SERVICES AGREEMENT
THIS
AGREEMENT (the "Agreement")
is made and entered into this 1st day of February, 2002 (the "Effective
Date"),
by and between Wintegra
Ltd.
(P.C. No. 51-290107-5), of business address at Xxxx Xxxxxx 0, Xxxxxxxx Xx.
P.O.B. 3048, 43653 Ra'anana, Israel ("Wintegra"),
and Shardan B Management Services Ltd. (in formation) of 00X Xxxxxxxxx Xx.
Xxxxxxx 00000, Xxxxxx (the "Company").
WHEREAS, Company
has certain experience and expertise in the area of general and/or technological management services; and
WHEREAS,
Wintegra
is interested in receiving Services (as defined hereunder) from Company and
Company is interested in providing the Services to Wintegra, as set forth in
this Agreement;
WHEREAS, the
parties have agreed that the Services shall be provided, on behalf of Company,
through its employee, Xx. Xxxxx Xxx-Xxx, I.D No. 51713709 (the “Executive”);
NOW
THERFORE,
in
consideration of the mutual promises, covenants and understandings contain
herein, the parties agree as follows:
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1.
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Representations
and Warranties
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| Company represents and warrants to Wintegra that, as of the Effective Date: |
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1.1.
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Company
is free to provide Wintegra with the Services through the Executive,
upon the terms contained in this Agreement and there are no contracts
and/or restrictive covenants preventing full performance of Company’s
duties and obligations under this Agreement.
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1.2.
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Company
has the requisite qualifications, knowledge and experience to perform
its
obligations under this Agreement.
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1.3.
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Company
has entered into an employment agreement with the Executive and there
are
no contracts or covenants preventing Executive from providing Wintegra
with the Services as contemplated by this Agreement and from being
appointed as Wintegra’s Chief Executive
Officer.
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2.
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Duties
of Company
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2.1.
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Company
shall provide Wintegra with management services (the “Services”)
exclusively through the Executive, who has been appointed as Wintegra’s
Chief Executive Officer and will continue to serve under such capacity
and
use such title.
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2.2.
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Company,
undertakes to perform its duties and obligations under this Agreement
with
the highest degree of professionalism, devotion, honesty and
fidelity.
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2.3.
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Company,
through Executive, shall follow the instructions of Wintegra’s Board of
Directors and shall update and consult with Wintegra’s Board of Directors
on fundamental business issues.
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3.
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Services
Fee
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3.1.
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Wintegra
shall pay Company, against the Services and the fulfillment of its
obligations pursuant to this Agreement, monthly services fees in
the
aggregate sum of $18,180.00 payable in NIS according to the US dollar
rate
published by the Bank of Israel on the date of payment (the “Services
Fee”).
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3.2.
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The
Services Fee shall be payable by no later than the 9th day of the
consecutive calendar month following the calendar month in which
the
Services to which the payment relates were provided.
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3.3.
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The
Services Fee shall be paid, along with applicable V.A.T., against
a lawful
tax invoice.
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3.4.
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Wintegra
and Company will take all required measures in order to transfer
and
assign Executive's insurance managers, Study Fund ("Xxxxx
Hishtalmut"),
accumulated vacation and any other rights of the Executive under
his
employment with Wintegra.
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3.5.
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In
the event that pursuant to any law or regulation, tax is required
to be
withheld at source from any payment made to Company, Wintegra shall
withhold said tax at the rate set forth in the certification issued
by the
appropriate taxing authority and provided to Wintegra by Company,
or in
the absence of such certification, at the rate determined by said
law or
regulation.
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4.
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Reimbursement
of Expenses.
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In
connection with the Services, Company shall
be entitled, during the Term (as defined below), to reimbursement
of the
following expenses, as against appropriate receipts and/or other
documentation in accordance with Wintegra’s policy: (i) internet
communication; (ii) telephone and mobile phone; (iii) newspapers;
(iv)
reasonable business travel expenses as required for the performance
of the
Services; (v) reasonable out-of-pocket expenses, incurred by the
Company
in connection with the performance of the
Services.
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5.
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Wintegra
Car
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5.1.
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Wintegra
shall provide Company with a Wintegra car, type of car will be Mitsubishi
Galant, Honda Accord or a similar value car as mutually agreed between
Wintegra and the company (the “Wintegra
Car”)
to be placed at the Company’s disposal, for the performance of the
Services under this Agreement, for the use of Executive and/or other
individuals permitted by Executive (“Permitted
Drivers”),
provided that the Wintegra’s procedures in respect of said use are
followed. Wintegra shall bear all the expenses with respect to the
use of
the Wintegra Car.
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5.2.
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Wintegra
shall bear all (if any) taxes that may be imposed on it in connection
with
said Wintegra Car.
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5.3.
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Company
shall return the Wintegra Car (together with its keys and any other
equipment supplied and/or installed therein by Wintegra) to Wintegra’s
principal office upon termination of this Agreement, unless otherwise
was
agreed between the parties hereto. Company shall have no rights of
lien
with respect to the Wintegra Car and/or any of said other
equipment.
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2
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5.4.
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Upon
termination of this agreement, Company shall be entitled to buy
the
Wintegra Car from Wintegra at its fair market price, according
to that
month's relevant price-list, published by "Xxxx
Xxxxx".
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0.
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Cellular
Phone and Laptop
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7.1
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Wintegra
shall provide the Company with one or more cellular phones (“Cellular
Phone”)
and a laptop computer (the “Laptop”)
to be placed at the Company’s disposal through the Executive, for his use
in the course of performing its obligations under this Agreement,
provided
that the Wintegra’s procedures in respect thereof are followed. Wintegra
shall bear all the expenses with respect to the use of the Cellular
Phone.
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7.2
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Wintegra
shall bear all (if any) taxes that may be imposed on it in connection
with
said Cellular Phone and/or Laptop.
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7.3
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Company
shall return the Cellular Phone and Laptop to Wintegra’s principal office
upon termination of this Agreement unless otherwise was agreed between
the
parties hereto. Company shall have no rights of lien with respect
to said
Cellular Phone and Laptop.
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7.4
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Upon
termination of this agreement, Company shall be entitled to buy the
Cellular Phone and Laptop from Wintegra at its fair market
price.
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7.
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Office
Facilities.
In
order to enable Company to perform its duties hereunder, Wintegra
will
provide Company with an office within the Company, a parking place,
lunch
coupons and all other facilities reasonably required by the
Company.
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8.
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Status
of Parties
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8.1.
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Immediately
upon the commencement of this Agreement, the employment agreement
between
Executive and Wintegra shall be terminated and Executive shall no
longer
be an employee of Wintegra.
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8.2.
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The
Executive is an employee of Company and there is and shall be no
employee-
employer relationship between Wintegra and the Executive and/or any
of
Company’s employees or anyone on its behalf.
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8.3.
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Company
declares and represents that it makes all compulsory and other payments
in
connection with the employment of its employees, including Executive.
Said
payments include, without limitation, income tax, National Insurance,
social benefits and related payments.
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8.4.
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Without
derogating from the above, the parties hereby agree, that in the
event
that Executive and/or any of Company’s employees or anyone on its behalf,
shall claim the existence of an employer-employee relationship with
Wintegra, or in the event that the relationship between Wintegra
and the
Executive and/or any of Company’s employees or any one on Company’s behalf
shall be regarded or determined by any governmental authority or
any of
the tax authorities at any time hereafter as an employer-employee
relationship, Company
shall reimburse and indemnify Wintegra
for any expense and/or payment
incurred by Wintegra
or demanded of Wintegra
in consequence of the foregoing, immediately upon Wintegra’s
first demand, unless otherwise was mutually agreed between the parties
hereto.
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3
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9.
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Proprietary
Information and
Confidentiality
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9.1.
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Company
is aware that in the course of the provision of the Services and/or
in
connection therewith Company, through the Executive, may have access
to,
and be entrusted with proprietary and financial data and information
with
respect to the affairs and business of Wintegra, whether documentary,
written, oral or computer generated, shall be deemed to be, and referred
to as “Proprietary
Information”.
Proprietary Information shall not include information that (i) was
known
to Company and/or Executive prior to its association with Wintegra;
or
(ii) shall have become a part of the public knowledge except as a
result
of breach of the Agreement by Company; or (iii) reflects general
skills
and experience gained by Company, through the Executive, during Company’s
engagement by Wintegra or prior to such period; or (iv) reflects
information and data generally known in the industries or trades
in which
Wintegra competes.
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9.2.
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Company
agrees and declares that all Proprietary Information and other
intellectual property rights in connection therewith, are and shall
remain
the sole property of Wintegra and its assigns. All business records,
papers and documents however documented, kept or made by Company
in the
course of its engagement and relating to the business and affairs
of
Wintegra shall be and remain the property of Wintegra.
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9.3.
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Company
undertakes and agrees that, at all times, during the term of this
Agreement, Company and Executive shall keep in confidence and trust
all Proprietary Information, and any part thereof, and will not use
or disclose and/or make available, directly or indirectly, to any
third party any Proprietary Information without the prior written
consent of Wintegra, except and to the extent as may be necessary
in the ordinary course
of performing Company's duties pertaining to Wintegra and except and
to the extent as may be required under any applicable law, regulation,
judicial decision or determination of any governmental entity.
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10.
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Non-Solicitation
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Company
hereby covenants that throughout the
Term and thereafter for a period of six (6) months following the
effective
date of termination of this Agreement howsoever arising, Company
and
Executive shall not,
whether on its own account and/or on behalf of others, endeavor to
entice
away, or solicit for the purpose of interfering and/or enticing away,
from
Wintegra, any employee, consultant or contractor of whatsoever nature,
with whom Wintegra has contractual relationship, except for all
affiliates, employees, consultants or contractors of whatsoever nature
which were introduced to Wintegra by the
Executive.
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11.
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Term
and Termination
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11.1.
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This
Agreement shall commence as of the Effective Date and shall remain
in
effect until terminated by either party as provided in Section 10.2
hereunder (the “Term”).
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11.2.
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Either
Wintegra or Company may terminate this Agreement for any reason at
any
time by giving a 180 days prior written notice (the “Notice
Period”)
to the other party.
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11.3.
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During
the Notice Period, Company shall be obligated to continue to discharge
and
perform all of its duties and obligations under this Agreement
unless Wintegra has waived any and/or all of Company’s Services under this
Agreement during the Notice Period, or any part thereof. In any event,
during the Notice Period the Company shall be entitled to all payments
and
other rights specified under this Agreement.
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11.4.
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Notwithstanding
the provisions of Section 12.2 above to the contrary, Wintegra shall
be
entitled to give Company notice that this Agreement is terminated
effective immediately as a result of the occurrence of any one of
the
following (“Justifiable
Cause”):
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11.4.1.
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Any
material breach by Company of any provisions of sections 8 or 9 of
this
Agreement;
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11.4.2.
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Executive
has committed a criminal offense involving moral turpitude.
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11.4.3.
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Company
deliberately and willfully causes harm to Wintegra’s business affairs and
such damage is not cured within 30 days of a written notice by Wintegra
to
Company detailing such damage.
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12.
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General
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12.1.
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This
Agreement shall not be amended, modified or varied by any oral agreement
or representation or otherwise than by written instrument executed
by both
parties.
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12.2.
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Company
shall not assign any of its rights and obligations hereunder without
the
prior written consent of Wintegra, and any attempt to assign without
such
consent shall be null and void, unless assigned by the Company to
another
company in Executive’s control. In this Section 11.2 “control” shall mean
(i) title, control, beneficial interest or beneficial ownership in
100% of
the issued and outstanding share capital of the company; or (ii)
holding
of the combined voting power of the outstanding voting securities
of the
company; or (iii) the ability to appoint all the members of the board
of
directors of the company.
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12.3.
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Either
party’s
failure at any time to require strict compliance by the other party
of the
provisions of this Agreement shall not diminish such party’s right
thereafter to demand strict compliance therewith or with any other
provision. Waiver of any particular default shall not waive any other
default.
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12.4.
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All
disputes with respect to this Agreement shall be determined in accordance
with the laws of Israel.
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12.5.
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In
the event that any provision of this Agreement shall be deemed unlawful
or
otherwise unenforceable, such provision shall be severed from this
Agreement and all other provisions of the Agreement shall continue
in full
force and effect.
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12.6.
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This
Agreement, contains and sets forth the entire agreement and understanding
between the parties with respect to the subject matter contained
herein,
and as such supersedes all prior discussions, agreements, representations
and understandings in this regard. This Agreement shall not be modified
except by an instrument in writing signed by both
parties.
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12.7.
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Each
notice and/or demand given by one party pursuant to this Agreement
shall
be given in writing and shall be sent by registered mail to the other
party at the address as follows:
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If
to Wintegra:
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Xxxx
Xxxxxx 0, Xxxxxxxx Xx. X.X.X. 0000,
43653
Ra’anana, Israel
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If
to Company:
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00X
Xxxxxxxxx Xx. Xxxxxxx 00000, Xxxxxx
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And
such notice and/or demand shall be deemed given at the expiration
of 7
days from the date mailing by registered mail or immediately if delivered
by hand. Such address shall be effective unless notice of a change
in
address is provided by registered mail to the other
party.
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12.8.
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The
captions contained herein are for the convenience of the parties
only and
shall not affect the construction or interpretation of any provision
hereof.
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In
witness whereof, the parties have executed this Agreement as of the date stated
above.
| Wintegra
Ltd. |
Shardan
B. Management Services Ltd. |
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| By: |
/s/ J. Xxx-Xxx |
By:
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/s/
J. Xxx-Xxx |
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| Title: |
CEO |
Title: |
CEO |
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