EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement"), dated as of June 20, 1996, is entered
into between AEROPHARM TECHNOLOGY, INC., a Delaware corporation (the "Company"),
and Xxxxxxx X. Cutie, Ph.D. (the "Executive").
RECITALS
1. The Company desires to employ the Executive in the capacities
described herein.
2. A material inducement to the execution and delivery by the Company
of this Agreement is the employment of Executive who has unique qualifications,
knowledge, skill and ability in product development, preparation of formulations
and consulting for pharmaceutical applications of aerosol products, and a
material inducement to the execution and delivery by Executive of this Agreement
is the opportunity to further enhance such skills by working for the Company in
such capacity in accordance with the terms of this Agreement.
3. The Board of Directors of the Company recognizes the Executive as a
key founding officer of the Company, and consequently has approved the terms and
conditions of the employment of Executive as set forth herein and has authorized
the execution and delivery of this Agreement.
4. The Company and the Executive entered into an Employment Agreement
dated September 1, 1993 (the "1993 Agreement"). Each of the Company and the
Executive desire to amend the 1993 Agreement in certain respects. Such
amendments are incorporated in this Agreement which supersedes and replaces the
1993 Agreement in its entirety. Upon the execution of this Agreement by the
Company and the Executive, the 1993 Agreement shall be deemed terminated and of
no further force and effect.
AGREEMENT
For and in consideration of the foregoing and of the mutual covenants
of the parties herein contained and hereinafter set forth, the parties agree as
follows:
1. EMPLOYMENT. The Company hereby employs Executive to serve in the
capacities described herein and Executive hereby accepts such employment and
agrees to perform the services described herein upon the terms and conditions
hereinafter set forth.
2. TERM. The term of this Agreement shall commence as of the date
hereof and shall terminate at the close of business on December 31, 1997 (the
"Initial Term"), subject to earlier termination or extension in accordance with
Section 8 or 9 hereof and to the other terms, provisions, and conditions set
forth herein. Notwithstanding the foregoing, the Company, (i) upon delivery of
written notice to the Executive at least 90 days prior to the expiration of the
Initial Term, shall have the option to extend this Agreement for an additional
consecutive two-year term (the "First Extension Option") and (ii) upon delivery
of written notice to the Executive at least 90 days prior to the expiration of
the First Extension Option shall have the option to extend this Agreement for an
additional consecutive two-year term following the expiration of the First
Extension Option (the "Second Extension Option"). No
extension of the term of this Agreement by the Company shall be deemed to alter
the dual professional responsibilities of the Executive as described in Section
3(a) of this Agreement.
3. DUTIES AND TITLE.
(a) DUTIES. Executive will dedicate his professional
time and energies exclusively to his duties at the Company and to his
responsibilities as Professor of Industrial Pharmacy at Long Island University
or at any other university that shall become Executive's academic/professional
employer. Executive may also participate in additional activities such as
Pharmacy Board Reviews, symposia, and the like; subject to such activities not
interfering with the execution of his duties hereunder.
Executive shall devote such time as is necessary and
appropriate to fulfill his duties and to the affairs of the Company, such time
to be spent primarily at the Company's manufacturing and laboratory facility,
or, to a lesser extent, at required off-site business meetings pertaining to the
Company.
Executive shall be responsible for conducting and/or
supervising, coordinating, and directing the Company's (i) research, testing,
formulation, product development, and other laboratory activities; (ii)
feasibility investigations for new product ideas and concepts and for product
modifications; (iii) all consulting activities of the Company; and (iv) such
other duties and responsibilities as the Board may from time-to-time request.
Executive shall also be responsible for coordinating with and assisting the
general manager of the Company, in (x) ensuring that the Company adheres at all
times to applicable good manufacturing practices and good laboratory practices
(as those terms are defined by the U.S. Food and Drug Administration) for such
an operation; (y) identifying and implementing as appropriate the design,
construction, equipping, maintenance, and validation of the laboratory and
manufacturing areas of the facility; and (z) soliciting consulting, production,
and product development opportunities for the Company.
(b) TITLE. Executive shall have the title of President
of the Company. Executive's title may be modified in the future as required by
organizational needs in the discretion of the Board of Directors, with the
consent of Executive. Executive shall serve at all times as the Chief Scientific
Officer of the Company.
4. COMPENSATION. The Company shall pay Executive, and Executive agrees
to accept, a salary at the rate of $137,500 per year, payable in equal monthly
installments, increasing to $150,000 for the year beginning July 1, 1996 and
$165,000 for the year beginning July 1, 1997. Thereafter, during such time as
Executive is employed as an officer of the Company pursuant to this Agreement
(including any extensions hereof), Executive's salary shall be determined by the
Board of Directors but in no event be less than $165,000 without Executive's
consent. Any increase in salary following the increase received for the year
beginning July 1, 1997, shall be at the discretion of the Board of Directors,
considering the performance of the Company and the contributions of the
Executive.
5. ROYALTY PAYMENTS. Except as otherwise provided in this Section 5,
from the time of execution of this Agreement and up to the later of December 31,
2005 or the expiration of the last extension option exercised pursuant to
Section 9 hereof (the "Royalty Expiration Date"), the Company shall pay
Executive supplemental compensation ("Royalties") equal to 1% of Net Sales (as
hereafter defined) of the Company or Kos Pharmaceutical, Inc. ("Kos") on all
aerosol products formulated by Executive and approved by the U.S. Food and Drug
Administration pursuant to a new drug application
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(NDA) (the "Royalty Products"). The Company's obligation to pay Royalties shall
immediately cease upon the occurrence of the any of the following: (i) if the
Company elects the First Extension Option and the Second Extension Option and
Executive resigns prior to December 31, 2001 (except if such resignation is as a
result of Section 8(d) hereof), (ii) if the Company does not elect the First
Extension Option or the Second Extension Option and Executive fails to make the
election to either continue the term of this Agreement or enter into a
Consulting Agreement as required pursuant to Section 9 hereof, or if after
having made any such election pursuant to Section 9, Executive resigns an
executive or consultant, as applicable, prior to December 31, 2001 (except if
such resignation is as a result of Section 8(d) hereof), (ii) the Company's
termination of Executive for "Cause" pursuant to the terms of Section 8(c) of
this Agreement or the Consulting Agreement or (iii) Executive's breach of the
provisions of Sections 10, 11 or 12 of this Agreement. The amount of the
Royalties payable by the Company shall be reduced to 0.5% of Net Sales if this
Agreement or, if applicable, the Consulting Agreement is terminated as a result
of Executive's death or disability (in the event of Executive's death, any
Royalty payments due shall be paid to Executive's estate). If the Company
terminates Executive not for "Cause" under this Agreement or the Consulting
Agreement, the amount of Royalties payable by the Company shall continue at 1%
of Net Sales through December 31, 2001 and thereafter be reduced to 0.5% of Net
Sales. The aggregate maximum amount of Royalties payable pursuant to this
Agreement shall be subject to a cap of $1,500,000.
"Net Sales" shall mean the gross sales, royalties or fees actually
received or accrued by the Company or Kos, less returns and allowances granted,
packing, insurance, invoiced transportation charges, sales, use and other
similar taxes and excise duties imposed on the transaction, and value-added
taxes, customs, duties and other imposts not ultimately recovered by the
Company. Royalties (up to an aggregate maximum of $1,500,000) in Royalty
Payments, shall be paid annually within 30 days following completion, by Kos'
independent public accountants, of their audit of Kos' financial statements for
the year during which such royalties were earned. The payment of Royalties
hereunder shall not be deemed to impart to the Executive any ownership or other
rights of any nature related to any product of the Company. The parties hereto
agree that the Royalties Payable hereunder shall be calculated based only upon
the "final" sale of a Royalty Product by the Company or Kos to a third party
customer. By way of example and not limitation, Royalties are not payable upon
Net Sales of the Company attributable to sales of any Royalty Product by the
Company to Kos. Instead Royalties in such instance would be calculated based
upon Net Sales of Kos generated from the resale of such Royalty Product to a
third party customer by Kos.
6. FRINGE BENEFITS. For so long as the Executive is an employee of the
Company, Executive shall be entitled to all fringe benefits available to other
Company employees including vacation, except that to the extent Executive is
also employed in an academic capacity at Long Island University or any other
institute of higher learning, Executive shall not be eligible to receive medical
insurance, life insurance or pension benefits from the Company.
7. EXPENSES. During the period of his employment, Executive shall be
reimbursed for his business-related expenses incurred on behalf of the Company
in accordance with the travel and entertainment expense policy of the Company as
adopted by the Board of Directors from time to time and in effect at the time
the expense was incurred. Executive agrees to maintain such records and
documentation of all such expenses to be reimbursed by the Company hereunder as
the Company shall require and in such detail as the Company may reasonably
request.
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8. TERMINATION. This Agreement may be terminated prior to expiration of
the term provided in Section 2 hereof (and any extensions thereof pursuant to
Sections 2 or 9 of this Agreement) in accordance with the following paragraphs:
(a) DEATH. In the event of the death of Executive, this
Agreement shall automatically terminate, and the Company shall not be obligated
to make any payments under this Agreement, other than the payment of accrued
salary and any Royalties payable pursuant to Section 5 hereof, to the estate or
heirs of the Executive.
(b) DISABILITY. If, during the effective period of this
Agreement, (i) Executive shall become disabled and unable to perform his duties
as required herein ("Disability"), for a consecutive period of one hundred
eighty (180) days, this Agreement shall terminate on the 180th day of such
period, or (ii) in the opinion of a qualified physician fully informed of the
circumstances, Executive shall become disabled and unable to perform his duties
as required herein and there is no prospect of Executive being able to perform
his duties on a full-time basis for the remainder of the consecutive 180-day
period beginning with the first day that the Executive became so disabled, then
the Company may, upon thirty (30) days' written notice to Executive, terminate
this Agreement. Upon any termination of this Agreement pursuant to this
subsection (b), the Company shall not be obligated to make any payments under
this Agreement, other than the payment of accrued salary and any Royalties
payable pursuant to Section 5 hereof.
(c) CAUSE. This Agreement may be terminated by the
Company with Cause as herein defined; any such termination to become effective
immediately upon delivery of notice to Executive. For purposes of this
Agreement, the term "Cause" shall mean the termination of the Executive by the
Board of Directors of the Company as a result of the existence or occurrence of
one or more of the following conditions or events:
(i) Any material breach of the terms of this
Agreement by Executive;
(ii) Substantial and continuing neglect or
inattention by Executive of or to the duties
described in Section 3 hereof;
(iii) The refusal of Executive to perform any of
the duties described in Section 3 hereof, or
elsewhere in the Agreement;
(iv) Fraud or other willful misconduct or gross
negligence of Executive in connection with
the performance of such duties;
(v) Executive's misappropriation for personal
use of assets or business opportunities of
the Company; or
(vi) Conviction of Executive for any felony or
for any crime involving moral turpitude,
embezzlement or violation of the securities
laws.
Upon any termination of this Agreement pursuant to this subsection (c), the
Company shall not be obligated to make any payments under this Agreement, other
than the payment of accrued salary.
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(d) In the event of a change in control of the Company,
whereby Kos is no longer a 51% shareholder of the Company the Executive may
terminate this Agreement. Except as provided in Section 5(i) hereof, upon any
termination of this Agreement pursuant to this subsection (d), the Company shall
not be obligated to make any payments under this Agreement, other than the
payment of accrued salary.
9. CONSULTING AND EXTENSION OPTIONS. (a) As specifically described in
Section 9(b) hereof, Executive, in certain circumstances, shall have the option
to either extend the term of this Agreement or enter into a Consulting Agreement
with the Company. The following general terms are applicable to the provisions
of Section 9(b): (i) Executive must provide the Company with written notice of
any initial election or subsequent extension of terms pursuant to Section 9(b)
within 90 days prior to the expiration of the then current term of the Agreement
or the Consulting Agreement, as applicable, except that in the case where the
Company has the right to exercise the First Extension Option or the Second
Extension Option and has failed to do so, Executive must provide notice of his
election within two weeks after the last day on which the Company has the right
to so elect any such option; (ii) if Executive chooses to enter into the
Consulting Agreement, the Company and the Executive shall negotiate in good
faith to reach agreement on the terms of such an agreement (notwithstanding,
however, the parties agree that the Consulting Agreement will require the
Executive to provide consulting services of not less than forty hours per month
and shall contain substantially the same provisions as included in Sections 8,
10, 11 and 12 hereof); (iii) once Executive chooses to enter into a Consulting
Agreement he shall have no subsequent right to elect to return to being an
executive of the Company; (iv) Executive may only exercise each two- year
extension option, of the terms of this Agreement or the Consulting Agreement,
one at a time; and (v) failure of Executive to provide the notices described in
Section 9(a)(i) hereof within the time periods therein required, shall be deemed
a termination of this Agreement by Executive whereafter the Company shall have
no further obligations hereunder except as otherwise provided in section 5
hereof.
(b) If the Company does not exercise the First Extension Option
described in Section 2 hereof, the Executive shall have the option to elect to
(i) extend the term of this Agreement for up to six additional consecutive two
year terms or (ii) enter into a two-year Consulting Agreement with the Company,
renewable by the Executive for up to five consecutive two-year terms. If the
Company does not exercise its Second Extension Option as provided in Section 2
hereof, the Executive shall have the option to elect to (i) extend the term of
this Agreement for up to five additional two-year terms or (ii) enter into a
two-year Consulting Agreement with the Company, renewable by the Executive for
up to four consecutive two-year terms. If the Company exercises both the First
Extension Option and the Second Extension Option, Executive shall have the
option to elect to (i) extend the term of this Agreement for up to four
additional consecutive two-year terms or (ii) enter into a two-year Consulting
Agreement with the Company, renewable by the Executive for up to three
consecutive two-year terms.
10. CONFIDENTIAL INFORMATION. Executive recognizes and acknowledges
that he will have access to certain confidential information of the Company and
of corporations with whom the Company does business, and that such information
constitutes valuable, special and unique property of the Company and such other
corporations. During the term of this Agreement and for a period of five (5)
years immediately following the date of termination of this Agreement (and for
such period thereafter, if any, as Executive continues to receive Royalties
pursuant to Section 5 hereof) , Executive agrees not to disclose or use any
confidential information, including without limitation, information regarding
research, developments, product designs or specifications, manufacturing
processes, "know-how," prices,
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suppliers, customers, costs or any knowledge or information with respect to
confidential or trade secrets of the Company, it being understood that such
confidential information does not include information that is publicly available
unless such information became publicly available as a result of a breach of
this Agreement. Executive acknowledges and agrees that all notes, records
reports, sketches, plans, unpublished memoranda or other documents belonging to
the Company, but held by Executive, concerning any information relating to the
Company's business, whether confidential or not, are the property of the Company
and will be promptly delivered to it upon Executive's leaving the employ of the
Company. The Executive acknowledges that the Company would not enter into this
Agreement without the assurance that all confidential information of the Company
will be used for the exclusive benefit of the Company.
11. INTELLECTUAL PROPERTY. Executive acknowledges and agrees that
future discoveries, inventions, designs, improvements, formulas, formulations,
ideas, devices, writings, publications, study protocols, study results, computer
data or programs, or other intellectual property, whether or not subject to
patent or copyright laws, which Executive shall conceive solely or jointly with
others, in the course or scope of his employment with the Company or in any way
related to the Company's business, whether during or after working hours, or
with the use of the Company's equipment, materials or facilities (collectively
referred to herein as "Intellectual Property"), shall be the sole and exclusive
property of the Company without further compensation to Executive. As used in
this Section 11 and the following Section 12, it is understood that the
Company's principal "business" is developing pharmaceutical products for
commercial sale, including also medical devices and/or other drug delivery
methods or technologies for administering said pharmaceutical products. For
purposes of this Agreement, any Intellectual Property, based upon the Company's
secret or confidential information, developed within six (6) months after the
termination of Executive's employment, shall be presumed to be the property of
the Company. Executive agrees to promptly notify the Company and fully disclose
the nature of such Intellectual Property. Executive shall take such steps as are
deemed necessary to maintain complete and current records thereof, and Executive
shall assign to the Company or its designees, the entire right, title and
interest in said Intellectual Property. Further, Executive shall, at the
Company's request and expense (including reasonable compensation if Executive is
no longer employed under this Agreement), make necessary application for
domestic or foreign patents and assist in securing, defending or enforcing any
such title and right thereto.
12. NON-COMPETITION. Executive acknowledges that his services to be
rendered hereunder are of a special and unusual character that have a unique
value to the Company and the conduct of its business, the loss of which cannot
adequately be compensated by damages in an action at law. In view of the unique
value to the Company of the services of Executive for which the Company has
contracted hereunder, and because of the confidential information to be obtained
by or disclosed to Executive as hereinabove set forth, and as a material
inducement to the Company to enter into this Agreement and to pay and make
available to Executive the compensation and other benefits referred to herein,
Executive covenants and agrees that Executive will not, directly or indirectly,
whether as principal, agent, trustee or through the agency of any corporation,
partnership, association or agent (other than as the holder of not more than 5%
of the total outstanding stock of any company the securities of which are traded
on a regular basis on recognized securities exchanges):
(a) while employed under this Agreement (i) work for
(in any capacity, including without limitation director, officer or employee)
any other pharmaceutical company, or otherwise work for or engage in any
business which is engaged in substantially the same business as the Company,
(ii) become an officer, director or employee of any corporation or a member or
employee of any partnership
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or an owner or employee of any other business that engages in substantially the
same business as the Company, (iii) recruit, or otherwise influence or attempt
to induce, employees of the Company to leave the employment of the Company, or
(iv) participate in any non-competitive businesses except for those involving
limited personal time and/or energies of the Executive that have been approved
in advance in writing by the Board of Directors of the Company; and
(b) for the two-year period immediately following any
termination of this Agreement (and for such period thereafter, if any, as
Executive continues to receive Royalties pursuant to Section 5 hereof), develop
or assist in the development of any products or projects which, as of the date
of such termination, the Company sells or which were undergoing research and
development or feasibility consideration by the Company; provided that for
purposes of this Section 12(b), products or projects under "feasibility
consideration" will consist of potential products or projects known and
identified in writing at the time of termination but not yet in active
development or specifically scheduled to enter active development at the time of
termination that have either undergone active formulation efforts and/or in vivo
study within three months prior to termination or do undergo active formulation
efforts and/or in vivo study within the six months following such termination.
Executive has carefully read and considered the provisions of Sections 10, 11,
and 12 hereof and agrees that the restrictions set forth in such sections are
fair and reasonable and are reasonably required for the protection of the
interests of the Company, its officers, directors, shareholders, and other
employees, for the protection of the business of the Company, and to ensure that
Executive devotes his full-time and efforts to the business of the Company.
Executive acknowledges that he is qualified to engage in businesses other than
those that are subject to this Section 12. It is the belief of the parties,
therefore, that the best protection that can be given to the Company that does
not in any way infringe upon the rights of Executive to engage in any unrelated
businesses is to provide for the restrictions described above. In view of the
substantial and irreparable harm which would result from a breach by Executive
of Sections 10, 11 and 12, the parties agree that the restrictions contained
therein shall be enforced to the maximum extent permitted by law. In the event
that any of said restrictions shall be held unenforceable by any court of
competent jurisdiction, the parties hereto agree that it is their desire that
such court shall substitute a reasonable judicially enforceable limitation in
place of any limitation deemed unenforceable and that as so modified, the
covenant shall be as fully enforceable as if it had been set forth herein by the
parties.
13. REMEDIES. The restrictions set forth in Sections 10, 11 and 12 are
considered by the parties to be reasonable for the purposes of protecting the
value of the business and goodwill of the Company. The Executive acknowledges
that the Company would be irreparably harmed and that monetary damages would not
provide an adequate remedy in the event of a breach of the provisions of
Sections 10, 11 or 12. Accordingly, the Executive agrees that the Company shall
be entitled to injunctive and other equitable relief to secure the enforcement
of these provisions, in addition to any other remedy which may be available to
the Company, and that the Company shall be entitled to receive reimbursement
from the Executive for reasonable attorneys' fees and expenses incurred by the
Company in enforcing these provisions if the Company prevails in such
enforcement. It is the desire and intent of the parties that the provisions of
Sections 10, 11 and 12 be enforced to the fullest extent permissible under the
laws and public policies of each jurisdiction in which enforcement is sought. If
any provisions of Sections 10, 11 or 12 is declared by a court of competent
jurisdiction to be unenforceable because it extends for too long a period of
time or over too broad a range of activities or in too large a geographic area,
however, such provision shall be interpreted to extend only over the maximum
period of time, range of activities or geographic area as to which it may be
enforceable. If any provisions of Sections 10, 11 or 12 other than those
described in the preceding sentence are adjudicated to be invalid or
unenforceable, the invalid
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or unenforceable provisions shall be deemed amended in such manner as to render
them enforceable and to effectuate as nearly as possible the original intentions
and agreement of the parties.
14. PUBLICATIONS. The Executive shall have the right to publish
articles concerning his work in the appropriate scientific/technical
publications, provided that such articles (i) are not inconsistent with the
Company's business objectives or the Executive's confidentiality obligations
under Section 10, (ii) are approved in advance by the Board of Directors and
management of the Company, and (iii) acknowledge the Company's role in such
work. The Executive also shall be given credit for his contributions to the
Company's product development achievements in the Company's publications and
presentations.
15. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient, if in writing and, if sent by prepaid registered
return receipt requested and mailed to the addresses below or to such other
address as either party shall designate by written notice to the other:
IF TO THE EXECUTIVE:
Xxxxxxx X. Cutie, Ph.D.
c/o Aeropharm Technology, Inc.
00 Xxxxxxxx Xxxxxx
Campus Plaza 9 - Raritan Center
Edison, New Jersey 08818
with a copy to:
Welaj, Xxxxxx & Xxxxxxxxx
Attorneys at Law
00 Xxxxx Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxx
IF TO THE COMPANY:
Aeropharm Technology, Inc.
c/o Kos Pharmaceuticals, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxx
16. ENTIRE AGREEMENT; MODIFICATION.
(a) This Agreement contains the entire agreement of the
Company and Executive, and the Company and Executive hereby acknowledge and
agree that this Agreement supersedes any prior statements, writings, promises,
understandings or commitments, including, without limitation, the 1993
Agreement.
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(b) No future oral statements, promises or commitments
with respect to the subject matter hereof, or other purported modification
hereof, shall be binding upon the parties hereto unless the same is reduced to
writing and signed by each party hereto.
17. ASSIGNMENT. The Company may assign its rights and obligations under
this Agreement and such rights and obligations shall inure to the benefit of and
shall be binding upon the successors and assigns of the Company. The Executive
may not assign his rights and obligations under this Agreement.
18. MISCELLANEOUS.
(a) This Agreement shall be subject to and governed by
the laws of the State of Delaware, without regard to the conflicts of laws
principles thereof.
(b) The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or the
interpretation of this Agreement.
(c) The failure of any party to enforce any provision
of this Agreement shall in no manner affect the right to enforce the same, and
the waiver by any party of any breach of any provision of this Agreement shall
not be construed to be a waiver by such party of any succeeding breach of such
provision or a waiver by such party of any breach of any other provision.
(d) In the event of any one or more of the provisions
of this Agreement shall for any reason be held invalid, illegal or
unenforceable, the remaining provisions of this Agreement shall be unimpaired,
and the invalid, illegal or unenforceable provision shall be replaced by a
mutually acceptable valid, and enforceable provision which comes closest to the
intent of the parties.
(e) This Agreement may be executed in any number of
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
(f) The provisions of Sections 5, 10, 11 and 12 of this
Agreement shall survive the termination of this Agreement as specifically set
forth in each such Section, regardless of the circumstances or reasons for such
termination, and inure to the benefit of the Company or Executive, as
applicable.
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the day and year first above written.
AEROPHARM TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Xxxxxx X. Xxxx
Chairman of the Board
EXECUTIVE
By: /s/ Xxxxxxx X. Cutie
-----------------------------
Xxxxxxx X. Cutie, Ph.D.
00 Xxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
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