STANFORD INDUSTRIAL GROUP, INC. STOCK OPTION AGREEMENT
Exhibit
10.34
STANFORD
INDUSTRIAL GROUP, INC.
2007
STOCK INCENTIVE PLAN
STOCK
OPTION AGREEMENT
(the
“Agreement”) made as of this <<NUMBERDATE>> day of
<<MONTH>>, <<YEAR>>, by and between Stanford Industrial
Group, Inc., a Delaware corporation, having its principal office at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
“Company”), and <<FIRSTNAME>> <<LASTNAME>>, an
individual residing in <<citystate>> (the “Optionee”). Capitalized
terms not defined herein shall have the meanings ascribed to them in the
Company's 2007 Stock Incentive Plan.
WHEREAS,
the
Company has heretofore adopted the Stanford Industrial Group, Inc. 2007 Stock
Incentive Plan (the “Plan”) for the benefit of certain employees, officers,
directors, consultants, independent contractors and advisors of the Company
or
Subsidiaries of the Company, which Plan has been approved by the Company's
stockholders; and
WHEREAS,
the
Optionee is a valued and trusted employee of the Company and/or one of its
subsidiaries and the Company believes it to be in the best interests of the
Company to secure the future services of the Optionee by providing the Optionee
with an inducement to remain an employee of the Company and/or one of its
Subsidiaries through the grant of an option to acquire an ownership interest
in
the Company.
NOW,
THEREFORE,
the
parties agree as follows:
1. OPTION
GRANT.
Subject
to the provisions hereinafter set forth and the terms and conditions of the
Plan, the Company hereby grants to the Optionee, as of <<GRANTDATE>>
(the “Grant Date”), the right, privilege and option (the “Option”) to purchase
all or any part of an aggregate of <<AMOUNTOFOPTIONS>> shares (the
“Shares”) of common stock of the Company, par value $.0001 per share (the
“Common Stock”), such number being subject to adjustment as provided in the
Plan. To the extent applicable, this Option is intended to qualify as an
“incentive stock option” (“ISO”) within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the “Code”), to the extent permitted
under Section 422 of the Code.
2.
EXERCISE
PRICE.
Subject
to adjustment as provided in the Plan, the purchase price per Share of Common
Stock as to which this Option is exercised (the “Exercise Price”) shall be
$<<SHAREPRICE>>, the Fair Market Value of such Shares on the Grant
Date.
3.
EXERCISE
OF OPTION.
The
term of the Option shall be for a period of ten (10) years from the Grant Date
and shall expire without further action being taken at 5:00 p.m.,
<<EXPIRATIONDATE>>, subject to earlier termination as provided in
Section 5 hereof (the “Expiration Date”). The Option may be exercised at any
time, or from time to time, prior to the Expiration Date (or such additional
period as may be permitted under the Plan) as to any part or all of the Shares
covered by the Option, pursuant to the vesting schedule contained in Section
4.1
hereof; provided, however, that the Option may not be exercised as to less
than
one hundred (100) shares, unless it is exercised as to all Shares as to which
this Option is then exercisable.
4.
VESTING
AND LOCKUP RELEASE SCHEDULE.
4.1 Vesting
Date. The Shares into which this Option is exercisable shall vest in accordance
with the following schedule:
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VESTING DATE
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NUMBER OF ISOs
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NUMBER OF NON-
QUALIFIED
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TOTAL NUMBER OF
SHARES
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<<INSERT
DATE>>
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<<TOTAL
ISOS>>
|
<<TOTAL
NQSOS>>
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<<AMOUNTOFOPTIONS>>
|
The
allocation of options granted between ISOs and NQSOs indicated above is a result
of the Limitations on ISO as outlined in the 2007 Stock Incentive Plan and
reproduced below.
5.7
LIMITATIONS
ON ISO.
THE
AGGREGATE FAIR MARKET VALUE (DETERMINED AS OF THE DATE OF GRANT) OF SHARES
WITH
RESPECT TO WHICH ISOS ARE EXERCISABLE FOR THE FIRST TIME BY A PARTICIPANT DURING
ANY CALENDAR YEAR (UNDER
THIS PLAN OR UNDER ANY OTHER INCENTIVE STOCK OPTION PLAN OF THE COMPANY OR
SUBSIDIARY OF THE COMPANY) WILL NOT EXCEED $100,000 OR SUCH OTHER AMOUNT AS
MAY
BE REQUIRED BY THE CODE. IF THE FAIR MARKET VALUE OF SHARES ON THE DATE OF
GRANT
WITH RESPECT TO WHICH ISOS ARE EXERCISABLE FOR THE FIRST TIME BY A PARTICIPANT
DURING ANY CALENDAR YEAR EXCEEDS $100,000, THEN THE OPTIONS FOR THE FIRST
$100,000 WORTH OF SHARES TO BECOME EXERCISABLE IN SUCH CALENDAR YEAR WILL BE
ISOS AND THE OPTIONS FOR THE AMOUNT IN EXCESS OF $100,000 THAT BECOME
EXERCISABLE IN THAT CALENDAR YEAR WILL BE NQSOS. IN THE EVENT THAT THE CODE
OR
THE REGULATIONS PROMULGATED THEREUNDER ARE AMENDED AFTER THE EFFECTIVE DATE
OF
THIS PLAN TO PROVIDE FOR A DIFFERENT LIMIT ON THE FAIR MARKET VALUE OF SHARES
PERMITTED TO BE SUBJECT TO ISOS, SUCH DIFFERENT LIMIT WILL BE AUTOMATICALLY
INCORPORATED HEREIN AND WILL APPLY TO ANY OPTIONS GRANTED AFTER THE EFFECTIVE
DATE OF SUCH AMENDMENT.
4.2
Shares that are vested pursuant to the schedule set forth in Section 4.1 hereof
are “Vested Shares.”
5. TERMINATION.
5.1 Termination
for Any Reason Except Death, Disability or Cause. If Optionee is Terminated
for
any reason (including if the Optionee voluntarily terminates employment by
the
Company) except Optionee's death, Disability or Cause, then this Option, to
the
extent (and only to the extent) that it is vested in accordance with the
schedule set forth in Section 4.1 hereof on the Termination Date, may be
exercised by Optionee no later than three (3) months after the Termination
Date,
(or such longer time period not exceeding five (5) years as may be determined
by
the Committee, with any exercise beyond three (3) months after the Termination
Date deemed to be a NQSO), but in any event no later than the Expiration
Date.
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5.2 Termination
Because of Death or Disability. If Optionee is Terminated because of death
or
Disability of Optionee, then this Option, to the extent that it is vested in
accordance with the schedule set forth in Section 4.1 hereof on the Termination
Date, may be exercised by Optionee (or Optionee's legal representative or
authorized assignee) no later than twelve (12) months after the Termination
Date
(or such longer time period not exceeding five (5) years as may be determined
by
the Committee, with any such exercise beyond twelve (12) months after the
Termination Date when the Termination is for Participant's death or Disability,
deemed to be a NQSO), but in any event no later than the Expiration Date. Any
exercise after three months after the Termination Date when the Termination
is
for any reason other than Optionee's disability, within the meaning of Section
22(e)(3) of the Code, shall be deemed to be the exercise of a nonqualified
stock
option.
5.3 Termination
for Cause. If an Optionee is terminated for Cause, neither the Optionee, the
Optionee's estate nor such other person who may then hold the Option shall
be
entitled to exercise any Option with respect to any Shares whatsoever, after
termination of service, whether or not after termination of service the Optionee
may receive payment from the Company or Subsidiary for vacation pay, for
services rendered prior to termination, for services rendered for the day on
which termination occurs, for salary in lieu of notice, or for any other
benefits. In making such determination, the Committee shall give the Optionee
an
opportunity to present to the Committee evidence on his behalf. For the purpose
of this paragraph, termination of service shall be deemed to occur on the date
when the Company dispatches notice or advice to the Optionee that Optionee's
service is terminated.
For
purposes of this Agreement, Termination for Cause means that the Company has
cause to terminate an Optionee's employment or service under any existing
employment, consulting or any other agreement between the Optionee and the
Company or, if such an agreement does not exist, upon finding that (i) the
Optionee has ceased to perform his duties (other than as a result of his
incapacity due to physical or mental illness or injury), which constitutes
an
intentional or extended neglect of his/her duties, (ii) the Optionee has engaged
or is about to engage in conduct materially injurious to the Company or (iii)
the Optionee has been convicted of a felony.
5.4 No
Obligation to Employ. Nothing in the Plan or this Agreement shall confer on
Optionee any right to continue in the employ of, or other relationship with,
the
Company, a Subsidiary or an Affiliate, or limit in any way the right of the
Company or any Affiliate or Subsidiary of the Company to terminate Optionee's
employment or other relationship at any time, with or without Cause. This
Agreement does not constitute an employment contract. This Agreement does not
guarantee employment for the length of time of the Vesting Schedule or for
any
portion thereof.
6. MANNER
OF EXERCISE.
6.1 Stock
Option Exercise Procedures. To exercise this Option, Optionee (or in the case
of
exercise after Optionee's death, Optionee's executor, administrator, heir or
legatee, as the case may be) must follow such exercise procedures as may be
established by the Committee from time to time in its sole discretion. Such
procedures may include requiring that the Optionee provide certain information
including, inter alia, Optionee's election to exercise this Option, the number
of Shares being purchased, any restrictions imposed on the Shares and any
representations, warranties and agreements regarding Optionee's investment
intent and access to information as may be required by the Company to comply
with applicable securities laws. If someone other than Optionee exercises this
Option, then such person may be required to submit documentation reasonably
acceptable to the Company that such person has the right to exercise this
Option.
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6.2 Limitations
on Exercise. This Option may not be exercised unless such exercise is in
compliance with all applicable federal and state securities laws, as they are
in
effect on the date of exercise.
6.3 Payment.
An exercise of this Option shall be accompanied by full payment of the aggregate
Exercise Price for the Shares being purchased (a) in cash (by check), or (b)
provided that a public market for the Company's stock exists: (1) through a
“same day sale” commitment from Optionee and a broker-dealer that is a member of
the National Association of Securities Dealers (an “NASD Dealer”) whereby
Optionee irrevocably elects to exercise this Option and to sell a portion of
the
Shares so purchased to pay for the aggregate Exercise Price and whereby the
NASD
Dealer irrevocably commits upon receipt of such Shares to forward the aggregate
Exercise Price directly to the Company; or (2) through a “margin” commitment
from Optionee and an NASD Dealer whereby Optionee irrevocably elects to exercise
this Option and to pledge the Shares so purchased to the NASD Dealer in a margin
account as security for a loan from the NASD Dealer in the amount of the
aggregate Exercise Price, and whereby the NASD Dealer irrevocably commits upon
receipt of such Shares to forward the aggregate Exercise Price directly to
the
Company. Notwithstanding the foregoing, the Board of Directors or the Committee,
in their sole discretion, may allow for the full payment of the aggregate
Exercise Price for the Shares being purchased to be made by any other method
which is in accordance with the provisions of the Plan.
6.4 Tax
Withholding. Prior to the issuance of the Shares upon exercise of this Option,
Optionee must pay or provide for any applicable federal or state withholding
obligations of the Company. If the Committee permits, Optionee may provide
for
payment of withholding taxes upon exercise of this Option by requesting that
the
Company retain Shares with a Fair Market Value equal to the minimum amount
of
taxes required to be withheld determined on the date that the amount of tax
to
be withheld is to be determined. In such case, the Company shall issue the
net
number of Shares to the Optionee by deducting the Shares retained from the
Shares issuable upon exercise.
6.5 Issuance
of Shares. Provided that both the exercise procedures established by the
Committee and payment are in manner, form and substance satisfactory to the
Company, and upon the Company's request to counsel for the Company, the Company
shall issue the Shares registered in the name of Optionee, Optionee's authorized
assignee, or Optionee's legal representative, and shall deliver certificates
representing the Shares with the appropriate legends affixed
thereto.
7. NOTICE
OF DISQUALIFYING DISPOSITION OF ISO SHARES.
To the
extent this Option is an ISO, if Optionee sells or otherwise disposes of any
of
the Shares acquired pursuant to the ISO on or before the later of (a) the date
two (2) years after the Date of Grant, and (b) the date one (1) year after
transfer of such Shares to Optionee upon exercise of this Option, then Optionee
shall immediately notify the Company in writing of such disposition.
8. COMPLIANCE
WITH LAWS AND REGULATIONS.
The
exercise of this Option and the issuance and transfer of Shares to the Optionee
shall be subject to compliance by the Company and Optionee with (i) all
applicable requirements of federal and state securities laws, (ii) all
applicable requirements of any stock exchange on which the Company's Common
Stock may be listed and (iii) any applicable policy of the Company regarding
the
trading of securities of the Company, each at the time of such issuance and
transfer. Optionee understands that the Company is under no obligation to
register or qualify the Shares with the SEC, any state securities commission
or
any stock exchange to effect such compliance.
9. NONTRANSFERABILITY
OF OPTION.
This
Option may not be transferred in any manner other than by will or by the laws
of
descent and distribution. During the lifetime of Optionee, the Option shall
be
exercisable only by Optionee personally or by the Optionee's legal
representative. The terms of this Option shall be binding upon the executors,
administrators, successors and assigns of Optionee.
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10. PRIVILEGES
OF STOCK OWNERSHIP.
Optionee shall not have any of the rights of a stockholder with respect to
any
Shares until the Shares are issued to Optionee.
11. INTERPRETATION.
Any
dispute regarding the interpretation of this Agreement shall be submitted by
Optionee or the Company to the Committee for review. The resolution of such
a
dispute by the Committee shall be final and binding on the Company and
Optionee.
12.
ENTIRE
AGREEMENT.
The
Plan is incorporated herein by reference. This Agreement and the Plan and any
exercise procedures as may be established by the Committee constitute the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersede all prior understandings and agreements with respect
to such subject matter.
13.
NOTICES.
Any
notice required to be given or delivered to the Company under the terms of
this
Agreement shall be in writing and addressed to the Corporate Secretary of the
Company at its principal corporate offices. Any notice required to be given
or
delivered to Optionee shall be in writing and addressed to Optionee at the
address indicated above or to such other address as such party may designate
in
writing from time to time to the Company. All notices shall be deemed to have
been given or delivered upon: personal delivery; three (3) days after deposit
in
the United States mail by certified or registered mail (return receipt
requested); one (1) business day after deposit with any return receipt express
courier (prepaid); or one (1) business day after transmission by
facsimile.
14. SUCCESSORS
AND ASSIGNS.
The
Company may assign any of its rights under this Agreement. This Agreement shall
be binding upon and inure to the benefit of the successors and assigns of the
Company. Subject to the restrictions on transfer set forth herein, this
Agreement shall be binding upon Optionee and Optionee's heirs, executors,
administrators, legal representatives, successors and assigns.
15. GOVERNING
LAW.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, applicable to agreements made and to be performed entirely
within such state, other than conflict of laws principles thereof directing
the
application of any law other than that of Delaware.
16.
ACCEPTANCE.
Optionee hereby acknowledges receipt of a copy of the Plan and this Agreement.
Optionee has read and understands the terms and provisions of the Plan, and
accepts this Option subject to all the terms and conditions of the Plan and
this
Agreement. This Option is subject to, and the Company and the Optionee agree
to
be bound by, all of the terms and conditions of the Plan under which this Option
was granted, as the same shall have been amended, restated or otherwise modified
from time to time in accordance with the terms thereof. Pursuant to said Plan,
the Board of Directors of the Company, or the Committee is vested with final
authority to interpret and construe the Plan and this Option, and its present
form is available for inspection during the business hours by the Optionee
or
other persons entitled to exercise this Option at the Company's principal
office. Optionee acknowledges that there may be adverse tax consequences upon
exercise of this Option or disposition of the Shares and that the Company has
advised Optionee to consult a tax advisor prior to such exercise or
disposition.
17.
COVENANTS
OF THE OPTIONEE
The
Optionee agrees (and for any heir, executor, administrator, legal
representative, successor, or assignee hereby agrees), as a condition upon
exercise of the Option granted hereunder:
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(a)
Upon
the request of the Committee, to execute and deliver a certificate, in form
satisfactory to the Committee, certifying that the Shares being acquired upon
exercise of the Option are for such person's own account for investment only
and
not with any view to or present intention to resell or distribute the same.
The
Optionee hereby agrees that the Company shall have no obligation to deliver
the
Shares issuable upon exercise of the Option unless and until such certificate
shall be executed and delivered to the Company by the Optionee or any
successor.
(b)
Upon
the request of the Committee, to execute and deliver a certificate, in form
satisfactory to the Committee, certifying that any subsequent resale or
distribution of the Shares by the Optionee shall be made only pursuant to either
(i) a Registration Statement on an appropriate form under the Securities Act
of
1933, as amended (the “Securities Act”), which Registration Statement has become
effective and is current with regard to the Shares being sold, or (ii) a
specific exemption from the registration requirements of the Securities Act,
but
in claiming such exemption the Optionee shall, prior to any offer of sale or
sale of such Shares, obtain a prior favorable written opinion of counsel, in
form and substance satisfactory to counsel for the Company, as to the
application of such exemption thereto. The foregoing restriction contained
in
this subparagraph (b) shall not apply to (i) issuances by the Company so long
as
the Shares being issued are registered under the Securities Act and a prospectus
in respect thereof is current, or (ii) re-offerings of Shares by Affiliates
of
the Company (as defined in Rule 405 or any successor rule or regulation
promulgated under the Securities Act) if the Shares being re-offered are
registered under the Securities Act and a prospectus in respect thereof is
current.
(c)
That
certificates evidencing Shares purchased upon exercise of the Option shall
bear
a legend, in form satisfactory to counsel for the Company, manifesting the
investment intent and resale restrictions of the Optionee described in this
Section.
(d)
That
upon exercise of the Option granted hereby, or upon sale of the Shares purchased
upon exercise of the Option, as the case may be, the Company shall have the
right to require the Optionee to remit to the Company, or in lieu thereof,
the
Company may deduct, an amount of shares or cash sufficient to satisfy federal,
state or local withholding tax requirements, if any, prior to the delivery
of
any certificate for such Shares or thereafter, as appropriate.
18. OBLIGATIONS
OF THE COMPANY
18.1 Upon
the
exercise of this Option in whole or in part, the Company shall cause the
purchased Shares to be issued only when it shall have received the full payment
of the aggregate Exercise Price in accordance with the terms of this
Agreement.
18.2 The
Company shall cause certificates for the Shares as to which the Option shall
have been exercised to be registered in the name of the person or persons
exercising the Option, which certificates shall be delivered by the Company
to
the Optionee only against payment of the full Exercise Price in accordance
with
the terms of this Agreement for the portion of the Option
exercised.
18.3
In the
event that the Optionee shall exercise this Option with respect to less than
all
of the Shares of Common Stock that may be purchased under the terms hereof,
the
Company shall issue to the Optionee a new Option, duly executed by the Company
and the Optionee, in form and substance identical to this Option, for the
balance of Shares of Common Stock then issuable pursuant to the terms of this
Option.
18.4 Notwithstanding
anything to the contrary contained herein, neither the Company nor its transfer
agent shall be required to issue any fraction of a Share of Common Stock in
connection with the exercise of this Option, and the Company shall, upon
exercise of this Option in whole or in part, issue the largest number of whole
Shares of Common Stock to which this Option is entitled upon such full or
partial exercise and shall return to the Optionee the amount of the aggregate
Exercise Price paid by the Optionee in respect of any fractional
Share.
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18.5 The
Company may endorse such legend or legends upon the certificates for Shares
issued to the Optionee pursuant to the Plan and may issue such “stop transfer”
instructions to its transfer agent in respect of such Shares as, in its
discretion, it determines to be necessary or appropriate to: (i) prevent a
violation of, or to perfect an exemption from, the registration requirements
of
the Securities Act; (ii) implement the provisions of the Plan and any agreement
between the Company and the Optionee with respect to such Shares; or (iii)
permit the Company to determine the occurrence of a disqualifying disposition,
as described in Section 421(b) of the Code, of Shares transferred upon exercise
of an incentive stock option granted pursuant to this Agreement and under the
Plan.
18.6 The
Company shall pay all issue or transfer taxes with respect to the issuance
or
transfer of Shares to the Optionee, as well as all fees and expenses necessarily
incurred by the Company in connection with such issuance or transfer, except
fees and expenses which may be necessitated by the filing or amending of a
Registration Statement under the Securities Act, which fees and expenses shall
be borne by the Optionee, unless such Registration Statement under the
Securities Act has been filed by the Company for its own corporate purposes
(and
the Company so states) in which event the Optionee shall bear only such fees
and
expenses as are attributable solely to the inclusion of the Shares he or she
receives in the Registration Statement.
18.7 All
Shares issued following exercise of the Option and the payment of the Exercise
Price in accordance with the terms of this Agreement therefore shall be fully
paid and non-assessable to the extent permitted by law.
19. MISCELLANEOUS
19.1 If
the
Optionee loses this Agreement representing the Option granted hereunder, or
if
this Agreement is stolen or destroyed, the Company shall, subject to such
reasonable terms as to indemnity as the Committee, in its sole discretion shall
require, enter into a new option agreement pursuant to which the Company shall
issue a new Option, in form and substance identical to this Option, and in
substitution for, the Option so lost, stolen or destroyed, and in the event
this
Agreement representing the Option shall be mutilated, the Company shall, upon
the surrender hereof, enter into a new option agreement pursuant to which the
Company shall issue a new Option, in form and substance identical to this
Option, and in substitution for, the Option so mutilated.
19.2 This
Agreement cannot be amended, supplemented or changed, and no provision hereof
can be waived, except by a written instrument making specific reference to
this
Agreement and signed by the party against whom enforcement of any such
amendment, supplement, modification or waiver is sought. A waiver of any right
derived hereunder by the Optionee shall not be deemed a waiver of any other
right derived hereunder.
19.3
This
Agreement may be executed in any number of counterparts, but all counterparts
will together constitute but one agreement.
19.4
In the
event of a conflict between the terms and conditions of this Agreement and
the
Plan, the terms and conditions of the Plan shall govern.
19.5 Any
dispute regarding the interpretation of this Agreement shall be submitted by
Optionee or the Company to the Committee for review. The resolution of such
a
dispute by the Committee shall be final and binding on the Company and
Optionee.
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IN
WITNESS WHEREOF,
the
Company has caused this Agreement to be executed in duplicate by its duly
authorized representative and Optionee has executed this Agreement in duplicate
as of the Date of Grant.
| STANFORD INDUSTRIAL GROUP, INC. | |||
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By:
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Name:
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Title:
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OPTIONEE:
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<<FirstName>>
<<LastName>>
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