Exhibit 10 - Employment Agreement
for Xxxx XxXxxxx
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), dated as of June 26, 2003, by and
between Satellite Enterprises Corp ("Company"), and Xxxx XxXxxxx ("Executive").
Witnesseth:
WHEREAS, Company desires to employ Executive as the President and Chief
Executive Officer of Company, and Executive desires to be so employed by
Company, on the terms and conditions herein provided.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. Employment.
(a) General. During the Term of this Agreement, as defined in Section 2
hereof, Company shall employ Executive, and Executive shall render
services to Company as President and Chief Executive Officer of the
Company upon the terms and conditions herein contained. Executive
shall have such duties as are consistent with the positions of
President and Chief Executive Officer. Executive also shall serve as a
member of the Board of Directors of the Company (the "Board" of the
Company) during the Term. Executive shall devote his best efforts to
the performance of his duties under this Agreement and shall perform
them faithfully, diligently and competently. The Executive represents
and warrants that neither the execution by him of this Agreement nor
the performance by him of his duties and obligations hereunder will
violate any agreement to which he is a party or by which he is bound.
(b) Exclusive Services. During the Term, the Executive shall devote his
full-time working hours to his duties hereunder. The Executive shall
not render services to any other person or organization for which he
receives compensation without the consent of the Board of Directors of
Company or otherwise engage in activities which would interfere
significantly with his faithful performance of his duties hereunder.
2. Term of Employment.
(a) Initial Term. Unless earlier terminated as provided in this Agreement,
the term of Executive's employment under this Agreement shall commence
on July 1, 2003 (the "Effective Date") and continue until three (3)
years from the date hereof.
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(b) Extension Period. This Agreement will be extended annually from the
first anniversary date of the effective date of the initial Term to
create a continuous, three year employment contract [the Extension
Period will be begin in year four and thereafter, unless the Executive
receives written notice from the Board to the Executive no later than
each subsequent anniversary date, commencing in year two and
thereafter, of the Board's decision not to extend the contract beyond
the then current three year period.
3. Compensation.
(a) Base Salary. In recognition of the competitive dynamics of the USA
marketplace for seasoned and skilled executive talent that the Company
must acquire to develop and execute its business plan, the Company
shall pay to Executive throughout the Term an annual salary (the "Base
Salary"), payable in accordance with the Company's customary policies,
or no less than once a month. The Base Salary shall be at the rate of:
(i) $225,000 per year for the first year;
(ii) $260,000 per year for the second year;
(iii)$300,000 per year for the third year;
(iv) Commencing with the Extension Period [which is the beginning of
year four], and annually on each anniversary thereafter, the Base
Salary shall be increased by a formula that recognizes and
rewards performance and is competitive in the U.S marketplace for
an executive with similar revenue scope and complexities. This
formula will be developed, documented and mutually consented to
by the Board and the Executive no later than the end of the first
quarter of the third year of this Agreement.
(b) Executive Incentive Plan. In addition to the Base Salary, and as an
incentive for the Executive to stretch for early achievement of the
approved business strategy, the Company shall pay to Executive an
award ("Executive Award"), with such award having a minimum payout of
20% and a potential maximum payout of 100% of his then annual base
salary of record, payable annually during each year of the term. The
Executive Award will be based on a formula, which is to be developed
and approved by the Board and the Executive. The Board will use this
formula to evaluate the accomplishment of pre-stated financial and
non-financial results and/or milestone achievements by the Executive
during the first three years of the Term. Details of the Executive
Incentive Plan and a Plan document are to be completed no later than
ninety [90] days after the effective commencement date of this
Agreement.
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(c) Company Shares.
(i) Initial Shares. The Company hereby grants the Executive 1,000,000
restricted shares to vest immediately. The shares are to be
placed in escrow with the Company's attorney, SEC Attorneys, LLC,
of 000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx, XX 00000, a licensed law
firm in the State of Connecticut as trustee, for a period of one
year until July 1, 2004, whereupon the shares will be turned over
to the Executive. Should the Executive leave the Company or is
terminated for just cause prior to July 1, 2004 then the
Company's attorney is instructed to return the shares to the
Company for cancellation. Any U.S. or foreign taxes due upon the
receipt of the restricted shares will be fully absorbed by the
Company at the time that the taxes become due and the Executive
will have the Company reimbursement "grossed up" to ensure the
Executive receives the full shares granted net of any tax
obligation.
(ii) Stock Options. The Company hereby grants the Executive the option
for ten years from the date of vesting as long as Executive is an
Employee of the Company on the date of vesting and on the date of
exercise plus an additional three months thereafter to purchase
at $0.08 per share an additional 1,500,000 restricted shares to
vest in accordance with the schedule below.
(a) 500,000 shares on June 30th, 2004.
(b) 500,000 shares on June 30th, 2005.
(c) 500,000 shares on June 30th, 2006.
(d) Incentive Stock Option Compensation. The Company hereby agrees to File
a Form S-8 to register an Employee Stock Option Plan (hereinafter the
"Plan") which will contain options for employees who qualify to
purchase in the aggregate up to a total of twenty five percent of all
shares of the Company on a fully dilutive basis and hereby grants the
Executive the option to purchase from said Plan for ten years from the
date of vesting as long as Executive is an Employee of the Company on
the date of vesting and on the date of exercise plus an additional
three months thereafter 1,500,000 of the Company's Common Stock (the
"Options") in accordance with the terms of the Employee Stock Option
Agreement. The Option shall contain a cashless exercise provision and
shall vest during the Term in accordance with the following:
(i) 500,000 shares at an exercise price of $1.00 per share to vest
effective (a) with the decision by the Board that the Executive
met his performance objectives and/or milestone achievements as
outlined in the Executive Incentive Plan; or (b) no later than
June 30th, 2004;
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(ii) 500,000 shares at an exercise price of $1.25 per share to vest
effective (a) with the decision by the Board that the Executive
met his performance objectives and/or milestone achievements as
outlined in the Executive Incentive Plan; or, [b] no later than
June 30th, 2005;
(iii)500,000 shares at an exercise price of $1.50 per share to vest
effective (a) with the decision by the Board that the Executive
met his performance objectives and/or milestone achievements as
outlined in the Executive Incentive Plan; or [b] no later than
June 30th, 2006;
4. Benefits.
(a) General Fringe Benefits. Executive shall be eligible to participate in
the life, hospitalization, health, accident and disability insurance
plans, health programs, pension plans, and other benefit and
compensation plans that are to be developed by Executive, external
consultants or members of the Company, for the exclusive use by
Company Officers and employees, during the first three [3] years of
the Term. In the absence of these fringe benefits generally being
available on the first day of the commencement of the Term, Executive
shall, solely at Company expense, obtain 1] comprehensive medical and
dental insurance for himself and eligible immediate family members, 2]
a Long Term Disability Plan for himself that offers up to 75% of
annual salary protection, and 3] an Accidental death and dismemberment
Policy for himself with a coverage value of not less than twice the
effective Base Salary, and 4],life insurance coverage (the beneficiary
to be designated by Executive) in an amount not less than twice the
then effective Base Salary.
(b) Reimbursements. Company shall pay or reimburse Executive for all
reasonable expenses incurred by Executive during the Term in the
performance of Executive's duties to Company upon presentation by
Executive of expense statements or vouchers and shall provide
Executive with a credit card for reasonable business expenses, in
accordance with Company practices.
(c) Automobile allowance and automobile insurance. The Company shall pay
or reimburse the Executive to lease an automobile with a three-year
lease term. The Company will also pay or reimburse the Executive for
comprehensive and liability insurance, maintenance and cost of fuel.
The Executive may select any automobile of his choice as long as the
annualized cost of the 36-month lease does not exceed $7,000 or
$25,200 for the life of the lease.
(d) Vacation/Holidays. Executive shall be entitled to four weeks paid
vacation each year during the Term.
(e) Relocation Expense. Not applicable at this time. In the event the
Company requests the Executive to relocate at a future date, the
Executive will be covered by the specific relocation policies in
effect at that time.
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(f) Equipment; Cellular Telephone. Company shall reimburse Executive for
the cost to purchase or lease a cellular phone, a fax machine for his
home use, a computer and monitor for his home use, and a PDA [value of
PDA not to exceed $400] and all monthly bills associated with these
items.
(g) Immigration. Company shall assist with all matters necessary and pay
or reimburse Executive for any and all reasonable expenses, including
reasonable attorneys fees, relating to Executive's application for
immigration status with the United States Immigration and
Naturalization Service.
5. Termination of Employment.
(a) Death. Executive's employment shall terminate upon his death, and in
such event, the estate or other legal representative of Executive
shall be entitled to receive all Base Salary compensation due to the
end of the month that the termination was effective, any Executive
Incentive Plan award earned but not paid out to Executive, and any
Stock Options which have been granted to the Executive (the vesting
date of which shall accelerate as of the date of death) but not
exercised and all other benefits that are accrued and unpaid as of the
date of death. The legal representative of the Executive will have
thirty [30] days to exercise any stock options vested on the
termination date.
(b) Termination by Company. Executive's employment may be terminated at
the option of Company by notice to Executive (i) as a result of
Executive's disability as provided in section 5(b)(i) hereof, or (ii)
for "cause" as defined and provided in section 5(b)(ii) hereof.
(i) Disability. As used in this Agreement, the term "Disability"
shall mean a physical or mental disability or incapacity, whether
total or partial, of Executive that, in the good faith
determination of Company's Board or based upon reasonably
competent medical advice, has prevented him from performing
substantially all of his duties under this Agreement for a period
of 180 days during any twelve month period. If Company shall
terminate Executive's employment pursuant to this section
5(b)(i), Executive shall be entitled to continue to receive
twenty five percent [25%] of his then current Base Salary (it
being understood by the parties that the Company's disability
insurance benefit provides for payment of seventy five [75%] of
the Executive's Base Salary for the remainder of his life) for a
period of one (1) year from the date of termination (but not
exceeding the balance of the Term), as well as (A) all Executive
Incentive Plan Awards either earned or the Executive would have
earned through the end of the calendar year or six months after
the effective termination date, whichever date benefits the
Executive, or [B]and benefits that are accrued and unpaid as of
the date of disability; and (C) any Stock Options which have been
granted to Executive, the vesting date of which shall accelerate
as of the date of termination.
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(ii) Discharge for "Cause". If Executive (A) neglects his duties
hereunder in a material manner and such neglect shall not be
discontinued within five (5) business days after written notice
to Executive thereof; (B) is convicted of a felony or other crime
involving fraud, moral turpitude or material loss to Company; (C)
materially breaches his affirmative or negative covenants or
undertakings hereunder and such breach shall not be remedied
within five (5) business days after written notice to Executive
thereof; or (D) in bad faith, commits any act or omits to take
any action, to the material detriment of Company; then Company
may at any time by notice terminate Executive's employment
hereunder for "cause"; and Executive shall have no right to
receive any compensation or benefit from Company hereunder on and
after the effective date of such notice, except for Base Salary
compensation which shall be payable to the Executive to end of
the month of the termination date, any Executive Incentive Plan
award that has been earned to date but not paid out, and other
benefits that are accrued and unpaid as of the date of
termination and any Stock Options which have vested as of the
date of termination, [the Executive will have thirty days [30] to
exercise any stock options that were vested on the date of
termination].
(c) Termination by Executive for "Good Reason or termination by Company
without Cause". In the event of: (i) a reduction in the nature or
scope of Executive's titles, authorities, powers, duties, or
responsibilities hereunder; (ii) a sale of all or substantially all of
the ownership interests or assets of Company, (iii) a merger or
consolidation of Company with any other corporation or entity in which
the shareholders of Company own less than 51% of the stock of the
controlling or surviving entity following such merger or
consolidation; (iv) a "change-in-control" of Company, defined as any
person or entity becoming a "beneficial owner" (as defined in Rule
13d-3 of the Securities Exchange Act of 1934, as amended from time to
time) directly or indirectly of securities of Company representing 50%
or more of the combined voting power of Company's then outstanding
securities; or (vii) Company's materially breaching its affirmative or
negative covenants or undertakings hereunder and such breach shall not
be remedied within fifteen (15) days after notice to Company thereof
(which notice shall be signed by Executive and refer to a specific
breach of this Agreement); then Executive may at any time by notice
terminate Executive's employment hereunder for "good reason". In the
event of such termination or in the event Company shall terminate the
Executive's employment without cause, the Company shall pay to
Executive (A) his Base Salary through the remaining duration of his
three year Term, but no less than two years annual salary from the
date of termination, (B) Any and all Executive Incentive Plan awards
either earned or the Executive would have earned over the next two
year period following the date of termination and benefits that are
accrued and unpaid as of the date of termination; (C) the additional
amounts described in Section 5(e] hereof; and (D) any Stock Options
which have been granted to the Executive, the vesting date of which
shall accelerate as of the date of termination. The executive will
have thirty [30] days from the date of termination to exercise his
stock options.
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(d) Expiration of Term. Upon the expiration of the Term, and provided that
(i) neither Executive nor Company shall have terminated Executive's
employment hereunder prior thereto, (ii) Executive shall have observed
and performed all of his material duties and obligations hereunder,
and shall not have been in default of any of his agreements, covenants
or representations hereunder, in both instances throughout the Term,
and (iii) Executive's employment with Company shall not thereafter be
continued, then Company shall pay to Executive the amounts described
in Section 5(e)(i) and (ii) hereof.
(e) Termination Benefits.
(i) Upon the expiration of the Term, the rights and benefits of
Executive under Company's employee benefit plans and programs
shall be determined in accordance with the provisions of such
plans and programs.
(ii) Upon the termination of Executive's employment during the Term by
Company other than for Executive's death, "cause" or
"disability", or upon the termination of Executive's employment
by Executive with "good reason", Company shall pay to Executive,
in addition to any and all amounts which may otherwise be due to
Executive hereunder, either, at the option of the Executive, (A)
an amount equal to two [2] times Executive's then annual Base
Salary, or (B) such number of shares of Common Stock of the
Company equal to the quotient of (x) one and two [2] times
Executive's then annual Base Salary divided by (y) the average
closing price of the Company's Common Stock for the three (3)
consecutive trading days immediately preceding such termination
date; provided, in the event the aggregate amount of current
assets of the Company and its subsidiaries as of the date of
termination is less than $1,000,000, Company shall pay to
Executive, in addition to any and all amounts which may otherwise
be due to Executive hereunder, either, at the option of the
Company, (A) an amount equal to two [2] times Executive's then
annual Base Salary, or (B) (a) an amount equal to one [1] times
Executive's then annual Base Salary and (b) such number of shares
of Common Stock of the Company equal to the quotient of (x) one
[1]) times Executive's then annual Base Salary divided by (y) the
average closing price of the Company's Common Stock for the three
(3) consecutive trading days immediately preceding such
termination date. Any cash payments to Executive under this
Section 5(e)(iii) shall be made within ninety (90) days of the
termination date. Shares issued to Executive pursuant to this
Section 5(e)(iii) shall be delivered within thirty [30] days of
the termination date. No fractional shares of Common Stock shall
be issued under this Section 5(e)(iii); instead the Company shall
round such fraction of a share of Common Stock up or down to the
nearest whole number.
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6. Prohibited Activities.
(a) Non-Compete Period. For the purposes of this Agreement, the term
"Non-Compete Period" shall mean the then current three year Term, and
if Executive's employment is terminated by Company for "cause", by
Executive without "good reason", or so long as Company pays Executive
the termination benefit specified in paragraph 5(e)(ii) above, an
additional period of six (6) months from and after the date of
termination.
(b) Non-competition. During the Non-Compete Period, Executive shall not
directly or indirectly compete with, be engaged in the business of, be
employed by, act as a consultant to, or be a director, officer,
employee, owner or partner of, any person or entity which is engaged
in the primary business of the Company at such time and in the
territories served by the Company in such business during the
Non-Compete Period.
(c) Solicitation of Employees. During the Non-Compete Period, Executive
shall not directly or indirectly employ, or solicit to leave Company's
employ, or solicit to join the employ of another person or entity
(including any such person or entity owned or controlled, directly or
indirectly, by Executive) any employee of Company or any person who
has been such an employee during the twelve months preceding
Executive's date of termination.
(d) Confidential Information. During and at all times subsequent to the
Term, Executive shall keep secret and shall not exploit or disclose or
make accessible to any person or entity, except in furtherance of the
business of Company, and except as may be required by law or legal
process, any confidential business information of any type that was
acquired or developed by either Company or any of its subsidiaries or
affiliates, or Executive, prior to or during the Term. In addition,
the term "confidential business information" shall not include
information which (i) is or becomes generally available to the public
other than as a result of a disclosure by Executive; or (ii) was
available to Executive prior to any employment by Company as a result
of his general business experience.
(e) Divisibility. The provisions contained in this Section 6 as to the
time period and scope of activities restricted shall be deemed
divisible, so that if any provision contained in this section is
determined to be invalid or unenforceable, that provision shall be
deemed modified so as to be valid and enforceable to the full extent
lawfully permitted.
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(f) Relief. Executive acknowledges that the provisions of this section are
reasonable and necessary for the protection of Company and that
Company will be irreparably damaged if such covenants are not
specifically enforced. Accordingly, it is agreed that Company will be
entitled to injunctive relief for the purpose of restraining Executive
from violating such covenants (and no bond or other security shall be
required in connection therewith), in addition to any other relief to
which Company may be entitled.
7. Work for Hire.
Any and all formulations, devices, materials, technology or other
inventions (collectively "Inventions") made, developed or created by
Executive (whether at the request or suggestion of Company or otherwise,
whether alone or in conjunction with others, and whether during regular
hours of work or otherwise) during the then current or earlier Term, will
be promptly and fully disclosed by Executive to Company and shall be
Company's exclusive property. Executive will promptly deliver to Company
all papers, drawings, models, data and other material relating to any
Invention made, developed or created by him as aforesaid. Executive
acknowledges that any Inventions developed, made, or created by Executive
during the Term shall be deemed "Works for Hire" and that Company shall
have the exclusive right to copyright, patent or otherwise protect such
Inventions.
Executive agrees to assign to Company its successors, legal
representatives and assigns all rights, including patent rights, in and to
any such Inventions and further agrees to cooperate with Company if Company
pursues patent protection for such Inventions. Specifically, and without
limitation, Executive agrees to communicate to Company any facts known to
Executive respecting said Invention, to sign all lawful papers, to execute
all divisional, continuing and reissue applications, to make all
declarations and to generally do everything possible to assist Company to
obtain and to enforce patent rights for said Invention in the United States
and abroad.
9. Indemnification.
(a) Company agrees that if Executive is made a party, or is threatened to
be made a party, to any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason
of the fact that he is or was a director, officer or employee of the
Company or is or was serving at the request of Company as a director,
officer, member, employee or agent of another corporation, limited
liability corporation, partnership, joint venture, trust or other
enterprises, including services with respect to employee benefit
plans, the Executive shall be indemnified and held harmless by Company
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to the fullest extent legally permitted or authorized by Company's
certificate of incorporation or bylaws or resolutions of the Company's
Board or, if greater, by the laws of the State of Delaware, against
all cost, expense, liability and loss (including, without limitation,
attorney's fees, judgements, fines, ERISA excise taxes or other
liabilities or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by Executive in connection therewith,
and not otherwise received by him from another sources, such as
insurance, and such indemnification shall continue as to Executive
even if he has ceased to be a director, member, employee or agent of
Company or other entity and shall inure to the benefit of Executive's
heirs and legal representatives. Company shall advance to Executive
all costs and expenses incurred by him in connection with a Proceeding
within 20 calendar days after receipt by the Company of a written
request for such advance. Such request shall include an undertaking by
Executive to repay the amount of such advance if it shall ultimately
be determined that he is not entitled to be indemnified against such
costs and expenses; provided that the amount of such obligations to
repay shall be limited to the after-tax amount of any such advance
except to the extent Executive is able to offset such taxes incurred
on the advance by the tax benefit, if any, attributable to a deduction
for the repayment.
(b) Neither the failure of Company (including its Board, independent legal
counsel or stockholders) to have made a determination prior to the
commencement of any Proceeding concerning payment of amounts claimed
by Executive under Section 9(a) above that indemnification of the
Executive is proper because he has met the applicable standard of
conduct, nor a determination by Company (including its Board,
independent legal counsel or stockholders) that Executive has not met
such applicable standard of conduct, shall create a presumption that
Executive has not met the applicable standard of conduct.
(c) Company agrees to continue and maintain a directors' and officers'
liability insurance policy covering the Executive with terms and
conditions no less favorable than the most favorable coverage then
applying to any other present or former director or officer of
Company, both during the Term and for six years thereafter.
10. Miscellaneous.
(a) Survival. The covenants and agreements set forth in this Agreement
shall survive Executive's termination of employment, irrespective of
any investigation made by or on behalf of any party.
(b) Headings. The section headings of this Agreement are for reference
purposes only and are to be given no effect in the construction or
interpretation of this Agreement.
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(c) Assignment. This Agreement shall not be assignable by Executive
without the prior written consent of Company; provided, however,
Executive may assign the registration rights under Section 8 to any
transferee of any Options or Registrable Securities, and shall inure
to the benefit of and be binding upon Executive and his legal
representatives.
(d) Territory. Executive shall not be required to relocate from his
current geographic area in Boca Raton, Florida; provided, however,
that Executive may be required to travel for business purposes from
time to time, subject to Executive's reasonable approval.
(e) Governing Law. This Agreement shall be governed by and construed in
accordance with the law of the State of Florida, applicable to
agreements made and to be performed in that State, without reference
to its principles of conflicts of law.
(f) Notices. All notices, requests, demands and other communications
(collectively, "Notices") that are required or may be given under this
Agreement, shall be in writing, signed by the party or the attorney
for that party. All Notices shall, except as otherwise specifically
provided herein to the contrary, be deemed to have been duly given or
made: if by hand, immediately upon delivery; if by telecopier or
similar device, immediately upon sending, provided notice is sent on a
business day during the hours of 9:00 a.m. and 6:00 p.m. E.S.T., but
if not, then immediately upon the beginning of the first business day
after being sent; if by Federal Express, Express Mail or any other
overnight delivery service, one day after being placed in the
exclusive custody and control of said courier; and if mailed by
certified mail, return receipt requested, five (5) business days after
mailing. All notices are to be given or made to the parties at the
following addresses (or to such other address as either party may
designate by notice in accordance with the provisions of this
section):
If to Company at:
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
If to Executive at:
0000 XX00xx Xxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
(g) Enforceability. If any provision of this Agreement is invalid or
unenforceable, the balance of this Agreement shall remain in effect,
and if any provision is inapplicable to any person or circumstance, it
shall nevertheless remain applicable to all other persons and
circumstances.
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(h) Waiver. The failure of a party to this Agreement to insist on any
occasion upon strict adherence to any term of this Agreement shall not
be considered to be a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other
term of this Agreement. Any waiver must be in writing.
(i) Conditions.
(i) This Agreement is conditional on the Company and the Executive
mutually and formally agreeing to the contents of the Company
Operating Plan submission as well as the terms and conditions as
specified in the final Rights Agreement between the Company and
Satellite Newspapers Worldwide, NV.
(ii) This Agreement is further conditioned on the understanding that
the Executive will not be responsible for raising the $10M
corporate funding required to initiate the Satellite business
plan, but rather that a consortium of Investor Relations firms
has been and will be contracted and be responsible to acquire the
necessary funding in line with applicable U.S. Securities Laws.
It is agreed that the Executive will support the fund raising
process by making company business presentations on an as per
required basis and in conjunction with the Investor Relations
firms and the Satellite Board of Directors.
(j) Complete Agreement. This Agreement supersedes any prior or
contemporaneous agreements between the parties with respect to its
subject matter, is intended as a complete and exclusive statement of
the terms of the agreement between the parties with respect to its
subject matter, and cannot be changed or terminated orally.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the date first above written.
Satellite Enterprises Corp.
/s/Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx, Chairman of the Board
Executive
Xxxx XxXxxxx
-----------------------------------
Xxxx XxXxxxx
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