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EXHIBIT 10.1
FIRST AMENDED EXECUTIVE EMPLOYMENT AGREEMENT
This FIRST AMENDED EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made
and entered into as of the ____ day of ___________, 1998, to be effective
November 15, 1998 (the "Effective Date"), by and between GREYHOUND LINES, INC.
(together with its successors, the "Company") and XXXXX X. XXXXXXXX (the
"Executive").
WHEREAS, the Executive has served as the Chief Executive Officer of the
Company since November 15, 1994, and has considerable experience, expertise and
training in management related to the types of services offered by the Company;
and
WHEREAS, the Executive and the Company entered into an Executive
Employment Agreement (the "Original Agreement"), effective November 15, 1994;
and
WHEREAS, the Company desires and intends to continue the employment of
the Executive as Chief Executive Officer of the Company pursuant to the terms
and conditions set forth in this Agreement; and
WHEREAS, both the Company and the Executive have read and understood
the terms and provisions set forth in this Agreement, and have been afforded a
reasonable opportunity to review this Agreement and have been advised to do so
with their respective legal counsel.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth in this Employment Agreement, the Executive and the Company agree as
follows:
1. COMPENSATION: During his employment pursuant to this Agreement, the Company
agrees to provide the Executive the following compensation:
a. BASE SALARY: From the Effective Date until changed as provided in
this section, the Company agrees to pay the Executive an annual salary of
$469,500.00 (the "Base Salary"), payable in at least equal monthly installments
in accordance with the Company's ordinary payroll policies and procedures for
executive compensation. The Company and the Executive acknowledge that during
the employment of the Executive pursuant to this Agreement, the Executive's Base
Salary will be subject to an annual review and adjustment by the Board of
Directors of the Company (the "Board of Directors") but, in no event, will the
Executive's annual Base Salary be less than the amount set forth in this
section.
b. BUSINESS EXPENSES: The Company agrees that the Executive shall be
entitled to reimbursement by the Company for all reasonable expenses (including
first class air travel) that the Executive may incur in the performance of his
duties and obligations under this Agreement, consistent with the Company's
policies for documentation and payment.
c. ANNUAL BONUS: The Company agrees that the Executive shall be
entitled to additional bonus compensation (the "Incentive Compensation") on
terms not less favorable than
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EXHIBIT 10.1
those applicable to other officers of the Company. For the year ending December
31, 1998 and subsequent years, the Executive shall be eligible for annual
incentive bonus consideration under the 1998 Management Incentive Plan (or its
successor), starting with the 1998 plan year and continuing thereafter for the
duration of this Agreement with an Annual Target Award of at least 55% of Base
Salary for each respective year.
d. EMPLOYEE BENEFITS: The parties acknowledge and agree that certain
employee benefits will be provided to the Executive incident to his employment
as Chief Executive Officer of the Company. Except as specifically modified by
this section, these employee benefits shall be governed by the applicable
documents, and the Executive shall be entitled to participate in all benefits
provided to officers of the Company on terms not less favorable than to other
officers of the Company. The Company agrees to the extent not prohibited by law,
that it will provide the benefits listed below and that the following provisions
shall apply to any employee benefits provided by the Company:
(1) 401K PLAN: For purposes of the Greyhound Lines, Inc. and
Affiliated Companies Master Salaried Employees' Cash or Deferred Profit Sharing
Plan (the "401k Plan"), the Executive's prior service with Buslease, Inc. and
any predecessor of Greyhound Lines, Inc. shall be deemed to be service with the
Company for purposes of determining eligibility and vesting under the 401k Plan.
Subject to the terms of the 401k Plan, the Company will match fifty percent
(50%) of the first six (6%) of Executive's contributions to such 401k Plan. If
the Plan is amended with respect to such matching, Executive will receive
matching contributions consistently with that of other participants in the Plan.
(2) MEDICAL PLAN: For purposes of the Greyhound Lines, Inc.
Medical, Dental and Vision Plan (the "Medical Plan"), the following shall apply:
(a) The Executive and his dependents, as defined in
the Medical Plan ("Dependents"), shall immediately be provided coverage under
the Medical Plan under the option elected by the Executive.
(b) The Medical Plan's provisions limiting coverage
of pre-existing conditions shall not be applied to the Executive or his
Dependents.
(c) During the time period in which the Executive and
his dependents are entitled to participate in the Medical Plan, the Company will
reimburse the Executive for one hundred percent (100%) of all medical expenses
(both for the Executive and his dependents) that are not otherwise reimbursable
under the Medical Plan option selected by the Executive; provided, however, that
the total payments made by the Company to or on behalf of any person under this
Subsection shall not exceed the highest "Lifetime Maximum" benefit (per covered
person) available under the Medical Plan on the Effective Date of this
Agreement.
(3) SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN: For purposes of
the Greyhound Lines, Inc. Supplemental Executive Retirement Plan (the "SERP"),
all of the Executive's service with Buslease, Inc. and any predecessor of
Greyhound Lines, Inc. shall be treated for all purposes under the SERP as
service with Greyhound Lines, Inc. (as defined in the
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SERP), the Executive shall be a designated person eligible for coverage and
benefits under the SERP as of the Effective Date, and the Executive shall be
entitled to an annual contribution equal to 20% of Executive's annual Base
Salary. Within ninety (90) days of the Effective Date of this Agreement, the
Company shall establish and fully fund a trust for the benefit of the Executive
to secure the payment of benefits provided to the Executive under this
Subsection.
(4) ESTATE, TAX AND FINANCIAL PLANNING: During the term of his
employment with the Company, the Executive shall be entitled to $20,000.00 per
year for reimbursement for estate, tax and financial planning. Such
reimbursement payments shall be paid by the Company within a reasonable time
after such expenses are incurred by the Executive.
(5) AUTOMOBILE ALLOWANCE: During the term of his employment
with the Company, the Executive shall be entitled to a $1,000.00 per month
automobile allowance, commencing on the Effective Date of this Agreement.
(6) COUNTRY CLUB ALLOWANCE: The Company agrees to pay all
initiation fees and monthly membership dues on behalf of the Executive at a
country club mutually selected by the Executive and the Company.
(7) VACATION: The Company will provide vacation to the
Executive on terms not less favorable than that provided to executive officers
of the Company. For purposes of determining the amount of vacation, Executive's
prior service with Buslease, Inc. and any predecessor of Greyhound Lines, Inc.
shall be deemed to be service with the Company.
(8) LIFE INSURANCE: At all times during the term of this
Agreement, Executive will receive life insurance coverage as provided by the
Company on terms not less favorable than that provided to other executives of
the Company. In addition to any life insurance provided pursuant to the
preceding sentence, the Executive will be provided with Company-paid life
insurance which will provide death benefits in the event of his death in an
amount of at least $2,000,000.00 payable to the beneficiary or beneficiaries
named by the Executive. The Company shall have the right to purchase insurance
to fund its obligations to the Executive under this section; provided, however,
that any insurance company or companies selected by the Company to fund its
obligations under this Subsection must be the company or companies that
underwrite life insurance benefits covering other officers of the Company.
(9) LONG TERM DISABILITY: The Company will provide Executive
long-term disability coverage and benefits on terms which are not less favorable
than that provided to other executives of the Company but which will provide an
annual disability benefit to the Executive of at least fifty percent (50%) of
his expected annual Base Salary, payable for the year during which Executive was
disabled.
(10) OTHER BENEFITS: For purposes of any and all other
benefits provided by the Company to its Chief Executive Officer, the Executive
shall be eligible for such benefits immediately on the Effective Date.
Additionally, for purposes of determining eligibility, funding or vesting with
respect to any other benefits, the Executive's prior service with Buslease, Inc.
and any predecessor of Greyhound Lines, Inc. shall be deemed to be service with
the Company.
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2. DURATION: The duration of this Agreement shall be defined and determined as
follows:
a. INITIAL TERM: This Agreement shall continue in full force and effect
for three (3) years (the "Initial Term"), commencing on the Effective Date and
expiring on November 14, 2001 (the "Expiration Date"), unless terminated prior
to the Expiration Date in accordance with Subsection 2(c).
b. RENEWAL: Notwithstanding Subsection 2(a), this Agreement shall
automatically renew for two (2) years (the "Renewal Term") on the Expiration
Date unless either party gives effective written notice to the other party of
the party's intention not to renew this Agreement ("Notice of Non-Renewal"), at
least ninety (90) days prior to the Expiration Date. At the expiration of each
Renewal Term, this Agreement shall automatically renew for another two (2) year
Renewal Term, unless and until either party gives Notice of Non-Renewal. If any
Change of Control (as hereafter defined) occurs on or after November 15, 1999,
this Agreement will be deemed to have renewed for a two (2) year period, and in
such event, the Expiration Date(s) will occur every two years from the date of
such Change of Control.
c. TERMINATION AND NON-RENEWAL: This Agreement may be terminated as
follows:
(1) DEATH: This Agreement will terminate in the event of the
Executive's death, provided, however, that the Executive's estate shall be paid
(a) the Base Salary through the date of death and (b) a pro rata portion of the
entire Annual Target Award of Incentive Compensation (based upon the Executive's
annual Base Salary), payable when the Incentive Compensation payments are made
to other executives of the Company. The pro rata share will be calculated by the
month of the date of death (e.g., if the Executive's death should occur in July,
the Executive's estate shall receive 7/12 of the Annual Target Award of
Incentive Compensation based upon the Executive's annual Base Salary). In
addition, the Executive's designated beneficiaries shall be entitled to receive
any life insurance benefits provided to the Executive in accordance with the
applicable plan documents and/or insurance policies governing such benefits.
(2) DISABILITY: The Company shall be entitled to terminate
this Agreement in the event the Executive becomes "disabled," as that term is
defined in the Greyhound Lines, Inc. Employee Long Term Disability Plan ("the
LTD Plan"), and is unable to perform the essential functions of his position,
with reasonable accommodation, for a period of one hundred eighty (180)
consecutive days. The Executive will be paid his Base Salary through the
expiration of such one hundred eighty day period and a pro rata portion of the
entire Annual Target Award of Incentive Compensation (based upon the Executive's
annual Base Salary) in accordance with the previous Subsection.
(3) GOOD CAUSE:
(a) The Company shall be entitled to terminate this
Agreement by providing the Executive with written notice that the Company is
terminating the Agreement for
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EXHIBIT 10.1
Good Cause, as defined herein ("Notice of Termination for Good Cause") at any
time during his employment (including any time within ninety (90) days prior to
the Expiration Date or the expiration of any renewal term).
(b) The Company shall be entitled to terminate this
Agreement by communicating Notice of Non-Renewal for Good Cause, as defined
herein, at least ninety (90) days prior to the Expiration Date, or at least
ninety (90) days prior to the expiration of any renewal term.
(c) For purposes of this Agreement, "Good Cause"
shall be defined as follows:
i) Any act or omission constituting fraud
under the law of the State of Texas; or
ii) Conviction of, or a plea of nolo
contendere to, a felony; or
iii) Use of illegal drugs; or
iv) Embezzlement of Company property or
funds; or
v) The material breach of any provision of
this Agreement; or continued gross neglect
of his duties under this Agreement; or
unauthorized competition with the Company
during his employment pursuant to this
Agreement; or unauthorized use of
Confidential Information (as defined in
Section 9); which, in any event, is
materially detrimental to the Company;
(d) In the event the Company believes "Good Cause"
exists for terminating this Agreement pursuant to this Subsection, the Company
shall be required to give the Executive written Notice of the acts or omissions
constituting "Good Cause" ("Cause Notice"), and, in regard to Section 2(c) (3)
(c) (v), no Notice of Termination or Notice of Non-Renewal for Good Cause shall
be communicated by the Company unless and until the Executive fails to cure such
acts or omissions within thirty (30) days after receipt of the Cause Notice.
(e) In the event the Company communicates Notice of
Termination For Good Cause or Notice of Non-Renewal for Good Cause pursuant to
this section, the Executive shall have the right to a hearing before the Board
of Directors, on a date determined by the Board of Directors not later than
thirty (30) days after the date such Notice is received, to contest the alleged
"Good Cause" for the Notice of Termination or Notice of Non-Renewal. The Board
shall provide the Executive with written notice of its decision resolving any
contest under this section, and no termination or non-renewal of this Agreement
shall be deemed to be effective until such written notice is received by the
Executive. In the event that the Board of Directors affirms the "Good Cause" for
termination or non-renewal, the Executive shall have the right to the Dispute
Resolution procedures set forth in Section 10.
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(4) WITHOUT GOOD CAUSE:
(a) The Company shall be entitled to terminate the
Executive's employment under this Agreement by providing ninety (90) days
written notice (or ninety (90) days pay at the Base Salary Rate then in effect
in lieu of notice) to the Executive that the Company is terminating the
Agreement Without Good Cause, as defined herein ("Notice of Termination Without
Good Cause"), at any time during his employment (including any time within
ninety (90) days prior to the Expiration Date or the expiration of any renewal
term); provided, however, that the Company shall be required to pay Severance
Pay in accordance with the Severance provisions in Section 5.
(b) The Company shall be entitled to terminate the
Executive's employment under this Agreement by providing a written Notice of
Non-Renewal Without Good Cause, as defined herein, at least ninety (90) days
prior to the Expiration Date or at least ninety (90) days prior to the
expiration of any renewal term; provided, however, that the Company shall be
required to pay Severance Pay in accordance with the Severance provisions in
Section 5.
(c) Any termination of employment or non-renewal of
this Agreement which is not for "Good Cause," as defined above in Subsection
2(c)(3), or which does not result from the death or retirement of the Executive,
or the disability of the Executive, shall be deemed to be a termination or
nonrenewal "Without Good Cause." Furthermore, in the event that the Company
communicates a Notice of Termination for Good Cause or a Notice of Non-Renewal
for Good Cause, and either the Board of Directors [under Subsection 2(c)(3)(e)]
or an arbitration or a final, non-appealable judicial proceeding [under Section
10] determine that no Good Cause exists or existed for the Notice of Termination
or Notice of Non-Renewal that was originally communicated, then such Notice of
Termination or Notice of Non-Renewal shall be deemed to have been communication
of a Notice of Termination Without Good Cause or Notice of Non-Renewal Without
Good Cause, as appropriate for all purposes under this Agreement.
(5) RESIGNATION: The Executive shall be entitled to terminate
his employment under this Agreement by providing the Company with a written
Notice of Resignation at least ninety (90) days prior to his intended
resignation date, subject to the following provisions:
(a) RESIGNATION FOR GOOD REASON: The Executive shall
have the right to resign for any "Good Reason," as defined herein, and such
resignation shall be deemed to be a termination "Without Good Cause" as defined
in Subsection 2(c)(4) for all purposes under this Agreement, including the
"Change of Control" provisions set forth in Section 4 and the Severance
provisions set forth in Section 5. For purposes of this Section, the term "Good
Reason" shall be defined as:
i) The Company's failure to perform any
material provision of this Agreement; or
ii) Any material changes by the Board of
Directors in the authority, duties, or
responsibilities of the Executive under this
Agreement, other than termination for Good
Cause, without the written consent of the
Executive; or
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iii) The hiring or promotion by the Board of
Directors of another executive employee to a
position of equal or greater responsibility
for the management of the Company without
the written consent of the Executive;
iv) Any request by the Board of Directors
that the Executive perform, assist, abet or
approve any act which is or could be
construed to be illegal under any federal,
state or local law; or
v) Any requirement by the Board of Directors
that the Executive relocate from Dallas
County, Texas, without his consent; or
vi) In the event the Company fails to
maintain adequate liability insurance
coverage or an acceptable letter of credit
to fund any self-insured liabilities, in
accordance with Section 8 of this Agreement,
without the written consent of the
Executive.
(b) OPPORTUNITY TO CURE: In the event the Executive
believes "Good Reason" exists for his resignation, he shall be required to give
the Board of Directors written notice of the acts or omissions constituting Good
Reason, and no Notice of Resignation with Good Reason shall be communicated to
the Company unless and until the Company fails to cure such acts or omissions
within thirty (30) days after receipt of the notice described in this sentence.
Any Notice of Resignation with Good Reason shall be deemed to be effective
immediately, and no other notice or opportunity to cure shall be required.
(c) RESIGNATION WITHOUT GOOD REASON: Any resignation
by the Executive for any reason other than "Good Reason," as defined above,
shall be deemed to be a resignation "Without Good Reason." In the event of a
Resignation Without Good Reason, the Change of Control provisions in Section 4
(except during the thirteenth month following the Change of Control as provided
in Section 4) and the Severance provisions in Section 5 shall be inapplicable.
3. RESPONSIBILITIES:
a. The Executive and the Company acknowledge and agree that the
Executive shall be employed as President and Chief Executive Officer of the
Company. The Executive covenants and agrees that he will faithfully devote his
best efforts and such portion of his time, attention and skill to the business
of the Company as is necessary to perform his obligations under this Agreement;
provided, however, that the Executive is permitted, consistent with the
preceding sentence, to remain on the boards of directors of Enginetech, Inc. and
Hastings Entertainment, Inc. (and to receive compensation for such services)
during his employment pursuant to this Agreement. The Executive may undertake
other business responsibilities or obligations during the term of this Agreement
but shall advise, in writing, the Chairman of the Board before such
responsibilities or obligations are undertaken.
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b. The Executive and the Company acknowledge and agree that, as
President and Chief Executive Officer of the Company, the Executive shall be
responsible for actively supervising the overall management and development and
execution of the business strategy of the Company and its subsidiaries, subject
to and in accordance with the authority and direction of the Board of Directors
of the Company.
4. CHANGE OF CONTROL: The parties acknowledge that the Executive has agreed to
assume the position of Chief Executive Officer and to enter into this Agreement
based upon his confidence in the current shareholders of the Company, the
support of the Board of Directors, and the continued execution of the current
business strategy of the Company. Accordingly, if the Company should undergo a
"Change of Control," as defined in this section, the parties agree as follows:
a. VESTING OF STOCK INCENTIVES AND AWARDS: In the event of a Change of
Control, as defined in this section, all Stock Incentives and Awards provided in
Section 6 of this Agreement shall immediately become vested and exercisable, all
other equity incentive awards held by the Executive shall become fully vested
and all other stock options held by the Executive shall become fully
exercisable, effective on the date of the Change of Control or at such other
time as is necessary to permit the Executive to be treated with respect to
vesting and exercisability no less favorably than other shareholders.
b. COMPENSATION: In the event that the employment of the Executive is
terminated:
(1) at any time within twenty four (24) months after the date
of a Change of Control, as defined in this section, by: (i) the Company
communicating a Notice of Termination Without Good Cause; (ii) the Company
communicating a Notice of Non-Renewal Without Good Cause, or (iii) the Executive
communicating a Notice of Resignation for Good Reason; or
(2) by the resignation of the Executive, whether with or
without Good Reason, within thirty (30) days of the first Anniversary Date
(i.e., one year from the date) of a Change of Control,
the Company agrees to pay to the Executive a lump sum cash payment equal to
three (3) times the sum of: (x) an amount equal to the Executive's then current,
annualized Base Salary, and (y) the greater of: (a) the applicable Annual Payout
of Incentive Compensation paid for the Plan Year immediately prior to the
termination, or (b) the full, non-pro rata Annual Target Award for Incentive
Compensation based upon Executive's annual Base Salary for the Plan Year in
which the termination occurs, which payment shall be paid within thirty (30)
days after the effective date of termination, non-renewal or resignation. The
Company further agrees to continue benefits to the Executive as provided in
Subsection 5(c) for a period of thirty-six (36) months.
c. DEFINITIONS: For purposes of this Agreement and notwithstanding
anything in this Agreement to the contrary, a "Change of Control" shall be
deemed to occur at the same moment that a Change of Control is determined to
have occurred according to the definition of a Change of Control in the
Greyhound Lines, Inc. 1995 Long Term Stock Incentive Plan (the "LTSI Plan") as
that term is so defined as of the Effective Date of this Agreement and the
additional
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definitions contained in this Subsection. Any change in the definition of the
Change of Control in the LTSI Plan shall not be effective with respect to
Executive for purposes of this Agreement without the prior written approval of
Executive. For purposes of this Agreement and notwithstanding anything in this
Agreement to the contrary, a Change of Control will also be deemed to exist in
the event that any of the following occurs:
(1) the persons who were members of the
Board of Directors immediately prior
to a tender offer, exchange offer,
contested election or any
combination of the foregoing, cease
at any time within twelve (12)
months thereafter, to constitute a
majority of the Board of Directors;
or
(2) a change in control is reported by
the Company in response to either
Item 6(a) of Schedule 14A of
Regulations 14A promulgated under
the Exchange Act or Item 1 of Form
8-K promulgated under the Exchange
Act, which change in control has not
been approved by a majority of the
Board of Directors then in office
who were directors at the beginning
of two-year period ending on the
date the reported change in control
occurred.
For purposes of this Subsection, a sale of all or substantially all of the
assets of the Company shall be deemed to occur if any corporation, person or
group acting in concert (a "Person") as described in Section 14(d)(2) of the
Securities Exchange Act of 1934, as amended, acquires (or during the 12-month
period on the date of the most recent acquisition by such Person, has acquired)
gross assets of the Company that have an aggregate fair market value equal to
50% of the fair market value of all of the gross assets of the Company
immediately prior to such acquisition(s).
For purposes of this Subsection and notwithstanding anything in this Agreement
to the contrary, a Change of Control shall include any other transactions or
series of related transactions occurring which have substantially the same
effect as the transactions specified in the LTSI Plan or this Subsection.
If a definition of Change of Control is adopted by the Company which is more
favorable to the Executive than the definition set forth in this Subsection, in
any stock option plan or in employment agreements applying to any Company
executives, at the option of the Executive through written notice to the Company
at any time prior to the expiration of 180 days following the occurrence of a
Change of Control, such language will immediately supersede and replace the
language set forth in this Subsection.
d. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(1) Anything in this Agreement to the contrary
notwithstanding, but subject to Section 4(d)(8), in the event that it shall be
determined (as hereafter provided) that any payment (other than the Gross-Up
payments provided for in this Section 4(d)) or distribution by the
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Company or any of their affiliates to or for the benefit of the Executive,
whether paid or payable or distributed or distributable pursuant to the terms of
this Agreement or otherwise pursuant to or by reason of any other agreement,
policy, plan, program or arrangement, including without limitation any stock
option, performance share, performance unit, stock appreciation right or similar
right, or the lapse or termination of any restriction on or the vesting or
exercisability of any of the foregoing (a "Payment"), would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code") (or any successor provision thereto) by reason of being
considered "contingent on a change in ownership or control" of the Company,
within the meaning of Section 280G of the Code (or any successor provision
thereto) or to any similar tax imposed by state or local law, or any interest or
penalties with respect to such tax (such tax or taxes, together with any such
interest and penalties, being hereafter collectively referred to as the "Excise
Tax"), then the Executive shall be entitled to receive an additional payment or
payments (collectively, a "Gross-Up Payment"); provided, however, that no
Gross-up Payment shall be made with respect to the Excise Tax, if any,
attributable to (a) any incentive stock option, as defined by Section 422 of the
Code ("ISO") granted prior to the initial execution of the Original Agreement,
or (b) any stock appreciation or similar right, whether or not limited, granted
in tandem with any ISO described in clause (a). The Gross-Up Payment shall be in
an amount such that, after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including any Excise
Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payment.
(2) Subject to the provisions of Section 4(d)(6), all
determinations required to be made under this Section 4(d), including whether an
Excise Tax is payable by the Executive and the amount of such Excise Tax and
whether a Gross-Up Payment is required to be paid by the Company to the
Executive and the amount of such Gross-Up Payment, if any, shall be made by a
nationally recognized accounting firm (the "Accounting Firm") selected by the
Executive in his sole discretion. The Executive shall direct the Accounting Firm
to submit its determination and detailed supporting calculations to both the
Company and the Executive within 30 calendar days after the date of termination
of the Executive's employment, if applicable, and any such other time or times
as may be requested by the Company or the Executive. If the Accounting Firm
determines that any Excise Tax is payable by the Executive, the Company shall
pay the required Gross-Up Payment to the Executive within five business days
after receipt of such determination and calculations with respect to any Payment
to the Executive. If the Accounting Firm determines that no Excise Tax is
payable by the Executive, it shall, at the same time as it makes such
determination, furnish the Company and the Executive an opinion that the
Executive has substantial authority not to report any Excise Tax on his federal,
state or local income or other tax return. As a result of the uncertainty in the
application of Section 4999 of the Code (or any successor provision thereto) and
the possibility of similar uncertainty regarding applicable state or local tax
law at the time of any determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the Company
should have been made (an "Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts or fails
to pursue its remedies pursuant to Section 4(d)(6) and the Executive thereafter
is required to make a payment of any Excise Tax, the Executive shall direct the
Accounting Firm to determine the amount of the Underpayment that has occurred
and to submit its determination and detailed supporting calculations to both the
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Company and the Executive as promptly as possible. Any such Underpayment shall
be promptly paid by the Company to, or for the benefit of, the Executive within
five business days after receipt of such determination and calculations.
(3) The Company and the Executive shall each provide the
Accounting Firm access to and copies of any books, records and documents in the
possession of the Company or the Executive, as the case may be, reasonably
requested by the Accounting Firm, and otherwise cooperate with the Accounting
Firm in connection with the preparation and issuance of the determinations and
calculations contemplated by Section 4(d)(2). Any determination by the
Accounting Firm as to the amount of the Gross-Up Payment shall be binding upon
the Company and the Executive.
(4) The federal, state and local income or other tax returns
filed by the Executive shall be prepared and filed on a consistent basis with
the determination of the Accounting Firm with respect to the Excise Tax payable
by the Executive. The Executive shall make proper payment of the amount of any
Excise Payment, and at the request of the Company, provide to the Company true
and correct copies (with any amendments) of his federal income tax return as
filed with the Internal Revenue Service and corresponding state and local tax
returns, if relevant, as filed with the applicable taxing authority, and such
other documents reasonably requested by the Company, evidencing such payment. If
prior to the filing of the Executive's federal income tax return, or
corresponding state or local tax return, if relevant, the Accounting Firm
determines that the amount of the Gross-Up Payment should be reduced, the
Executive shall within five business days pay to the Company the amount of such
reduction.
(5) The fees and expenses of the Accounting Firm for its
services in connection with the determinations and calculations contemplated by
Section 4(d)(2) shall be borne by the Company. If such fees and expenses are
initially paid by the Executive, the Company shall reimburse the Executive the
full amount of such fees and expenses within five business days after receipt
from the Executive of a statement therefor and reasonable evidence of his
payment thereof.
(6) The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service or any other taxing authority that, if
successful, would require the payment by the Company of a Gross-Up Payment. Such
notification shall be given as promptly as practicable but no later than 10
business days after the Executive actually receives notice of such claim and the
Executive shall further apprise the Company of the nature of such claim and the
date on which such claim is requested to be paid (in each case, to the extent
known by the Executive). The Executive shall not pay such claim prior to the
earlier of (a) the expiration of the 30-calendar-day period following the date
on which he gives such notice to the Company and (b) the date that any payment
of amount with respect to such claim is due. If the Company notifies the
Executive in writing prior to the expiration of such period that it desires to
contest such claim, the Executive shall:
(i) provide the Company with any written records or documents
in his possession relating to such claim reasonably requested by the
Company;
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EX 10.1
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time,
including without limitation accepting legal representation with
respect to such claim by an attorney competent in respect of the
subject matter and reasonably selected by the Company;
(iii) cooperate with the Company in good faith in order
effectively to contest such claim; and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including interest and penalties) incurred in connection with such
contest and shall indemnify and hold harmless the Executive, on an after-tax
basis, for and against any Excise Tax or income tax, including interest and
penalties with respect thereto, imposed as a result of such representation and
payment of costs and expenses. Without limiting the foregoing provisions of this
Section 4(d)(6), the Company shall control all proceedings taken in connection
with the contest of any claim contemplated by this Section 4(d)(6) and, at its
sole option, may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of
such claim (provided, however, that the Executive may participate therein at his
own cost and expense) and may, at its option, either direct the Executive to pay
the tax claimed and xxx for a refund or contest the claim in any permissible
manner, and the Executive agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as the Company shall determine; provided, however,
that if the Company directs the Executive to pay the tax claimed and xxx for a
refund, the Company shall advance the amount of such payment to the Executive on
an interest-free basis and shall indemnify and hold the Executive harmless, on
an after-tax basis, from any Excise Tax or income or other tax, including
interest or penalties with respect thereto, imposed with respect to such
advance; and provided further, however, that any extension of the statute of
limitations relating to payment of taxes for the taxable year of the Executive
with respect to which the contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, the Company's control of any such
contested claim shall be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and the Executive shall be entitled to settle
or contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
(7) If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 4(d)(6), the Executive receives any
refund with respect to such claim, the Executive shall (subject to the Company's
complying with the requirements of Section 4(d)(6) promptly pay to the Company
the amount of such refund (together with any interest paid or credited thereon
after any taxes applicable thereto). If, after the receipt by the Executive of
an amount advanced by the Company pursuant to Section 4(d)(6), a determination
is made that the Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify the Executive in writing of its
intent to contest such denial or refund prior to the expiration of 30 calendar
days after such determination, then such advance shall be forgiven and shall not
be required to be repaid and the amount of any such advance shall offset,
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to the extent thereof, the amount of Gross-Up Payment required to be paid by the
Company to the Executive pursuant to this Section 4(d).
(8) Notwithstanding any provision of this Agreement to the
contrary, if (a) but for this sentence, the Company would be obligated to make a
Gross-Up Payment to the Executive, (b) the aggregate "present value" of the
"parachute payments" to be paid or provided to the Executive under this
Agreement or otherwise does not exceed 1.15 multiplied by three times the
Executive's "base amount," and (c) but for this sentence, the net after-tax
benefit to the Executive of the Gross-Up Payment would not exceed $50,000
(taking into account both income taxes and any Excise Tax), then the payments
and benefits to be paid or provided under this Agreement will be reduced to the
minimum extent necessary (but in no event to less than zero) so that no portion
of any payment or benefit to the Executive, as so reduced, constitutes an
"excess parachute payment." For purposes of this Section 4(d)(8), the terms
"excess parachute payment," "present value," "parachute payment," and "base
amount" will have the meanings assigned to them by Section 280G of the Code. The
determination of whether any reduction in such payments or benefits to be
provided under this Agreement is required pursuant to the preceding sentence
will be made at the expense of the Company, if requested by the Executive or the
Company, by the Accounting Firm. The fact that the Executive's right to payments
or benefits may be reduced by reason of the limitations contained in this
Section 4(d)(8) will not of itself limit or otherwise affect any other rights of
the Executive other than pursuant to this Agreement. In the event that any
payment or benefit intended to be provided under this Agreement or otherwise is
required to be reduced pursuant to this Section 4(d)(8), the Executive will be
entitled to designate the payments and/or benefits to be so reduced in order to
give effect to this Section 4(d)(8). The Company will provide the Executive with
all information reasonably requested by the Executive to permit the Executive to
make such designation. In the event that the Executive fails to make such
designation within 10 business days of the date of termination of the
Executive's employment, the Company may effect such reduction in any manner it
deems appropriate.
5. SEVERANCE: In the event that the Company communicates Notice of Termination
Without Good Cause or Notice of Non-Renewal Without Good Cause, or the Executive
communicates Notice of Resignation for Good Reason, the Company agrees to pay
the Executive the following severance compensation (the "Severance Pay"):
a. CALCULATION OF SEVERANCE PAY. The Company shall pay the Executive a
lump sum payment equal to two (2) times the sum of: (i) an amount equal to his
then current, annualized Base Salary, and (ii) the greater of: (x) the
applicable Annual Payout of Incentive Compensation paid for the Plan Year
immediately prior to the termination, or (y) the full, non-pro rata Annual
Target Award for Incentive Compensation based upon Executive's annual Base
Salary for the Plan Year in which the termination occurs.
b. TERMS OF PAYMENT: Severance Pay required pursuant to this section
shall be payable in cash in full within thirty (30) days after the Notice of
Termination Without Good Cause, the Notice of Non-Renewal Without Good Cause, or
the Notice of Resignation for Good Reason is communicated.
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c. CONTINUATION OF BENEFITS: In the event of a Non-Renewal Without Good
Cause or a Termination Without Good Cause or a Resignation For Good Reason, the
Company agrees to continue any and all Employee Benefits provided in Subsections
1(d) (2), (4), (5), (6), (7), (8), and (9) received by the Executive during his
employment with the Company, as modified pursuant to the terms of Subsection
l(d), for twenty-four (24) months after the effective date of termination,
non-renewal or resignation. If the Executive cannot continue coverage under the
Medical Plan, the Company agrees to purchase medical, dental, and vision
insurance for the Executive and his dependents that is substantially equivalent
to the benefits provided to Executive in Subsection 1(d)(2). Additionally,
Executive shall be permitted to continue participation in the benefits provided
in Subsection 1(d)(1) to the extent permitted by law so as not to cause
disqualification of the 401 k Plan and 1(d)(3) without further Company
contributions, except earnings on contributions made prior to termination and
except contributions the Company is required to make to ensure that such
benefits are fully funded for service prior to termination.
d. EXCEPTIONS: Severance Pay shall not be payable under this section in
any of the following circumstances:
(1) In the event that this Agreement is terminated as a result
of the death or disability of the Executive, as provided in Subsections
2(c)(1)-(2); or
(2) In the event that this Agreement is terminated pursuant to
a Notice of Termination For Good Cause or a Notice of Non-Renewal for Good Cause
communicated by the Company, as provided in Subsection 2(c)(3), and such
termination or non-renewal is affirmed by a proceeding under Section 10; or
(3) In the event the provisions of Section 4 are applicable as
a result of a "Change of Control" having occurred, and the payments provided for
in Section 4 are paid by the Company; or
(4) In the event that the Executive communicates Notice of
Resignation Without Good Reason as defined in Subsection 2(c)(5).
e. EXCLUSIVITY: The Company and the Executive acknowledge and agree
that the Severance Payments required under this section are intended to be
exclusive and to supersede any severance pay plans or policies adopted by the
Company and that the Executive shall not be entitled to any additional severance
compensation under any other severance plan or policy adopted by the Company.
f. MITIGATION: The payment of the severance compensation by the Company
to the Executive in accordance with Sections 4 and 5 of this Agreement is hereby
acknowledged by the Company to be reasonable, and the Executive will not be
required to mitigate the amount of any payment provided for in this Agreement by
seeking other employment or otherwise, nor will any profits, income, earnings or
other benefits from any source whatsoever create any mitigation, offset,
reduction or any other obligation on the part of the Executive hereunder or
otherwise.
6. STOCK INCENTIVES AND AWARDS: In addition to the other compensation set
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forth in this Agreement, the Company agrees to grant the Executive stock
options, incentives and awards as provided in the LTSI Plan, as well as such
other stock option plans, incentives and awards that may be adopted by the Board
of Directors of the Company. Executive shall be entitled to participate in such
stock options plans, incentives and awards on terms applicable to other officers
and directors of the Company, except that the Company may provide for additional
benefits, incentives, or awards to Executive and except that the following shall
apply to any options granted to Executive after the Effective Date of this
Agreement:
a. DEATH AND DISABILITY. If Executive dies or becomes disabled during
the term of this Agreement, (1) all unvested options as of the date of such
death or disability shall vest immediately; and (2) Executive (or his legal
representative or Estate) may exercise such options in accordance with the
exercise period prescribed in the stock option plan or twelve (12) months from
such death or disability, whichever is longer.
b. RETIREMENT. If Executive retires (as defined in the 401 k plan,
except that, for purposes of this Section, the service requirement will be
modified to be no more than ten (10) years and the age requirement will be no
more than age 55), (1) all unvested options as of the date of such retirement
shall vest immediately; and (2) Executive (or his Estate) may exercise such
options in accordance with the exercise period prescribed in the stock incentive
and award plan or thirty-six (36) months, whichever is longer.
Further, notwithstanding anything to the contrary herein, nothing in this First
Amended Executive Employment Agreement will affect to the Executive's
disadvantage any non-qualified stock options previously granted to Executive,
whether under the Executive Employment Agreement between Executive and the
Company or otherwise.
7. SUCCESSORS AND ASSIGNS: The parties acknowledge and agree that this Agreement
may not be assigned by either party without the written consent of the other
party. In the event of a "Change of Control" as defined in Subsection 4(c), the
Company shall be entitled to assign this Agreement to any successor or assignee;
provided, however, that such assignment shall not or be construed to, in any way
whatsoever, release, limit or excuse the Company from the performance of its
obligations and the payment of its liabilities under this Agreement, regardless
of whether such obligations or liabilities accrued or accrue before, after or as
a result of such assignment, and regardless of whether such obligations or
liabilities are or were assumed by any successor or assignee. In the event of
the Executive's death, this Agreement shall be enforceable by the Executive's
estate, executors or legal representatives, but only to the extent that such
persons may collect any compensation (including stock options) due to the
Executive under this Agreement.
8. INDEMNIFICATION: During and after the employment of the Executive pursuant to
this Agreement, the Company shall indemnify the Executive against all judgments,
penalties, fines, assessments, losses, amounts paid in settlement and reasonable
expenses (including, but not limited to, attorneys' fees) for which the
Executive may become liable as a result of his performance of his duties and
responsibilities pursuant to this Agreement and shall advance and pay any
expenses incurred in defending such claims, to the fullest extent permissible
under the laws of the State of Delaware. In addition, the Company agrees to
purchase officer and director
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liability insurance, with such reasonable exclusions that are acceptable to the
Executive, for any such judgments, penalties, fines, assessments, losses,
amounts paid in settlement and reasonable expenses (including, but not limited
to, attorneys' fees) for which the Executive may become liable as a result of
his performance of his duties and responsibilities pursuant to this Agreement in
an amount not less than the amount of director and officer liability insurance
in effect on the Effective Date of this Agreement. In the event that the Company
elects to self-insure for any judgments, penalties, fines, assessments, losses,
amounts paid in settlement, and reasonable expenses (including, but not limited
to, attorneys' fees), for which the Executive may become liable as a result of
the performance of his duties as an officer and director of the Company, the
Company agrees to purchase and maintain an adequate, secured letter of credit
from an institution acceptable to the Executive as security for the Company's
performance under this section and to fully indemnify the Executive for any such
liabilities, as provided herein.
9. NON-COMPETITION AND NON-DISCLOSURE: The Company and the Executive agree as
follows:
a. During the term of this Agreement, the Company agrees that it will
disclose to Executive Confidential Information, as defined in this section, to
the extent necessary for Executive to carry out his obligations to the Company.
During and after his employment by the Company, the Executive agrees that he
shall not directly or indirectly disclose any Confidential Information, as
defined in this section, unless such disclosure is: (i) to an employee or a
member of the Board of Directors of the Company or its subsidiaries; or (ii) to
a person to whom disclosure is reasonably necessary or appropriate in connection
with the performance of his duties as an executive of the Company; or (iii)
authorized in writing by the Board of Directors; or (iv) required by law.
b. In the event that Executive's employment under this Agreement is
terminated for any reason, the Executive agrees that he shall promptly return
all records, files, documents, materials and copies relating to the business of
the Company or its subsidiaries which came into the possession of the Executive
during his employment pursuant to this Agreement; provided, however, that
nothing in this section shall be construed as any limitation on the Executive's
right to retain any documents or other information which was in the possession
of the Executive prior to the Effective Date of the Original Agreement.
c. For purposes of this Agreement, the term "Confidential Information"
shall be defined as any information relating to the business of the Company or
its subsidiaries which is not generally available to the public and which the
Company takes affirmative steps to maintain as confidential. The term shall not
include any information that the Executive was aware of prior to November 15,
1994, information that is a matter of any public record, information contained
in any document filed or submitted to any governmental entity, any information
that is common knowledge in any industry in which the Company does business, any
information that has previously been made available to persons who are not
employees of the Company or any information that is known to the Company's
competitors.
d. In the event that the Executive's employment with the Company is
terminated as a result of either: (i) Notice of Termination for Good Cause or
Notice of Non-Renewal for Good
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Cause, as defined in Subsection 2(c)(3); or (ii) the resignation of the
Executive "Without Good Reason," as defined by Subsection 2(c)(5), the Executive
covenants and agrees not to compete with the Company for twelve (12) calendar
months subsequent to such termination or resignation from employment, in the
business of providing inter-city transport of passengers or cargo by automobile
or motorbus in any city in which the Company engaged in such business during the
twelve (12) calendar months prior to such termination or resignation. This
provision shall not apply in the event that the employment of the Executive is
terminated for any reason other than "Good Cause" or a "Resignation Without Good
Reason."
e. Unless the Board of Directors provides prior written approval, for
one (1) year following the termination of the Executive's employment, the
Executive shall not, directly or indirectly:
(1) solicit, entice, persuade or induce any employee of the
Company, or its subsidiaries, to terminate his/her employment with the Company,
or its subsidiaries, or to become employed by any Person other than the Company,
or its subsidiaries; or
(2) approach any such employee for any of the foregoing
purposes; or
(3) authorize or assist in the taking of such actions by any
third party.
10. DISPUTE RESOLUTION: The Company and the Executive agree as follows:
a. Any claim or controversy arising out of or relating to this
Agreement, or any breach of this Agreement, shall be submitted to non-binding
arbitration in the city of Dallas, Texas in accordance with procedures or rules
established by the American Arbitration Association. The Executive and the
Company agree that either party must request such non-binding arbitration of any
claim or controversy on or before the earlier of: (i) the fifteenth (15th)
business day after the termination or non-renewal of this Agreement becomes
effective; or (ii) the sixtieth (60th) business day after the date the claim or
controversy first arises, by giving written notice of the party's request for
non-binding arbitration ("Arbitration Notice"). If both parties fail to give
such Arbitration Notice, either party may proceed to seek judicial relief in a
court of competent jurisdiction located in Dallas County, Texas.
b. In the event that any dispute arising under this Agreement concerns
the amount of any payment required to be made under any provision of this
Agreement, either party agrees to pay the undisputed portion of the payment to
the other party and deposit the disputed portion of the payment in an interest
bearing account with a financial institution acceptable to the other party
within five (5) days after either party effectively communicates its Arbitration
Notice or files an original petition or complaint in a court of competent
jurisdiction.
c. At the election of both the Executive and the Company, all claims or
controversies subject to arbitration under this Agreement may be submitted to
final and binding arbitration in accordance with the applicable Rules of the
American Arbitration Association.
d. In any dispute arising under the terms of this Agreement, without
regard to
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whether such dispute proceeds to arbitration or litigation, the Company will
reimburse the Executive for reasonable and necessary attorney's fees up to a
maximum amount of Forty Thousand Dollars ($40,000.00), unless a court of
competent jurisdiction (or the Arbitrator, if the parties so elect according to
Subsection 10(c)), finds that the Executive's position in such proceeding was
frivolous.
11. RULES OF CONSTRUCTION: The following provisions shall govern the
interpretation and enforcement of this Agreement:
a. SEVERABILITY: The parties acknowledge and agree that each provision
of this Agreement shall be enforceable independently of every other provision.
Furthermore, the parties acknowledge and agree that, in the event any provision
of this Agreement is determined to be unenforceable for any reason, the
remaining covenants and/or provisions will remain effective, binding and
enforceable.
b. WAIVER. The parties acknowledge and agree that the failure of either
to enforce any provision of this Agreement shall not constitute a waiver of that
particular provision, or of any other provisions, of this Agreement.
c. CHOICE OF LAW: The parties acknowledge and agree that except as
specifically provided otherwise in this Agreement, the law of Texas will govern
the validity, interpretation and effect of this Agreement and any other dispute
relating to, or arising out of, the employment relationship between the Company
and the Executive.
d. MODIFICATION: The parties acknowledge and agree that, except as
expressly provided herein, this Agreement constitutes the complete and entire
agreement between the parties; that the parties have executed this Agreement
based upon the express terms and provisions set forth herein; that the parties
have not relied on any representations, oral or written, which are not set forth
in this Agreement; that no previous agreement, either oral or written, shall
have any effect on the terms or provisions of this Agreement; and that all
previous agreements, either oral or written, are expressly superseded and
revoked by this Agreement. In addition, the parties acknowledge and agree that
the provisions of this Agreement may not be modified by any subsequent agreement
unless the modifying agreement (i) is in writing (ii) contains an express
provision referencing this Agreement (iii) is signed by the Executive and (iv)
is approved by the Board of Directors.
e. EXECUTION: The parties agree that this Agreement may be executed in
multiple counterparts, each of which shall be deemed an original for all
purposes.
f. HEADINGS: The parties agree that the subject headings set forth at
the beginning of each section in this Agreement are provided for ease of
reference only, and shall not be utilized for any purpose in connection with the
construction, interpretation or enforcement of this Agreement.
12. LEGAL CONSULTATION: The parties acknowledge and agree that both parties have
been accorded a reasonable opportunity to review this Agreement with legal
counsel prior to executing the agreement.
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13. NOTICES: The parties acknowledge and agree that any and all Notices required
to be delivered under the terms of this Agreement shall be forwarded by personal
delivery or certified U.S. mail. Either party may change their respective
address for the purpose of receiving notices only by providing written
notification via certified mail, five (5) days in advance of such change.
Notices shall be deemed to be communicated and effective on the day of receipt.
Such Notices shall be addressed to each party as follows:
Xxxxx X. Xxxxxxxx Greyhound Lines Inc.
0000 Xxxxxxxx Xxxxx 00000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000
Attn: General Counsel
With a copy to: With a copy to:
Xxxxxx X. Xxxxxxx, Esq. Chairman of the Board of Directors
0000 Xxxx Xxxxxx, Xxxxx 0000 Board of Directors
Xxxxxx, Xxxxx 00000 Greyhound Lines Inc.
00000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
EXECUTED on this _____ day of ________________, 1998.
XXXXX X. XXXXXXXX
--------------------------------
GREYHOUND LINES, INC.
By:
-----------------------------
Title:
--------------------------
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