Bookham, Inc. Restricted Stock Agreement Granted Under 2004 Stock Incentive Plan
Exhibit 10.6
Restricted Stock Agreement
Granted Under 2004 Stock Incentive Plan
Granted Under 2004 Stock Incentive Plan
AGREEMENT made November 11, 2005, between Bookham, Inc., a Delaware corporation (the
“Company”), and Xxxxxxx Xxxxxx (the “Participant”).
For valuable consideration, receipt of which is acknowledged, the parties hereto agree as
follows:
1. Issuance of Shares. In consideration of services rendered to the Company by the
Participant, the Company shall issue to the Participant, subject to the terms and conditions set
forth in this Agreement and in the Company’s 2004 Stock Incentive Plan (the “Plan”), 40,000
shares (the “Shares”) of common stock, $0.01 par value, of the Company (“Common
Stock”). The Company will pay the purchase price of $0.01 per Share on behalf of the
Participant. The Participant agrees that the Shares shall be subject to the forfeiture provisions
set forth in Section 2 of this Agreement and the restrictions on transfer set forth in Section 4 of
this Agreement.
2. Vesting. Subject always to Section 2(g) of this Agreement, the Shares shall vest
in accordance with the provisions of Section 2(a) of this Agreement. Notwithstanding anything
herein to the contrary, if the Shares do not vest on or before the occurrence of one or more of the
events set forth in this Section 2 or as otherwise provided in any other agreement with the Company
or any parent or subsidiary of the Company, the Shares shall automatically be forfeited to the
Company in exchange for the lower of: (i) $0.01 per Share, or (ii) fair market value per Share, as
determined by the Company’s Board of Directors (the “Fair Market Value per Share”). The aggregate
amount to be paid for by the Company to the Participant upon forfeiture of the Shares shall be
referred to herein as the “Forfeiture Amount”.
(a) The Shares shall vest and become free from the forfeiture provisions in Section 2(b)
hereof and become free from the transfer restrictions in Section 4 hereof on the earlier of:
(1) the one-year anniversary of the date hereof, provided that the Participant has been
continuously employed by the Company between the date hereof and such anniversary; or
(2) the termination of the Participant’s employment with the Company by the Company
without Cause or by the Participant for Good Reason. As used herein, “Cause” means
any (i) willful failure by the Participant, which failure is not cured within 30 days of
written notice to the Participant from the Company, to perform his or her material
responsibilities to the Company or (ii) willful misconduct by the Participant that affects
the business reputation of the Company. As used herein, Good Reason” means any
significant diminution in the Participant’s title, authority or
responsibilities, or any reduction in the annual cash compensation payable to the
Participant, other than by mutual agreement.
(b) In the event that the Shares do not vest in accordance with Section 2(a) on or before the
one-year anniversary of the date hereof, then on such anniversary, all of the Shares shall be
forfeited immediately and automatically to the Company and the Participant shall have no further
rights with respect to such Shares.
(c) In the event that the Participant’s employment with the Company is terminated by reason of
the Participant’s death or disability prior to any of the Shares vesting in accordance with the
provisions of Sections 2(a), all of the unvested Shares shall be forfeited immediately and
automatically. For this purpose, “disability” shall mean the inability of the Participant, due to
a medical reason, to carry out his duties as an employee of the Company for a period of six
consecutive months.
(d) Notwithstanding anything herein to the contrary apart from Section 2(g), upon the
consummation of a Change in Control of the Company (as defined in Exhibit B), all of the
Shares subject to vesting in accordance with Section 2(a) shall accelerate and vest in full.
(e) For purposes of this Agreement, employment with the Company shall include employment with
a parent or subsidiary of the Company, or any successor to the Company.
(f) The Forfeiture Amount shall be payable in cash (by check).
(g) Notwithstanding anything to the contrary herein, no vesting shall occur with respect to
the Shares unless and until the Participant has executed a Joint Election with the Company (or an
affiliate thereof), which Joint Election shall be made available to the Participant for execution
as soon as practicable following the approval of the Joint Election by HM Revenue & Customs. Once
a Joint Election has been validly executed by the Participant and the Company, vesting shall be in
accordance with the other provisions of this Agreement and as from the relevant dates. The Joint
Election shall be delivered to the Secretary of the Company. As used herein, “Joint Election” means
an election (in the form set out in Exhibit D) to the effect that the Participant will become
liable, so far as permissible by law, for the whole of any secondary Class 1 national insurance
contributions which may arise in connection with the Shares.
3. Automatic Sale Upon Vesting.
(a) Upon any vesting of the Shares, the Company shall sell, or arrange for the sale of, such
number of the Shares no longer subject to forfeiture under Section 2 as is sufficient to generate
net proceeds sufficient to satisfy any federal, national, foreign, state or local taxes of any kind
(including national insurance and other social security contributions) required by law to be
withheld by the Company or any affiliate, or which the Participant has elected or agreed to bear,
as a result of the vesting of the Shares, and the Company shall retain such net proceeds in
satisfaction of such tax and social security obligations.
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(b) The Participant hereby appoints the General Counsel his attorney in fact to sell the
Participant’s Shares in accordance with this Section 3. The Participant agrees to execute and
deliver such documents, instruments and certificates as may reasonably be required in connection
with the sale of the Shares pursuant to this Section 3.
(c) The Participant represents to the Company that, as of the date hereof, he is not aware of
any material nonpublic information about the Company or the Common Stock. The Participant and the
Company have structured this Agreement to constitute a “binding contract” relating to the sale of
Common Stock pursuant to this Section 3, consistent with the affirmative defense to liability under
Section 10(b) of the Securities Exchange Act of 1934 under Rule 10b5-1(c) promulgated under such
Act.
4. Restrictions on Transfer.
(a) The Participant shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose
of, by operation of law or otherwise (collectively “transfer”) any Shares, or any interest
therein, until such Shares have vested, except that the Participant may transfer such Shares (i) to
or for the benefit of any spouse, children, parents, uncles, aunts, siblings, grandchildren and any
other relatives approved by the Board of Directors (collectively, “Approved Relatives”) or
to a trust established solely for the benefit of the Participant and/or Approved Relatives,
provided that such Shares shall remain subject to this Agreement (including without
limitation the restrictions on transfer set forth in this Section 4 and the forfeiture provisions
contained in Section 2) and such permitted transferee shall, as a condition to such transfer,
deliver to the Company a written instrument confirming that such transferee shall be bound by all
of the terms and conditions of this Agreement or (ii) as part of the sale of all or substantially
all of the shares of capital stock of the Company (including pursuant to a merger or
consolidation), provided that, in accordance with the Plan and except as otherwise provided
herein, the securities or other property received by the Participant in connection with such
transaction shall remain subject to this Agreement.
(h) The Company shall not be required (i) to transfer on its books any of the Shares which
have been transferred in violation of any of the provisions set forth in this Agreement or (ii) to
treat as owner of such Shares or to pay dividends to any transferee to whom such Shares have been
transferred in violation of any of the provisions of this Agreement.
5. Escrow. The Participant shall, upon the execution of this Agreement, execute Joint
Escrow Instructions in the form attached to this Agreement as Exhibit B. The Joint Escrow
Instructions shall be delivered to the Assistant Secretary of the Company, as escrow agent
thereunder. The Participant shall deliver to such escrow agent a stock assignment duly endorsed in
blank, in the form attached to this Agreement as Exhibit C, and hereby instructs the
Company to deliver to such escrow agent, on behalf of the Participant, the certificate(s)
evidencing the Shares issued hereunder. Such materials shall be held by such escrow agent pursuant
to the terms of such Joint Escrow Instructions.
6. Restrictive Legends.
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All Shares subject to this Agreement shall be subject to the following restriction, in
addition to any other restrictions that may be required under federal or state securities laws:
“The shares of stock represented by this certificate are subject to
forfeiture provisions and restrictions on transfer set forth in a
certain Restricted Stock Agreement between the corporation and the
registered owner of these shares (or his predecessor in interest),
and such Agreement is available for inspection without charge at the
office of the Secretary of the corporation.”
forfeiture provisions and restrictions on transfer set forth in a
certain Restricted Stock Agreement between the corporation and the
registered owner of these shares (or his predecessor in interest),
and such Agreement is available for inspection without charge at the
office of the Secretary of the corporation.”
7. Provisions of the Plan.
This Agreement is subject to the provisions of the Plan, a copy of which is furnished to the
Participant with this Agreement.
8. Withholding Taxes.
(a) The Participant acknowledges and agrees that the Company has the right to deduct from
payments of any kind otherwise due to the Participant any federal, national, foreign, state or
local taxes of any kind (including national insurance and other social security contributions)
required by law to be withheld, or which the Participant has elected or agreed to bear, with
respect to the issuance of the Shares to the Participant or the lapse of the forfeiture provisions.
(b) The Participant has reviewed with the Participant’s own tax advisors the federal,
national, foreign, state and local tax and social security consequences of this investment and the
transactions contemplated by this Agreement. The Participant is relying solely on such advisors
and not on any statements or representations of the Company or any of its agents. The Participant
understands that the Participant (and not the Company) shall be responsible for the Participant’s
own tax and national insurance liability that may arise as a result of this investment or the
transactions contemplated by this Agreement.
9. Miscellaneous.
(a) No Rights to Employment. The Participant acknowledges and agrees that the vesting
of the Shares pursuant to Section 2 hereof is earned only by continuing service as an employee at
the will of the Company (not through the act of being hired or being granted the Shares hereunder).
The Participant further acknowledges and agrees that the transactions contemplated hereunder and
the vesting schedule set forth herein do not constitute an express or implied promise of continued
engagement as an employee for the vesting period, for any period, or at all.
(b) No Rights to Further Issuance, etc. The issuance of shares under the Plan is made
at the discretion of the Board and the Plan may be suspended or terminated by the Company at any
time. The issuance of shares in one year or at one time does not in any way entitle the
Participant to an issuance of shares in the future. The Plan is wholly discretionary and is not to
be considered part of the Participant’s normal or expected compensation subject to
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severance, resignation, redundancy or similar compensation. The value of the Shares is an
extraordinary item of compensation which is outside the scope of the Participant’s employment
contract and/or terms of office. The rights and obligations of the Participant under the terms of
his office or employment with the Company or any affiliate of the Company shall not be affected by
his participation in the Plan or any right which he may have to participate therein or the issuance
of the Shares, and the Participant hereby waives all and any rights to compensation or damages in
consequence of the termination of his office or employment with any such company for any reasons
whatsoever (whether lawful or unlawful and including, without prejudice to the generality of the
foregoing, in circumstances giving rise to a claim for wrongful dismissal) insofar as those rights
arise or may arise from his ceasing to have rights under this Agreement or the Plan as a result of
such termination, or from the loss or diminution in value of such rights or entitlements.
(c) Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision of this Agreement,
and each other provision of this Agreement shall be severable and enforceable to the extent
permitted by law.
(d) Waiver. Any provision for the benefit of the Company contained in this Agreement
may be waived, either generally or in any particular instance, by the Board of Directors of the
Company.
(e) Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the Company and the Participant and their respective heirs, executors, administrators, legal
representatives, successors and assigns, subject to the restrictions on transfer set forth in
Section 4 of this Agreement.
(f) Notice. Each notice relating to this Agreement shall be in writing and delivered
in person or by first class mail, postage prepaid, to the address as hereinafter provided. Each
notice shall be deemed to have been given on the date it is received. Each notice to the Company
shall be addressed to it at its office at 0000 Xxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (Attention:
Company Secretary). Each notice to the Participant shall be addressed to the Participant at the
Participant’s last known address.
(g) Pronouns. Whenever the context may require, any pronouns used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns
and pronouns shall include the plural, and vice versa.
(h) Entire Agreement. This Agreement and the Plan constitute the entire agreement
between the parties, and supersede all prior agreements and understandings, relating to the subject
matter of this Agreement.
(i) Amendment. This Agreement may be amended or modified only by a written instrument
executed by both the Company and the Participant.
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(j) Governing Law. This Agreement shall be construed, interpreted and enforced in
accordance with the internal laws of the State of Delaware without regard to any applicable
conflicts of laws.
(i) Data Protection. The Participant agrees to the receipt, holding and processing of
information in connection with the issuance, vesting and taxation of the Shares and the general
administration of this Agreement and the Plan by the Company or any affiliate of the Company and
any of their advisers or agents and to the transmission of such information outside of the European
Economic Area for this purpose.
(j) Third Party Rights. The UK Contracts (Rights of Third Parties) Act 1999 shall not
apply to this Agreement and no person other than parties hereto shall have any rights under it nor
shall it be enforceable under that Act by any person other than the parties to it.
(k) Interpretation. The interpretation and construction of any terms or conditions of
the Plan, or of this Agreement or other matters related to the Plan by the Compensation Committee
of the Board of Directors of the Company shall be final and conclusive.
(l) Participant’s Acknowledgments. The Participant acknowledges that he or she: (i)
has read this Agreement; (ii) has been represented in the preparation, negotiation, and execution
of this Agreement by legal counsel of the Participant’s own choice or has voluntarily declined to
seek such counsel; (iii) understands the terms and consequences of this Agreement; (iv) is fully
aware of the legal and binding effect of this Agreement; and (v) understands that the law firm of
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP is acting as counsel to the Company in connection with
the transactions contemplated by the Agreement, and is not acting as counsel for the Participant.
(k) Delivery of Certificates. Subject to Section 3, the Participant may request that
the Company deliver the Shares in certificated form with respect to any Shares that have ceased to
be subject to forfeiture pursuant to Section 2.
(m) No Deferral. Notwithstanding anything herein to the contrary, neither the Company
nor the Participant may defer the delivery of the Shares.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| BOOKHAM, INC. | ||||
| By: /s/ Xxxxx Xxxxxx | ||||
| Xxxxx Xxxxxx Chairman of the Board | ||||
| /s/ Xxxxxxx Xxxxxx | ||||
| Xxxxxxx Xxxxxx | ||||
| [Address] |
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EXHIBIT A
As used herein, “Change in Control” shall mean:
(i) the sale of all or substantially all of the assets of the Company;
(ii) a merger, consolidation, reorganization, recapitalization or share exchange involving the
Company with any corporation where, as a result of the transaction, the voting securities of the
Company outstanding immediately prior thereto do not continue to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity including the
holding company of such entity) more than fifty percent (50%) of the total voting power represented
by the voting securities of the Company or such surviving entity immediately after such
transaction;
(iii) the sale, transfer or disposition of any then outstanding shares of the Company’s stock
where, as a result of such sale, transfer or disposition, the existing shareholders do not continue
to hold as a group stock representing more than fifty percent (50%) of the Company’s total voting
securities, either directly, or indirectly; or
(iv) any change in the composition of the Board of Directors of the Company such that the
Continuing Directors (as defined below) cease to constitute a majority of the Board. “Continuing
Directors” shall mean those directors appointed to the Board who (a) are members of the Board of
Directors on the date hereof or (b) are nominated or elected subsequent to the date hereof by at
least a majority of the directors who were Continuing Directors at the time of any such nomination
or election or whose election to the Board was recommended or endorsed by at least a majority of
the directors who were Continuing Directors at the time of such nomination or election; provided
that a director shall not be a Continuing Director where the director’s initial assumption of
office occurred as a result of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened solicitation of proxies or contests
by or on behalf of a person other than the Board.
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EXHIBIT B
Joint
Escrow Instructions
, 2005
Dear Madame:
As Escrow Agent for Bookham, Inc., a Delaware corporation, and its successors in interest
under the Restricted Stock Agreement (the “Agreement”) of even date herewith, to which a copy of
these Joint Escrow Instructions is attached (the “Company”), and the undersigned person (“Holder”),
you are hereby authorized and directed to hold the documents delivered to you pursuant to the terms
of the Agreement in accordance with the following instructions:
1. Appointment. Holder irrevocably authorizes the Company to deposit with you any
certificates evidencing Shares (as defined in the Agreement) to be held by you hereunder and any
additions and substitutions to said Shares. For purposes of these Joint Escrow Instructions,
“Shares” shall be deemed to include any additional or substitute property. Holder does hereby
irrevocably constitute and appoint you as his attorney-in-fact and agent for the term of this
escrow to execute with respect to such Shares all documents necessary or appropriate to make such
Shares negotiable and to complete any transaction herein contemplated. Subject to the provisions
of this Section 1 and the terms of the Agreement, Holder shall exercise all rights and privileges
of a stockholder of the Company while the Shares are held by you.
2. Forfeiture of Shares. Upon any forfeiture of Shares to the Company pursuant to the
terms of the Agreement, you are directed (i) to date the stock assignment form or forms necessary
for the transfer of the Shares, (ii) to fill in on such form or forms the number of Shares being
transferred, and (iii) to deliver same, together with the certificate or certificates evidencing
the Shares to be transferred, to the Company.
3. Sale of Shares upon Vesting. Upon vesting of any Shares pursuant to the terms of
the Agreement, you are directed (i) to date the stock assignment form or forms necessary for the
transfer of such number of vested Shares as may be required to be sold to satisfy the Company’s
minimum statutory withholding obligations as further described in Section 3(a) of the Agreement,
(ii) to fill in on such form or forms the number of Shares being sold, and (iii) to
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deliver same, together with the certificate or certificates evidencing the Shares to be sold,
to the Company.
4. Withdrawal. The Holder shall have the right to withdraw from this escrow any
Shares which have vested pursuant to the terms of the Agreement.
5. Duties of Escrow Agent.
(a) Your duties hereunder may be altered, amended, modified or revoked only by a writing
signed by all of the parties hereto.
(b) You shall be obligated only for the performance of such duties as are specifically set
forth herein and may rely and shall be protected in relying or refraining from acting on any
instrument reasonably believed by you to be genuine and to have been signed or presented by the
proper party or parties. You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact of Holder while acting in good faith and in the
exercise of your own good judgment, and any act done or omitted by you pursuant to the advice of
your own attorneys shall be conclusive evidence of such good faith.
(c) You are hereby expressly authorized to disregard any and all warnings given by any of the
parties hereto or by any other person or entity, excepting only orders or process of courts of law,
and are hereby expressly authorized to comply with and obey orders, judgments or decrees of any
court. If you are uncertain of any actions to be taken or instructions to be followed, you may
refuse to act in the absence of an order, judgment or decrees of a court. In case you obey or
comply with any such order, judgment or decree of any court, you shall not be liable to any of the
parties hereto or to any other person or entity, by reason of such compliance, notwithstanding any
such order, judgment or decree being subsequently reversed, modified, annulled, set aside, vacated
or found to have been entered without jurisdiction.
(d) You shall not be liable in any respect on account of the identity, authority or rights of
the parties executing or delivering or purporting to execute or deliver the Agreement or any
documents or papers deposited or called for hereunder.
(e) You shall be entitled to employ such legal counsel and other experts as you may deem
necessary properly to advise you in connection with your obligations hereunder and may rely upon
the advice of such counsel.
(f) Your rights and responsibilities as Escrow Agent hereunder shall terminate if (i) you
cease to be Assistant Secretary of the Company or (ii) you resign by written notice to each party.
In the event of a termination under clause (i), your successor as Assistant Secretary shall become
Escrow Agent hereunder; in the event of a termination under clause (ii), the Company shall appoint
a successor Escrow Agent hereunder.
(g) If you reasonably require other or further instruments in connection with these Joint
Escrow Instructions or obligations in respect hereto, the necessary parties hereto shall join in
furnishing such instruments.
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(h) It is understood and agreed that if you believe a dispute has arisen with respect to the
delivery and/or ownership or right of possession of the securities held by you hereunder, you are
authorized and directed to retain in your possession without liability to anyone all or any part of
said securities until such dispute shall have been settled either by mutual written agreement of
the parties concerned or by a final order, decree or judgment of a court of competent jurisdiction
after the time for appeal has expired and no appeal has been perfected, but you shall be under no
duty whatsoever to institute or defend any such proceedings.
(i) These Joint Escrow Instructions set forth your sole duties with respect to any and all
matters pertinent hereto and no implied duties or obligations shall be read into these Joint Escrow
Instructions against you.
(j) The Company shall indemnify you and hold you harmless against any and all damages, losses,
liabilities, costs, and expenses, including attorneys’ fees and disbursements, (including without
limitation the fees of counsel retained pursuant to Section 5(e) above, for anything done or
omitted to be done by you as Escrow Agent in connection with this Agreement or the performance of
your duties hereunder, except such as shall result from your gross negligence or willful
misconduct.
6. Notice. Any notice required or permitted hereunder shall be given in writing and
shall be deemed effectively given upon personal delivery or upon deposit in the United States Post
Office, by registered or certified mail with postage and fees prepaid, addressed to each of the
other parties thereunto entitled at the following addresses, or at such other addresses as a party
may designate by ten days’ advance written notice to each of the other parties hereto.
| COMPANY: | Notices to the Company shall be sent to the address set forth in the salutation hereto, Attn: Company Secretary |
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| HOLDER: | Notices to Holder shall be sent to the address set forth below Holder’s signature below. |
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| ESCROW AGENT: | Notices to the Escrow Agent shall be sent to the address set forth in the salutation hereto. |
7. Miscellaneous.
(a) By signing these Joint Escrow Instructions, you become a party hereto only for the purpose
of said Joint Escrow Instructions, and you do not become a party to the Agreement.
(b) This instrument shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
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| Very truly yours, | ||||
| BOOKHAM, INC. | ||||
Chairman of the Board |
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| HOLDER: | ||||
| Xxxxx Xxxxxx | ||||
| [Address] | ||||
| Date Signed: | ||||
ESCROW AGENT: |
||||
Jacobin Zorin |
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EXHIBIT C
(STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE)
FOR VALUE RECEIVED,I hereby sell, assign and transfer unto
( ) shares of Common Stock, $0.01 par value per share, of Bookham, Inc. (the
“Corporation”) standing in my name on the books of the Corporation represented by Certificate(s)
Number herewith, and do hereby irrevocably constitute and appoint
attorney to transfer the said stock on the books of the Corporation with full power of substitution
in the premises.
| Dated: | ||||||
IN PRESENCE OF
|
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NOTICE: The signature(s) to this assignment must correspond with the name as written upon the
face of the certificate, in every particular, without alteration, enlargement, or any change
whatever and must be guaranteed by a commercial bank, trust company or member firm of the Boston,
New York or Midwest Stock Exchange.
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EXHIBIT D
(NATIONAL INSURANCE JOINT ELECTION)
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