PIXELWORKS, INC. CHANGE OF CONTROL SEVERANCE AGREEMENT
Exhibit 10.18
This Change of Control Severance Agreement (the “Agreement”) is made and entered into
effective as of April 1, 2009 (the “Effective Date”), by and between Xxxxxx Xxxxx (the
“Executive”) and Pixelworks, Inc., an Oregon corporation (the “Company”). Certain capitalized
terms used in this Agreement are defined in Section 1 below.
R E C I T A L S
The Board believes that it is in the best interests of the Company and its shareholders to
provide the Executive with an incentive to continue Executive’s employment following, and so to
maximize the value of the Company upon, a Change of Control for the benefit of its shareholders.
To do so, the Board believes it appropriate to provide the Executive with certain severance
benefits upon the Executive’s termination of employment following a Change of Control.
AGREEMENT
The parties therefore agree as follows:
1. Definition of Terms. The following terms referred to in this Agreement shall have
the following meanings:
(a) Cause. “Cause” shall mean Executive engaged in any one or more of the following:
(i) a material act of dishonesty, fraud, misconduct, or willful violation of any material law,
ethical rule or fiduciary duty that is in connection with Executive’s responsibilities as an
executive of the Company; (ii) acts constituting a felony or moral turpitude which the Board
reasonably believes has had or will have a material detrimental effect on the Company’s reputation
or business; or (iii) repeated willful failure to perform Executive’s duties as an executive of the
Company and the failure to effect such cure within 30 days after written notice of such violation
or breach is given to Executive; or (iv) the willful violation of any material Company policy or
procedure, or breach of any material provision of this Agreement or other agreement with the
Company, and if such violation or breach is susceptible of cure, the failure to effect such cure
within 30 days after written notice of such violation or breach is given to Executive.
(b) Change of Control. “Change of Control” shall mean the occurrence of any of the
following events:
(i) the approval by shareholders of the Company of a merger or consolidation of the Company
with any other corporation, or of a subsidiary of the Company with any other corporation, other
than a merger or consolidation which would result in effective
voting control over the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted into voting
(i) securities of the surviving entity) more than fifty percent (50%) of the total voting
power represented by the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation;
(ii) the approval by the shareholders of the Company of 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;
(iii) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) becoming the “beneficial owner” (as defined in Rule 13d-3 under
said Act), directly or indirectly, of securities of the Company representing 50% or more of the
total voting power represented by the Company’s then outstanding voting securities; or
(iv) a change in the composition of the Board, as a result of which fewer than a majority of
the directors are Incumbent Directors. “Incumbent Directors” shall mean directors who either (A)
are directors of the Company as of the date hereof, or (B) are elected, or nominated for election,
to the Board with the affirmative votes of at least a majority of those directors who are either
identified in (A) or identified as their successors elected under this clause (B).
(c) Good Reason Event. A “Good Reason Event” shall be any of the following: (i)
without the Executive’s express written consent, a material diminution of the Executive’s duties,
authority or responsibilities; (ii) without the Executive’s express written consent, a reduction by
the Company of the Executive’s base salary; (iii) without the Executive’s express written consent,
the imposition of a requirement that Executive’s primary place of employment be at a facility or a
location more than fifty (50) miles from the Executive’s current work location, provided that such
requirement to relocate materially increases the Executive’s commute; or (iv) the failure of the
Company to obtain the assumption of this Agreement by any successors contemplated in Section 6
below.
(d) Involuntary Termination. “Involuntary Termination” shall mean (i) any termination
of the Executive’s employment by the Company which is not effected for valid Cause; or (ii) any
termination by the Executive for Good Reason.
(e) Termination Date. “Termination Date” shall mean the effective date of any notice
of termination delivered by one party to the other hereunder.
2. Term of Agreement. This Agreement shall terminate upon the earlier of two (2)
years after a Change of Control, or (ii) the date that all obligations of the parties hereto under
this Agreement have been satisfied.
3. At-Will Employment. The Company and the Executive acknowledge that the Executive’s
employment is and shall continue to be at-will, as defined under applicable law. If the
Executive’s employment terminates for any reason, the Executive shall not be entitled to any
payments, benefits, damages, awards or compensation other than as provided by this Agreement, or as
may otherwise be established under the Company’s then existing employee benefit plans or policies
at the time of termination.
4. Severance Benefits.
(a) Termination Following a Change of Control.
(i) If Within Twelve Months Following a Change of Control. If the Executive’s
employment with the Company terminates as a result of an Involuntary Termination at any time within
twelve (12) months after a Change of Control, and the Executive signs the release of claims
pursuant to Section 7 hereto, Executive shall be entitled to the following severance benefits:
(1) twelve (12) months of Executive’s base salary and the then current year’s target bonus as
in effect as of the date of such termination or, if greater, as in effect immediately prior to the
Change of Control, less applicable withholding, payable in a lump sum within thirty (30) days of
the Involuntary Termination;
(2) all stock options granted by the Company to the Executive prior to the Change of Control
shall accelerate and become vested and exercisable as to the number of shares that would have
otherwise vested during the twelve (12) months following such termination as if the Executive had
remained employed by the Company (or its successor) through such date under the applicable option
agreements to the extent such stock options are outstanding and unexercisable at the time of such
termination; and all stock subject to a right of repurchase by the Company (or its successor) that
was purchased prior to the Change of Control shall have such right of repurchase lapse with respect
to that number of shares which would have had such right of repurchase lapse under the applicable
agreement within twelve (12) months of the date of the termination as if the Executive had remained
employed through such date; and
(3) the same level of Company-paid health (i.e., medical, vision and dental) coverage and
benefits for such coverage as in effect for the Executive (and any eligible dependents) on the day
immediately preceding the Executive’s Termination Date; provided, however, that (i)
the Executive constitutes a qualified beneficiary, as defined in Section 4980B(g)(1) of the
Internal Revenue Code of 1986, as amended; and (ii) Executive elects continuation coverage pursuant
to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), within the
time period prescribed pursuant to COBRA. The Company shall continue to provide Executive with
such Company-paid coverage until the earlier of (i) the date Executive (and Executive’s eligible
dependents) is no longer eligible to receive continuation coverage pursuant to COBRA, or (ii)
twelve (12) months from the Termination Date.
(ii) If Between Twelve Months and Twenty-Four Months Following Change of Control. If
the Executive’s employment with the Company terminates as a result of an Involuntary Termination at
any time during the period that is from twelve (12) months after a Change of Control to twenty-four
(24) months after a Change of Control (such period being the “Second Year”), and the Executive
signs the release of claims pursuant to Section 7 hereto, Executive shall be entitled to the
following severance benefits:
(1) a lump sum cash amount payable within thirty (30) days of the Involuntary Termination
representing a portion of the Executive’s base salary and then
current year’s target bonus, plus any applicable allowances, with such amount being the
resulting product of: the number of months remaining in the Second Year as of the Termination
Date, multiplied by the per-month portion of the Executive’s base salary, then-current
year’s target bonus, and allowances as in effect as of the Termination Date or, if greater, as in
effect immediately prior to the Change of Control, less applicable withholding. For purposes of
this subsection (1), only entire months that remain in the Second Year shall be counted as
“remaining,” and any fraction of a month that remains after the date of the termination shall not
be counted hereunder;
(2) the health benefits set forth in Section 4(a)(i)(3) above, provided,
however, that the twelve (12) month period shall be pro-rated to reflect that number of
months remaining in the Second Year as of the date of termination. For purposes of this subsection
(2), only entire months that remain in the Second Year shall be counted as “remaining,” and any
fraction of a month that remains after the date of the termination shall not be counted hereunder;
and
(3) the stock option acceleration benefits set forth in Section 4(a)(i)(2) above,
provided, however, that the twelve (12) month period shall be pro-rated to reflect
that number of months remaining in the Second Year as of the date of termination. For purposes of
this subsection (2), only entire months that remain in the Second Year shall be counted as
“remaining,” and any fraction of a month that remains after the date of the termination shall not
be counted hereunder.
(b) Termination Apart from a Change of Control. If the Executive’s employment with
the Company terminates other than as a result of an Involuntary Termination within the twenty-four
(24) months following a Change of Control, then the following provisions shall apply:
(i) Involuntary Termination. If the termination is an Involuntary Termination, the
Executive shall be entitled to the same benefits described in Section 4(a)(i), calculated as if the
date of the change of control were the same as the effective date of the Involuntary Termination.
(ii) For Cause or Voluntary Termination. If the termination is for Cause or is not
otherwise an Involuntary Termination, then the Executive will not be entitled to receive severance
or other benefits hereunder.
(c) Accrued Wages and Vacation; Expenses. Without regard to the reason for, or the
timing of, Executive’s termination of employment: (i) the Company shall pay the Executive any
unpaid base salary due for periods prior to the Termination Date; (ii) the Company shall pay the
Executive all of the Executive’s accrued and unused vacation through the Termination Date; and
(iii) following submission of proper expense reports by the Executive, the Company shall reimburse
the Executive for all expenses reasonably and necessarily incurred by the Executive in connection
with the business of the Company prior to the Termination Date. These payments shall be made
promptly upon termination and within the period of time mandated by law.
5. Limitation on Payments. In the event that the severance and other benefits
provided for in this Agreement or otherwise payable to the Executive (i) constitute “parachute
payments” within the meaning of Section 280G of the United States Internal Revenue Code (the
“Code”), and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the
“Excise Tax”), then Executive’s benefits under this Agreement shall be either
(a) delivered in full, or
(b) delivered as to such lesser extent which would result in no portion of such benefits being
subject to the Excise Tax,
whichever of the foregoing amounts, taking into account the applicable federal, state and
local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis,
of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may
be taxable under Section 4999 of the Code.
Any determination required under this section shall be made in writing by the Company’s
independent public accountants (the “Accountants”), whose determination shall be conclusive and
binding upon the Executive and the Company for all purposes. For purposes of making the
calculations required by this section, the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Code. The Company and the Executive
shall furnish to the Accountants such information and documents as the Accountants may reasonably
request in order to make a determination under this section. The Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations contemplated by this section.
6. Successors.
(a) Company’s Successors. Any successor to the Company (whether direct or indirect
and whether by purchase, lease, merger, consolidation, liquidation or otherwise) to all or
substantially all of the Company’s business and/or assets shall assume the Company’s obligations
under this Agreement and agree expressly to perform the Company’s obligations under this Agreement
in the same manner and to the same extent as the Company would be required to perform such
obligations in the absence of a succession. For all purposes under this Agreement, the term
“Company” shall include any successor to the Company’s business and/or assets which executes and
delivers the assumption agreement described in this subsection (a) or which becomes bound by the
terms of this Agreement by operation of law.
(b) Executive’s Successors. Without the written consent of the Company, Executive may
not assign or transfer this Agreement or any right or obligation under this Agreement to any other
person or entity. Notwithstanding the foregoing, the terms of this Agreement and all rights of
Executive hereunder shall inure to the benefit of, and be enforceable by, Executive’s personal or
legal representatives, executors, administrators, successors, heirs, distributees, devisees and
legatees.
7. Execution of Release Agreement upon Termination. As a condition of receiving the
benefits under Section 4 of this Agreement, Executive must sign and not revoke a Release, effective
within sixty (60) days following Executive’s separation from service (the “Release Deadline”). No
benefits under Section 4 will be paid or provided until the Release becomes effective. In the
event the separation occurs at a time during the calendar year where it would be possible for the
Release to become effective in the calendar year following the calendar year in which Executive’s
separation occurs, any benefits that would be considered Deferred Payments (as defined in Section
9) will be paid or commence to be paid, as applicable, on the first regularly scheduled pay date
immediately following the Release Deadline, subject to Section 9 below.
8. Litigation/Audit Cooperation. Following the termination of Executive’s employment
for any reason, Executive shall reasonably cooperate with the Company or any of its subsidiaries or
affiliates (the “Company Group”) in connection with (a) any internal or governmental investigation
or administrative, regulatory, arbitral or judicial proceeding involving any member of the Company
Group with respect to matters relating to Executive’s employment with or service as a member of the
board of directors of any member of the Company Group other than a third party proceeding in which
Executive is a named party and Executive and the Company (or the applicable member(s) of the
Company Group) have not entered into a mutually acceptable joint defense agreement (collectively,
“Litigation”) or (b) for a two year period following the Termination Date, any audit of the
financial statements of any member of the Company Group with respect to the period of time when
Executive was employed by any member of the Company Group (“Audit”). Executive acknowledges that
such cooperation may include, but shall not be limited to, Executive making himself available to
the Company or any other member of the Company Group (or their respective attorneys or auditors)
upon reasonable notice for: (i) interviews, factual investigations, and providing declarations or
affidavits that provide truthful information in connection with any Litigation or Audit; (ii)
appearing at the request of the Company or any member of the Company Group to give testimony
without requiring service of a subpoena or other legal process; (iii) volunteering to the Company
or any member of the Company Group pertinent information related to any Litigation or Audit; (iv)
providing information and legal representations to the auditors of the Company or any member or any
member of the Company Group, in a form and within a timeframe requested by the Board, with respect
to the Company’s or any member of the Company Group’s opening balance sheet valuation of
intangibles and financial statements for the period in which Executive was employed by the Company
or any member of the Company Group; and (v) turning over to the Company or any member of the
Company Group any documents relevant to any Litigation or Audit that are or may come into
Executive’s possession. The Company shall reimburse Executive for reasonable travel expenses
incurred in connection with providing the services under this Section 8, including lodging and
meals, upon Executive’s submission of receipts. The Company shall also compensate Executive for
each hour that Executive provides cooperation in connection with this Section 8 at an hourly rate
equal to Executive’s base salary as of the Termination Date divided by 2080. Executive shall
submit invoices for any month in which Executive performs services pursuant to this Section 8 that
details the amount of time and a description of the services rendered for each separate day that
Executive performed such services. The Company shall reimburse Executive for such services
rendered within fifteen (15) days of receiving an invoice from Executive.
9. 409A Savings Clause.
(a) Notwithstanding anything to the contrary in this Agreement, no Deferred Payments (as
defined below) or other severance benefits that otherwise are exempt from Section 409A (as defined
below) pursuant to Treasury Regulation Section 1.409A-1(b)(9) shall become payable until Executive
has a “separation from service” within the meaning of Section 409A.
(b) Further, if Executive is a “specified employee” within the meaning of Section 409A at the
time of his separation from service (other than due to death), and the severance payments and
benefits payable to him, if any, pursuant to the Agreement, when considered together with any other
severance payments or separation benefits, are considered deferred compensation under Section 409A
(together, the “Deferred Payments”), such Deferred Payments that otherwise are payable within the
first six (6) months following his separation from service will become payable on the first payroll
date that occurs on or after the date six (6) months and one (1) day following the date of his
separation from service. All subsequent Deferred Payments, if any, will be payable in accordance
with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein
to the contrary, in the event of Executive’s death following his separation from service but prior
to the six (6) month anniversary of Executive’s separation from service (or any later delay date),
then any payments delayed in accordance with this paragraph will be payable in a lump sum as soon
as administratively practicable after the date of Executive’s death and all other Deferred Payments
will be payable in accordance with the payment schedule applicable to each payment or benefit.
Each payment and benefit payable under the Agreement is intended to constitute a separate payment
for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations.
(c) Any severance payment that satisfies the requirements of the “short-term deferral” rule
set forth in Section 1.409A-1(b)(4) of the Treasury Regulations shall not constitute Deferred
Payments for purposes of the Agreement. Any severance payment that qualifies as a payment made as
a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the
Treasury Regulations that does not exceed the Section 409A Limit shall not constitute Deferred
Payments for purposes of the Agreement. For purposes of this Agreement, “Section 409A Limit” means
the lesser of 2 times: (i) Executive’s annualized compensation based upon the annual rate of pay
paid to Executive during Executive’s taxable year preceding Executive’s taxable year of his
termination of employment as determined under Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and any
Internal Revenue Service guidance issued with respect thereto; or (ii) the maximum amount that may
be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Internal Revenue
Code for the year in which your employment is terminated.
(d) Any reimbursement payments made to Executive hereunder shall be paid to the Executive on
or before the last day of Executive’s taxable year following the taxable year in which the related
expense was incurred. The reimbursements hereunder are not subject to liquidation or exchange for
another benefit, and the amount of such reimbursements that Executive receives in one taxable year
shall not affect the amount of such reimbursements that Executive receives in any other taxable
year.
(e) The foregoing provisions are intended to comply with the requirements of Section 409A so
that none of the severance payments and benefits to be provided under the Agreement will be subject
to the additional tax imposed under Section 409A, and any
ambiguities herein will be interpreted to so comply. Executive and the Company agree to work
together in good faith to consider amendments to the Agreement and to take such reasonable actions
which are necessary, appropriate or desirable to avoid imposition of any additional tax or income
recognition prior to actual payment to Employee under Section 409A.
10. Notices. Notices and all other communications contemplated by this Agreement
shall be in writing and shall be deemed to have been duly given when personally delivered or when
mailed by U.S. registered or certified mail, return receipt requested and postage prepaid. In the
case of the Executive, mailed notices shall be addressed to Executive at the home address which
Executive most recently communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters, and all notices shall be directed to the
attention of its Secretary.
11. Arbitration.
(a) Any dispute or controversy arising out of, relating to, or in connection with this
Agreement, or the interpretation, validity, construction, performance, breach, or termination
thereof, shall be settled by binding arbitration to be held in Portland, Oregon in accordance with
the National Rules for the Resolution of Employment Disputes then in effect of the American
Arbitration Association (the “Rules”). The arbitrator may grant injunctions or other relief in
such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding
on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any
court having jurisdiction.
(b) The arbitrator(s) shall apply Oregon law to the merits of any dispute or claim, without
reference to conflicts of law rules. The arbitration proceedings shall be governed by federal
arbitration law and by the Rules, without reference to state arbitration law. Executive hereby
consents to the personal jurisdiction of the state and federal courts located in Oregon for any
action or proceeding arising from or relating to this Agreement or relating to any arbitration in
which the parties are participants.
(c) Executive understands that nothing in this Section modifies Executive’s at-will employment
status. Either Executive or the Company can terminate the employment relationship at any time,
with or without Cause.
(d) EXECUTIVE HAS READ AND UNDERSTANDS THIS SECTION, WHICH DISCUSSES ARBITRATION. EXECUTIVE
UNDERSTANDS THAT SUBMITTING ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS
AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH OR TERMINATION
THEREOF TO BINDING ARBITRATION, CONSTITUTES A WAIVER OF EXECUTIVE’S RIGHT TO A JURY TRIAL AND
RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EXECUTIVE
RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, THE FOLLOWING CLAIMS:
(i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT; BREACH OF CONTRACT, BOTH EXPRESS
AND IMPLIED; BREACH
OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL MISREPRESENTATION; NEGLIGENT
OR INTENTIONAL INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION.
(ii) ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL STATE OR MUNICIPAL CONSTITUTION OR
STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS
ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE AMERICANS WITH DISABILITIES ACT
OF 1990, THE FAIR LABOR STANDARDS ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, AND THE
CALIFORNIA LABOR CODE (except for claims for underlying workers’ compensation benefits); and
(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND REGULATIONS RELATING TO EMPLOYMENT
OR EMPLOYMENT DISCRIMINATION.
12. Proprietary Information and Inventions Assignment Agreement. Executive shall
execute and comply with the terms of the Company’s standard Proprietary Information and Inventions
Assignment Agreement.
13. Miscellaneous Provisions.
(a) Effect of Any Statutory Benefits. If any severance benefits are required to be
paid to the Executive upon termination of employment with the Company as a result of any
requirement of law or any governmental entity in any applicable jurisdiction, the aggregate amount
payable pursuant to Section 4 hereof shall be reduced by such amount.
(b) Effect of Standard Company Policy or Other Agreements. To the extent that any
severance benefits or payments are required to be paid to the Executive upon termination of
employment with the Company as a result of any standard Company policy or other existing
agreement(s), Executive shall be entitled to the most favorable of any given benefit (e.g., cash,
option vesting, health benefits) available under any one such source, but shall not be entitled
also to cumulate the same kind of benefit from multiple agreements or policies.
(c) No Duty to Mitigate. The Executive shall not be required to mitigate the amount
of any payment contemplated by this Agreement, nor shall any such payment be reduced by any
earnings that the Executive may receive from any other source.
(d) Waiver. No provision of this Agreement may be modified, waived or discharged
unless the modification, waiver or discharge is agreed to in writing and signed by the Executive
and by an authorized officer of the Company (other than the Executive). No waiver by either party
of any breach of, or of compliance with, any condition or provision of this Agreement by the other
party shall be considered a waiver of any other condition or provision or of the same condition or
provision at another time.
(e) Integration. This Agreement and any agreements referenced herein represent the
entire agreement and understanding between the parties as to the subject matter herein and
collectively supersede all prior or contemporaneous agreements, whether written or oral, with
respect to the same subject matter, provided that, for clarification purposes, this Agreement shall
not affect any agreements between the Company and Executive regarding intellectual property matters
or confidential information of the Company.
(f) Choice of Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by the internal substantive laws, but not the conflicts of law rules,
of the State of Oregon.
(g) Severability. The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other provision hereof,
which shall remain in full force and effect.
(h) Employment Taxes. All payments made pursuant to this Agreement shall be subject
to withholding of applicable income and employment taxes.
(i) Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but both of which together will constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the
Company by its duly authorized officer, as of the day and year first above written.
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By: /s/ Xxxxx Xxxxxxx
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/s/ Xxxxxx Xxxxx
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