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EXHIBIT 10.9
EMPLOYMENT AGREEMENT WITH BINKS GRAVAL
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EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into
as of June 28, 1996 by and between PACIFIC INTERNATIONAL ENTERPRISES, INC., a
Nevada corporation (the "Company'), and BINKS GRAVAL, an individual
("Executive").
W I T N E S S E T H:
WHEREAS, Executive and the Company wish to provide for the terms and
conditions of Executive's employment as Chief Executive Officer of the Company.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and
Executive agree as set forth below.
1. Employment and Duties. The Company hereby employs Executive to
serve as Chief Executive Officer of the Company, with the powers and duties
customarily accorded to such position, including those powers and duties set
forth in the Bylaws of the Company for such office and such other duties
consistent therewith as may be assigned to Executive from time to time by the
Board of Directors of the Company. Initially, Executive's managerial and
supervisorial duties shall be limited to those departments and operations as
determined by the Board of Directors and subsequently expanded to include other
departments and operations as directed by the Board of Directors. Executive
shall report to the Board of Directors. Executive shall endeavor in good faith
to perform his duties in an efficient, faithful and business-like manner. During
the term of his employment, it is intended that Executive also serve as Chairman
of the Board of Directors of the Company (the "Board") and the Company will take
action within its powers to include Executive among the slate of directors
proposed to be nominated by the Board at any applicable stockholders meeting.
2. Term. The initial term of this Agreement shall begin on June 28,
1996. The initial term shall expire on June 27, 1999 unless terminated earlier
as set forth in Section 6 hereof or by mutual agreement of the parties hereto
(the "Initial Term"). At the expiration of the Initial Term and each anniversary
thereafter, the term of this Agreement shall automatically be extended for an
additional year (the "Extension Term") unless either party shall have given
written notice to the other party at least ninety days prior to the end of the
Initial Term or the Extension Term, as the case may be, that it does not desire
to extend the term of this Agreement. If Executive's employment under this
Agreement is extended for an Extension Term, it shall thereafter or during any
Extension Term be terminable (other than upon expiration) only as provided in
Section 6 or by mutual agreement of the parties hereto.
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3. Compensation.
(a) Base Salary. During the term of this Agreement, Executive
shall be paid a base salary (the "Base Salary"), payable in accordance with the
Company's normal payroll practices. During the first year of the term of this
Agreement, Executive's Base Salary shall be $96,000 and may be paid, at the
election of the Company, either in cash or in shares of common stock of the
Company equal to that portion of Executive's Base Salary which is unpaid divided
by the average trading price of the common stock over the 5 trading day period
prior to the payment date of Executive's Base Salary. After the first year of
the term, Executive's base salary shall be paid in cash, unless the Executive
determines to accept another form of payment. The annual Base Salary payable to
Executive shall be reviewed at least annually; provided, however, that
Executive's Base Salary shall not be reduced below $96,000 per annum during the
term of this Agreement.
(b) Performance Bonus. Executive shall be entitled to a
performance bonus paid upon the occurrence of certain events (the "Acquisition
Performance Bonus"). The Acquisition Performance Bonus shall equal a percentage
of the purchase price upon the closing of such an acquisition or merger. The
percentages shall be as follows:
Purchase Price of Acquisition Percentage upon Closing
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Up to $2 million 3%
Between $2-4 million 2%
Between $4-6 million 1.5%
Over $6 million .75%
The Company may choose to pay the Acquisition Performance Bonus in shares of
common stock of the Company equal to that portion of Executive's Acquisition
Performance Bonus which is due and payable divided by the average trading price
of the common stock over the 5 trading day period prior to the payment date of
Executive's Acquisition Performance Bonus.
(c) Operational Bonus. The Company will adopt a bonus plan for
officers of the Company. The Board of Directors will determine the aggregate
dollar amount of the bonus prior to the beginning of each year, the distribution
among officers of the bonus and the threshold for awarding bonuses, be it sales,
earnings or return on equity. Any bonus paid to Executive pursuant to the
Operational Bonus shall be paid quarterly.
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(d) Stock Options. On the commencement of the Initial Term, the
Company shall grant Executive non-qualified options to purchase 500,000 shares
of the Company's Common Stock (the "Options"). Of such Options, 100,000 shall
vest immediately upon grant and an additional 100,000 shall vest on each
anniversary of the commencement of the Initial Term. The Options will be
exercisable at an exercise price of $1.00 per share.
4. Other Executive Benefits. During the term of this Agreement, the
Company shall provide to Executive benefits commensurate with his position,
including each of the following benefits:
(a) Medical and Dental Coverage. The Company agrees to provide
coverage to Executive and dependent members of his family under the same medical
and dental plans as may be maintained from time to time in the discretion of the
Company's Board for the benefit of the other executive officers and the
dependent members of their families.
(b) Vacation. Executive shall be entitled to two (2) weeks of
paid vacation during Executive's first year of employment with the Company and
shall be entitled to three (3) weeks during each year of employment with the
Company thereafter for the term of this Agreement. In each case, such
entitlement shall accrue pro rata over the contract year and shall be taken at
such time or times as shall not unreasonably interfere with the operations of
the Company.
(c) Business Expenses. The Company will pay or reimburse
Executive for any out-of-pocket expenses incurred by Executive in the course of
providing his services hereunder, which comply with the Company's travel and
expense policies adopted from time to time by the Board for the executive
officers. Such reimbursement shall be made by the Company based on receipts
submitted to the Company by Executive in the same manner and within the same
time period as applicable to the other executive officers of the Company.
(d) Automobile Allowance. The Company shall provide Executive
with an automobile allowance equal to $500 per month.
(e) Benefit Plans. Executive shall be entitled to participate
in any pension, profit-sharing, stock option, stock purchase or other benefit
plan of the Company now existing or hereafter adopted for the benefit of
employees generally or the senior executives of the Company.
(f) Life Insurance. Provided the following policies may be
obtained at a reasonable cost, the Company shall obtain a $1,000,000 standard
term life insurance
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policy and a $1,000,000 standard term accidental death policy on the life of
Executive which policy shall name the Company or its shareholders as
beneficiaries.
5. Confidential Information.
(a) Non-Disclosure. Executive hereby agrees, during the term of
this Agreement, he will not disclose to any person or otherwise use or exploit
any proprietary or confidential information, including, without limitation,
trade secrets, processes, records of research, proposals, reports, methods,
processes, techniques, computer software or programming, or budgets or other
financial information, regarding the Company, its business, properties,
customers or affairs (collectively, "Confidential Information") obtained by him
at any time during the term, except to the extent required by Executive's
performance of assigned duties for the Company. Notwithstanding anything herein
to the contrary, the term "Confidential Information" shall not include
information which (i) is or becomes generally available to the public other than
as a result of disclosure by Executive in violation of this Agreement, (ii) is
or becomes available to Executive on a non-confidential basis from a source
other than the Company, provided that such source is not known by Executive to
be furnishing such information in violation of a confidentiality agreement with
or other obligation of secrecy to the Company, (iii) has been made available, or
is made available, on an unrestricted basis to a third party by the Company, by
an individual authorized to do so or (iv) is known by Executive prior to its
disclosure to Executive. Executive may use and disclose Confidential Information
to the extent necessary to assert any right or defend against any claim arising
under this Agreement or pertaining to Confidential Information or its use, to
the extent necessary to comply with any applicable statute, constitution,
treaty, rule, regulation, ordinance or order, whether of the United States, any
state thereof, or any other jurisdiction applicable to Executive, or if
Executive receives a request to disclose all or any part of the information
contained in the Confidential Information under the terms of a subpoena, order,
civil investigative demand or similar process issued by a court of competent
jurisdiction or by a governmental body or agency, whether of the United States
or any state thereof, or any other jurisdiction applicable to Executive.
(b) Injunctive Relief. Executive agrees that the remedy at law
for any breach by him of the covenants and agreements set forth in this Section
5 may be inadequate and that in the event of any such breach, the Company may,
in addition to the other remedies that may be available to it at law, seek
injunctive relief prohibiting him (together with all those persons associated
with him) from the breach of such covenants and agreements.
6. Termination.
(a) Termination by Company for "Cause" or Voluntarily by
Executive. The Company may terminate this Agreement for "Cause" effective
immediately upon
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written notice thereof to Executive. For purposes of this Agreement, "Cause"
shall mean and be limited to the following events: (i) an act of fraud,
embezzlement or similar conduct by Executive involving the Company; (ii) any
action by Executive involving the arrest of Executive for violation of any
criminal statute constituting a felony if the Board reasonably determines that
the continuation of Executive's employment after such event would have an
adverse impact on the operations or reputation of the Company in the financial
community; or (iii) a continuing, repeated willful failure or refusal by
Executive to perform his duties; provided, however, that this Agreement may not
be terminated under this subclause (iii) unless Executive shall have first
received written notice from the Board advising Executive of the specific acts
or omissions alleged to constitute a failure or refusal to perform and such
failure or refusal to perform continues after Executive shall have had a
reasonable opportunity to correct the acts or omissions cited in such notice.
In the event of termination for "Cause," or voluntarily by Executive,
(x) Executive shall be entitled to receive that portion of the Base Salary and
all benefits accrued through the date of termination and (y) all Options not
exercised on the date of termination shall be immediately cancelled and void.
(b) Termination by Company Other Than for "Cause."
i) Death and Disability. Provided that notice of termination
has not previously been given under any Section hereof, if Executive shall die
or become disabled during the term of this Agreement, this Agreement and all of
the Company's obligations hereunder shall terminate, except that Executive or
Executive's estate or designated beneficiaries shall be entitled to receive (A)
all earned and unpaid Base Salary through the date of termination; and (B) a pro
rata portion of the Base Salary, Acquisition Performance Bonus, and all benefits
with respect to the then current contract year.
ii) Without Cause. If the Company elects to terminate Executive
for any reason whatsoever other than as provided in Section 6(a) or if the
Company causes a Defacto Termination of Executive (as defined below) (each a
"Severance Termination"), Executive shall receive the "Separation Package." As
used herein, the "Separation Package" shall consist of one year Base Salary (at
the annual rate in effect at the date of the Severance Termination). In
addition, all Options which are scheduled to vest on the next anniversary of the
commencement of the Initial Term shall vest as of the date of the Severance
Termination. Further, all options that have become exercisable as of the date of
such termination (including those which do so as a result of the provisions of
the preceding sentence) shall remain so for a period of 12 months. For purposes
of this paragraph, a "Defacto Termination" shall include any of the following
events: (i) the Company shall fail to pay or shall reduce the Base Salary,
Acquisition Performance Bonus or other benefits provided herein, except as
permitted
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hereunder, or shall otherwise breach any material provision hereof which breach
is not cured within 10 days after receipt of notice thereof from Executive; (ii)
the Company shall fail to cause Executive to remain the Chief Executive Officer
of the Company; (iii) Executive shall not be continuously afforded the
authority, powers, responsibilities and privileges contemplated in Section 1
above (whether or not accompanied by a change in title); (iv) the Company shall
require Executive's primary services to be rendered in an area other than the
Company's principal offices in the Los Angeles metropolitan area; or (v) after a
Change in Control (as defined below), the Company increases the base salary for
senior executives of the Company generally without similarly increasing the Base
Salary of Executive. For purposes of clause (iii), Executive shall be deemed not
to have been continuously afforded the authority, powers, responsibilities and
privileges contemplated in Section 1 above if there shall occur any reduction in
the scope, level or nature of Executive's employment hereunder, or any demotion,
any phasing out or assignment to others, of the duties contemplated herein.
(c) Change in Control.
i) Following a Change in Control, this Agreement
shall continue to be binding upon the Company and Executive shall be entitled to
the payments provided for in this Section 6 in the event of termination
resulting from death, disability, cause, or a Separation Termination, all as
provided for in Sections 6(a) and 6(b).
ii) Executive may (but shall not be obligated to)
terminate this Agreement effective 30 days after the giving of such notice given
at any time within two years following a Change in Control. In the event that
Executive elects to terminate this Agreement pursuant to this Section 6(c)(ii),
Executive shall be entitled to the following payments:
(A) If the Change in Control is effected to
an Adverse Person (as defined below), then Executive shall be entitled to and
receive the Severance Package. In addition, all Options then held by Executive
which are not yet vested shall vest as of the date of such termination. Further,
all options that have become exercisable as of the date of such termination
(including those which do so as a result of the provisions of the preceding
sentence) shall remain so for the entire remaining term of the Options.
(B) If the Change in Control is effected to
a person other than an Adverse Person, Executive shall be entitled to receive
the Severance Package. In addition, all Options which are scheduled to vest on
the next scheduled vesting date during the 12 months following the termination
date shall vest as of the date of such termination. Further, all options that
have become exercisable as of the date of such termination
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(including those which do so as a result of the provisions of the preceding
sentence) shall remain so for a period of 12 months.
(d) Payment of Termination Amounts. Executive may elect to have
all amounts to be paid to Executive pursuant to this Section 6 payable (i) over
the remaining term of this Agreement or for such shorter period as expressly
provided for herein, as applicable, or (ii) in a lump sum within 30 days
following termination; provided, however, in the case of death or disability,
the Acquisition Performance Bonus component shall be payable at such time as
performance-based bonuses are paid to similarly situated employees of the
Company and only if the specified targets set forth in Section 3(b) for the
applicable periods are actually met. In the event Executive elects to be paid
pursuant to clause (i), Executive agrees promptly to notify the Company in
writing of Executive's acceptance of full-time employment; within 15 days after
receipt of such notice, the Company shall pay Executive in a lump sum any
amounts which remain otherwise due to Executive hereunder.
(e) Stock and Similar Rights. Except with regard to the vesting
and exercise dates of Options as set forth in this Section 6, Executive's rights
under any other agreement or plan under which stock options, restricted stock or
similar awards are granted shall be determined in accordance with the terms and
provisions of such plans or agreements.
(f) No Mitigation or Offset. Payment of any sum under this
Section 6 shall not be subject to any claim of mitigation nor shall the Company
be entitled to any right of offset with respect thereto.
7. Change in Control. For purposes of this Agreement, a "Change in
Control" shall mean the occurrence of any of the following events which occur
after the date hereof:
(a) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act ("Rule 13d-3")) of 20% or more of the
combined voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the "Outstanding Voting
Securities"); provided, however, that neither of the following acquisitions
shall constitute a Change in Control; (i) any acquisition by the Company or (ii)
any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company; or
(b) Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the stockholders of the Company, shall be
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approved by a vote of a least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a member of
the Incumbent Board; or
(c) Approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, unless, following such
reorganization, merger or consolidation: (i) more than 60% of the combined
voting power of the then outstanding voting securities of the corporation
resulting from such reorganization, merger, or consolidation, which may be the
Company (the "Resulting Corporation"), entitled to vote generally in the
election of directors (the "Resulting Corporation Voting Securities") shall then
be owned beneficially, directly or indirectly, by all or substantially all of
the Persons who were the beneficial owners of Outstanding Voting Securities
immediately prior to such reorganization, merger or consolidation, in
substantially the same proportions as their respective ownerships of Outstanding
Voting Securities immediately prior to such reorganization, merger, or
consolidation; (ii) no Person (excluding the Company, any employee benefit plan
(or related trust) of the Company, the Resulting Corporation, and any Person
beneficially owning, immediately prior to such reorganization, merger or
consolidation, directly or indirectly, 20% or more of the combined voting power
of Outstanding Voting Securities) shall own beneficially, directly or indirectly
20% or more of the combined voting power of the Resulting Corporation Voting
Securities; and (iii) at least a majority of the members of the Board shall have
been members of the Incumbent Board at the time of the execution of the initial
agreement providing for such reorganization, merger or consolidation; or
(d) Approval by the stockholders of the Company of (x) a
complete liquidation or dissolution of the Company or (y) the sale or other
disposition of all or substantially all of the assets of the Company, other than
to a corporation (the "Buyer") with respect to which (i) following such sale or
other disposition, more than 60% of the combined voting power of securities of
Buyer entitled to vote generally in the election of directors ("Buyer Voting
Securities"), shall be owned beneficially, directly or indirectly, by all or
substantially all of the Persons who were the beneficial owners of the
Outstanding Voting Securities immediately prior to such sale or other
disposition, in substantially the same proportion as their respective ownership
of Outstanding Voting Securities, immediately prior to such sale or other
disposition; (ii) no Person (excluding the Company and any employee benefit plan
(or related trust) of the Company or Buyer and any Person that shall immediately
prior to such sale or other disposition own beneficially, directly or
indirectly, 20% or more of the combined voting power of Outstanding Voting
Securities), shall own beneficially, directly or indirectly, 20% or more of the
combined voting power or, Buyer Voting Securities; and (z) at least a majority
of the members of the board of directors of Buyer shall have been members of the
Incumbent Board at the time of the execution of the initial agreement or action
of the Board providing for such sale or other disposition or assets of the
Company.
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For purposes of this Agreement, an Adverse Person shall mean
any person which acquires control of the Company in a transaction involving a
Change in Control other than a transaction which, before the time of the
transaction, has been approved by the Board of Directors of the Company.
8. Insurance. During the term, the Company shall maintain, at no cost
to Executive, officers and directors liability insurance that would cover
Executive in an amount of no less than $1,000,000, provided that such insurance
is reasonably available to the Company as determined by the Board of Directors.
9. General Provisions.
(a) Notices. All notices, requirements, requests, demands,
claims or other communications hereunder shall be in writing. Any notice,
requirement, request, demand, claim or other communication hereunder shall be
deemed duly given (i) if personally delivered, when so delivered, (ii) if
mailed, two (2) business days after having been sent by registered or certified
mail, return-receipt requested, postage prepaid and addressed to the intended
recipient as set forth below, (iii) if given by telecopier, once such notice or
other communication is transmitted to the telecopier number specified below, and
the appropriate telephonic confirmation is received, provided that such notice
or other communication is promptly thereafter mailed in accordance with the
provisions of clause (ii) above or (iv) if sent through an overnight delivery
service under circumstances by which such service guarantees next day delivery,
the date following the date so sent:
If to the Company, to:
PACIFIC INTERNATIONAL ENTERPRISES, INC.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxxx, Xxxxxxxxxx 00000
Attn:
If to Executive to:
Binks Graval
0000 Xxxx 00xx Xxxxxx, Xxxx X-0
Xxx Xxxxxxx, XX 00000
Any party may change the address to which notices, requests, demands, claims and
other communications hereunder are to be delivered by giving the other party
notice in the manner herein set forth.
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(b) Assignment. This Agreement and the benefits hereunder are
personal to the Company and are not assignable or transferable, nor may be the
services to be performed hereunder be assigned by the Company to any person,
firm or corporation; provided, however, that this Agreement and the benefits
hereunder may be assigned by the Company to any corporation into which the
Company may be merged or consolidated, and this Agreement and the benefits
hereunder will automatically be deemed assigned to any such corporation,
subject, however, to Executive's right to terminate this Agreement to the extent
provided in Section 6. In the event of any assignment of this Agreement to any
corporation acquiring all or substantially all of the assets of the Company or
to any other corporation into which the Company may be merged or consolidated,
the responsibilities and duties assigned to Executive by such successor
corporation shall be the responsibilities and duties of, and compatible with the
status of, a senior executive officer of such successor corporation. The Company
may delegate any of its obligations hereunder to any subsidiary of the Company,
provided that such delegation shall not relieve the Company of any of its
obligations hereunder. Executive may not assign its rights hereunder or delegate
his duties hereunder to any Person.
(c) Complete Agreement. This Agreement contains the
entire agreement among the parties hereto with respect to the subject matter
hereof and supersedes and cancels any and all previous written or oral
negotiations, commitments, understandings, agreements and any other writings or
communications in respect of such subject matter.
(d) Amendments. This Agreement may be modified,
amended, superseded or terminated only by a writing duly signed by both parties.
(e) Severability. Any provision of this Agreement
which is invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability, without affecting in any way the remaining provisions hereof
in such jurisdiction or rendering that or any other provision of this Agreement
invalid, illegal or unenforceable in any other jurisdiction.
(f) No Waiver. Any waiver by either party of a breach
of any provisions of this Agreement shall not operate as or be construed to be a
waiver of any other breach of such provision or of any breach of any other
provision of this Agreement. The failure of either party to insist upon strict
adherence to any term of this Agreement on one or more occasions shall be
considered a waiver or to deprive such party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement.
(g) Binding Effect. This Agreement shall be binding
on, and shall inure to the benefit of, the parties hereto and their permitted
assigns, successors and legal representatives.
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(h) Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which when taken together shall
constitute one and the same document.
(i) Governing Law. This Agreement has been negotiated
and entered into in the State of California and shall be construed in accordance
with the laws of the State of California.
(j) Arbitration. The parties hereby expressly agree
that any controversy or claim relating to this Agreement, including the
construction, enforcement or application of the terms hereof, shall be submitted
to arbitration in Los Angeles, California by the American Arbitration
Association in accordance with the Commercial Arbitration Rules of such
association. The arbitrator shall be a retired judge of the Los Angeles Superior
Court or other party acceptable to the parties and the rules of evidence shall
apply. The costs of the arbitrator shall be borne equally. Each party shall be
responsible for its own attorneys' fees and costs. However, the arbitrator shall
have the right to award costs and expenses (including actual attorneys' fees) to
the prevailing party as well as equitable relief. The award of the arbitrator
shall be final and binding and shall be enforceable in any court of competent
jurisdiction. Nothing in this paragraph shall preclude the parties from seeking
an injunction or other equitable relief from a court of competent jurisdiction
under appropriate circumstances.
(k) Headings. The headings included in this Agreement
are for the convenience of the parties only and shall not affect the
construction or interpretation of this Agreement.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed on its behalf by its duly authorized officer and Executive has
executed the same as of the day and year first above written.
PACIFIC INTERNATIONAL
ENTERPRISES, INC.
By: /s/ Xxxxxxx Xxxxxxx
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XXXXXXX XXXXXXX
Its: Vice-President
/s/ Binks A. Graval
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BINKS GRAVAL
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