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EXHIBIT 10.67
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into and is effective as of the 6th
day of January, 1997, ("Effective Date"), by and between XXXXXX X. XXXXXXX (the
"Employee") and RISCORP MANAGEMENT SERVICES, INC., a Florida corporation, for
itself and on behalf of RISCORP, Inc., a Florida corporation, and its
subsidiaries (collectively referred to as "RISCORP").
W I T N E S S E T H:
WHEREAS, RISCORP engages in the business of managed care workers
compensation insurance and related businesses; and
WHEREAS, RISCORP desires to continue to employ the Employee and to
enter into an agreement embodying the terms of such employment, and the
Employee desires to continue such employment provided certain additional terms
and conditions are added to his former employment agreement, and both parties
desire to enter into this new employment agreement to include such additional
terms and conditions; and
WHEREAS, both parties acknowledge the respective advantages, benefits,
and other valuable considerations to be realized by then by virtue of such a
relationship;
THEREFORE, in light of the foregoing and in consideration of the
mutual promises and covenants contained herein, the parties agree as follows:
1. EMPLOYMENT.
(a) As of the Effective Date, the Employee shall continue
to serve as President Health Services Group. The Employee shall continue to
have such duties and responsibilities as are consistent with such position or
as may be set forth from time to time by RISCORP in a written job description
or list of duties.
(b) The Employee, so long as he is employed hereunder,
shall devote his full time to the services required of him hereunder, except as
otherwise agreed, and for paid personal time of four (4) weeks during the
12-month period following the Effective Date (which shall accrue ratably
beginning as of the first day of such 12-month period), to be used for vacation
and absences due to sickness, personal injury or other disability.
2. TERM. The term of the Employee's employment under this
Agreement shall be for a term of one (1) year from the Effective Date and shall
automatically renew thereafter for successive one (1) year periods unless
terminated as hereinafter provided (the "Term of this Agreement").
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3. COMPENSATION.
(a) Base Salary. Except as otherwise provided in Section
7 hereof, RISCORP shall pay the Employee as annual base salary during the Term
of this Agreement, in equal installments no less frequently than monthly, an
amount equal to salary~, which may be increased from time to time by RISCORP
during the Term of this Agreement (the "Base Salary").
(b) Bonus. During the Term of this Agreement, the
Employee shall be entitled to participate in such bonus plans or programs which
cover the Employee as RISCORP may implement from time to time.
(c) Options. During the term of this Agreement the
employee shall be entitled to continue participating in the RISCORP, Inc. 1995
Non-Qualified Stock Option Plan and any successor option plans or other
programs relating to any type of ownership or equivalent interests in RISCORP,
Inc., any of its subsidiaries, or any successor entity(ies), which covers other
employees of such entities, as RISCORP, Inc. or such other entities may
implement from time to time, or which may be substituted for the existing
option plan. The Employee's participation shall be in accordance with the
terms and conditions of such plan(s).
4. BENEFITS. During the Term of this Agreement, the Employee
shall be entitled to participate in or receive benefits under any employee
benefit plan (other than any bonus plan that may not be available to RISCORP
employees generally), arrangement or perquisite made available by RISCORP now
or in the future to its similarly situated executive employees, subject to and
on a basis consistent with the terms, conditions and overall administration of
such plans, arrangements and perquisites.
5. DUTIES OF THE EMPLOYEE.
(a) The Employee is employed by RISCORP in an executive
or professional capacity, and shall be subject to the direction and control of
the Board of Directors of RISCORP, or such officers of RISCORP designated by
its Board of Directors from time to time. Subject to such direction and
control, the Employee shall provide all of the services generally associated
with and inherent in and consistent with any office to which he is appointed by
RISCORP.
(b) The Employee shall perform such other and further
services as may reasonably be required by RISCORP, including carrying out all
of the policies and directives of RISCORP.
(c) The Employee shall well and faithfully serve RISCORP
in the capacities as aforesaid, and shall at all times devote his full time,
best efforts, skills, attention and energies to performance of the duties
hereunder to the utmost of the Employee's ability, and shall do and
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perform all such services, acts, and things connected therewith as are
reasonably required and as RISCORP (through its Board and/or designated
officers) shall from time to time direct. The Employee shall not become
engaged or involved in any activities or matters which may adversely affect or
reflect discredit on RISCORP or its respective business, or conflict with his
services to RISCORP. Nothing contained herein shall be construed to limit or
restrict the passive investment or passive business activities of the Employee
that do not interfere with his obligations hereunder.
6. FIDUCIARY RELATIONSHIP AND OTHER STANDARDS. It is understood
and agreed that the Employee will serve in a fiduciary capacity to RISCORP and,
as such, will comply with the standards applicable to fiduciaries, and will
also comply with the integrity code and other policies and standards applicable
to similarly situated employees of RISCORP.
7. TERMINATION.
(a) Either the Employee or RISCORP may at any time
terminate the Employee's employment under this Agreement.
(b)(1) If the Employee's employment is terminated by RISCORP
for other than Cause, as hereinafter defined, or the Employee voluntarily
terminates his employment for Good Reason, as hereinafter defined, then RISCORP
shall pay to the Employee an amount equal to one (1) year of the Employee's
Base Salary (salary~), or the Employee's Base Salary which is in effect on the
effective date of termination, payable without interest in twelve (12) equal
monthly installments commencing within thirty (30) days of the date of
termination.
(b)(2) Notwithstanding anything in subsection (b)(1) to the
contrary, if the Employee's employment is terminated within two (2) years
following a Change of Control (i) by RISCORP other than for Cause, death or
disability, or (ii) by the Employee for Good Reason, then the following shall
apply:
(i) Within five (5) days of the Employee's
termination, the Employee shall be entitled to receive an amount equal to three
(3) times his Base Salary. Such total amount shall be paid in a lump sum
within such five (5) day period or in equal monthly installments, at the
election of the Employee (which shall be made within such five (5) day period).
(ii) The Employee shall be entitled to receive
outplacement services from Drake, Beam & Xxxxx or a comparable agency
acceptable to the Employee until the earlier of twelve (12) months from the
date of termination, or until the Employee secures a other employment.
(iii) It is the intention of RISCORP and the
Employee that no portion to or for the benefit of the Employee under any form
of compensation agreement or plan, be deemed to be an "excess parachute
payment" as defined in Section 280G of the Internal Revenue
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Code of 1986, as amended (the "Code"). Accordingly, if the payments under this
Section 7(b)(2) would create an excess parachute payment, it is agreed that the
amounts to be received hereunder and any other payments to or for the benefit
of the Employee in the nature of compensation ("Total Payments") shall be
reduced to equal one dollar less than the 280G Limit, as hereinafter defined.
Within 60 days of the Employee's termination hereunder, the Employee and
RISCORP shall obtain the opinion of such legal counsel and/or certified public
accountants as the Employee and RISCORP may mutually agree upon, which sets
forth (A) the employee's base amount, as defined in Section 280G(b)(3) of the
Code and (B) the present value of aggregate Total Payments and (C) the extent,
if any, to which the Total Payments must be reduced to avid any excess
parachute payment. In the event that the provisions of Sections 280G and 4999
of the Code or any successor provisions are repealed without a successor
provision, this Subsection (iv) shall be of no further force and effect.
(c) If, during the Term of this Agreement a Potential Change of
Control, as defined herein, occurs, and the Employee's employment is terminated
within a period of 120 days before or after the occurrence of such Potential
Change of Control (A) by RISCORP other than for Cause, death or disability, or
(B) by the Employee for Good Reason, then for purposes of this Agreement, a
Change of Control shall be deemed to have occurred during the term of this
Agreement and the termination of the Employee's employment shall be deemed to
have occurred following the Change of Control and the Employee shall
nonetheless be entitled to the termination benefits provided in Section 7(b)(2)
above.
(d) Except to the extent the Change of Control and Potential Change
of Control provisions set forth above would apply, in the event the Employee
voluntarily terminates his employment for other than Good Reason, resigns,
dies, or his employment terminates due to disability, or if RISCORP terminates
the Employee's employment for Cause, then RISCORP shall pay to the Employee,
within thirty (30) days of the date of such termination, a lump sum payment
equal to the portion of his Base Salary accrued through the date his employment
terminates.
(e) It is agreed that upon and after termination of Employee's
employment under this Agreement, neither RISCORP nor the Employee will
disparage each other, nor will any public announcements, public statements or
press releases be issued concerning the departure of the Employee unless such
statement is issued jointly and by mutual agreement.
(f) For purposes of this Agreement, the term "Cause" means any of
the following:
(i) the willful failure by the Employee
substantially to perform his duties hereunder, the Employee's substantial
neglect of his duties hereunder or the material breach of any other provision
of this Agreement by the Employee;
(ii) any act of fraud, misappropriation,
dishonesty or embezzlement, any immoral act, any act of insubordination or
similar conduct, as determined by RISCORP; or
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(iii) conviction of the Employee for a felony, any
crime involving moral turpitude or, solely for purposes of Section 7(b)(2), the
conviction of the Employee for a misdemeanor, excluding traffic violations.
(g) For purposes of this Agreement, the term "Change of Control"
means any of the following events: (i) a dissolution, liquidation, merger,
consolidation, share exchange, or other reorganization of RISCORP, Inc. (ii)
sale or transfer (other than as security for corporate obligations) of at least
a majority of the assets of RISCORP, Inc. in one or more related transactions;
(iii) any sale, transfer or ownership shift of RISCORP, Inc. stock involving
more than 50% of the issued and outstanding stock (initially determined as of
September 30, 1996, and irrespective of whether such percentage change is based
on voting or economic interests and irrespective of whether the ownership shift
occurs as the result of the issuance of new securities by RISCORP, Inc. or its
subsidiaries; provided that sales of the public float stock in the ordinary
course shall be disregarded for this purpose) in a single transaction or in a
series of related transactions (for this purpose any stock options, {excluding
employee stock options granted to existing employees of RISCORP, Inc.},
warrants, debentures or other securities or agreements which are convertible
into stock of RISCORP, Inc. or its subsidiaries, and which are issued by
RISCORP, Inc., its subsidiaries or its shareholders, shall be deemed exercised
on the date of its issuance to the fullest extent possible and for the maximum
number of shares permitted thereunder); (iv) any transaction of the kind
described in subsection (g)(iii) involving stock (or the stock equivalents
described therein) of RISCORP Management Services, Inc., or any insurance
company or operating subsidiary of RISCORP, Inc.); or (v) individuals who
constitute the Board of Directors of RISCORP, Inc. on December 15, 1996
("Incumbent Board") have ceased for any reason to constitute at least a
majority thereof; provided, however, that any person becoming a director
subsequent to December 15, 1996 whose election or nomination for election by
RISCORP Inc.'s shareholders, was approved by a vote of at least three-quarters
(3/4) of the directors comprising the Incumbent Board (either by a specific
vote or by approval of the proxy statement of RISCORP in which such person is
named as a nominee for director without objection to such nomination) shall be,
for purposes of this Agreement, considered as though such person were a member
of the Incumbent Board.
(h) For purposes of this Agreement, the term "Good Reason" means
material modification of the Employee's compensation or the nature of the
Employee's duties or the scope of the Employee's responsibilities are
materially modified without the Employees' prior written consent.
(i) For purposes of this Agreement, a "Potential Change of
Control" shall be deemed to have occurred if (i) RISCORP Inc. or a subsidiary
or an affiliate controlled by the same shareholders controlling RISCORP, Inc.
enters into an agreement, the consummation of which would result in the
occurrence of a Change of Control or (ii) the Board of Directors of RISCORP,
Inc. or a subsidiary adopts a resolution to the effect that, for purposes of
this Agreement, a Potential Change of Control has occurred.
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(j) For purposes of this Agreement, the term "280G Limit" means
the maximum amount which the Employee may receive without becoming subject to
the tax imposed by Section 4999 of the Code or any successor provision or which
the Company may pay without loss of deduction under Section 280G(a) of the Code
or any successor provision (currently three times the base amount of the
Employee, as defined in Section 280G(b)(3) of the Code).
(k) Notwithstanding any provision to the contrary in this Section
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7(c) of this Agreement, and the Employee enters into "Competition with the
Company," as defined in Section 8 hereof, at any time within the twenty-four
(24) months following such termination, then: (i) RISCORP shall have no
further obligation to make installment payments to the Employee if so elected,
and (ii) the Employee shall be obligated to repay all amounts received under
Section 7(b)(1), 7(b)(2) or 7(c) to RISCORP. Amounts payable under Section
7(b)(1), 7(b)(2) of 7(c) of this Agreement shall be deemed to be payments for
the non-competition covenant contained in Section 8(h) of the Agreement and
shall not be deemed "parachute payments" within the meaning of Section 280G of
the Code.
8. CONFIDENTIALITY AND NON-COMPETITION.
In consideration of the Employee's employment with RISCORP, Employee
agrees to the following:
(a) The Employee will not use or disclose to others at
any time, either during or after employment with RISCORP, any Trade Secrets or
other Confidential Information, as hereinafter defined, about RISCORP's
business or any of RISCORP's proprietary rights, except as required in the
ordinary course of performing employment duties of RISCORP.
(i) As used in this Agreement, Trade Secrets
include, but are not limited to,
(A) Trademarks;
(B) Trade names;
(C) Copyrights;
(D) Information services system
products, whether they are
particular to RISCORP or derivative
to licensed products acquired or
used by RISCORP;
(E) Employee lists;
(F) Product and project information;
(G) Policyholder, customer and account
lists;
(H) Agents lists and agreements;
(I) Societies and associations lists;
(J) Vendor and provider lists or
agreements;
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(K) Physician and medical personnel
lists, medical facilities lists,
medical facilities lists; ambulatory
care center lists, clinics or
laboratory lists; and
(L) Business and marketing plans or
reports.
(ii) As used in this Agreement, Confidential
Information includes, but is not limited to that information designated as
confidential, proprietary or privileged in RISCORP'S Integrity Code,
confidentiality policies and other human resource materials.
(b) Upon termination of his employment, the Employee will
deliver to RISCORP all copies of all documents or papers (including diskettes
or other medium for electronic storage of information) relating to RISCORP's
business or such Trade Secrets or Confidential Information that are in the
Employee's possession or under the Employee's control, without making copies or
summaries of any such material.
(c) Any inventions, proprietary information, or
discoveries, whether or not patentable or copyrightable, resulting from any
work the Employee does (alone or with others) as an employee of RISCORP shall
be promptly disclosed to RISCORP and shall be and remain RISCORP's exclusive
property. The Employee hereby assigns to RISCORP any rights the Employee may
have or acquire in such property and shall sign and deliver at any time any
instruments confirming the exclusive ownership by RISCORP. All inventions,
proprietary information, or discoveries that belonged to the Employee before
being employed by RISCORP, and which the Employee wants to exempt from this
Agreement, if any, are listed in an attached schedule.
(d) During the Term of this Agreement, the Employee shall
not engage in "Competition with the Company", as defined herein. For purposes
of this Agreement, "Competition with the Company" means the direct or indirect,
on the Employee's own behalf or in the service or on behalf of others as
principal, partner, officer, director, managerial employee or shareholder
(other than as owner of less than five percent (5%) of the outstanding voting
securities of any entity whose voting securities are traded or quoted on a
national securities market) entering into or engaging in any aspect or form of
business, within the State of Florida or in any other state in which RISCORP
maintains an office and is then doing business, relating to workers'
compensation insurance (either public or private), government fund insurance,
or any form of self-insurance (either public or private) or participate in any
business that is in competition in any manner whatsoever with the business of
RISCORP. During the Employee's employment with RISCORP, the Employee will
report in writing to the Vice President of Human Resources the Employee's
knowledge, regardless of the manner in which that knowledge is obtained, of the
misuse or disclosure of Confidential Information by any other RISCORP employee.
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(e) If the Employee is unsure whether certain information
is Confidential Information under the terms of this Agreement, the Employee
will request clarification in writing from the Vice President of Human
Resources.
(f) The Employee acknowledges that upon termination of
the Employee's employment with RISCORP, the Employee shall inform any
subsequent employers of the existence of all the terms and conditions included
in Section 8 of this Agreement.
(g) Upon termination of the Employee's employment, the
Employee shall not, directly or indirectly, on the Employee's own behalf or in
the service or on behalf of others as principal, partner, officer, director,
managerial employee or shareholder (other than as owner of less than five
percent (5%) of the outstanding voting securities of any entity whose voting
securities are traded or quoted on a national securities market) solicit or
conduct any form of business activity with, whether for present or future
monetary gain, any "Customer" of RISCORP, as defined herein. For purposes of
this Agreement, "Customer" means any person, entity or groups of persons or
entities that in any way broker, purchase or consume any service or product of
RISCORP as of the date of the termination of the Employee's employment and
within a period of one (1) year prior to said date of termination.
(h) Upon termination of the Employee's employment, and
for a period of twenty-four (24) continuous months thereafter, the Employee
shall not engage in Competition with the Company.
(i) The Employee recognizes that RISCORP has made
substantial investments of time and money to recruit, hire and train its other
employees. Therefore, the Employee shall not, either during the Term of this
Agreement and for a period of twelve (12) continuous months after the date of
termination of the Employee's employment hereunder, recruit or hire any other
employee of RISCORP, or encourage any other employee to terminate his
employment with RISCORP.
(j) The Employee acknowledges and agrees that if his
business activity or association with any partnership or corporation is
enjoined in accordance with the time and geographic limitations described
above, that it will not affect the public health, safety or welfare of the
community covered by the restrictive covenant. This covenant on the part of
the Employee shall be construed as an agreement.
(k) The existence of any claim or cause of action of the
Employee against RISCORP arising out of the other Sections of this Agreement or
otherwise shall not constitute a defense to the enforcement by RISCORP of this
covenant or be construed as a basis for not enforcing the covenants contained
in this Section 8.
(l) It is agreed by the parties hereto that if any
portion of the above covenant not-to-compete is held to be unreasonable,
arbitrary, against public policy, or for any other
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reason unenforceable, the covenant herein shall be considered diminishable both
as to time and geographic area; and each month for the specified period shall
be deemed a separate period of time, and the covenant not-to-compete shall
remain effective so long as the same is not unreasonable, arbitrary or against
public policy. The parties hereto agree that in the event any court determines
the specified time period or the specified geographic area to be unreasonable,
arbitrary or against public policy, a lesser period or geographic area which is
determined to be reasonable, nonarbitrary and not against public policy shall
be enforced against the Employee.
(m) The Employee acknowledges that a violation of the
terms of this Section 8, including without limitation, a violation of any of
Subsections 8(a) through 8(i) above, shall cause irreparable injury to RISCORP,
and the remedy at law will be inadequate. Accordingly, the Employee hereby
consents to RISCORP's entering of an injunction to enforce this covenant, in
addition to any other rights and remedies RISCORP may have, at law or in
equity. Further, the Employee hereby waives the necessity of the posting of a
bond in the event RISCORP seeks a temporary injunction.
(n) In the event that RISCORP, or its successors in
interest make application to a court of competent jurisdiction for injunctive
relief, the twenty-six (24) month period of time specified in Section 8(h)
shall be tolled for a period of time from the commencement of the acts by the
Employee which create the claim for injunctive relief, and terminating with the
date of final adjudication of the claim for injunctive relief, if granted.
(o) It is further agreed that all of the above-described
covenants contained in this Section 8 and all provisions relating thereto shall
survive the termination of this Agreement.
9. ARBITRATION. The Employee and RISCORP agree that any dispute
or disagreement arising under this Agreement, any dispute or disagreement
regarding the interpretation or application of the language contained in this
Agreement, or any dispute or disagreement concerning the employment
relationship between the Employee and RISCORP or the termination thereof, will
be subject to final and binding arbitration conducted under the Employment
Rules and Procedures of the American Arbitration Association. Whichever party
desires to invoke this paragraph must do so by providing written notice by U.S.
Mail certified, return receipt requested, to the other party at the last known
residential address of the Employee, or at the principal business address of
RISCORP, respectively, within thirty (30) days of the occurrence of the
incident about which there is a dispute or disagreement, or within thirty (30)
days of the termination of employment, whichever is applicable. The parties
agree to request a panel of five (5) arbitrators, and to engage in respective
strikes until one (1) arbitrator remains. The expenses of the arbitration,
including the arbitrator's fee, will be shared equally between the Employee and
RISCORP.
10. WAIVER OF BREACH. It is agreed that failure on the part of
one party to this Agreement to seek to enforce the Agreement as to a specific
breach will not constitute a waiver
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by that party of its or his right to enforce the Agreement as to similar or
other breaches of the Agreement thereafter.
11. AMENDMENTS; FURTHER ACTIONS. This Agreement may not be
altered, modified or amended except by a written instrument signed by each of
the parties hereto. RISCORP shall take whatever additional actions that may be
necessary or appropriate to carry out its obligations under this Agreement to
permit the Employee to enforce his rights and benefits hereunder, including any
actions required under applicable law, obtaining resolutions of its Board of
Directors or shareholders authorizing this Agreement, or, where it may be
required by any agreements or any other commitments to which RISCORP or its
subsidiaries may be a party, gaining any required consent from the other
parties thereto.
12. ASSIGNMENT; SURVIVAL OF RIGHTS. Neither this Agreement nor
any of the rights or obligations hereunder may be assigned or delegated by the
Employee; provided, however, that this Agreement and all rights and benefits of
the Employee hereunder shall inure to the benefit of and be enforceable by the
Employee's personal or legal representatives, estate, executors,
administrators, heirs and beneficiaries. All amounts payable to the Employee
under this Agreement if the Employee had lived shall be paid, in the event of
the Employee's death, to such beneficiary(ies) as the Employee specifies in
writing from time to time, or if none, to the Employee's successor trustee
under his revocable living trust agreement, or if such trust is not then
existing, then to the personal representative of his estate.
If RISCORP sells, assigns or transfers a majority of its business and
assets to any person, or if RISCORP merges into or consolidates or otherwise
combines with any person which is a continuing or successor entity, or if a
Change of Control occurs, then RISCORP shall assign all of its right, title and
interest in this Agreement as of the date of such event to the acquiring or
successor business entity, and such entity shall assume and perform all of the
terms, conditions and provisions imposed by this Agreement upon RISCORP. In
case of such assignment by RISCORP and of assumption and agreement by such
entity, all further rights as well as all other obligations of RISCORP under
this Agreement thenceforth shall cease and terminate and thereafter the
expression "RISCORP" wherever used herein shall be deemed to mean such entity.
RISCORP will take whatever actions are necessary to assure that such acquiring
or successor entity expressly assumes the obligations of RISCORP to Employee
under this Agreement and will cause such successor entity to evidence the
assumption of such obligations in an agreement satisfactory to the Employee.
13. SEVERABILITY. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
14. ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties with respect to the employment of the Employee by
RISCORP. There are no restrictions,
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agreements, promises, warranties, covenants or undertakings other than those
expressly set forth herein. This Agreement supersedes and terminates all prior
agreements, arrangements and understandings between the parties, whether oral
or written, with respect to the employment of the Employee by RISCORP.
15. NOTICES. Notices and all other communications provided for in
this Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by United States registered mail,
return receipt requested, postage prepaid, addressed as follows:
If to the Employee to:
Xxxxxx X. Xxxxxxx
000 Xxxxxxx Xxxxx
Xxxxxxxx Xxx, XX 00000
If to RISCORP to:
RISCORP MANAGEMENT SERVICES, INC.
0000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: President
or to such other address as the Employee or RISCORP shall designate in writing
in accordance with this Section 15, except that notices regarding changes in
address shall be effective only upon receipt.
16. HEADINGS. Headings to sections in this Agreement are for the
convenience of the parties only and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement.
17. GOVERNING LAW. This Agreement shall be governed by the laws
of the State of Florida without reference to the principles of conflict of
laws. The parties hereto consent to the jurisdiction of the federal and state
courts of the State of Florida in connection with any claim or controversy
arising out of or connected with this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
RISCORP MANAGEMENT SERVICES, INC.
By:
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Title: Chairman of the Board and CEO
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____________________________________
Employee
XXXXXX X. XXXXXXX
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(Print Name)
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