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Exhibit 10.52
Form of Restricted Share Award Agreement
with President and Chief Executive Officer
i-STAT Corporation
RESTRICTED SHARE AWARD AGREEMENT
with Xxxxxxx X. Xxxxxxx
This Restricted Share Award Agreement ("Agreement"), dated as of
February 5, 1999, is between i-STAT Corporation, a Delaware corporation, having
its principal place of business at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxx Xxxxxxx, Xxx
Xxxxxx 00000 (the "Company"), and Xxxxxxx X. Xxxxxxx ("Employee").
In connection with, and in consideration for, services rendered
and to be rendered to the Company by Employee, the Company desires to award to
Employee, pursuant to the Company's Equity Incentive Plan (the "Plan"), shares
of the Company's Common Stock, $.15 par value per share (the "Common Stock").
Accordingly, the Company and Employee hereby agree as follows:
1. Employment Agreement. The award evidenced by this Agreement
shall under no circumstances limit or otherwise affect the rights or obligations
of Employee or the Company pursuant to that certain Employment Agreement, dated
as of January 23, 1998, between the Company and Employee, as the same may be
amended from time to time (the "Employment Agreement"), or otherwise affect the
employment relationship between Employee and the Company. Nothing contained in
the Plan or this Agreement will confer upon Employee any right with respect to
the continuation of his employment by the Company or interfere in any way with
the right of the Company, subject to the terms of the Employment Agreement, to
terminate such employment or to increase or decrease the compensation of
Employee from the rate in existence at the time of the award contemplated
herein.
2. Award of Shares. Subject to the terms and conditions set forth
herein and in the Plan, the Company hereby awards to Employee Two Hundred Fifty
Thousand (250,000) shares of Common Stock (the "Award Shares").
3. Forfeiture of Award Shares; Employee's Rights in Shares. From
and after the date hereof, the Award Shares shall be subject to forfeiture by
Employee as set forth below:
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(a) Fifty thousand (50,000) of the Award Shares shall not be
subject to forfeiture by Employee under any circumstance (the
"Vested Shares").
(b) All of the Award Shares other than the Vested Shares (the
"Unvested Shares"), shall immediately be forfeited by Employee
if, prior to February 5, 2002 (the "Vesting Date"), (i)
Employee voluntarily resigns his employment with the Company
without Good Reason (as such term is defined in the Employment
Agreement) or (ii) the Company terminates Employee's
employment for Cause (as such term is defined in the
Employment Agreement).
(c) If, prior to the Vesting Date, (i) Employee dies or (ii) the
Company terminates Employee's employment due to Employee's
Permanent Disability (as such term is defined in the
Employment Agreement), then Employee shall forfeit that number
of Unvested Shares which is equal to the lesser of (i) 100,000
and (ii) (A) 200,000 less (B) that number of Unvested Shares
which bears the same proportion to all of the Unvested Shares
as the number of days elapsed between February 5, 1999 and the
date of termination of Employee's employment for the reasons
stated in clauses (i) or (ii) above bears to the number of
days between February 5, 1999 and the Vesting Date. Subsequent
to the occurrence of either of the events set forth in clauses
(i) or (ii) above, any Unvested Shares which are not forfeited
as provided for in this paragraph (c) shall be subject to no
further risk of forfeiture.
(d) Notwithstanding paragraphs (b) and (c) of this Section, the
Unvested Shares will automatically cease to be subject to
forfeiture upon the earlier to occur of (i) the Vesting Date,
(ii) the termination by the Company of Employee's employment
without Cause, (iii) the occurrence of a Change in Control (as
such term is defined in the Plan) and (iv) the voluntary
resignation by Employee of his employment with the Company due
to a Diminution of Responsibility (as such term is defined in
the Employment Agreement).
(e) Upon the forfeiture of any of the Unvested Shares pursuant to
the terms of this Section, Employee shall have no further
rights whatsoever with respect to such shares.
(f) If, prior to the Vesting Date, there is (i) any stock
dividend, stock split, combination or subdivision or other
change in the character or amount of
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any of the Company's outstanding securities or (ii) any
consolidation, merger or sale of all or substantially all of
the Company's assets, then, in such event, any and all new,
substituted or additional securities to which Employee is
entitled by reason of his ownership of Award Shares which,
immediately prior to such event, were subject to forfeiture,
will be (except to the extent any such event shall constitute
a Change in Control) immediately subject to the forfeiture
provisions of paragraphs (b) and (c) of this Section, and
shall be included in the term "Award Shares" for purposes of
this Agreement.
(g) As long as any of Employee's Award Shares have not been
forfeited pursuant to paragraphs (b) or (c) of this Section,
Employee shall have, with respect to such Award Shares,
voting, dividend and all other rights of a holder of Common
Stock.
(h) Certificates representing Award Shares subject to forfeiture
pursuant to paragraphs (b) and (c) of this Section will be
held by the Company until such Award Shares are no longer
subject to forfeiture. Award Shares subject to forfeiture may
not be sold, transferred, pledged or otherwise disposed of
(including, but not limited to, through transfer by gift or
donation).
4. Section 83(b) Election. (a) Within thirty (30) days of the date
hereof, Employee shall make an election under Section 83(b) of the Internal
Revenue Code of 1986, as amended (the "Code"), by filing a statement meeting the
requirements of Treasury Regulations Section 1.83-2 with the applicable Internal
Revenue Service (the "IRS") office (with a copy to the Company) with respect to
all of the Unvested Shares (the "83(b) Election").
(b) Employee will, upon the request of the Company (and at the
Company's expense), contest any action or filing of any government or
governmental agency which would result in the payment by Employee of any tax
liability in respect of the Award Shares. Employee shall keep the Company
informed as to the status and progress of any such contest and shall consider in
good faith the Company's advice in connection therewith; provided, however, that
to the extent the Company has indemnified Employee with respect to such tax
liability, Employee shall follow the Company's advice in connection therewith.
Employee shall give the Company the opportunity to review and comment on any
written submissions and to attend any proceedings in connection with the
foregoing.
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5. Loan. (a) The Company shall, in accordance with its normal
policies and procedures for the payment of withholding tax, pay to the IRS and
the appropriate state and local revenue authorities (collectively, the "Tax
Authorities"), on behalf of Employee, an amount equal to the federal (including,
without limitation, Medicare taxes), state and local income taxes (the foregoing
taxes are hereinafter collectively referred to as "Income Taxes") required to be
withheld in connection with the award to Employee of the Award Shares (the
"Withholding Tax Amount"). On the day the Company pays the Withholding Tax
Amount on behalf of Employee to the Tax Authorities, Employee shall execute an
unsecured promissory note in substantially the form attached as Exhibit A hereto
(the "Withholding Tax Amount Promissory Note") reflecting Employee's obligation
to repay the Withholding Tax Amount to the Company (the "Withholding Tax Loan").
No later than five (5) days before Employee is obligated to pay to the Tax
Authorities any additional Income Taxes with respect to the Award Shares (after
taking into account any reduction in such liability based upon Employee's
personal tax position) (the "Remaining Taxes"), the Company shall loan (the
"Remaining Tax Loan") to Employee the full amount of the Remaining Taxes (the
"Remaining Tax Amount") and Employee shall thereafter promptly pay the Remaining
Tax Amount to the appropriate Tax Authorities. On the day the Company pays the
Remaining Tax Amount to Employee, Employee shall execute an unsecured promissory
note in substantially the form of Exhibit B hereto (the "Remaining Tax Amount
Promissory Note") reflecting Employee's obligation to repay the Remaining Tax
Loan to the Company. (The Withholding Tax Loan and the Remaining Tax Loan (to
the extent such loan is made by the Company to Employee) are hereinafter
collectively referred to as the "Loan"). In determining each of the Withholding
Tax Amount and the Remaining Tax Amount, the Company will base its calculation
on the information contained in the 83(b) Election made pursuant to Section 4
and Employee's federal, state and local income tax rate.
(b) The Loan is due and payable three years from the date of the
Remaining Tax Loan, if made, or, if the Remaining Tax Loan is not made, the date
of the Withholding Tax Loan (the "Due Date"). Interest on each of the
Withholding Tax Loan and the Remaining Tax Loan (if made by the Company) shall
accrue annually at the Applicable Interest Rate (as hereinafter defined) for the
month in which the Withholding Tax Loan or the Remaining Tax Loan, as the case
may be, is made and shall be due and payable by Employee annually in arrears on
the anniversary of the Remaining Tax Loan, or, if the Remaining Tax Loan is not
made, on the anniversary of the Withholding Tax Loan. To the extent the amount
of the Loan exceeds the actual Income Tax liability of Employee (after taking
into account any reduction in such liability based upon Employee's personal tax
position), Employee shall immediately repay such amount to the Company (plus
accrued interest thereon) and the principal amount of the Loan shall be reduced
accordingly. In connection with the determination of the Remaining Taxes
Employee
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agrees to take reasonable actions to maximize Employee's use of available
deductions and offsets with the intention of minimizing the amount of the
Remaining Taxes.
(c) "Applicable Interest Rate" for purposes of this Agreement
shall mean the minimum applicable federal rate determined under Code Section
1274(d), compounded semi-annually.
6. Forgiveness of Loan.
(a) Subject to paragraph (b) of this Section and to Section 7
hereof, so long as Employee is employed by the Company one-third of the
outstanding principal amount of the Loan shall be forgiven by the Company on
each anniversary date of the Remaining Tax Loan, or, if the Remaining Tax Loan
is not made, the date of the Withholding Tax Loan.
(b) Notwithstanding anything to the contrary contained in
paragraph (a) of this Section or in Section 7 hereof, the then outstanding
principal amount of the Loan, along with all accrued and unpaid interest
thereon, shall be forgiven by the Company upon the earlier of (i) Employee's
death, (ii) the termination by the Company of Employee's employment due to
Employee's Permanent Disability, (iii) the occurrence of a Change in Control,
(iv) the voluntary resignation by Employee of his employment with the Company
due to a Diminution of Responsibility and (v) the termination by the Company of
Employee's employment without Cause.
7. Acceleration of Loan. The then outstanding principal amount of
the Loan, together with all accrued and unpaid interest thereon, shall be due
and payable by Employee to the Company on the date which is 180 days following
the earlier of (i) Employee's voluntary resignation from the Company without
Good Reason prior to the Due Date and (ii) the termination of Employee's
employment by the Company for Cause. Upon the occurrence of either of the events
set forth in clauses (i) or (ii) of the preceding sentence, Section 6(a) shall
immediately be void and of no further force or effect.
8. Exercise of Options; Payment to the Company.
(a) From and after the date of the Withholding Tax Loan, but
subject to the limitation set forth in paragraph (b) of this Section, Employee
covenants and agrees that Employee shall pay to the Company any amounts realized
by Employee in connection with the exercise of the Designated Options (as
hereinafter defined) and the sale of the securities underlying such Options (the
"Covered Securities"), net of any Income Taxes and brokerage commissions payable
by Employee in connection therewith (the "Option
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Profits"). Employee shall pay the Option Profits to the Company within ten (10)
business days after the sale of any Covered Security. For purposes only of this
Section 8, the Income Taxes payable in connection with the sale of a Covered
Security shall be deemed to be equal to 42% of the proceeds payable to Employee
from such sale.
(b) To the extent that either the Withholding Tax Loan or the
Remaining Tax Loan is still outstanding at the time when Employee pays any
Option Profits to the Company, the Company shall apply the Option Profits
equally to the remaining outstanding principal amounts and accrued and unpaid
interest due under such loans. If only one of such loans is outstanding at the
time of such a distribution, the Company shall apply all of such Option Profits
to the outstanding principal amount and the accrued and unpaid interest due
under such loan. Any Option Profits received by the Company and applied to the
Withholding Tax Loan and/or the Remaining Tax Loan, as the case may be, shall be
applied first to any outstanding principal amounts due under such loan(s) and
next to any accrued and unpaid interest due thereon. If the Withholding Tax Loan
and/or for the Remaining Tax Loan, as the case may be, have been forgiven as
provided in Section 6 hereof, the Company and Employee shall consult and
determine the appropriate manner in which to treat such distribution by Employee
to the Company of any Option Profits.
(c) The obligations of Employee pursuant to this Section 8 shall
remain in full force and effect until the payment by Employee to the Company of
Option Profits equal to the original principal amount of the Loan, together with
any then accrued and unpaid interest thereon (the "Option Profits Obligation")
and whether or not the Loan shall have been forgiven in accordance with Section
6 hereof. Notwithstanding anything to the contrary contained in this Agreement,
if after the Option Profits Obligation has been satisfied there are still
Designated Options which have not been exercised, Employee shall be entitled to
retain such Designated Options, to exercise such Options in accordance with
their terms, and to retain any profits generated by the sale of the securities
underlying such Options for his own account.
(d) "Designated Options" for purposes of this Agreement shall mean
those stock options previously granted to Employee by the Company and which are
designated on the books and records of the Company as option numbers 002652,
001463, 002149, 002644, 001167, 001146, 001218, 000560 and 000619. Employee and
the Company acknowledge and agree that the Designated Options in the aggregate
represent the right of Employee to purchase up to 161,757 shares of Common
Stock, and that the latest date on which any such option can be exercised is
January 23, 2008.
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\ 9. Gross-Up.
(a) To the extent that all or any portion of the Loan is forgiven
by the Company as provided in Section 6 and Employee is obligated to pay any
Income Taxes as a result thereof, the Company shall pay to Employee, or on
behalf of Employee, as the case may be, the sum of (i) all Income Taxes due by
Employee as a result of the forgiveness of such Loan, plus (ii) an amount equal
to any and all Income Taxes paid or required to be paid with respect to the
receipt of the amount set forth in clause (i) above (including, without
limitation, any taxes on such additional amount). It is the intention of the
parties hereto that the Company will pay on behalf of Employee any withholding
tax due in connection with the forgiveness of all or any portion of the Loan and
that the Company will pay to Employee any out-of-pocket tax liability Employee
experiences in connection with the forgiveness of the Loan. Any amounts payable
by the Company to Employee pursuant to this Section 9 shall be paid no later
than five (5) business days before Employee is obligated to pay any taxes to the
Tax Authorities. The amounts payable to, or on behalf of Employee by the Company
pursuant to this Section 9 shall be in addition to, and not in limitation of,
the amounts payable to, or on behalf of Employee by the Company pursuant to
Section 17 hereof.
(b) To the extent that any additional Income Taxes (other than the
Withholding Tax Amount and the Remaining Tax Amount) are due and payable by
Employee in connection with the award contemplated by this Agreement, the
Company shall pay to Employee an amount, so that on an after-tax basis, Employee
will be in no different position than if no additional taxes were due with
respect to the Award Shares.
10. Manner of Payment. (a) Any payment required to be made by
Employee hereunder or pursuant to the Promissory Note may be made by Employee in
funds constituting lawful money of the United States of America or, at the
election of Employee, in shares of Common Stock. If Employee makes any payment
with shares of Common Stock, the Market Value (as hereinafter defined) of the
Common Stock as of the close of business on the business day immediately
preceding the payment date shall be used to determine the number of shares of
Common Stock which will be necessary to make such payment. Title to all shares
of Common Stock used to make any payment hereunder shall be transferred free and
clear of liens and encumbrances, and Employee shall make representations and
warranties to that effect which are reasonably acceptable to the Company.
(b) "Market Value" for purposes of this Agreement and of the
Promissory Note shall mean as of any date (the "Value Date") the average closing
price of the Common Stock as reported on the National Association of Securities
Dealers Automated Quotation
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System ("NASDAQ") or, if the Common Stock is listed on a stock exchange, the
principal stock exchange on which the Common Stock is listed, for the thirty
trading days immediately prior to the Value Date for which a closing price is
available. If the Common Stock is not reported on the NASDAQ or listed on any
stock exchange, then "Market Value" shall be determined in good faith by the
Company's Board of Directors.
11. Representations of Employee. Employee represents, warrants and
covenants that:
(a) The Award Shares are being acquired by Employee for his own
account, for investment only and not with a view to, or for sale in connection
with, any distribution in violation of the Securities Act of 1933, as amended
(the "Securities Act") or any rule or regulation thereunder; and
(b) Employee understands that (i) the Award Shares currently are
not, and in the future may not be registered under the Securities Act and are
"restricted securities" within the meaning of Rule 144 under the Securities Act;
(ii) the Award Shares cannot be sold, transferred or otherwise disposed of
unless they are registered under the Securities Act or an exemption from
registration is then available; and (iii) in any event, the exemption from
registration under Rule 144 will not be available for at least one (1) year and
even then will not be available unless a public market then exists for the
Common Stock of the Company, adequate information concerning the Company is then
available to the public, and the other terms and conditions of Rule 144 are
complied with.
12. Tax Consequences. Employee hereby represents that prior to
or on the date hereof, Employee has been advised of the tax consequences to
Employee of receiving the Award Shares and has obtained appropriate legal or tax
advice with respect thereto.
13. Legends. Stock certificates representing the Award Shares
may bear legends reflecting such restrictions as the Company deems appropriate
and in its best interests in accordance with the terms and conditions of this
Agreement. In such event, the Company may refuse to transfer ownership of the
Award Shares on its corporate record books until Employee has complied with such
restrictions.
14. Non-transferability of Award Agreement. This Agreement is
personal and no rights hereunder may be transferred, assigned, pledged or
hypothecated by Employee in any way (whether by operation of law or otherwise),
nor shall any such rights be subject to execution, attachment or similar
process. Upon any attempt by Employee to transfer, assign, pledge, hypothecate
or otherwise dispose of his rights under this Agreement contrary to the
provisions hereof, or upon the levy of any attachment or similar process
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upon such rights, any such rights shall, at the election of the Company, become
null and void.
15. Delivery of Award Shares. Subject to the terms set forth in
Section 3(h) hereof, the Company will make prompt delivery to Employee of the
Award Shares, provided that if any law or regulation requires the Company to
take any action with respect to such Award Shares before the issuance thereof,
then the date of delivery of such Award Shares will be extended for the period
necessary to complete such action. No Award Shares will be issued and delivered
unless and until, in the opinion of counsel for the Company, any applicable
registration requirements of the Securities Act, any applicable listing or
quotation requirements of any exchange or quotation system on which stock of the
same class is then listed or quoted, and any other requirements of law or of any
regulatory bodies having jurisdiction over such issuance and delivery shall have
been fully complied with.
16. Severability. In the event that any provision or portion of
this Agreement shall be determined to be invalid or unenforceable for any
reason, in whole or in part, in any jurisdiction the remaining provisions of
this Agreement shall be unaffected thereby and shall remain in full force and
effect to the fullest extent permitted by law in such jurisdiction, and such
invalidity or unenforceability shall have no effect in any other jurisdiction.
17. Golden Parachute Excise Tax. To the extent that, as a result
of a Change in Control, (A) the Unvested Shares are no longer subject to a risk
of forfeiture as provided in Section 3 hereof and (B) the Loan is forgiven as
provided in Section 6 hereof, the Company shall pay to Employee an amount equal
to (i) any excise tax imposed by Section 4999 of the Code on any portion of the
value accruing to Employee in connection with (A) and (B) above plus (ii) any
other taxes imposed by the Code or under state or local law on the payments
provided for in this Section 17. The amount of the taxes provided for in clauses
(i) and (ii) of the immediately preceding sentence shall be determined by
PricewaterhouseCoopers or another national accounting firm selected by the
Company. The provisions of this Section 17 are intended to be complimentary to
Section 7 of the Employment Agreement and any rights or obligations of the
Company and Employee pursuant to this Section 17 shall be subject to and
governed by the terms and conditions set forth in Section 7 of the Employment
Agreement. To the extent that Employee, as a result of a Change in Control,
becomes entitled to the Unvested Shares and the Loan (plus accrued interest) is
forgiven, Employee shall be entitled to all of the benefits provided by Section
7 of the Employment Agreement. Any amounts payable by the Company to Employee
pursuant to this Section 17 shall be paid to Employee no later five (5) business
days before Employee is obligated to pay any taxes to the Tax
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Authorities. The amounts payable to Employee by the Company pursuant to this
Section 17 shall be in addition to, and not in limitation of, the amounts
payable to, or on behalf of Employee by the Company pursuant to Section 9
hereof.
18. Miscellaneous; Notices.
(a) This Agreement and any instrument delivered pursuant to this
Agreement shall be governed by and interpreted in accordance with the laws of
the State of New Jersey, without regard to the conflicts of law rules thereof.
Each party hereto submits to the venue and jurisdiction of the State courts of
New Jersey as the sole and exclusive forum for any disputes arising under this
Agreement, and further agrees that, in the event of any action or suit as to any
disputes arising under this Agreement between the parties, service of any
process may be made upon the other party by mailing a copy of the summons and/or
complaint to the other party at the address set forth herein and a party's
refusal to accept any such notice shall be equivalent to service. The parties
hereby waive, to the fullest extent that each may effectively do so, all
objections that such party may now or may hereafter acquire to, or any right or
immunity on the grounds of, venue, the inconvenience of the forum or
jurisdiction of such State courts.
(b) This Agreement shall extend to, be binding upon and inure to
the benefit of Employee and his legal representatives, heirs, successors and
assigns (subject, however, to the limitations set forth in Section 14 with
respect to transfer of this Agreement or any rights hereunder), and upon the
Company and its successors and assigns, regardless of any change in the business
structure of the Company, be it through spinoff, merger, sale of stock, sale of
assets or any other transaction.
(c) This Agreement and the Plan contain the entire agreement of
the parties with respect to the subject matter hereof. No waiver, modification
or change of any provision of this Agreement will be valid unless in writing and
signed by both parties.
(d) No value deemed to be received by Employee as a result of the
award of Award Shares hereunder will constitute "earnings" with respect to which
any other employee benefits of Employee are determined.
(e) The waiver of any breach of any duty, term or condition of
this Agreement shall not be deemed to constitute a waiver of any preceding or
succeeding breach of the same or of any other duty, term or condition of this
Agreement.
(f) All notices pursuant to this Agreement will be in writing and
will be sent by personal delivery or by prepaid registered or certified mail,
return receipt requested,
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addressed to the parties hereto at the addresses set forth beneath their names
on the signature page hereto or to such other addresses as may hereafter be
specified by like notice in writing by either of the parties, and will be deemed
given upon receipt if by personal delivery or upon mailing if sent by registered
or certified mail. Copies of all notices shall be sent to: Paul, Hastings,
Xxxxxxxx & Xxxxxx LLP, 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxxx, Esq.
(g) The headings of the sections of this Agreement are inserted
for convenience of reference only and will not be deemed to constitute a part
hereof or to affect the meaning hereof.
(h) This Agreement may be executed in counterparts, each of which
will be deemed an original but all of which will together constitute one and the
same agreement.
[SIGNATURE PAGE FOLLOWS THIS PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the day and year first above written.
i-STAT CORPORATION
By:______________________________
Name: J. Xxxxxx Xxxxxxxx, M.D.
Title: Chairman of the Board
Address:
000 Xxxxxxx Xxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Employee's Acceptance:
The undersigned hereby accepts the foregoing Agreement and agrees
to the terms and conditions thereof. The undersigned hereby acknowledges receipt
of a copy of the Company's Equity Incentive Plan.
Employee
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Name: Xxxxxxx X. Xxxxxxx
Address:
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
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