EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), dated as of June 15, 2000, by
and between Worldwide Entertainment & Sports Company, a Delaware Company with
its principal office at 00 Xxxxxxxxxx Xxxxxx, Xxxx Xxxxxx, Xxx Xxxxxx 00000 (the
"Company"), and Xx. Xxxxxx Xxxxxxxxx, an individual residing at 00 Xxx Xxxx
Xxxx, Xxxx Xxxxxxx Xxxxxx, Xxx Xxxx 11724("Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to engage Employee to perform services for
the Company, and any present or future parent, subsidiary or affiliate of the
Company, and their successors and assigns (the "Companies"), and Employee
desires to perform such services, on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the representations, warranties and
mutual covenants set forth herein, the parties agree as follows:
1. Term. The Company agrees to employ Employee, and Employee agrees to
serve, on the terms and conditions of this Agreement for a period commencing on
the date hereof and ending on May 31, 2003, or such shorter period as may be
provided for herein (this period and any extensions thereof shall be referred to
as the "Term"). The Term of this Agreement shall be automatically extended
(subject to earlier termination as provided herein) for successive one year
periods unless at least 90 days prior to the end of the then current Term, the
Company or Employee has notified the other party in writing that Employee's
employment hereunder shall terminate at the end of such Term. The period during
which Employee is employed hereunder is hereinafter referred to as the
"Employment Period." As used herein, the term "Employment
Year" shall mean a one-year period of Employee's employment hereunder commencing
on each January 1 during the Employment Period, provided that the first
Employment Year shall be the period commencing on June 1, 2000 and ending on
December 31, 2000 and the final Employment Year of the Term shall end on May 31,
2003.
2. Duties and Services. During the Employment Period, Employee shall be
employed as the Chief Executive Officer and President of the Company, and shall
perform the duties incident to those positions. In the performance of his
duties, Employee shall be subject to the direction of the Board of Directors of
the Company. In addition, during the Employment Period, Employee shall be
elected to and shall serve, if so elected, as a member of the Board of Directors
of the Company and shall be elected to and shall serve, if so elected, as a
member of the Board of Directors of any of the other Companies as may from time
to time be prescribed by the Board of Directors of the Company. Employee agrees
to devote all of his time and efforts to the performance of his duties under
this Agreement, subject to Section 7(a)(iii) below.
3. Compensation. (a) As full compensation for his full-time services
hereunder, the Company shall pay Employee, during the Employment Period, a base
salary (the "Base Salary"):
(i) at the annual rate of no less than $300,000 for the
first twelve months of the Term;
(ii) at the annual rate of no less than $325,00 for the
second twelve months of the Term; and
(ii) at the annual rate of no less than $350,000 for the
third twelve months of the Term; with all Base Salary
payable at such intervals as salaries are paid by the
Company to other executives of the Company.
(b) In addition to the compensation set forth in section (a)
above, Employee shall be eligible to receive an incentive bonus (the "Bonus") in
an amount and on a basis to be determined by the Board of Directors of the
Company in its sole discretion, provided that such Board of Directors shall
consider an award of bonus compensation at least once during each Employment
Year. All compensation hereunder (whether in the form of Base Salary or Bonus),
shall be subject to payroll deductions as may be necessary or customary in
respect of salaried personnel of the Company.
4. Benefits.
(a) During the Employment Period, Employee may participate, to
the extent eligible, in each insurance (including, without limitation, any life,
travel and accident and medical and other health insurance), pension, disability
and other employee benefit plans maintained by the Company for its senior
management or employees generally in accordance with the terms thereof.
(b) Employee shall be entitled to such number of sick days
every year during the Employment Period as are generally provided from time to
time by the Company to its senior management. Any unused sick days at the end of
the calendar year shall not accrue or cumulate from year to year.
(c) During the Employment Period, Employee shall be entitled
to reimbursement for all lease payments, gasoline, maintenance and other costs
and expenses for his automobile in the aggregate amount not to exceed $1,500 per
month, plus monthly parking and insurance for such automobile upon submission
and approval of written statements and bills in accordance with the then regular
procedures of the Company.
(d) During the Employment Period, Employee shall be entitled
to reimbursement for all reasonable travel, entertainment and other
out-of-pocket expenses necessarily incurred in the performance of his duties
hereunder (excluding automobile expenses as described in subsection (c) above),
upon submission and approval of written statements and bills in accordance with
the then regular procedures of the Company.
(e) Subject to the approval of the Board of Directors of the
Company, the Employee shall be granted an option under the Company's 1999 Stock
Option Plan (the "Existing Stock Option Plan"), to purchase One Million shares
(1,000,000) of the common stock of the Company (the "Common Stock"), at an
exercise price of $1.00 per share of Common Stock(the "First Stock Options").
The maximum number of the First Stock Options will be granted as incentive stock
options within the meaning of Section 422(b) of the Internal Revenue Code of
1986, as amended which are allowable under and will be subject to and governed
by all the terms of the Existing Stock Option Plan (the "First Stock Options").
The First Stock Options shall be exercisable for a period of ten years from the
date hereof and shall vest quarterly throughout the Employment Period pro-rata
at the rate of 83,333 of the First Stock Options per quarter commencing on the
date hereof and provided that in the event of a "change in control" of the
Company, any of the unvested First Stock Options shall be deemed vested. For
purposes hereunder, a "change in control" of the Company shall occur or be
deemed to have occurred only if any of the following events occurs: (a) any
"person," as such term is used in Sections 13(d) and 14(d) of the Exchange Act
(other than the Company, any trustee or other fiduciary holding securities under
an employee benefit plan of the Company, or any corporation owned directly or
indirectly by the stockholders of the Company in substantially the same
proportion as the ownership of stock of the Company) is or becomes the
"beneficial owner" (as defined in Rule
13d-3 under the Exchange Act, directly or indirectly, of securities of the
Company representing more than 50% of the combined voting power of the Company's
then outstanding securities; (b) individuals who, as of the "Effective Date",
constitute the Board (as of the Effective Date, the "Incumbent Board"), cease
for any reason to constitute at least a majority of the Board, provided that any
person becoming a director subsequent to the date hereof whose election, or
nomination for election by the Company's stockholders, was approved by a vote of
at least a majority of the directors then comprising the Incumbent Board (other
than an election or nomination of an individual whose initial assumption of
office is in connection with an actual or threatened election contest relating
to the election of the directors of the Company, as such terms are used in Rule
14a-11 of Regulation 14A under the Exchange Act) shall be, for purposes of this
Agreement, considered as through such person were a member of the Incumbent
Board; or (c) the stockholders of the company approve a merger or consolidation
of the Company with any other corporation, other than (I) a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 60% of the combined voting power of the voting
securities of the company or such surviving entity outstanding immediately after
such merger or consolidation or (ii) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
"person"(as hereinabove defined)acquired more than 50% of the combined voting
power of the Company's then outstanding securities; or (d) the stockholders of
the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially all
of the Company's assets. For purposes
herein, the "Effective Date" shall be deemed to be the date upon which Employee
is elected to serve as a member of the Board of Directors of the Company.
(f) Subject to the approval of the Board of Directors of the
Company, the Employee shall be granted an option to purchase One Million shares
(1,000,000) of the common stock of the Company at an exercise price of $1.00 per
share of Common Stock, exercisable for a period of ten years from the date
hereof (the "Second Stock Options"). The Second Stock Options shall vest
according to the following schedule:
i. 333,334 of the Second Stock Options shall vest when
the "Market Price per Share" of a share of the Common
Stock equals or exceeds $3.00 per share for at least
ten consecutive days, each of which is a "Trading
Day". For purposes hereunder, "Market Price per
Share" of a share of the Common Stock shall mean, on
any "Trading Day", any reported sale price for Common
Stock (regular way) or, in case no such reported sale
takes place on such Trading Day, the average of any
bid and asked prices (regular way) for the Common
Stock on such Trading Day, in either case on the
principal national securities exchange on which the
Common Stock is listed or admitted to trading, or if
the Common Stock is not listed or admitted to trading
on any national securities exchange, but is traded in
the over-the-counter market, any sale prices of the
Common Stock on such Trading Day or, if no sale is
publicly reported, the average of any bid and asked
quotations for the Common Stock on such Trading Day,
as reported by Nasdaq or any comparable system, or,
if the Common stock is not
listed on Nasdaq or a comparable system, any sale
price of the Common Stock on such Trading Day or, if
no sale is publicly reported, the average of any bid
and asked prices on such Trading Day, as furnished by
two members of the National Association of Securities
Dealers, Inc. who make a market in the Common Stock
selected from time to time by the Company for that
purpose. In addition for purposes of such definition,
a "Trading Day: shall mean, if the Common Stock is
listed on any national securities exchange, a
business day during which such exchange was open for
trading and at least one trade of Common Stock was
effected on such exchange on such business day, or,
if the Common Stock is not listed on any national
securities exchange but is traded in the
over-the-counter market, a business day during which
the over-the-counter market was open for trading and
at least one "eligible dealer" quoted both a bid and
asked price for the Common Stock. An "eligible
dealer" for any day shall include any broker-dealer
who quoted both a bid and asked price for such day,
but shall not include any broker-dealer who quoted
only a bid or only an asked price for such day.
ii. 333,333 of the Second Stock Options shall vest when
the Market Price Per Share of a share of Common Stock
equals or exceeds $6.00 per share for ten consecutive
days, each of which is a Trading Day;
iii. 333,333 of the Second Stock Options shall vest when
the Market Price Per Share of a share of Common Stock
equals or exceed $9.00
per share for ten consecutive days, each of which is
a Trading Day; and
iv. notwithstanding the foregoing conditions to vesting
of the Second Stock Options set forth in subsections
(i) through (iii) above, in the event of a Change in
Control, all of the Second Stock Options not yet
vested shall be deemed vested.
(g) The Company shall amend the Existing Stock Option Plan to
increase the number of options which may be granted under the Existing Stock
Option Plan to include the Second Stock Options on or before the expiration of
twelve months from the date of this Agreement. The amendment to the Existing
Stock Option Plan is subject to the approval of the shareholders of the Company
(the "Amended Stock Option Plan"). All the terms and conditions of such Second
Stock Options shall be governed by the Amended Stock Option Plan, except for the
exercise period of such Second Stock Options which shall remain ten years.
(h)Employee hereby acknowledges and agrees that the shares of
the Company's common stock issuable upon the exercise of the First Stock Options
and the Second Stock Options are not currently registered under the Securities
Act of 1933, as amended (the "Act"), and such securities may not be sold,
transferred, or otherwise disposed of in the absence of an effective
registration statement or an exemption from registration thereunder, and that
Rule 701 under the Act shall not be deemed a valid exemption from registration
under the Act with respect of the resale of the Company's common stock acquired
upon exercise of either the First Stock Options or the Second Stock Options. The
Company agrees that on or before the expiration of twelve months from the date
of this Agreement, it shall file a registration statement with the
Securities and Exchange Commission on Form S-8 to register the Company's common
stock underlying the First Stock Options and the Second Stock Options.
(i) Life Insurance. The Company shall pay the insurance
premium for Employee's currently existing life insurance policy up to a maximum
of $22,280 in a lump sum payment annually, commencing in April 2001 and for
every twelve months of the Employment Period thereafter. The Company shall not
have any right to any designation as beneficiary of Employee's life insurance
policy.
5. Vacation. Employee shall be entitled to such number of weeks of paid
vacation every year during the Employment Period as are generally provided from
time to time by the Company to its senior management. The time during which
vacation will be taken shall be coordinated with other senior management of the
Company. Any unused vacation time at the end of a calendar year shall not accrue
or accumulate from year to year and Employee shall not be entitled to
compensation for unused vacation time.
6. Representation, Warranties and Covenants of Employee. Employee
represents and warrants to the Company that (a) Employee is under no contractual
or other restriction or obligation which is inconsistent with the execution of
this Agreement, the performance of his duties hereunder, or the other rights of
the Company hereunder and (b) Employee is under no physical or mental disability
that would hinder his performance of duties under this Agreement.
7. Non-Competition.
(a) In view of the unique and valuable services it is expected
Employee will render to the Company, and in consideration of the compensation to
be received hereunder, Employee agrees (i) that he will not, during the period
he is employed by the Company under this Agreement or otherwise, Participate In
(as defined below) any other business or
organization, whether or not such business or organization now is or shall then
be competing with or of a nature similar to the business or profession of the
Company or any of the Companies, and (ii) for a period of one year after he
ceases to be employed by the Company under this Agreement as a result of
Employee's voluntary action (not including an election pursuant to subsection
11(a)(3) or any termination by the Company of this Agreement without cause), or
pursuant to subsection 11(a)(1) hereof, he will not compete with or be engaged
in the same business as or Participate In any other business or organization
which during such one year period competes with or is engaged in the same
business as the Company or any of the Companies with respect to any product or
service sold or proposed to be sold or activity engaged in or proposed to be
engaged in up to the time of such cessation except that (iii) in each case the
provisions of this Section 7 will not be deemed breached merely because Employee
owns not more than 2% of the outstanding common stock of a Company, if, at the
time of its acquisition by Employee, such stock is listed on a national
securities exchange, is reported on Nasdaq, or is regularly traded in the
over-the-counter market by a member of a national securities exchange or (ii)
Employee is involved in some capacity with the New York Islanders professional
hockey franchise in the National Hockey League, provided that such involvement
will not materially interfere with the Employee's fulfillment of his
responsibilities as Chief Executive Officer and President of the Company.
As used in this Agreement, the term "Participate In" shall
mean: "directly or indirectly, for his own benefit or for, with, or through any
other person, firm, or Company, own, manage, operate, control, loan money to, or
participate in the ownership, management, operation, or control of, or be
connected as a director, officer, employee, partner, consultant, agent,
independent contractor, or otherwise with, or acquiesce in the use of his name
in."
(b) Employee will not directly or indirectly reveal the name
of, solicit or interfere with, or endeavor to entice away from the Company or
any of the Companies any of its respective employees. Employee will not directly
or indirectly employ any person who is an employee of the Company or any of the
Companies for a period of one year after the Employee leaves the employ of the
Company.
(c) Since a breach of the provisions of this Section 7 could
not adequately be compensated by money damages, the Company shall be entitled,
in addition to any other right and remedy available to it, to an injunction
restraining such breach or a threatened breach, and in either case no bond or
other security shall be required in connection therewith, and Employee hereby
consents to the issuance of such injunction. Employee agrees that the provisions
of this Section 7 are necessary and reasonable to protect the Company or any of
the Companies in the conduct of their respective businesses. If any restriction
contained in this Section 7 shall be deemed to be invalid, illegal, or
unenforceable by reason of the extent, duration, or geographical scope thereof,
or otherwise, then the court making such determination shall have the right to
reduce such extent, duration, geographical scope, or other provisions hereof,
and in its reduced form such restriction shall then be enforceable in the manner
contemplated hereby.
8. Copyrights, Patents, Etc. Any interest in patents, patent
applications, inventions, technological innovations, copyrights, copyrightable
works, developments, discoveries, designs, and processes ("Such Inventions")
which Employee now or hereafter during the period he is employed by the Company
under this Agreement or otherwise and for one year thereafter may own, conceive
of, or develop and either relating to the fields in which the Company or any of
the Companies may then be engaged or contemplates being engaged or conceived of
or developed utilizing the time, material, facilities, or information of the
Company or any of the Companies,
shall belong to the Company or any of the Companies, as the case may be. As soon
as Employee owns, conceives of, or develops any Such Inventions, he agrees
immediately to communicate such fact in writing to the Company, and without
further compensation, but at the Company's expense (except as noted in clause
(a) of this Section 8), forthwith upon request of the Company, Employee shall
execute all such assignments and other documents (including applications for
patents, copyrights, trademarks, and assignments thereof) and take all such
other action as the Company may reasonably request in order (a) to vest in the
Company all Employee's right, title, and interest in and to Such Inventions,
free and clear of liens, mortgages, security interests, pledges, charges, and
encumbrances ("Liens") (Employee to take such action, at his expense as is
necessary to remove all such Liens), and (b) if patentable or copyrightable, to
obtain patents or copyrights (including extensions and renewals) therefor in any
and all countries in such name as the Company shall determine.
9. Confidential Information. All confidential information regarding the
Company or the Companies which Employee may now possess, may obtain during or
after the Employment Period, or may create prior to the end of the period he is
employed by the Company under this Agreement or otherwise relating to the
business of the Company or any of the Companies shall not be published,
disclosed, or made accessible by him to any other person, firm, or company
either during or after the termination of his employment or used by him except
during the Employment Period in the business and for the benefit of the Company
and the Companies, in each case without prior written permission of the Company.
Employee shall return all tangible evidence of such confidential information to
the Company prior to or at the termination of his employment.
10. Life Insurance. If requested by the Company, Employee shall submit
to such physical examinations and otherwise take such actions and execute and
deliver such documents as may be reasonably necessary to enable the Company, at
its expense and for its own benefit, to obtain life insurance on the life of
Employee.
11. Termination.
(a) Notwithstanding anything herein contained, if, prior to
the end of the Employment Period:
(1) either (i) Employee shall be physically or mentally
incapacitated or disabled (as determined by a mutually acceptable
physician selected by the Board of Directors of the Company and
Employee) or otherwise unable fully to discharge his duties hereunder
for a period of twenty-six consecutive weeks or an aggregate of
twenty-six(26) weeks in any twelve (12) month period, (ii) Employee
shall be convicted by, or shall have entered a plea of guilty or nolo
contendere in, a court of competent and final jurisdiction for any
crime involving moral turpitude, fraud, embezzlement, misappropriation,
or any other felony or crime punishable by imprisonment, (iii) Employee
shall commit any act of fraud, embezzlement or other act of
misappropriation, (iv) Employee shall fail or refuse to perform in any
material respect his duties as required hereunder or shall refuse to
follow direct instructions from the Board of Directors of the Company
or shall materially violate his duty of loyalty to the Company, or any
of the other Companies or otherwise shall breach any term of this
Agreement and fail to correct such breach within twenty (20) days after
written notice of such breach, then, in each such case, the Company
shall have the right to give notice of termination of Employee's
services hereunder as of a date (not earlier than ten days from such
notice) to be specified in such notice, and this Agreement shall
terminate on the date so specified; or
(2) Employee shall die, then this Agreement shall terminate on
the date of Employee's death; or
(3) Employee elects to terminate this Agreement in the event
of any material breach of this Agreement by the Company including,
without limitation, any significant diminution in the Employee's
position, duties, responsibilities, powers, title or office and the
Company shall have failed to correct such breach within twenty (20)
days after written notice by the Employee of any such material
breach(collectively, a "Good Reason"), then, in each such case,
Employee shall have the right to give the Company notice of termination
of Employee's services hereunder, as of a date (not earlier than thirty
(30) days from such notice) to be specified in such notice, and this
Agreement shall terminate on the date so specified. For the purposes of
this Agreement, Employee's election to terminate his employment for
Good Reason shall not be considered a voluntary act of the Employee.
(b) Upon termination of this Agreement pursuant to subsection
(a)(1)(i) or (a)(2) of this Section 11, neither party shall have any further
obligations hereunder except that (i) Employee (or his estate in the event of
his death) shall be entitled to receive his Base Salary which shall not have
previously been paid to the date of termination, and any Bonus for the
Employment Year prior to the Employment Year in which Employee is terminated to
the extent accrued but not yet paid, and any Bonus which the Board of Directors
determines to award to Employete for the portion of the Employment Year in which
the Employee rendered service based upon an assessment of the Employee's
services during such period, provided, however, that the Board of Directors
shall have sole discretion to determine the amount of any Bonus, if any; (ii)
both parties shall remain liable for obligations and covenants contained herein
that extend beyond the Term of this Agreement.
(c) Upon termination of this Agreement as a result of
Employee's voluntary action (other than termination by Employee for Good Reason)
or pursuant to subsections (a)(1)(ii), (a)(1)(iii) or (a)(1)(iv) of this Section
11, neither party shall have any further obligations hereunder except (i)
Employee shall be entitled to receive his Base Salary which shall not have
previously been paid to the date of termination, and any Bonus for the
Employment Year prior to the Employment Year in which Employee is terminated to
the extent accrued but not yet paid, and (ii) for obligations or covenants
contained herein that extend beyond the Term of this Agreement.
(d) In the event Employee's employment is terminated during
the Term of this Agreement (a) pursuant to an effective election by
Employee under subsection (a)(3) of this Section 11, or (b) other than
by Employee's voluntary action or pursuant to subsections (a)(1) or
(a)(2) of this Section 11, Employee shall be entitled to receive (i)
his
Base Salary which shall not have previously been paid to the date of
termination, (ii) an amount equal to twelve months of his annual Base
Salary for the Employment Year during which his employment with the
Company was terminated, which amounts shall be payable in accordance
with the Company's normal payroll practices then in effect, (iii) any
Bonus for the Employment Year prior to the Employment Year in which
Employee is terminated, to the extent accrued but not yet paid, and any
Bonus for the Employment Year in which Employee is terminated to the
extent awarded such a Bonus by the Board of Directors; (iv) the First
Stock Options and the Second Stock Options which would have otherwise
vested during the twelve months after the date of termination of
Employee shall be deemed vested; and (v) any benefits then vested under
any benefit plans and otherwise payable in accordance with the
provisions of the applicable benefit plan and applicable laws.
11. Survival. The covenants, agreements, representations, and
warranties contained in or made pursuant to this Agreement shall survive
Employee's termination of employment.
12. Modification. This Agreement sets forth the entire understanding of
the parties with respect to the subject matter hereof, supersedes all existing
agreements between them concerning such subject matter, and may be modified only
by a written instrument duly executed by each party.
13. Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested, or delivered against receipt to the party to whom it
is to be given at the address of such party set forth in the preamble to this
Agreement (or to such other address as the party shall have furnished in writing
in accordance with the provisions of this Section 13). Notice to the estate of
Employee shall be sufficient if addressed to Employee as provided in this
Section 13. Any notice or other communication given by certified mail (or such
comparable method) shall be deemed given at the time of certification thereof
(or comparable act), except for a notice changing a party's address which shall
be deemed given at the time of receipt thereof. Copies of any notice to Employee
shall also be given to Xxxxxx Xxxxxxx, Esq., Frankfurt Xxxxxx Xxxxx & Xxxx, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and copies of any notice to the Company
shall also be given to Xxxxxx Xxxxxx, Esq., Rosenman & Colin LLP, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
14. Waiver. Any waiver by either party of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
15. Binding Effect. Employee's rights and obligations under this
Agreement shall not be transferable by assignment or otherwise, such rights
shall not be subject to commutation, encumbrance, or the claims of Employee's
creditors, and any attempt to do any of the foregoing shall be void. The
provisions of this Agreement shall be binding upon and inure to the benefit of
Employee and his heirs and personal representatives, and shall be binding upon
and inure to the benefit of the Company and its successors and assigns.
16. No Third Party Beneficiaries. This Agreement does not create, and
shall not be construed as creating, any rights enforceable by any person not a
party to this Agreement (except as provided in Section 15).
17. Headings. The headings in this Agreement are solely for the
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
18. Counterparts; Governing Law. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute the same instrument. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to conflict of laws.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
WORLDWIDE ENTERTAINMENT &
SPORTS COPORATION
By:
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Name:
Title:
XX. XXXXXX XXXXXXXXX
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