Exhibit 10(d)
0
XXXXX XXXXXX XXXXXXXX XXXX XX XXXXXXXX
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS AGREEMENT is made this 14th day of May, 1997 by and between Xxxxx
Spring National Bank of Maryland (the "Bank"), and (the "Executive").
INTRODUCTION
To encourage the Executive to remain a senior officer of the Bank, the
Bank is willing to provide salary continuation benefits to the Executive. The
Bank will pay the benefits from its general assets.
AGREEMENT
The Executive and the Bank agree as follows:
Article 1
Definitions
1.1 Definitions. Whenever used in this Agreement, the following
words and phrases shall have the meanings specified:
1.1.1 "Accrued Benefit" means the amount of liability for
benefits to be paid under this Agreement recorded on the books of the
Bank in accordance with Generally Accepted Accounting Principles and
without reduction for any income tax benefit related thereto.
1.1.2 "Benefit Percentage" means 65%.
1.1.3 "Change in Control" means the earliest of:
i. The acquisition by any entity, person or group
(other than the acquisition by a tax-qualified
retirement plan sponsored by Xxxxx Spring
Bancorp, Inc. ("Bancorp") or the Bank) of
beneficial ownership, as that term is defined
in Rule 13d-3 under the Securities Exchange Act
of 1934, of more than 25% of the outstanding
capital stock of Bancorp or the Bank entitled
to vote for the election of directors ("Voting
Stock");
j. The commencement by any entity, person, or
group (other than Bancorp or the Bank, a
subsidiary of Bancorp or the Bank, or a tax-
qualified retirement plan sponsored by Bancorp
or the Bank)
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of a tender offer or an exchange offer for more
than 20% of the outstanding Voting Stock of
Bancorp or the Bank;
k. The effective time of (i) a merger or
consolidation of Bancorp or the Bank with one
or more other corporations as a result of which
the holders of the outstanding Voting Stock of
Bancorp or the Bank immediately prior to such
merger exercise voting control over less than
80% of the Voting Stock of the surviving or
resulting corporation, or (ii) a transfer of
substantially all of the property of Bancorp or
the Bank other than to an entity of which
Bancorp or the Bank owns at least 80% of the
Voting Stock;
l. Upon the acquisition by any entity, person, or
group of the control of the election of a
majority of the Bank's or Bancorp's directors;
m. At such time that, during any period of two
consecutive years, individuals who at the
beginning of such period constitute the Board
of Bancorp or the Bank (the "Continuing
Directors") cease for any reason to constitute
at least two-thirds thereof, provided that any
individual whose election or nomination for
election as a member of the Board was approved
by a vote of at least two-thirds of the
Continuing Directors then in office shall be
considered a Continuing Director.
1.1.4 "Code" means the Internal Revenue Code of 1986, as
amended. References to a Code section shall be deemed to be to that
section as it now exists and to any successor provisions.
1.1.5 "Disability" means a physical or mental infirmity that
impairs the Executive's ability to substantially perform his duties
under this Agreement and that results in the Executive's becoming
eligible for long-term disability benefits under a long-term disability
plan maintained for Bank employees (or, if the Bank has no such plan in
effect, that impairs the Executive's ability to substantially perform
his duties for a period of one-hundred and eighty consecutive days).
The board of directors of the Bank shall determine whether or not the
Executive is and continues to be permanently disabled for purposes of
this Agreement in good faith, based upon competent medical advice and
other factors that it reasonably believes to be relevant. As a
condition to any benefits, the Bank may require the Executive to submit
to such physical or mental evaluations and tests as the Bank's Board of
Directors deems appropriate.
1.1.6 "Early Retirement Date" means the date on which the
Executive has both (a) attained age sixty and (b) completed ten Years
of Service.
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1.1.7 "Final Average Pay" means the Executive's three-year
average cash compensation, determined by adding (a) the total base
salary paid to the Executive for the thirty-six months preceding the
date of termination (or other date specified in this Agreement) divided
by three, and (b) one-third of the total cash bonuses (including,
without limitation, bonuses awarded under the Bank's Stakeholder
Program and similar programs) awarded to the Executive during the three
calendar years preceding the date of termination (or other date
specified in this Agreement). Final Average Pay shall not be reduced
for any pay reduction contributions (x) to cash or deferred
arrangements under Section 401(k) of the Code, (y) to a cafeteria plan
under Section 125 of the Code, or (z) to a nonqualified deferred
compensation plan. Final Average Pay shall not be increased by any
reimbursed expenses, credits, or benefits under any plan of deferred
compensation to which the Bank contributes, or any additional cash
compensation or compensation payable in a form other than cash.
1.1.8 "Good Reason" means the occurrence of any of the
following without Executive's express written consent:
a. A material breach by Bancorp or the Bank of their
obligation under a binding employment agreement
with the Executive;
b. A material reduction in the Executives's
responsibilities or authority, or a requirement
that the Executive report to any person or group
other than the board of directors of Bancorp and
the Bank (or any other effective reduction in
reporting responsibilities) in connection with his
employment with Bancorp or the Bank;
c. Assignment to the Executive of duties of a
nonexecutive nature or duties for which he is not
reasonably equipped by his skills and experience;
d. Any reduction in salary or material reduction in
benefits below the amounts to which he was
entitled prior to a Change in Control;
e. Termination of incentive and benefit plans,
programs or arrangements, or reduction of the
Executive's participation to such an extent as to
materially reduce their aggregate value below
their aggregate value immediately prior to a
Change in Control.
f. A requirement that the Executive relocate his
principal business office or his principal place
of residence outside Xxxxxxxxxx County, Maryland,
or the assignment to the Executive of duties that
would reasonably require such a relocation;
g. A requirement that the Executive spend more than
thirty normal working days away from Xxxxxxxxxx
County, Maryland during any consecutive twelve-
month period; or
h. Failure to provide office facilities, secretarial
services, and other administrative services to
Executive that are substantially equivalent to the
facilities and services provided to the Executive
immediately prior to the Change in Control
(excluding brief
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periods during which office facilities may be
temporarily unavailable due to fire, natural
disaster, or other calamity).
Notwithstanding the foregoing: (i) a reduction or elimination
of the Executive's benefits under one or more benefit plans maintained
by Bancorp or the Bank as part of a good faith, overall reduction or
elimination of such plan or plans or benefits thereunder applicable to
all participants in a manner that does not discriminate against the
Executive (except as such discrimination may be necessary to comply
with law) shall not constitute an event of Good Reason or a material
breach of this Agreement, provided that benefits of the type or to the
general extent as those offered under such plans prior to such
reduction or elimination are not available to other officers of Bancorp
or the Bank or any company that controls either of them under a plan or
plans in or under which the Executive is not entitled to participate,
and receive benefits, on a fair and nondiscriminatory basis; and (ii) a
requirement that the Executive report to and be subject to the
direction or supervision of a senior officer of Bancorp or the Bank
other than the President and Chief Executive shall not constitute an
event of Good Reason or a material breach of this Agreement. This
provision shall not affect the rights of the Executive to enforce this
Agreement.
A termination with Good Reason means a Termination of
Employment by the Executive by written notice to the Bank, which notice
may be immediately effective, given within ninety days of the event of
Good Reason.
1.1.9 "Insurance Policy" means a single premium life insurance
policy which may be acquired by the Bank, in its sole discretion, as
sole owner, on the life of the Executive in connection with this
Agreement.
1.1.10 "Just Cause" means, as determined in good faith by the
Bank's board of directors, the Executive's:
a. Personal dishonesty;
b. Incompetence;
c. Willful misconduct;
d. Breach of fiduciary duty involving personal
profit;
e. Intentional failure to perform duties under this
Agreement;
f. Other, continuing material failure to perform his
duties after reasonable notification (which shall
be stated in writing and given at least fifteen
days prior to termination) by the board of
directors of the Bank of such failure;
g. Willful violation of any law, rule or regulation
(other than traffic violations or similar
offenses) or final cease-and-desist order; or
h. Material breach by the Executive of any provision
of this Agreement or an Employment Agreement to
which he and the Bank are parties.
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1.1.11 "Normal Retirement Date" means the date on which the
Executive has both (a) attained age sixty-five and (b) completed ten
Years of Service.
1.1.12 "Termination of Employment" means the Executive's
ceasing to be employed by the Bank for any reason whatsoever, voluntary
or involuntary, other than by reason of an approved leave of absence.
1.1.13 "Years of Service" means the total number of
twelve-month periods during which the Executive is employed on a
full-time basis by the Bank prior to and after the date of this
Agreement, inclusive of any approved leaves of absence.
Article 2
Lifetime Benefits
2.1 Normal Retirement Benefit. If the Executive terminates
employment on or after the Normal Retirement Date for reasons other than death,
the Bank shall pay the Executive the benefit described in this Section 2.1.
2.1.1. Amount of Benefit. The benefit under this Section 2.1
is one-twelfth of the Executive's Final Average Pay multiplied by the
Benefit Percentage, which product is reduced by:
2.1.1.1 Social Security Benefits. One-half of the
amount of monthly unreduced primary (not family) retirement
benefits under the United States Social Security Act that the
Executive would be eligible for if application were made as of
the Executive's sixty-fifth birthday, assuming that the
Executive had earnings at or above the maximum contribution
and benefit base under Section 230 of the United States Social
Security Act for his working career; and
2.1.1.2 Bank's Qualified Pension Plan Benefits. The
straight life, monthly payment, annuity benefit the Executive
would be entitled to receive under the Bank's qualified
pension plan as of the Executive's Termination of Employment.
2.1.1.3 Prior Employer's Pension Plan Benefits. The
straight life, monthly payment, annuity benefit the Executive
would be entitled to receive as of the Executive's Termination
of Employment because of employment by any and all other banks
or companies prior to the Executive's full time employment by
the Bank under any and all qualified, defined benefit pension
plans maintained by any and all such other banks or companies.
2.1.1.4 Bank's Qualified 401(k) and Profit Sharing
Plan. The straight life, maximum monthly payment, fifteen-year
annuity that may be purchased at the date of Termination from
an issuer rated superior by A.M. Best (or, in the Bank's
discretion, with an equivalent rating
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from another rating organization of similar reputation) for
cash equal to the value of the Executive's account at the date
of Termination under the Bank's Cash and Deferred Profit
Sharing Plan and Trust (or any successor plan) attributable to
Bank contributions, including the earnings thereon.
2.1.2 Payment of Benefit. The Bank shall pay the benefit to
the Executive on the first day of each month commencing with the month
following the Termination of Employment and continuing until the later
of the Executive's death or the payment of one-hundred and seventy-nine
additional monthly payments.
2.2. Early Retirement Benefit. If the Executive terminates
employment on or after the Early Retirement Date but before the Normal
Retirement Date, and for reasons other than death or Disability, the Bank shall
pay to the Executive the benefit described in this Section 2.2.
2.2.1 Amount of Benefit. The benefit under this Section 2.2 is
the amount of the Accrued Benefit at the date of such early retirement
divided by one-hundred and eighty.
2.2.2 Payment of Benefit. The Bank shall pay the benefit to
the Executive on the first day of each month commencing with the month
following the Executive's Termination of Employment and continuing
until the later of the Executive's death or the payment of one-hundred
and seventy-nine additional monthly payments.
2.3 Disability Benefit. If the Executive's employment is
terminated for Disability prior to the Normal Retirement Date, the Bank shall
pay to the Executive the benefit described in this Section 2.3.
2.3.1 Amount of Benefit. The benefit under this Section 2.3 is
the amount of the Accrued Benefit at the date of such early retirement
divided by one-hundred and eighty.
2.3.2 Payment of Benefit. The Bank shall pay the benefit to
the Executive on the first day of each month commencing with the month
following the Executive's Termination of Employment and continuing
until the later of the Executive's death or the payment of one-hundred
and seventy-nine additional months.
2.4 Change in Control Benefits. If within the period beginning six
months prior to and ending two years after a Change in Control, (a) the Bank
shall terminate the Executive's employment without Just Cause, or (b) the
Executive shall terminate his employment with Good Reason, the Bank shall pay to
the Executive the benefit described in this Section 2.4 in lieu of any other
benefit under this Agreement.
2.4.1 Amount of Benefit. The benefit under this Section 2.4 is
the Normal Retirement Benefit described in Section 2.1 calculated as if
the date of Termination of
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Employment were the Executive's Normal Retirement Date, or, if elected
by the Executive pursuant to Section 2.4.2.1, the Early Retirement
Benefit described in Section 2.4.1 calculated as if the date of
Termination of Employment were the Executive's Early Retirement Date.
2.4.2 Payment of Benefits.
2.4.2.1 Approved Change in Control. If the Change in
Control was approved in advance by a majority of the
Continuing Directors, the Bank shall pay the benefit to the
Executive on the first day of each month commencing with the
month following the day on which: (i) the Executive attains
age sixty-five, or, if the Executive so elects in writing
within ten days of Termination of Employment, (ii) the
Executive attains age sixty, and, in either case, continuing
until the later of the Executive's death or the payment of
one-hundred and seventy-nine additional monthly payments.
2.4.2.2 Unapproved Change in Control. If the Change
in Control was not approved in advance by a majority of the
Continuing Directors, the Bank shall pay the benefit to the
Executive on the first day of each month commencing with the
month following the Termination of Employment and continuing
until the later of the Executive's death or one-hundred and
seventy-nine (179) additional monthly payments.
2.5. Vested Benefits following Other Terminations. Subject to
Section 2.4, if (i) the Executive voluntarily terminates employment before the
Early Retirement Date for reasons other than Death or Disability, or (ii) the
Bank terminates the Executive's Employment without Just Cause, the Bank shall
pay to the Executive the benefits described in this section.
2.5.1 Amount of Benefit. The benefit under this Section 2.5
is the straight life, maximum monthly payment, fifteen-year annuity beginning on
the first day of the month following the date on which (i) the Executive attains
age sixty-five, or, if the Executive so elects in writing within ten days of
Termination of Employment, (ii) the Executive attains age sixty, that may be
purchased in the two months following the date of Termination from an issuer
rated superior by A.M. Best (or, in the Bank's discretion, with an equivalent
rating from another rating organization of similar reputation) for cash equal to
the amount of the vested Accrued Benefit at the date of such termination.
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2.5.2 Vested Accrued Benefit. For purposes of this section
2.5, only, the Accrued Benefit shall vest in accordance with the
following schedule:
Years of Percentage of Accrued
Service Benefit That Is Vested
------- ----------------------
less than 4 0%
4 20%
5 25%
6 30%
7 35%
8 40%
9 45%
10 50%
11 60%
12 70%
13 80%
14 90%
15 100%
2.5.3 Payment of Benefit. The Bank shall pay the monthly
benefit (or cause such benefit to be paid) to the Executive, or his beneficiary
after the Executive's death, on the first day of each month commencing with the
month following the month in which the Executive attains (i) age sixty-five, or
if elected by the Executive pursuant to section 2.5.2. (ii) age sixty. The Bank
may, in its sole discretion, purchase such an annuity for or transfer its
ownership rights to the Executive in settlement of this obligation, in which
case all of the Bank's obligations under this Agreement shall immediately
terminate.
Article 3
Death Benefits
3.1 Death During Active Service. If the Executive dies while in
the active service of the Bank, the Bank shall pay to the Executive's
beneficiary the benefit described in this Section 3.1.
3.1.1 Insurance Policy in Effect. If the Executive dies while
the Insurance Policy is validly in effect, the benefit under Section
3.1 is the greater of (i) the lifetime benefit that would have been
paid to the Executive under Section 2.1 calculated as if the date of
the Executive's death were the Normal Retirement Date, or (ii) the
straight life, maximum monthly payment, fifteen-year annuity, for
payments beginning the month following the Executive's death, that
could be purchased from an issuer rated superior by A.M. Best (or, in
the Bank's discretion, with an equivalent rating from another rating
organization of similar reputation) for cash equal to three times the
Executive's Final Average Pay.
3.1.2 Insurance Policy Not in Effect. If the Executive dies
while the Insurance Policy is not validly in effect, the benefit under
Section 3.1 is the Accrued Benefit at the date of the Executive's death
divided by one-hundred and eighty.
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3.1.3 Payment of Benefit. The Bank shall pay the benefit to the
Beneficiary on the first day of each month commencing with the month
following the Executive's death and continuing for one-hundred and
seventy-nine additional months.
Article 4
Beneficiaries
4.1 Beneficiary Designations. The Executive shall designate a
beneficiary by filing a written designation with the Bank. The Executive may
revoke or modify the designation at any time by filing a new designation.
However, designations will only be effective if signed by the Executive and
accepted by the Bank during the Executive's lifetime. The Executive's
beneficiary designation shall be deemed automatically revoked if the beneficiary
predeceases the Executive, or if the Executive names a spouse as beneficiary and
the marriage is subsequently dissolved. If the Executive dies without a valid
beneficiary designation, all payments shall be made to the Executive's surviving
spouse, if any, and if none, to the Executive's surviving children and to the
descendants of any deceased child by right of representation, and if no children
or descendants survive, to the Executive's estate.
4.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incompetent, or to a person incapable of handling the
disposition of his or her property, the Bank may pay such benefit to the
guardian, legal representative, or person having the care or custody of such
minor, incompetent person, or incapable person. The Bank may require proof of
incompetency, minority, or guardianship as it may deem appropriate prior to the
distribution of the benefit. Such distribution shall completely discharge the
Bank from all liability with respect to such benefit.
Article 5
General Limitations
Notwithstanding any provision of this Agreement to the contrary, the
Bank shall not pay any amount of any benefit under this Agreement:
5.1 Excess Parachute Payment. To the extent the amount of benefit would
be an excess parachute payment under Section 280G of the Code, with
consideration for any right of the Executive, under an employment agreement with
the Bank or otherwise, to waive benefits hereunder or other payments in order to
prevent an excess parachute payment.
5.2 Termination for Cause. If the Bank terminates the Executive's
employment for Just Cause.
5.3 Suicide. No benefits shall be payable if the Executive commits
suicide within two years after the date of this Agreement, or if the Executive
has made any material misstatement of fact on any application for the Insurance
Policy.
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Article 6
Claims and Review Procedures
6.1 Claims Procedures. The Bank shall notify the Executive's
beneficiary in writing, within ninety days of his or her written application for
benefits, of his or her eligibility or noneligibility for benefits under the
Agreement. If the Bank determines that the beneficiary is not eligible for
benefits or full benefits, the notice shall set forth (a) the specific reasons
for such denial, (b) a specific reference to the provisions of the Agreement on
which the denial is based, (c) a description of any additional information or
material necessary for the claimant to perfect his or her claim, and a
description of why it is needed, and (d) an explanation of the Agreement's
claims review procedure and other appropriate information as to the steps to be
taken if the beneficiary wishes to have the claim reviewed. If the Bank
determines that there are special circumstances requiring additional time to
make a decision regarding eligibility for benefits, the Bank shall notify the
beneficiary of the special circumstances and the date by which a decision is
expected to be made, and may extend the time by which notice may be given of
such decision for up to an additional ninety-day period.
6.2 Review Procedure. If the beneficiary is determined by the Bank not
to be eligible for benefits, or if the beneficiary believes that he or she is
entitled to greater or different benefits, the beneficiary shall have the
opportunity to have such claim reviewed by the Bank by filing a petition for
review with the Bank within sixty days after receipt of the notice issued by the
Bank. Such petition shall state the specific reasons that the beneficiary
believes entitle him or her to benefits or to greater or different benefits.
Within sixty days after receipt by the Bank of the petition, the Bank shall
afford the beneficiary (and counsel, if any) an opportunity to present his or
her position to the Bank orally or in writing, and the beneficiary (or counsel)
shall have the right to review the pertinent documents. The Bank shall notify
the beneficiary of its decision in writing within the sixty-day period, stating
specifically the basis of its decision, written in a manner calculated to be
understood by the beneficiary, and the specific provisions of the Agreement on
which the decision is based. If, because of the need for a hearing, the
sixty-day period is not sufficient, notice of such decision may be deferred for
up to another sixty-day period at the election of the Bank, but notice of this
deferral shall be given to the beneficiary.
Article 7
Amendments and Termination
This Agreement may be amended or terminated only by a written agreement
signed by the Bank and the Executive.
Article 8
Miscellaneous
8.1 Binding Effect. This Agreement shall bind the Executive and the
Bank, and their beneficiaries, survivors, executors, administrators, and
transferees.
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8.2 No Guaranty of Employment. This Agreement is not an employment
policy or contract. It does not give the Executive the right to remain an
employee of the Bank, nor does it interfere with the Bank's right to discharge
the Executive. It also does not require the Executive to remain an employee nor
interfere with the Executive's right to terminate employment at any time.
8.3 Non-Transferability. Benefits under this Agreement cannot be sold,
transferred, assigned, pledged, attached, or encumbered in any manner.
8.4 Tax Withholding. The Bank shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
8.5 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of the State of Maryland, except to the extent preempted by
the laws of the United States of America.
8.6 Unfunded Arrangement. The Executive and beneficiary are general
unsecured creditors of the Bank for the payment of benefits under this
Agreement. The benefits represent the mere promise by the Bank to pay such
benefits. The rights to benefits are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by creditors. The Insurance Policy and any other insurance on the
Executive's life in which the Bank has an interest is a general asset of the
Bank to which neither the Executive nor any beneficiary has any preferred or
secured claim of any kind, and does not represent funding for the benefit under
this Agreement. Any representation or assertion contrary to this section 8.6 is
a material breach of this Agreement by the representing or asserting party,
which, if such party is the Executive or, following his death, a beneficiary,
shall immediately result in the cessation of any and all payments and the
elimination of any liability hereunder for any payment not made prior to such
assertion or representation, and, if such party is the Bank, shall subject it to
liability for actual damages for such breach.
8.7 Non-Competition Provisions. Regardless of anything herein to the
contrary, except in the case of a Termination of Employment by the Bank without
Just Cause, a Termination of Employment by the Executive with Good Reason, or
with the permission of the Bank, during the two years immediately following the
Executive's Termination of Employment, the Executive shall not serve as an
officer or director or employee of any bank holding company, bank, savings
association, savings and loan holding company, or mortgage company (any of
which, a "Financial Institution") which Financial Institution offers products or
services competing with those offered by the Bank from offices in any county in
the State of Maryland or of any other State in which the Bank or any of its
affiliates has a branch, and shall not interfere with the relationship of the
Bank and any of its employees, agents, or representatives. In the event of any
breach by the Executive of this Covenant Not to Compete, the Board of Directors
of the Bank shall direct that any unpaid balance of any payments to the
Executive under this Agreement be suspended, and shall thereupon notify the
Executive of such suspension, in writing. Thereupon, if the Board of Directors
of the Bank shall determine that such breach by the
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executive exists at any time after a period of one month following notification
of the such suspension, all rights of the Executive and his beneficiary under
this agreement, including rights to any and all further payments hereunder,
shall thereupon terminate.
8.8 Successors. This Agreement shall inure to the benefit of and be
binding upon any corporate or other successor of the Bank which shall acquire,
directly or indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the assets or stock of the Bank.
IN WITNESS WHEREOF, the Executive and a duly authorized Bank officer
have signed this Agreement.
EXECUTIVE XXXXX SPRING NATIONAL BANK OF MARYLAND
By:
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Title:
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