EMPLOYMENT AGREEMENT
Exhibit 10.4
EXECUTION COPY
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (“Agreement”) is entered into as of September 8, 2015 by and between Joe’s Jeans Inc., a Delaware corporation (“Parent”), Hudson Clothing Holdings, Inc. (“HCH”), a Delaware corporation, HC Acquisition Holdings, Inc. (“HCAH”), a Delaware corporation, Hudson Clothing, LLC (the “Company”), a California limited liability company, and Peter Kim (“Executive”) but (other than as expressly set forth in Section 5.15) is not effective until the Closing (as defined in the Agreement and Plan of Merger, dated as of September 8, 2015 among RG Parent, LLC (“RG”), JJ Merger Sub LLC and Parent (the “Transaction Agreement”)) under the Transaction Agreement (the date of such Closing, the “Effective Date”).
RECITALS
In connection with the transactions contemplated (the “Acquisition Transaction”) by the Transaction Agreement, including, and as a necessary condition to the consummation of the transactions contemplated by, the Rollover Agreement, dated as of September 8, 2015 among Parent, Executive and the other parties thereto (the “Rollover Agreement”), Parent and the Company desire that Executive continue to serve as the Chief Executive Officer of the Company, in order to assure continuity of management of the Company, and Executive desires to be so employed, on the terms and conditions as hereinafter set forth.
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
Section 1. EMPLOYMENT
Section 1.1 Term of Employment. The Company agrees to employ Executive, and Executive agrees to remain an employee of the Company, for three years from the Effective Date of this Agreement. The period during which Executive is employed by the Company pursuant to this Agreement is herein referred to as the “Term”.
Section 1.2 Title and Duties. During the Term, Executive shall be employed as the Chief Executive Officer of the Company, reporting directly and only to the Chief Executive Officer of Parent. Executive will have all of the authorities, duties and responsibilities as is customary for a chief executive officer of a company, including the authority to identify and recommend Company employees to Parent and the Board for equity awards, with a grant date fair market value not to exceed an aggregate annual amount as mutually agreed between Executive and the Chief Executive Officer of RG Parent, LLC (“RG Parent CEO”) as soon as practicable following the date hereof, which awards will be granted by Parent pursuant to its then applicable equity plan. During the Term, Executive shall diligently devote his business skill, time and effort to his employment hereunder but may engage in outside activities that are not directly competitive to the Company Group (as defined below) (“Outside Activities”); provided that Executive devotes no less than 95% of his business time to the responsibilities of his employment with the Company; and provided further that Outside Activities shall include, and Executive shall be permitted to engage in, any activities that Executive initiated prior to the time any member of the Company Group became such or initiated such member’s engagement in such
activity. In the event Executive determines to issue or sell a controlling interest (the “Transferred Interests”) in any such Outside Activities (or any related entities), Executive shall provide Parent with advance written notice of any such sale and the proposed purchase price. Parent shall have a period of 30 days from such notice to elect by written notice to Executive to purchase the Transferred Interests at such price. If Parent does not so elect within such 30-day period, Executive shall be permitted, for a period of 120 days from the earlier of (i) Parent’s notice that it will not elect to purchase such Transferred Interests and (ii) the end of such 30-day period, to sell or enter into agreement to sell the Transferred Interests for consideration no less than such price.
During the Term, Executive shall further serve (i) as a director of HCAH and HCH, and a manager of the Company in each case, to the extent then existing, and (ii) as Chief Executive Officer of HCAH and HCH, without additional compensation. In the event that Executive is not an employee of the Company, then Section 3.3 shall apply.
Section 1.3 Location. Executive shall be based in Commerce, California, subject to travel as required in the performance of duties hereunder.
Section 1.4 Vacation. Executive shall be allowed four weeks of vacation with pay and leaves of absence with pay on the same basis as other senior executive employees of the Company.
Section 1.5 Board of Directors. So long as Executive is Chief Executive Officer of the Company, Executive shall have the right to attend all regular and special meetings of the Board of Directors of Parent (the “Board”). Executive shall receive the same notice of any such meeting and, except to the extent the Board reasonably determines is necessary in order to avoid the waiver of any privilege that may be asserted under applicable law, all other information and materials (including copies of any action proposed to be taken by written consent of the Board without a meeting) as and at the same time received by the directors of the Board, and shall have the right to participate therein, but shall not have the right to vote on any matter or to be counted for purposes of determining whether a quorum is present. Executive shall be excused from (i) any discussion if the Board reasonably determines that such excusal is necessary in order to avoid the waiver of any privilege that may be asserted under applicable law and (ii) all executive sessions of the Board if so directed by the Board. Any action taken by the Board at any meeting will not be invalidated by the absence of Executive at such meeting.
Section 2. COMPENSATION
Section 2.1 Salary; Other Payments. The Company shall pay Executive during the Term an annual base salary of $600,000 payable in accordance with the Company’s normal payroll practices, and Executive and Parent agree that such salary shall be reviewed by the Compensation Committee of the Board at least annually, beginning with a review on or around the first anniversary of the Effective Date; provided, however, that Executive’s Base Salary shall not be decreased at any time during the Term. (Executive’s annual salary, as set forth above or as it may be increased from time to time as set forth herein, shall be referred to hereinafter as “Base Salary”.)
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Section 2.2 Benefits. During the Term, Executive shall be entitled to participate in any life, health and long-term disability insurance programs, pension and retirement programs, and other fringe benefit programs made available to senior executive employees of the Company and Parent from time to time (subject to the terms thereof and, in the case of life, health and long-term disability insurance programs, to his qualifying under the terms of the insurance coverage), at a level commensurate with his position, and Executive shall be entitled to receive such other fringe benefits as may be granted to him from time to time by the Board.
Section 2.3 Annual Bonus Opportunity. In respect of each calendar year ending during the Term, Executive shall be eligible to receive an annual discretionary bonus (“Bonus”), targeted at 50% of Executive’s Base Salary, the achievement of such Bonus to be based on the satisfaction of criteria and performance standards as established in advance by the Board or the Compensation Committee of the Board after consultation with Executive. The Bonus, if any, should be paid no later than March 15th after the end of the year to which it relates.
Section 2.4 Initial Stock Awards.
2.4.1 The Proxy Statement required to be prepared by Parent for the first annual meeting following the Closing will include a proposal to approve an equity incentive plan (the “Stock Incentive Plan”) with a share reserve sufficient to permit the grant, on the Effective Date, of the Restricted Stock Award and Performance Shares set forth below in this Section 2.4.
2.4.2 On the Effective Date (after giving effect to the one for 30 reverse stock split), Parent shall grant Executive restricted stock units in respect of 166,667 shares of Parent’s common stock (the “Restricted Stock Award”) that will be settled in shares of Parent’s common stock or, if approval of the Stock Incentive Plan is not received, cash. The Restricted Stock Award will vest and become transferable in three equal, annual installments beginning on the first anniversary of the Closing subject to Executive’s continuous employment through such date (except as set forth in Section 3 below) and the terms of an award agreement substantially in the form of the Restricted Stock Award agreement provided to Executive prior to the signing of the Rollover Agreement.
2.4.3 On the Effective Date (after giving effect to the one for 30 reverse stock split), Parent shall grant Executive performance share units in respect of 166,667 shares of Parent’s common stock (the “Performance Shares”) that will be earned over a three-year performance period beginning on the later to occur of the Closing and January 1, 2016. One-third of the Performance Shares will be eligible to vest each year based on annual performance metrics for the Company and subject to Executive’s continued employment (except as set forth in Section 3 below) through year-end and the terms of an award agreement substantially in the form of the Performance Shares award agreement provided to Executive prior to the signing of the Rollover Agreement. The Compensation Committee of the Board will establish the performance metrics (which will be consistent with metrics used for Parent’s other operational divisions) at the beginning of the applicable year in consultation with Executive as part of the normal budgeting process. Vested Performance Shares will be settled in shares of Parent’s common stock or, if approval of the Stock Incentive Plan is not received, cash, within 30 days following the applicable vesting date.
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Section 2.5 Ongoing Long-Term Incentives. Executive will be entitled to participate in all regular long-term incentive programs maintained by Parent or the Company on the same basis as similarly-situated employees of Parent and/or the Company.
Section 2.6 Expenses. Executive shall be entitled to receive prompt reimbursement for all reasonable business expenses incurred by him in the performance of his duties for the Company, including, but not limited to, reasonable entertainment expenses, travel and lodging expenses, in accordance with the policies and procedures adopted by the Company from time to time for executive officers of the Company. Executive shall furnish appropriate documentation of such expenses, including documentation required by the Internal Revenue Service.
Section 3. TERMINATION OF EMPLOYMENT
Section 3.1 Termination. The Company shall have the right to terminate Executive’s employment hereunder upon at least 30 days’ prior written notice to Executive (other than as provided in Section 3.2) and Executive shall have the right to terminate his employment with the Company upon at least 30 days’ prior written notice of his intention to terminate his employment hereunder. Nothing herein prevents the Company from removing Executive from service, during the period, if any, between notice and effectiveness of such termination.
Section 3.2 Rights of Executive Upon Termination. In the event that Executive’s employment is terminated for any reason or no reason, the Company shall have no further obligation to Executive under this Agreement except for payment to Executive of (A) his accrued, but unpaid Base Salary (as of termination) through the date of termination, (B) any accrued but unused vacation (if and to the extent consistent with the Company’s policies), (C) any unreimbursed expenses, and (D) if it has not previously been paid to Executive, Executive shall be paid any Bonus that has been earned by Executive for any fiscal year ending prior to the effective date of such termination but not yet paid; any Bonus for the period in which termination occurred, prorated for the partial period with the amount, if any, based on actual performance and paid when bonuses for the applicable period are paid to other senior executives of Parent or the Company; any rights under any benefit or equity or long-term incentive plan, program or practice; and his rights to indemnification and directors and officers liability insurance (collectively, the “Required Payments”).
3.2.1 In the event that Executive’s employment is terminated by the Company without Cause, in addition to the obligations of the Company pursuant to Section 3.2 above, (A) the Company shall also make a severance payment to Executive equal to 12 months Base Salary (as of termination) (payable in 12 monthly, equal installments after termination and beginning on 55th day after which termination occurs), (B) any unvested portion of the Restricted Stock Award shall immediately vest and become transferable and (C) any unvested Performance Shares will continue to vest without regard to Executive’s continued employment. For purposes of the foregoing, “Cause” shall mean: (i) substantial and willful failure to perform specific and lawful written directives of the Board; (ii) willful and knowing violation of any rules or regulations of any governmental or regulatory body (a “Governmental Body”) that is materially injurious to the financial condition of the Company; (iii) conviction of or plea of guilty or nolo contendere to a
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felony; or (iv) material breach of the terms of this Agreement by Executive; provided, however, that Executive may not be terminated for Cause unless and until the Chief Executive Officer of Parent has given him reasonable written notice of their intended actions and specifically describing the alleged events, activities or omissions giving rise thereto and with respect to those events, activities or omissions for which a cure is possible, 30 days to cure such breach; and provided further, however, that for purposes of determining whether any such Cause is present, no act or failure to act by Executive shall be considered “willful” if done or omitted to be done by Executive in good faith and in the reasonable belief that such act or omission was in the best interest of the Company and/or required by applicable law.
The Chief Executive Officer of Parent shall provide Executive with at least 30 days advance written notice detailing the basis for the termination of employment for Cause. If the Chief Executive Officer of Parent does not provide such notice within 90 days after the Board of Parent has actual knowledge that an event constituting Cause has occurred, the event will no longer constitute Cause. During the 30 day period after Executive has received such notice, Executive shall have an opportunity to cure or remedy such alleged Cause events and to present his case to the Chief Executive Officer of Parent (with the assistance of his own counsel, at his expense) before any termination for Cause is finalized. Executive shall continue to receive the compensation and benefits provided by this Agreement until his employment is actually terminated.
3.2.2 In the event that Executive voluntarily terminates his employment for Good Reason, in addition to the obligations of the Company set forth in Section 3.2 above, the Company shall also make a severance payment to Executive equal to 12 months Base Salary (as of termination) (payable in 12 monthly, equal installments after termination and beginning on the 55th day after which termination occurs), (B) any unvested portion of the Restricted Stock Award shall immediately vest and become transferable and (C) any unvested Performance Shares will continue to vest without regard to Executive’s continued employment. For purposes of the foregoing, “Good Reason” shall mean: the occurrence of any of the following events, provided that the Executive gives written notice of his intent to resign pursuant to such event within 90 days following the initial occurrence and provided that such event is not fully corrected within 30 days following written notification by Executive to the Company that he intends to terminate his employment hereunder for one of the reasons set forth below: (i) a material adverse alteration in the nature or status of Executive’s responsibilities; (ii) a requirement that he relocate his primary place of employment by more than 50 miles from his place of employment as of the date hereof (or such later place of employment as to which he agrees in writing to relocate); (iii) requiring Executive to report to any person other than the Chief Executive Officer of Parent, (iv) a material breach by the Company of any provision of this Agreement including, but not limited to, the assignment to Executive of any duties inconsistent with Executive’s position as Chief Executive Officer of the Company, or (v) a material reduction in Executive’s then current Base Salary.
Executive must actually terminate his employment within 30 days following the Company’s failure to cure the applicable event to be treated as resigning for Good Reason.
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3.2.3 In the event Executive’s employment is terminated (whether by the Company or by Executive) without Cause or with Good Reason or by death or disability, the Executive and his spouse and dependents shall be entitled to continue to be covered by the Company’s group medical plan hereof as provided under COBRA continuation requirements (if applicable) and the Company will pay the premiums (but only to the extent such premiums exceed the applicable active employee rates) for such coverage for the shorter of the first 12 months of such coverage or his period of COBRA eligibility (whichever is shorter), subject to Executive timely electing continuation coverage under COBRA. If the payment or reimbursement of COBRA premiums provided hereunder could result in excise taxes to the Company or its affiliates under Section 4980D of the Code and/or adverse consequences under the Employee Retirement Income Security Act of 1974, as amended, or applicable law, then Executive agrees to negotiate in good faith an alternative arrangement in lieu of payment or reimbursement hereunder that would avoid such consequences.
Section 3.3 If Executive’s employment ends for any reason, Executive agrees that he will cease immediately to hold any and all officer or director positions he then has with Parent or any subsidiary, absent a contrary direction from the Board (which may include either a request to continue such service or a direction to cease serving upon notice without regard to whether his employment has ended). Executive hereby irrevocably appoints Parent to be his attorney to execute any documents and do anything in his name to effect his ceasing to serve as a director and officer of Parent and any subsidiary, should he fail to resign following any such request from Parent to do so. A written notification signed by a director or duly authorized officer of Parent that any instrument, document or act falls within the authority conferred by this clause will be conclusive evidence that it does so.
Section 3.4 Upon the occurrence of an event described in Section 3.2.1, 3.2.2 or 3.2.3 above, Executive will be eligible for severance benefits (which shall not include the payment of any Required Payments, which shall not be conditioned upon execution of a Settlement Agreement and Release of the Company Group (as defined below hereunder)) only if Executive executes and delivers to the Company a Settlement Agreement and Release of the Company Group (as defined below) in a form prepared by the Company and delivered to Executive within three days following his termination, which will include a general release of known and unknown claims, a return of Company Property and a requirement to cooperate regarding any future litigation, as set forth in Exhibit 1 attached hereto (which may be updated to conform to current legal requirements, in the Company’s reasonable judgment), and such Settlement Agreement and Release becomes effective and irrevocable no later than 55 days following Executive’s termination.
Section 4. COVENANTS.
Section 4.1 Restrictive Covenants. Executive agrees to comply with the covenants contained in this Section 4.
4.1.1 Exclusive Dealings. Executive absolutely and unconditionally covenants and agrees that for the period commencing on the Effective Date of this Agreement, and continuing during his employment with the Company (the “Restrictive Period”), Executive shall not, either directly or indirectly, solely or jointly with any other person or persons, as an employee, consultant or advisor, or as an individual proprietor, partner, stockholder, director, officer, joint venturer, investor, lender or in any other capacity (whether or not engaged in
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business for profit), engage or participate in (i) the business of developing, manufacturing, selling, marketing, distributing and/or licensing apparel, and (ii) any other business being conducted by Parent and its subsidiaries (the “Company Group”) during the Term, other than through the Company Group or the Outside Activities (“Restricted Business”).
4.1.2 Non-Competition During the Term, Executive shall not, directly or indirectly, alone or as a an officer, director, employee, owner, partner, joint venturer, member, manager, consultant, agent, independent contractor, or Equity Interest (as defined in the 2015 Non-Competition Agreement) holder of, or lender to, any Person or business, engage in, compete with, or permit his name to be used by or in connection with the Restricted Business. Executive shall be permitted to, directly or indirectly, own an interest in and, when not employed by the Company, take part in and/or manage or operate the Historical Family Businesses. “Historical Family Businesses” means the business of manufacturing, selling, distributing, transporting, delivering and marketing junior and missy moderate sportswear and such additional apparel business as conducted by Executive’s family from time to time which is not competitive with the Company Group.
4.1.3 Non-Solicitation. Executive absolutely and unconditionally covenants and agrees that during the Restrictive Period and for a period of 12 months thereafter, Executive will not (i) solicit any of the Company Group’s employees to join a business competitive with the Company Group, or (ii) induce or attempt to induce any Company Group employee (other than Nicole Cross or any other executive assistant of Executive) to terminate his or her employment for the purpose of becoming employed by Executive or a third party.
4.1.4 Use and Treatment of Confidential Information. Executive agrees not to disclose, divulge, publish, communicate, publicize, disseminate or otherwise reveal, either directly or indirectly, any Confidential Information to any person, natural or legal. The term “Confidential Information” means all information in any form relating to the past, present or future business affairs, including without limitation, research, development or business plans, operations or systems, of the Company Group or a person not a party to this Agreement whose information any member of the Company Group has in its possession under obligations of confidentiality, which is disclosed by any member of the Company Group to Executive or which is produced or developed while Executive is an owner of, employee or director of any member of the Company Group. The term “Confidential Information” shall not include any information of the Company Group which (i) becomes publicly known through no wrongful act of Executive, (ii) is received from a person not a party to this Agreement who is free to disclose it to Executive, (iii) is lawfully required to be disclosed to any governmental agency or is otherwise required to be disclosed by law, subpoena or court order but only to the extent of such requirement, provided that before making such disclosure Executive shall give the Company Group an adequate opportunity to interpose an objection or take action to assure confidential handling of such information or (iv) is independently developed by Executive without reference to Confidential Information.
4.1.5 Ownership and Return of Confidential Information. All Confidential Information disclosed to or obtained by Executive in tangible form (including, without limitation, information incorporated in computer software or held in electronic storage media) shall be and remain the property of the Company Group. All Confidential Information possessed by Executive at the time he ceases employment with the Company Group shall be returned to the Company at such time. Upon the return of Confidential Information, it shall not thereafter be retained in any form, in whole or in part, by Executive.
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4.1.6 Work Product Assignment. Executive agrees that any work product, intellectual property, developments, processes, inventions, ideas and discoveries, and works of authorship developed, designed, discovered, improved, authored, derived, invented or acquired by Executive during the period of and in the course of his employment by the Company made, conceived or completed by Executive during the term of Executive’s service, solely or jointly with others, which (i) are made with the Company Group’s equipment, supplies, facilities or Confidential Information, (ii) are related at the time of conception or reduction to practice of the invention to the business of any member of the Company Group or the Company Group’s actual or demonstrably anticipated research and development (other than, in the case of this clause (ii), for work related to the Outside Activities), or (iii) result from any work performed by Executive for the Company Group, shall be the sole and exclusive property of the Company Group, and all trade secrets, Confidential Information, copyrightable works, works of authorship, and all patents, registrations or applications related thereto, all other intellectual property or proprietary information and all similar or related information (whether or not patentable and copyrightable and whether or not reduced to tangible form or practice) which are related to the business, research and development, or existing or future products or services of the Company Group and which are conceived, developed or made by Executive during and in the course of the Executive’s employment with the Company (collectively, “Work Product”, but excluding each of the preceding relating to the Outside Activities) shall be deemed to be “work made for hire” (as defined in the Copyright Act, 17 U.S.C. §101 et seq., as amended) and owned exclusively by the Company Group. To the extent that any Work Product is not deemed to be a “work made for hire” under applicable law, and all right, title and interest in and to such Work Product have not automatically vested in the Company Group, Executive hereby (a) irrevocably assigns, transfers and conveys, and shall assign transfer and convey, to the fullest extent permitted by applicable law, all right, title and interest in and to the Work Product on a worldwide basis to the Company Group (or such other person or entity as the Company Group shall designate), without further consideration, and (b) waives all moral rights in or to all Work Product, and to the extent such rights may not be waived, agrees not to assert such rights against the Company or its respective licensees, successors, or assigns. For the avoidance of doubt, including without limitation pursuant to California Labor Code sections 2870 and 2872, Work Product does not include matters developed entirely on Executive’s own time without using any equipment, supplies, facilities, or Confidential Information of the Company or any of its affiliates; provided, however, Work Product does include, without exception, all Work Product that either (i) relates, at the time of conception or reduction to practice of such Work Product, to the business of any member of the Company Group, or actual or demonstrably anticipated research or development of any member of the Company Group, or (ii) result from any service or work performed by Executive to or for the benefit of any member of the Company Group. In order to permit the Company Group to claim rights to which it may be entitled, Executive agrees to promptly disclose to the Company Group in confidence all Work Product which the Executive makes arising out of the Executive’s employment with the Company Group. Executive shall assist the Company Group, at no cost to Executive, in obtaining patents on all Work Product patentable by the Company Group in the United States and in all foreign countries, and shall execute all documents and do all things reasonably necessary, at no cost to Executive and at the Company Group’s exclusive cost and expense, to obtain letters patent, to vest the Company Group with full and extensive title thereto, and to protect the same against infringement by others.
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4.1.7 Remedies upon Breach. The parties acknowledge that Confidential Information and the other protections afforded to the Company Group by this Agreement are valuable and unique and that any breach of any of the covenants contained in this Section 4.1 will result in irreparable and substantial injury to the Company Group for which it will not have an adequate remedy at law. In the event of a breach or threatened breach of any of the covenants contained in this Section 4.1, any member of the Company Group shall be entitled to obtain from any court having jurisdiction, with respect to the Employee, temporary, preliminary and permanent injunctive relief prohibiting any such breach, as well reimbursement for all reasonable costs, including attorneys’ fees, incurred in enjoining any such breach. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages and equitable accounting of all earnings, profits and other benefits arising from such violation, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. Executive does hereby waive any requirement for the Company Group to post a bond for any injunction. If, however, a court nevertheless requires a bond to be posted, Executive agrees that such bond shall be in a nominal amount.
4.1.8 Remedies upon Breach. Nothing in this Section 4.1 shall limit Executive’s right, after the Restrictive Period, to own, manage, operate, control, participate in, or otherwise carry on, directly or indirectly (whether as owner, lender, director, officer, employee, principal, agent, independent contractor or otherwise) a business that competes with the Company Group’s business. Nothing in this Section 4.1 shall limit Executive’s right to engage in general (a) solicitations in newspapers, trade journals or similar media or (b) solicitations through the use of search firms, in each case that are not directed at the Company Group’s employees or customers. Executive further agrees that, during the Restrictive Period, he will not, directly or indirectly, knowingly assist or encourage any other person in carrying out, directly or indirectly, any activity that would be prohibited by the above provisions of this Section 4 if such activity were carried out by Executive, either directly or indirectly, and Executive agrees that he will not, directly or indirectly, knowingly induce any employee of the Company Group to carry out, directly or indirectly, any such activity.
Section 4.2 Non-Disparagement. During the Restrictive Period, each party to this Agreement agrees not to defame, disparage or criticize any other party, its reputation, its business plan, procedures, products, services, development, finances, financial condition, capabilities or other aspect of its business, or any of its shareholders in any medium (whether oral, written, electronic or otherwise, whether currently existing or hereafter created), to any person or entity or in any public forum whether directly or indirectly and regardless of intent. Notwithstanding the foregoing sentence, Parent and the Board may engage in good faith communications with one another regarding the performance of Executive’s obligations and duties hereunder or under any contract between the parties, and the Executive may confer in confidence with his advisors and make truthful statements as required by law, and may criticize the Company in his capacity as the Chief Executive Officer, and may enforce his rights hereunder and under the Settlement Agreement and Release of the Company Group (including in respect of his right to the Required Payments and any severance benefits).
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Section 4.3 No Other Severance Benefits. Except as specifically set forth in this Agreement, Executive covenants and agrees that he shall not be entitled to any other form of severance benefits from the Company, including, without limitation, benefits otherwise payable under any of the Company’s regular severance policies, in the event his employment hereunder ends for any reason and, except with respect to obligations of the Company expressly provided for herein, Executive unconditionally releases Parent and its subsidiaries and affiliates, and their respective directors, officers, employees and stockholders, or any of them, from any and all claims, liabilities or obligations under any severance or termination arrangements of Parent or any of its subsidiaries or affiliates.
Section 4.4 Parachute Treatment. The Company will make the payments under or referenced by this Agreement without regard to whether the deductibility of such payments (or any other payments or benefits) would be limited or precluded by Section 280G of the Code and without regard to whether such payments would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”); provided, however, that if the Total After-Tax Payments (as defined below) would be increased by the reduction or elimination of any payment and/or other benefit (including any vesting of equity compensation) under this Agreement or otherwise in connection with a covered change in control, then the amounts payable will be reduced or eliminated as follows: (i) first, by reducing or eliminating any cash payments or other benefits (other than the vesting of the options) and (ii) second, by reducing or eliminating the vesting of the equity that occurs as a result of an event covered by Section 280G of the Code, to the extent necessary to maximize the Total After-Tax Payments. The Company’s independent, certified public accounting firm will determine whether and to what extent payments or vesting under this Agreement are required to be reduced in accordance with the preceding sentence. If there is an underpayment or overpayment under this Agreement (as determined after the application of this paragraph), the amount of such underpayment or overpayment will be immediately paid to Executive or refunded by Executive, as the case may be, with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. For purposes of this Agreement, “Total After-Tax Payments” means the total of all “parachute payments” (as that term is defined in Section 280G(b)(2) of the Code) made to or for the benefit of Executive (whether made under the Agreement or otherwise), after reduction for all applicable federal taxes (including, without limitation, the tax described in Section 4999 of the Code).
Section 5. GENERAL PROVISIONS
Section 5.1 Entire Agreement. This Agreement and the certificates, documents, instruments and writings that are delivered pursuant hereto, constitutes the entire agreement and understanding of the parties in respect of its subject matters and supersedes all prior understandings, agreements, or representations by or among the parties, written or oral, to the extent they relate in any way to Executive’s employment. The parties agree that, on the Effective Date, each of (i) the Employment Agreement between Executive and Parent, HCH, HCAH and the Company dated as of July 15, 2013, and (ii) the Non-Competition Agreement between Executive and Parent and HCH dated July 15, 2013, is hereby terminated and of no further effect. Notwithstanding the provisions of this Section 5.1, the parties acknowledge that they have entered into a separate Non-Competition Agreement (the “2015 Non-Competition Agreement”) in connection with the transactions contemplated by the Rollover Agreement and nothing stated herein affects the enforceability of such Non-Competition Agreement.
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Section 5.2 Notice. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon the earliest of (i) personal delivery, (ii) actual receipt or (iii) the third full day following deposit in the United States mail with postage prepaid, addressed to the Company Group, 2340 S. Eastern Avenue, Commerce, CA 90040, to the attention of the Chief Executive Officer with a copy to the Secretary, or, if to Executive, to such home or other address as Executive has most recently provided in writing to the Company.
Section 5.3 Assignment; Binding Effect. Neither Executive nor the Company may assign this Agreement without the prior written consent of the other party, except that the Company may assign this Agreement to any affiliate thereof, or to any subsequent purchaser of the Company or all or substantially all of the assets of the Company, or by operation of law and who expressly agrees to fully assume all of the Company’s obligations hereunder. This Agreement shall be binding upon the heirs, executors, and administrators of Executive and on any successors or assigns of the Company.
Section 5.4 Choice of Law: Consent to Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE WITH AND ENFORCED UNDER THE LAWS OF THE STATE OF CALIFORNIA. ALL SUITS, ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, SHALL BE BROUGHT IN A STATE OR FEDERAL COURT LOCATED IN THE CITY OF LOS ANGELES, STATE OF CALIFORNIA, WHICH COURTS SHALL BE THE EXCLUSIVE FORUM FOR ALL SUCH SUITS, ACTIONS OR PROCEEDINGS. EXECUTIVE AND THE COMPANY HEREBY WAIVE ANY OBJECTION WHICH HE OR IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY SUCH COURT OR ANY SUCH SUIT, ACTION OR PROCEEDING. EXECUTIVE AND THE COMPANY HEREBY IRREVOCABLY CONSENT AND SUBMIT THEMSELVES TO THE JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA FOR THE PURPOSES OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT.
Section 5.5 Amendment; Waiver. No modification, amendment or termination of this Agreement shall be valid unless made in writing and signed by the parties hereto, and approved by the Board (but not including Executive if a member of the Board). Any waiver by any party of any violation of, breach of or default under any provision of this Agreement, by the other party shall not be construed as, or constitute, a continuing waiver of such provision, or waiver of any other violation of breach of or default under any other provision of this Agreement.
Section 5.6 Withholding of Taxes. The Company may withhold from any amounts payable under this Agreement all federal, state, city or other taxes as shall be required to be withheld pursuant to any law or government regulation or ruling.
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Section 5.7 Severability. The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof; provided that if any provision of this Agreement, as applied to any party hereto or to any circumstance, is adjudged by a Governmental Body, arbitrator or mediator not to be enforceable in accordance with its terms, the parties hereto agree that the Governmental Body, arbitrator, or mediator making such determination will have the power to modify the provision in a manner consistent with its objectives such that it is enforceable, and/or to delete specific words or phrases, and in its reduced form, such provision will then be enforceable and will be enforced.
Section 5.8 Survival of Certain Obligations. The obligations of the Company and Executive set forth in this Agreement which by their terms extend beyond or survive the termination of the Term shall not be affected or diminished in any way by the termination of the Term.
Section 5.9 Headings. The headings in this Agreement are intended solely for convenience and shall be disregarded in interpreting it.
Section 5.10 Third Parties. Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any person or entity other than the Company and Executive any rights or remedies under, or by reason of, this Agreement.
Section 5.11 Counterparts. This Agreement may be executed in counterparts, and all of such counterparts (including facsimile or PDF), when separate counterparts have been executed by the parties hereto, shall be deemed to be one and the same agreement. This Agreement shall only become effective as of the Effective Date.
Section 5.12 409A. The parties intend that the payments and benefits provided for in this Agreement to either be exempt from Section 409A of the Internal Revenue Code, as amended (the “Code”) or be provided in a manner that complies with Section 409A of the Code. Notwithstanding anything contained herein to the contrary, all payments and benefits which are payable upon a termination of employment hereunder shall be paid or provided only upon those terminations of employment that constitute a ‘separation from service’ from the Company within the meaning of Section 409A of the Code (determined after applying the presumptions set forth in Treas. Reg. Section 1.409A-1(h)(1)). Each payment or series of payments under this Agreement or otherwise shall be treated as a separate payment for purposes of Section 409A of the Code. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement or otherwise which constitutes a “deferral of compensation” within the meaning of Section 409A of the Code. All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A of the Code. To the extent that any reimbursements pursuant to this Agreement or otherwise are taxable to Executive, any reimbursement payment due to Executive shall be paid to Executive on or before the last day of Executive’s taxable year following the taxable year in which the related expense was incurred; provided that, Executive has provided the Company written documentation of such expenses in a timely fashion and such expenses otherwise satisfy the Company’ expense reimbursement policies. Reimbursements pursuant to this Agreement or otherwise are not subject to liquidation or exchange for another benefit and the amount of such reimbursements that Executive receives in one taxable year shall not affect the amount of such reimbursements that Executive receives in any other taxable year.
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Notwithstanding any provision in this Agreement to the contrary, if on the date of his termination from employment with the Company Executive is deemed to be a “specified employee” within the meaning of Code Section 409A and the Final Treasury Regulations using the identification methodology selected by the Company from time to time, or if none, the default methodology under Code Section 409A, any payments or benefits due upon a termination of Executive’s employment under any arrangement that constitutes a “deferral of compensation” within the meaning of Code Section 409A shall be delayed and paid or provided (or commence, in the case of installments) on the first payroll date on or following the earlier of (i) the date which is six (6) months and one (1) day after Executive’s termination of employment for any reason other than death, and (ii) the date of Executive’s death, and any remaining payments and benefits shall be paid or provided in accordance with the normal payment dates specified for such payment or benefit. Notwithstanding any of the foregoing to the contrary, the Company and its respective officers, directors, employees, or agents make no guarantee that the terms of this Agreement as written comply with, or are exempt from, the provisions of Code Section 409A, and none of the foregoing shall have any liability for the failure of the terms of this Agreement as written to comply with, or be exempt from, the provisions of Code Section 409A.
Section 5.13 Cooperation. Without limitation to any other provision herein set forth herein, during and after Executive’s employment, Executive shall reasonably cooperate with the Company in the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company which relate to events or occurrences that transpired while Executive was employed by the Company; provided, however, that such cooperation shall not materially and adversely affect Executive or expose Executive to an increased probability of civil or criminal litigation. Executive’s cooperation in connection with such claims or actions shall include, but not be limited to, being reasonably available to meet with counsel to prepare for discovery or trial and to act as a witness on behalf of the Company at mutually convenient times. During and after Executive’s employment, Executive also shall reasonably cooperate with the Company in connection with any investigation or review of any federal, state or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while Executive was employed by the Company. The Company shall reimburse Executive for all costs and expenses incurred in connection with his performance under this Section 5.14, including, but not limited to, reasonable attorneys’ fees and costs, provided that Executive shall not incur costs and expenses in excess of $1,000 in the aggregate without the prior written consent of the Company.
Section 5.14 Indemnification. Executive shall be indemnified to the fullest extent permitted by law with regard to actions or inactions taken as an officer, director, employee or agent of the Company or Parent or any affiliate or as a fiduciary of any benefit plan. Executive shall be covered by directors and officers liability insurance with regard to the foregoing to the highest extent of any other officer or director both during his service to the Company and thereafter while any liability may exist.
Section 5.15 Effectiveness. For the avoidance of doubt, this Agreement other than Section 2.4.1 shall only become effective as of the Closing; Section 2.4.1 shall be effective as of the date of this Agreement. In the event that the Transaction Agreement is terminated in accordance with its terms, this Agreement shall automatically and immediately terminate.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company and Executive have executed this Employment Agreement as of the date first written above.
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| JOE’S JEANS INC. | |
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| By: | /s/ Hamish Sandhu |
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| Name: | Hamish Sandhu |
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| Title: | CFO |
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| HUDSON CLOTHING HOLDINGS, INC. | |
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| By: | /s/ Hamish Sandhu |
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| Name: | Hamish Sandhu |
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| Title: | CFO |
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| HC ACQUISITION HOLDINGS, INC. | |
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| By: | /s/ Hamish Sandhu |
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| Name: | Hamish Sandhu |
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| Title: | CFO |
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| HUDSON CLOTHING, LLC | |
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| By: | /s/ Hamish Sandhu |
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| Name: | Hamish Sandhu |
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| Title: | CFO |
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| EXECUTIVE | |
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| /s/ Peter Kim | |
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| Peter Kim | |
Signature Page to Employment Agreement
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Exhibit 1
GENERAL RELEASE
THIS GENERAL RELEASE (this “Release”) is entered into effective as of , 201 , (the “Effective Date”) by and among Joe’s Jeans Inc. (“Parent”), Hudson Clothing Holdings, Inc., HC Acquisition Holdings, Inc., Hudson Clothing, LLC (the “Company”), and Peter Kim (“Executive”), with reference to the following facts:
RECITALS
A. The parties entered into an Employment Agreement, dated with an effective date as of September 8, 2015 (the “Employment Agreement”), pursuant to which the parties agreed that upon the occurrence of certain conditions, Executive would become eligible for certain termination payments (as provided for in Section 3.2 of the Employment Agreement) in exchange for Executive’s release of the Company from all claims which Executive may have against the Company as of the termination date. Capitalized terms not otherwise defined herein shall have the respective meanings ascribed to them in the Employment Agreement. Executive acknowledges that the consideration recited in this Release is in addition to anything to which Executive may otherwise be entitled.
B. The parties desire to dispose of, fully and completely, all claims, which Executive may have against the Company, in the manner set forth in this Release.
AGREEMENT
1. Executive waives and releases Parent and its affiliates, subsidiaries, partners, officers, directors, shareholders, agents, employees, attorneys, successors, assigns, affiliates, related organizations and related employee benefit plans (collectively referred to herein as “Releasees”) with respect to any and all claims, rights, and causes of action, known or unknown, that Executive may have or claim to have had against any of them, based on any act, occurrence, or omission from the beginning of time to and including the date this Release was executed, including, but not limited to, any and all claims, rights, and causes of action arising out of or in any way connected with Executive’s employment with, or termination of employment from the Company, and arising under federal, state and/or local laws such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the California Fair Employment and Housing Act, the California Labor Code, the California Constitution, and ERISA, and the common law (hereinafter referred to as the “Released Claims”). Notwithstanding the foregoing, this Release shall not apply to (none of which shall be Released Claims): (a) any claims for any amounts which shall to be paid to Executive following the execution hereof pursuant to the terms of Section 3.2 of the Employment Agreement; (b) any claims for indemnification under Section 5.14 of the Employment Agreement, or otherwise pursuant to the governance documents of any member of the Company Group, or under any separate indemnification agreement Executive may enter into from time to time; (c) claims of Executive under the Rollover Agreement, or any other agreements entered into in connection therewith, other than the Employment Agreement, (c) claims of Executive as a shareholder, note holder or option holder of Parent or otherwise relating to or arising out of any agreements
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relating thereto or to the acquisition of any securities, notes, options or other equity interests in Parent; (d) the payment of any Required Payments; and (d) claims under any employee benefit plan (other than for wages and bonuses to the extent they may be considered an employee benefit plan) of the Company (collectively, the “Surviving Claims”).
2. Executive promises not to file any law suits in any court or any demand for arbitration against any of the Releasees with respect to the Released Claims. Executive affirms that, except for the Surviving Claims, Executive has been paid and/or has received all leave (paid or unpaid), compensation, wages, commissions, vacation pay, severance pay, bonuses, commissions, reimbursements, benefits, and other monies to which Executive may have been entitled and that, except for the termination payments, no other leave (paid or unpaid), compensation, wages, commissions, vacation pay, severance pay, bonuses, commissions, reimbursements, benefits, and/or other monies are due Executive. Executive also acknowledges that the termination payment is in excess of any payment to which Executive otherwise was entitled.
3. Executive acknowledges that Executive is familiar with and understands the provision of Section 1542 of the California Civil Code, which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Being aware of that Code Section, Executive expressly waives and relinquishes any rights or benefits Executive may have thereunder, as well as any other state or federal statutes or common law principles of similar effect.
4. A. Executive warrants that neither Executive, nor anyone acting on Executive’s behalf, has filed any claim, charge or action against any of the Releasees with respect to any of the Released Claims, except as disclosed to the Company in writing on the date hereof.
B. Nothing in this Release shall affect (i) Executive’s rights, if any, to indemnification under California Labor Code section 2802, (ii) Executive’s rights to file claims for workers’ compensation or unemployment insurance benefits, or (iii) Executive’s rights to file charges of discrimination with any state or federal administrative agency alleging violations of state or federal anti-discrimination laws, with the understanding and agreement that Executive may not accept any money, anything of economic value or other individual relief (e.g., reinstatement) as a result of having filed such charges. Finally, Executive agrees that, if any of the Released Claims are brought on Executive’s behalf or for Executive’s benefit in a court or administrative agency, Executive waives and agrees not to accept any award of money, other damages or other individual relief (e.g., reinstatement) as a result of such claim.
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5. This Release is executed voluntarily and without any duress or undue influence. Executive acknowledges he has read this Release and executed it with his full and free consent. No provision of this Release shall be construed against any party by virtue of the fact that such party or its counsel drafted such provision or the entirety of this Release.
6. This Release is made and entered into in the State of California and accordingly the rights and obligations of the parties hereunder shall in all respects be construed, interpreted, enforced and governed in accordance with the laws of the State of California as applied to contracts entered into by and between residents of California to be wholly performed within California, without regard to conflicts of law principles.
7. Executive is hereby advised to consult with an attorney prior to executing this Release. Executive is hereby advised that Executive has 21 calendar days to consider whether to sign this Release before signing it and that Executive has 7 calendar days to revoke the Release subsequent to the time Executive signed it. Accordingly, unless Executive has timely revoked acceptance of this Release, this Release shall become effective the eighth day after the date of Executive’s signature.
8. If any part, term or provision of this Release is found to be illegal or invalid, such illegality or invalidity shall not affect the validity of the remainder of the Release. This Release constitutes the entire agreement and understanding concerning the matters addressed herein and replaces all prior discussions and agreements, and may only be modified by a writing signed by all of the parties.
9. Any party who asserts that there exists any dispute, controversy or claim arising out of or relating to this Agreement or the employment relationship (including claims of discrimination, wrongful termination, tort claims and claims based on any statutory or constitutional provision), may only do so by final and binding arbitration in accordance with the then current employment dispute rules of the American Arbitration Association. The arbitration will be conducted in Los Angeles County, California, before and subject to the administrative procedures of JAMS Endispute. The arbitrator will be a neutral, experienced arbitrator who is a retired judge and licensed to practice law in California. The arbitrator will be jointly selected by the parties or, if necessary, designated by JAMS Endispute in accordance with its procedures. Executive and each member of the Company Group each knowingly waives the right to a jury trial in a court of law with respect to claims subject to arbitration. All fees of the arbitrator will be paid by the Company. All other costs and expenses associated with the arbitration, such as attorneys’ fees and witness’ fees, will be paid by the party that incurs those costs and expenses, except to the extent that a party is entitled to recover those costs or expenses under applicable law. The arbitrator will have the power to summarily adjudicate claims and/or enter summary judgment in appropriate cases and to apply any applicable statutes of limitation, and the decision of the arbitrator will be final and binding and may be confirmed in court. The arbitrator’s decision will be in writing. A petition to compel arbitration or to confirm, modify or vacate an arbitration award may be brought pursuant to applicable federal or California state arbitration statutes, or both. Subject to the provisional remedies, if any, provided for under applicable state or federal law, which either party may pursue in court, arbitration will be the exclusive remedy for resolving any such arbitrable disputes, and the decision of the arbitrator will be final and binding on all parties, subject to review only in accordance with applicable state or federal law.
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The decision of the arbitrator may be reduced to an enforceable court judgment by the prevailing party in the arbitration, and the Federal Arbitration Act (FAA) will govern this paragraph.
| Dated: , 201 |
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| PETER KIM |
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| JOE’S JEANS INC. |
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| Dated: , 201 |
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| HUDSON CLOTHING HOLDINGS, INC. |
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| Dated: , 201 |
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| HC ACQUISITION HOLDINGS, INC. |
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| Dated: , 201 |
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| HUDSON CLOTHING, LLC |
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| Dated: , 201 |
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