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EXHIBIT 10.48
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into
this 22nd day of March 2001, by and between PER-SE TECHNOLOGIES, INC., a
Delaware corporation (the "Company"), and XXXXX X. XXXXXXX, a resident of the
State of Georgia (the "Executive").
Statement of Background Information
The Company provides business management outsourcing services to the
hospital-affiliated physician practice market, including clinical data
collection, data input, medical coding, billing, contract management, cash
collections and accounts receivable management (the "Physicians Services
Business").
The Company also provides enterprise-wide financial and clinical
software to acute care healthcare organizations, including patient and staff
scheduling, clinical information systems and patient financial management
software (the "Application Software Business").
The Company also provides healthcare providers and payers with
connectivity and business intelligence solutions including electronic claims
processing, referral submissions, eligibility verification and other electronic
and paper transaction processing, plus physician practice management software as
application service provider to physician practices and managed care solutions
to payers in ASP, turnkey or outsourced formats (the "e-Health Solutions
Business") (the Physician Services Business, the Application Software Business,
the e-Health Solutions Business, and any other distinct business segment in
which the Company engages during Executive's employment are collectively
referred to herein as the "Business").
In consideration of the mutual covenants, promises and conditions set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Employment. The Company hereby employs Executive and Executive hereby
accepts such employment upon the terms and conditions set forth in this
Agreement.
2. Duties of Executive. Executive's title will be Senior Vice President of
the Company and President of the Company's Application Software
segment. Executive agrees to perform and discharge such other duties as
may be assigned to Executive from time to time by the Company to the
reasonable satisfaction of the Company, and such duties will be
consistent with those duties regularly and customarily assigned by the
Company to a senior executive of the Company. Executive also agrees to
comply with all of the Company's policies, standards and regulations as
promulgated by the officers of the Company, and to follow the
instructions and directives of the Board of Directors and the President
and the Chief Executive Officer of the Company. Executive will devote
Executive's full professional and business-related time, skills and
best efforts to such duties and will not, during the term of this
Agreement, be engaged (whether or not during normal business hours) in
any other business or professional activity, whether or not such
activity is pursued for gain, profit or other pecuniary advantage,
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without the prior written consent of the President and Chief Executive
Officer of the Company, which consent will not be unreasonably
withheld. This Section will not be construed to prevent Executive from
(a) investing personal assets in businesses which do not compete with
the Company in such form or manner that will not require any services
on the part of Executive in the operation or the affairs of the
companies in which such investments are made and in which Executive's
participation is solely that of an investor; (b) purchasing securities
in any corporation whose securities are listed on a national securities
exchange or regularly traded in the over-the-counter market, provided
that Executive at no time owns, directly or indirectly, in excess of
one percent (1%) of the outstanding stock of any class of any such
corporation engaged in a business competitive with that of the Company;
or (c) participating in conferences, preparing and publishing papers or
books or teaching, so long as the President and Chief Executive Officer
of the Company approves such participation, preparation and publication
or teaching prior to Executive's engaging therein.
3. Term. The term of this Agreement will be for a two (2) year period of
time, commencing as of the date hereof and expiring on the second
anniversary hereof, subject to earlier termination as provided for in
Section 4 of this Agreement. This Agreement shall be automatically
renewed for successive one (1) year periods at the end of the initial
two-year term, unless either party gives notice to the other of its
intent to terminate this Agreement not less than sixty (60) days prior
to commencement of any such one-year renewal period. In the event such
notice to terminate is properly and timely given, this Agreement shall
terminate at the end of the initial term or the one-year renewal period
in which such notice is given.
4. Termination.
(a) Termination by Company for Cause. Notwithstanding anything
contained in Section 3 to the contrary, the Company may terminate this
Agreement and all of its obligations hereunder immediately if any of
the following events occur:
(i) Executive materially breaches any of the terms or
conditions set forth in this Agreement and fails to cure such
breach within ten (10) days after Executive's receipt from the
Company of written notice of such breach (notwithstanding the
foregoing, no cure period shall be applicable to breaches by
Executive of Sections 6, 7 or 8 of this Agreement);
(ii) Executive commits any other act materially
detrimental to the business or reputation of the Company;
(iii) Executive commits or is convicted of any crime
involving fraud, deceit or moral turpitude; or
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(iv) Executive dies or becomes mentally or physically
incapacitated or disabled so as to be unable to perform
Executive's duties under this Agreement. Without limiting the
generality of the foregoing, Executive's inability adequately
to perform services under this Agreement for a period of sixty
(60) consecutive days will be conclusive evidence of such
mental or physical incapacity or disability, unless such
inability adequately to perform services under this Agreement
is pursuant to a mental or physical incapacity or disability
covered by the Family Medical Leave Act, in which case such
sixty (60)-day period shall be extended to a one hundred and
twenty (120)-day period.
(b) Termination by Company Without Cause. Notwithstanding anything
contained in Section 3 to the contrary, the Company may terminate
Executive's employment pursuant to this Agreement without cause upon at
least thirty (30) days' prior written notice to Executive. In the event
Executive's employment with the Company is terminated by the Company
without cause, Executive shall be entitled to severance consideration
equal to the greater of (i) salary continuation at Executive's
then-current monthly salary (this severance consideration does not
include the right to receive any incentive bonus payments) for the
number of months remaining in the initial or any extended term of this
Agreement, and (ii) twelve (12). In addition, the Company shall pay to
Executive monthly an amount equal to the difference between the monthly
cost to Executive of medical, dental and vision coverage at the levels
at which Executive is participating on the date of termination and the
monthly cost to Executive of COBRA coverage for the lesser of (i)
eighteen (18) months and (ii) the greater of (y) the number of months
remaining in the initial or any extended term of this Agreement, and
(z) twelve (12).
(c) Termination by Executive With Good Reason. Except as set forth
in Paragraph (d) below, in the event Executive elects to voluntarily
terminate her employment following the occurrence of events
constituting "Good Reason" for her voluntary termination of employment,
Executive shall be entitled to the severance consideration specified in
Paragraph 4(b) above. For purposes of this Agreement, "Good Reason" is
defined as (i) a reduction of greater than 10% in Executive's annual
base salary; (ii) a change in Executive's work location to a work
location more than 50 miles from Executive's existing work location,
except for required travel on the Company's business to an extent
consistent with Executive's then current business travel obligations;
(iii) an assignment to any duties inconsistent in any material adverse
respect with Executive's current position, duties or responsibilities,
other than an insubstantial and inadvertent act that is remedied by the
Company promptly after receipt of notice thereof given by Executive;
(iv) the failure by the Company to continue any material benefit or
compensation plan in which Executive is participating unless Executive
is provided with comparable benefits; or (v) the material breach by the
Company of any of the terms and conditions set forth in this Agreement,
after written notice and a ten (10) day opportunity to cure has been
given to the Company.
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(d) Change in Control. In the event there is a Change in Control
(as defined herein) of the Company, and (A) Executive's employment is
terminated by the Company without cause within one (1) year following
any such Change in Control; (B) if Executive's employment is terminated
by the Company at the request of or pursuant to an agreement with a
third party who has taken steps reasonably calculated to effect a
Change in Control; (C) if Executive's employment is terminated by the
Company in connection with or in anticipation of a Change in Control;
(D) if Executive voluntarily terminates her employment for Good Reason
(as defined above in Paragraph (c)) within one (1) year following any
such Change in Control; or (E) if Executive voluntarily terminates her
employment for Good Reason within one (1) year following any action
taken by the Company at the request of or pursuant to an agreement with
a third party who has taken steps reasonably calculated to effect a
Change in Control or any action taken by the Company in connection with
or in anticipation of a Change in Control, in each case which action
constitutes Good Reason, then Executive will be entitled to receive a
severance payment equal to one (1) year of salary continuation at her
then current base salary, or the payments due and owing to her under
the remaining term of the agreement, whichever is greater. For purposes
of this Agreement, a "Change in Control" of the Company shall be deemed
to occur upon any of the following:
(i) a consolidation or merger of the Company with or into
any other corporation, or any other entity or person, other
than a wholly-owned subsidiary of the Company, excluding any
transaction in which the shares of the Company's common stock
outstanding immediately prior to any such consolidation or
merger represents immediately thereafter more than 50% of the
combined voting power of the resulting entity after the
transaction;
(ii) any corporate reorganization, including an exchange
offer, in which the Company shall not be the continuing or
surviving entity resulting from such reorganization, excluding
any transaction in which the shares of the Company's common
stock outstanding immediately prior to any such reorganization
represents immediately thereafter more than 50% of the
combined voting power of the resulting entity after the
transaction; or
(iii) the sale of a substantial portion of the Company's
assets, which shall be deemed to occur on the date that any
one person, or more than one person acting as a group,
acquires (or has acquired during the 12-month period ending on
the date of the most recent acquisition by such person or
persons) assets from the Company that (a) have a total fair
market value equal to more than 50% of the total fair market
value of all the assets of the Company immediately prior to
such acquisition or acquisitions, or (b) represents a majority
of the common stock of any (1) subsidiary of the Company, the
revenues of which, in the most recent fiscal year, represent
more than 75% of the consolidated gross revenues of the
Company and its subsidiaries. Notwithstanding the foregoing, a
transfer of assets or common stock in a subsidiary by the
Company will not be treated as a sale of a substantial portion
of the Company's assets if the assets are transferred to an
entity, 50% or more of the total value or voting power of
which is owned, directly or indirectly, by the Company.
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5. Compensation and Benefits.
a) Annual Salary. During the term of this Agreement and for all
services rendered by Executive under this Agreement, the Company will
pay Executive a base salary of Two Hundred Twenty Five Thousand Dollars
($225,000.00) per annum to be paid in accordance with the Company's
regular payroll practices. Such base salary will be subject to
adjustments by any increases given in the normal course of business.
b) Incentive Compensation. Executive shall be eligible to
participate in the 2001 Per-Se Technologies, Inc. and Subsidiary
Corporations Incentive Compensation Plan (and any comparable future
incentive compensation plans during the term of this Agreement) at a
participation category of up to 80% of Executive's then current annual
base salary, payable at the discretion of the Board of Directors of the
Company.
c) Stock Options. Executive shall be considered for grants of
options to purchase shares of the Company's common stock in a manner
that is consistent with other senior officers of the Company. Except as
expressly set forth herein, nothing in this Agreement shall give rise
to a contractual right to Executive to receive grants of additional
stock options of the Company. Further, the Company has no obligation to
Executive to create parity with any other Company executive or
executives with respect to any options granted to such other
executives.
d) Other Benefits. Executive will be entitled to such fringe
benefits as may be provided from time-to-time by the Company to its
Executives, including, but not limited to, participation in the
Company's 401k plan, group health insurance, life and disability
insurance, vacations and any other fringe benefits, in each case as now
or hereafter provided by the Company to its executives, if and when
Executive meets the eligibility requirements for any such benefit. The
Company reserves the right to change or discontinue any employee
benefit plans or programs now being offered to its employees; provided,
however, that all benefits provided for executives of the same position
and status as Executive will be provided to Executive on an equal
basis.
e) Business Expenses. Executive will be reimbursed for all
reasonable expenses incurred in the discharge of Executive's duties
under this Agreement pursuant to the Company's standard reimbursement
policies.
f) Withholding. The Company will deduct and withhold from the
payments made to Executive under this Agreement, state and federal
income taxes, FICA and other amounts normally withheld from
compensation due employees.
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6. Non-Disclosure of Proprietary Information. Executive recognizes and
acknowledges that the Trade Secrets (as defined below) and Confidential
Information (as defined below) of the Company and its affiliates and
all physical embodiments thereof (as they may exist from time-to-time,
collectively, the "Proprietary Information") are valuable, special and
unique assets of the Company's and its affiliates' businesses.
Executive further acknowledges that access to such Proprietary
Information is essential to the performance of Executive's duties under
this Agreement. Therefore, in order to obtain access to such
Proprietary Information, Executive agrees that, except in connection
with performing duties assigned to her by the Company, Executive shall
hold in confidence all Proprietary Information and will not reproduce,
use, distribute, disclose, publish or otherwise disseminate any
Proprietary Information, in whole or in part, and will take no action
causing, or fail to take any action necessary to prevent causing, any
Proprietary Information to lose its character as Proprietary
Information, nor will Executive make use of any such information for
Executive's own purposes or for the benefit of any person, firm,
corporation, association or other entity (except the Company and its
subsidiaries) under any circumstances.
For purposes of this Agreement, the term "Trade Secrets" means
information, without regard to form, including, but not limited to, any
technical or non-technical data, formula, pattern, compilation,
program, device, method, technique, drawing, process, financial data,
financial plan, product plan, list of actual or potential customers or
suppliers, or other information similar to any of the foregoing, which
is not commonly known by or available to the public and (i) derives
economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons
who can derive economic value from its disclosure or use, and (ii) is
the subject of efforts that are reasonable under the circumstances to
maintain its secrecy. For purposes of this Agreement, the term "Trade
Secrets" does not include information that Executive can show by
competent proof (i) was known to Executive and reduced to writing prior
to disclosure by the Company (but only if Executive promptly notifies
the Company of Executive's prior knowledge); (ii) was generally known
to the public at the time the Company disclosed the information to
Executive; (iii) became generally known to the public after disclosure
by the Company through no act or omission of Executive; or (iv) was
disclosed to Executive by a third party having a bona fide right both
to possess the information and to disclose the information to
Executive.
The term "Confidential Information" means any data or information of
the Company, other than trade secrets, which is valuable to the Company
and not generally known to competitors of the Company. The provisions
of this Section 6 will apply to Trade Secrets for so long as such
information remains a trade secret and to Confidential Information
during Executive's employment with the Company and for a period of two
(2) years following any termination of Executive's employment with the
Company for whatever reason.
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7. Covenants.
A. Non-Competition Covenant. During Executive's employment by the
Company Executive will be a member of the Company's executive
management team. Executive agrees that during her employment and for a
period of two (2) years following any termination of Executive's
employment for whatever reason, Executive will not, directly or
indirectly, on Executive's own behalf or in the service of or on behalf
of any other individual or entity, compete with the Company within the
Geographical Area (as hereinafter defined). The term "compete" means to
engage in, have any equity or profit interest in, make any loan to or
for the benefit of, or render services of any marketing, management,
sales, administrative, supervisory or consulting nature, directly or
indirectly, on Executive's own behalf or in the service of or on behalf
of any other individual or entity, either as a proprietor, employee,
agent, independent contractor, consultant, director, officer, partner
or stockholder (other than a stockholder of a corporation listed on a
national securities exchange or whose stock is regularly traded in the
over-the-counter market, provided that Executive at no time owns,
directly or indirectly, in excess of one percent (1%) of the
outstanding stock of any class of any such corporation) any business
which provides Business products or services. For purposes of this
Agreement, the term "Geographical Area" means the territory located
within a seventy-five (75) mile radius of each facility for which
Executive has management responsibility during Executive's employment
with the Company.
B. Non-Solicitation of Clients Covenant. Executive agrees that
during Executive's employment by the Company and for a period of two
(2) years following the termination of Executive's employment for
whatever reason, Executive will not, directly or indirectly, on
Executive's own behalf or in the service of or on behalf of any other
individual or entity, divert, solicit or attempt to divert or solicit
any individual or entity (i) who is a client of the Company at any time
during the six (6)-month period prior to Executive's termination of
employment with the Company ("Client"), or was actively sought by the
Company as a prospective client, and (ii) with whom Executive had
material contact while employed by the Company, to provide Business
services or products to such Clients or prospects.
C. Construction. The parties hereto agree that any judicial
authority construing all or any portion of this Section 7 or Section 8
below may, if it chooses, sever any portion of the Geographical Area,
client base, prospective relationship or prospect list or any
prohibited business activity from the coverage of such Section and to
apply the provisions of such Section to the remaining portion of the
Geographical Area, the client base or the prospective relationship or
prospect list, or the remaining business activities not so severed by
such judicial authority. In addition, it is the intent of the parties
that the judicial authority may, if it chooses, replace each such
severed provision with a provision as similar in terms to such severed
provision as may be possible and be legal, valid and enforceable. It is
the intent of the parties that Sections 7 and 8 be enforced to the
maximum extent permitted by law. In the event that any provision of
either such Section is determined not to be specifically enforceable,
the Company shall nevertheless be entitled to bring an action to seek
to recover monetary damages as a result of the breach of such provision
by Executive.
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8. Non-Solicitation of Employees Covenant. Executive further agrees and
represents that during Executive's employment by the Company and for a
period of two (2) years following any termination of Executive's
employment for whatever reason, Executive will not, directly or
indirectly, on Executive's own behalf or in the service of, or on
behalf of any other individual or entity, divert or solicit, or attempt
to divert or solicit, to or for any individual or entity which is
engaged in providing Business services or products, any person employed
by the Company, whether or not such employee is a full-time employee or
temporary employee of the Company, whether or not such employee is
employed pursuant to written agreement and whether or not such employee
is employed for a determined period or at-will.
9. Existing Restrictive Covenants. Executive represents and warrants that
Executive's employment with the Company does not and will not breach
any agreement which Executive has with any former employer to keep in
confidence confidential information or not to compete with any such
former employer. Executive will not disclose to the Company or use on
its behalf any confidential information of any other party required to
be kept confidential by Executive.
10. Return of Proprietary Information. Executive acknowledges that as a
result of Executive's employment with the Company, Executive may come
into the possession and control of Proprietary Information, such as
proprietary documents, drawings, specifications, manuals, notes,
computer programs, or other proprietary material. Executive
acknowledges, warrants and agrees that Executive will return to the
Company all such items and any copies or excerpts thereof, in any form
or medium, and any other properties, files or documents obtained as a
result of Executive's employment with the Company, immediately upon the
termination of Executive's employment with the Company.
11. Proprietary Rights. During the course of Executive's employment
with the Company, Executive may make, develop or conceive of useful
processes, machines, compositions of matter, computer software,
algorithms, works of authorship expressing such algorithm, or any other
discovery, idea, concept, document or improvement which relates to or
is useful to the Company's Business (the "Inventions"), whether or not
subject to copyright or patent protection, and which may or may not be
considered Proprietary Information. Executive acknowledges that all
such Inventions will be "works made for hire" under United States
copyright law and will remain the sole and exclusive property of the
Company. Executive also hereby assigns and agrees to assign to the
Company, in perpetuity, all right, title and interest Executive may
have in and to such Inventions, including without limitation, all
copyrights, and the right to apply for any form of patent, utility
model, industrial design or similar proprietary right recognized by any
state, country or jurisdiction. Executive further agrees, at the
Company's request and expense, to do all things and sign all documents
or instruments necessary, in the opinion of the Company, to eliminate
any ambiguity as to the ownership of, and rights of the Company to,
such Inventions, including filing copyright and patent registrations
and defending and enforcing in litigation or otherwise all such rights.
Executive will not be obligated to assign to the Company any Invention
made by Executive while in the Company's employ which does not relate
to any business or activity in which the
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Company is or may reasonably be expected to become engaged, except that
Executive is so obligated if the same relates to or is based on
Proprietary Information to which Executive will have had access during
and by virtue of Executive's employment or which arises out of work
assigned to Executive by the Company. Executive will not be obligated
to assign any Invention which may be wholly conceived by Executive
after Executive leaves the employ of the Company, except that Executive
is so obligated if such Invention involves the utilization of
Proprietary Information obtained while in the employ of the Company.
Executive is not obligated to assign any Invention which relates to or
would be useful in any business or activities in which the Company is
engaged if such Invention was conceived and reduced to practice by
Executive prior to Executive's employment with the Company.
12. Remedies. Executive agrees and acknowledges that the violation of any
of the covenants or agreements contained in Sections 6, 7, 8, 9, 10 and
11 of this Agreement would cause irreparable injury to the Company,
that the remedy at law for any such violation or threatened violation
thereof would be inadequate, and that the Company will be entitled, in
addition to any other remedy, to temporary and permanent injunctive or
other equitable relief without the necessity of proving actual damages
or posting a bond. Executive further agrees and acknowledges that for
the purpose of such covenants and agreements and any such remedy the
term "Company" in such Sections encompasses the Company and its
subsidiaries, including without limitation PST Products, Inc., a
Georgia corporation.
13. Notices. Any notice or communication under this Agreement will be in
writing and sent by registered or certified mail addressed to the
respective parties as follows:
If to the Company: If to Executive:
0000 Xx. Xxxxxxxxx Xxxxxxx Xxxxx X. Xxxxxxx
Xxxxxxx, XX 00000-0000 000 Xxxxxx Xxxx Xxxxxx
Attn: President and CEO Xxxxxxx, XX 00000
or such other address or agent as may be hereafter designated in
writing by either party hereto. All such notices shall be deemed given
on the date personally delivered or mailed.
14. Severability. Subject to the application of Section 7(C) to the
interpretation of Sections 7 and 8, in case one or more of the
provisions contained in this Agreement is for any reason held to be
invalid, illegal or unenforceable in any respect, the parties agree
that it is their intent that the same will not affect any other
provision in this Agreement, and this Agreement will be construed as if
such invalid or illegal or unenforceable provision had never been
contained herein. It is the intent of the parties that this Agreement
be enforced to the maximum extent permitted by law.
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15. Entire Agreement. This Agreement embodies the entire agreement of the
parties relating to the subject matter of this Agreement and supersedes
all prior agreements, oral or written, regarding the subject matter
hereof. No amendment or modification of this Agreement will be valid or
binding upon the parties unless made in writing and signed by the
parties.
16. Binding Effect. This Agreement will be binding upon the parties and
their respective heirs, representatives, successors, transferees and
permitted assigns.
17. Assignment. This Agreement is one for personal services and will
not be assigned by Executive. The Company may assign this Agreement to
any of its subsidiaries or affiliated companies; provided that the
parent or any subsidiary or affiliate fulfills the obligations of the
Company under this Agreement.
18. Governing Law. This Agreement is entered into and will be interpreted
and enforced pursuant to the laws of the State of Georgia. The parties
hereto hereby agree that the appropriate forum and venue for any
disputes between any of the parties hereto arising out of this
Agreement shall be any federal court in the state where the Company has
its principal place of business and each of the parties hereto hereby
submits to the personal jurisdiction of any such court. The foregoing
shall not limit the rights of any party to obtain execution of judgment
in any other jurisdiction. The parties further agree, to the extent
permitted by law, that a final and unappealable judgment against either
of them in any action or proceeding contemplated above shall be
conclusive and may be enforced in any other jurisdiction within or
outside the United States by suit on the judgment, a certified
exemplified copy of which shall be conclusive evidence of the fact and
amount of such judgment.
19. Indemnification. Executive shall be entitled to indemnification by the
Company as provided for in the Company's Restated Certificate of
Incorporation and Restated By-laws.
20. Surviving Terms. Sections 6, 7, 8, 9, 10, 11 and 12 of this Agreement
shall survive termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
COMPANY: EXECUTIVE:
By: /s/ Xxxxxx X. Xxxx /s/ Xxxxx X. Xxxxxxx
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Xxxxxx X. Xxxx, President Xxxxx X. Xxxxxxx
and Chief Executive Officer
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EXHIBIT A
INVENTIONS
Executive represents that there are no Inventions.
/s/ KBA
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Executive's Initials
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