employment by another employer or otherwise.
6. Stock Options. The benefits provided under paragraph 4 above are intended
to be in addition to the value of any options to acquire common stock of the
Company awarded under the Natco Group Inc. 2001 Stock Incentive Plan (the "Stock
Plan") and any other incentive or similar plan heretofore or hereafter adopted
by the Company. Notwithstanding the terms of the Stock Plan, any award agreement
entered into pursuant to the Stock Plan or any other incentive
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plan or agreement, all outstanding stock options held by the Executive shall
fully vest as of the date of the Change in Control and become immediately
exercisable in accordance with their terms; provided, however, that if the
Company terminates the Executive's employment other than for Cause or the
Executive terminates employment with the Company for Good Reason during the
Effective Period, then such stock options shall be exercisable for the longer
period of (a) three months after the Executive's Date of Termination or (b)
eighteen months after the effective date of the Change in Control, unless the
term of the stock option expires before the end of such longer period, in which
case the stock option shall be exercisable until the expiration of its term.
7. Limitation of Benefits.
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any benefit, payment or distribution by
the Company to or for the benefit of the Executive (whether payable or
distributable pursuant to the terms of this Agreement or otherwise) (a
"Payment") would, if paid, be subject to the excise tax imposed by
Section 4999 of the Code (the "Excise Tax"), then the Payment shall be
reduced to the extent necessary to avoid the imposition of the Excise
Tax. The Executive may select the Payments to be limited or reduced.
(b) All determinations required to be made under this Section 7,
including whether an Excise Tax would otherwise be imposed and the
assumptions to be utilized in arriving at such determination, shall be
made by Independent Tax Counsel which shall provide detailed supporting
calculations both to the Company and the Executive within fifteen (15)
business days of the receipt of notice from the Executive that a Payment
is due to be made, or such earlier time as is requested by the Company.
For purposes of this paragraph, "Independent Tax Counsel" will mean a
lawyer, a certified public accountant with a nationally recognized
accounting firm, or a compensation consultant with a nationally
recognized actuarial and benefits consulting firm with expertise in the
area of executive compensation, who will be selected by the Company and
will be reasonably acceptable to the Executive, and whose fees and
disbursements will be paid by the Company. Any determination by the
Independent Tax Counsel shall be binding upon the Company and the
Executive. If, as a result of any uncertainty in the application of
Section 4999 of the Code at the time the initial determination is made by
the Independent Tax Counsel hereunder, Payments hereunder have been
unnecessarily limited by this Section 7 ("Underpayment"), consistent with
the calculations required to be made hereunder, then the Independent Tax
Counsel shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be properly paid by the Company to or for
the benefit of the Executive. If, however, Payments hereunder have not
been sufficiently limited by this Section 7, consistent with the
calculations required to be made hereunder, to prevent the imposition of
an Excise Tax upon the Executive (the "Overpayment"), then the Executive
shall notify the Company in writing within fifteen (15) days of any claim
by the Internal Revenue Service, that, if successful, would require the
payment by the Executive of any Excise Tax, and the Independent Tax
Counsel shall determine the amount of Overpayment that has occurred and
any such
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Overpayment shall be properly refunded by the Executive by or for the
benefit of the Company so as to properly prevent the imposition of the
Excise Tax.
8. Confidential Information; Non-Solicitation. For the Term of this
Agreement, and for the period of time during which the Executive receives
benefits pursuant to paragraph 4(a)(v) hereof, the Executive covenants and
agrees as follows:
(a) To hold in a fiduciary capacity for the benefit of the Company and
its affiliates all secret, proprietary or confidential material,
knowledge, data or any other information relating to the Company or any
of its affiliated companies and their respective businesses
("Confidential Information"), which has been obtained by the Executive
during the Executive's employment by the Company or any of its affiliated
companies and that has not been, is not now and hereafter does not become
public knowledge (other than by acts by the Executive or representatives
of the Executive in violation of this Agreement), and will not, without
the prior written consent of the Company or as may otherwise be required
by law or legal process, communicate or divulge any such information,
knowledge or data to anyone other than the Company and those designated
by it; the Executive further agrees to return to the Company any and all
records and documents (and all copies thereof) and all other property
belonging to the Company or relating to the Company, its affiliates or
their businesses, upon termination of Executive's employment with the
Company and its affiliates; and,
(b) Not to solicit or entice any other employee of the Company or its
affiliates to leave the Company or its affiliates to go to work for any
other business or organization which is in direct or indirect competition
with the Company or any of its affiliates, nor request or advise a
customer or client of the Company or its affiliates to curtail or cancel
such customer's business relationship with the Company or its affiliates.
9. Rights and Remedies Upon Breach.
(a) The Executive hereby acknowledges and agrees that the provisions
contained in paragraph 8 of this Agreement (the "Restrictive Covenants"),
are reasonable and valid in duration and in all other respects. If any
court of competent jurisdiction determines that any of the Restrictive
Covenants, or any part thereof, is invalid or unenforceable, the
remainder of the Restrictive Covenants will not thereby be affected and
will be given full effect without regard to the invalid portions.
(b) If the Executive breaches, or threatens to commit a breach of, any
of the Restrictive Covenants, the Company will have the following rights
and remedies, each of which rights and remedies will be independent of
the others and severally enforceable, and each of which is in addition
to, and not in lieu of, any other rights and remedies available to the
Company under law or in equity:
(i) Specific Performance. The right and remedy to have the
Restrictive Covenants specifically enforced by any court of
competent jurisdiction, it being agreed that any breach or
threatened breach of the Restrictive
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Covenants would cause irreparable injury to the Company and
that money damages would not provide an adequate remedy to
the Company.
(ii) Accounting. The right and remedy to require the Executive
to account for and pay over to the Company all
compensation, profits, monies, accruals, increments or
other benefits derived or received by the Executive as the
result of any action constituting a breach of the
Restrictive Covenants.
(iii) Cessation of Severance Benefits. The right and remedy to
cease any further severance, benefit or other compensation
payments under this Agreement to the Executive or the
Executive's beneficiary from and after the commencement of
such breach by the Executive.
10. Arbitration. The Company and Executive agree that any claim, dispute or
controversy arising under or in connection with this Agreement (including,
without limitation, any such claim, dispute or controversy arising under any
federal, state or local statute, regulation or ordinance or any of the Company's
employee benefit plans, policies or programs) shall be resolved solely and
exclusively by binding arbitration. The arbitration shall be held in the city of
Houston, Texas (or at such other location as shall be mutually agreed by the
parties). The arbitration shall be conducted in accordance with the Expedited
Employment Arbitration Rules (the "Rules") of the American Arbitration
Association (the "AAA") in effect at the time of the arbitration, except that
the arbitrator shall be selected by alternatively striking from a list of five
arbitrators supplied by the AAA. All fees and expenses of the arbitration,
including a transcript if either requests, shall be borne equally by the
parties. If Executive prevails as to any material issue presented to the
arbitrator, the entire cost of such proceedings (including, without limitation,
Executive's reasonable attorneys fees) shall be borne by the Company. If
Executive does not prevail as to any material issue, each party will pay for the
fees and expenses of its own attorneys, experts, witnesses, and preparation and
presentation of proofs and post-hearing briefs (unless the party prevails on a
claim for which attorney's fees are recoverable under the Rules). Any action to
enforce or vacate the arbitrator's award shall be governed by the Federal
Arbitration Act, if applicable, and otherwise by applicable state law. If either
the Company or Executive pursues any claim, dispute or controversy against the
other in a proceeding other than the arbitration provided for herein, the
responding party shall be entitled to dismissal or injunctive relief regarding
such action and recovery of all costs, losses and attorney's fees related to
such action. Notwithstanding the provisions of this paragraph, either party may
seek injunctive relief in a court of competent jurisdiction, whether or not the
case is then pending before the panel of arbitrators. Following the court's
determination of the injunction issue, the case shall continue in arbitration as
provided herein.
11. Notices. Any notice provided for in this Agreement will be given in
writing and will be delivered personally, telegraphed, telexed, sent by
facsimile transmission or sent by certified, registered or express mail, postage
prepaid. Any such notice will be deemed given when so delivered personally,
telegraphed, telexed or sent by facsimile transmission, or, if mailed, on the
date of actual receipt thereof. Notices will be properly addressed to the
parties at their respective
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addresses set forth below or to such other address as either party may later
specify by notice to the other in accordance with the provisions of this
paragraph:
If to the Company:
Natco Group Inc.
Brookhollow Central III
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
If to the Executive:
Xxxxx X. Xxxx, Xx.
00 Xxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
12. Entire Agreement. This Agreement contains the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
agreements, written or oral, with respect thereto, and any and all prior
employment or severance agreements and related amendments entered into between
the Company and the Executive.
13. Waivers and Amendments. This Agreement may be amended, superseded,
canceled, renewed or extended, and the terms and conditions hereof may be
waived, only by a written instrument signed by the parties hereto or, in the
case of a waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder will operate as a
waiver thereof, nor will any waiver on the part of any party of any such right,
power or privilege hereunder, nor any single or partial exercise of any right,
power or privilege hereunder, preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder.
14. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the state of Texas (without giving effect to the
choice of law provisions thereof), where the employment of the Executive will be
deemed, in part, to be performed, and enforcement of this Agreement or any
action taken or held with respect to this Agreement will be taken in the courts
of appropriate jurisdiction in Houston, Texas.
15. Assignment. This Agreement, and any rights and obligations hereunder, may
not be assigned by the Executive and may be assigned by the Company only to any
successor in interest, whether by merger, consolidation, acquisition or the
like, or to purchasers of substantially all of the assets of the Company.
16. Binding Agreement. This Agreement will inure to the benefit of and be
binding upon the Company and its respective successors and assigns and the
Executive and his legal representatives.
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17. Counterparts. This Agreement may be executed in separate counterparts,
each of which when so executed and delivered will be deemed an original, but all
of which together will constitute one and the same instrument.
18. Headings. The headings in this Agreement are for reference purposes only
and will not in any way affect the meaning or interpretation of this Agreement.
19. Authorization. The Company represents and warrants that the Board of
Directors of the Company has authorized the execution of this Agreement.
20. Validity. The invalidity or unenforceability of any provisions of this
Agreement will not affect the validity or enforceability of any other provisions
of this Agreement, which will remain in full force and effect.
21. Tax Withholding. The Company will have the right to deduct from all
benefits and/or payments made under this Agreement to the Executive any and all
taxes required by law to be paid or withheld with respect to such benefits or
payments.
22. No Contract of Employment. Nothing contained in this Agreement will be
construed as a contract of employment between the Company or any of its
affiliates and the Executive, as a right of the Executive to be continued in the
employment of the Company or any of its affiliates, or as a limitation of the
right of the Company or any of its affiliates to discharge the Executive with or
without cause.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
The Company
NATCO GROUP INC. THE EXECUTIVE
By: /s/ J. Xxxxxxx Xxxxx /s/ Xxxxx X. Xxxx, Xx.
----------------------------- --------------------------
Xxxxx X. Xxxx, Xx.
Title: Senior Vice President and
Chief Financial Officer
--------------------------
NATCO
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