TEXAS-NEW MEXICO POWER COMPANY EXECUTIVE AGREEMENT FOR
SEVERANCE COMPENSATION UPON CHANGE IN CONTROL
This Texas-New Mexico Power Company Executive Agreement
for Severance Compensation Upon Change in Control ("Agreement")
dated November 11, 1993, is by and between Texas-New Mexico Power
Company ("Company") and D. R. BARNARD ("Executive").
Witnesseth That:
WHEREAS, the Company considers the establishment and
maintenance of a sound and vital management to be essential to
protecting and enhancing the best interests of the Company and its
shareholders; and
WHEREAS, the Company has determined that in order to best
establish and maintain such sound and vital management it is
appropriate to establish certain means for reinforcing and
encouraging the continued attention and dedication of the Executive
as a part of the management of the Company such that they may
continue their assigned duties in a proper and efficient manner
without distraction because of the possibility of a Change in
Control of the Company; and
WHEREAS, the Executive is willing to continue to serve the
Company but is concerned about the possible effects any Change in
Control might have on his duties and responsibility and status as
an Executive:
page 1
NOW, THEREFORE, in consideration of the promises and the
mutual agreements herein contained, the Company and Executive
hereby enter into this Agreement setting forth the severance
compensation and extended benefits which the Company agrees it will
pay to the Executive if the Executive's employment with the Company
terminates under the circumstances described herein:
1) Company's Right to Terminate
Prior to a Change in Control of the Company as herein
defined, this Agreement shall terminate if Executive shall
resign or retire voluntarily, become disabled, or die.
Except as provided in paragraph 3)a)(vi) hereof, this
Agreement shall also terminate if Executive's employment by
the Company shall be terminated, with or without Cause, as
herein defined, prior to any Change in Control of the
Company by action of either the Board of Directors or Chief
Executive Officer of the Company, as applicable.
2) Term
a) The term of this Agreement (the "Term") shall commence as
of the date of this Agreement and shall expire as of the
earliest of (i) the third annual anniversary of the date
hereof; provided that the Board of Directors, by
resolution duly adopted, may extend the Term of this
Agreement from time to time, or (ii) termination of the
Executive's employment because of death, Disability,
<page 2>
voluntary termination or retirement by the Executive for other
than Good Reason, or Cause (as those terms may be herein defined);
b) Any obligation which has vested under the terms of the
Agreement and remains unpaid as of the date the Agreement
expires or is terminated shall survive such expiration or
termination and be enforceable under the terms of the
Agreement.
3) Change in Control of the Company
a) For the purposes of this Agreement, a Change in Control
of the Company is defined as the occurrence of any one of
the following events: (i) there shall be consummated any
consolidation or merger of the Company into or with
another corporation or other legal person, and as a
result of such consolidation or merger less than a
majority of the combined voting power of the then-
outstanding securities of such corporation or person
immediately after such transactions are held in the
aggregate by holders of Voting Stock, as herein defined,
of the Company immediately prior to such transactions;
or (ii) any sale, lease, exchange or other transfer,
whether in one transaction or any series of related
transactions, of all or significant portions of the
assets of the Company to any other corporation or other
<page 3>
legal person, less than a majority of the combined voting power of
the then-outstanding securities of such corporation or person
immediately after such sale, lease, exchange, or transfer is held
in the aggregate by the holders of Voting Stock of the Company
immediately prior to such sale, lease, exchange, or transfer; or
(iii) the shareholders of the Company approve any plan for the
liquidation or dissolution of the Company; or (iv) any person (as
such term is used in Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), becomes,
either directly or indirectly, the beneficial owner (within the
meaning of Rule 13d-3 under the Exchange Act) of securities
representing 15% or more of the combined voting power of the then-
outstanding securities entitled to vote generally in the election
of directors of the Company ("Voting Stock"); provided that the
Trustee of the Thrift Plan shall not be deemed such a person for
the purposes of this Section 3(iv); or (v) if at any time during a
fiscal year a majority of the Board of Directors of the Company
shall be replaced by persons who were not recommended for those
positions by at least two-thirds of the directors of the Company
who were directors of the Company at the beginning of the fiscal
year; or (vi) the
<page 4>
Executive's employment is terminated for other than Cause or
the Executive is removed from office or position with the Company
in either case following commencement by one or more
representatives of the Company of discussions (authorized by the
Board of Directors or Chief Executive Officer of the Company) with
a third party that ultimately results in the occurrence of an event
described in clauses (i), (ii), (iii), (iv), or (v) herein,
regardless of whether such third party is a party to such
occurrence, in which event, for the purposes of this Agreement, the
date of the authorization of such discussions is deemed to be the
date of the Change in Control of the Company;
b) For all purposes of this paragraph 3), the term Company,
as previously defined herein, shall include TNP
Enterprises, Inc., the parent of Texas-New Mexico Power
Company.
4) Termination Following Change in Control of the Company
a) Termination
If a Change in Control of the Company shall have occurred
while the Executive is still an employee of the Company,
the Executive shall be entitled to the compensation
provided in paragraph 5 upon the subsequent termination
of the Executive's employment with the Company by the
<page 5> Executive or by the Company unless such termination is the
result of (i) the Executive's death, (ii) the Executive's
Disability, (iii) the Executive's decision voluntarily to terminate
his employment or retire, but only if Good Reason does not exist,
or (iv) the Executive's termination for Cause. Notwithstanding
anything in this Agreement to the contrary, termination of the
Executive shall not have been for Cause if termination occurred
because of (i) bad judgement or negligence on the part of the
Executive unless it is demonstrable from historical events that the
Executive's bad judgement or negligence shall have been of such an
extensive and ongoing nature that it rendered the Executive unable
adequately to perform his duties; or (ii) an act or omission
believed by the Executive in good faith to have been in, or at
least not opposed to, the Company's best interests.
For the purposes of this paragraph a), no act, or
failure to act, shall be considered "willful" unless
done, or omitted to be done, by the Executive without
good faith. Good faith shall be based upon a reasonable
belief that the action or omission was in, or at least
not opposed to, the best interests of the Company.
b) Disability
<page 6>
For the purposes of this Agreement, Disability shall mean
that the Executive is incapacitated due to physical or
mental illness or injury and shall have been unable to
perform his duties for the Company on a full time basis
for six months and, within 30 days after written Notice
of Termination is thereafter given by the Company, the
Executive shall not have returned to the full time
performance of his duties.
c) Cause
For the purposes of this Agreement, Cause shall mean (i)
the willful and continued failure by the Executive
substantially to perform his duties with the Company
(excluding any failure resulting from Disability), after
a written demand for substantial performance is delivered
to the Executive by the Chief Executive Officer of the
Company setting forth the manner in which the Executive
has not been substantially performing his duties and
providing the Executive an opportunity to appear before
the Board of Directors of the Company with counsel in
order to respond to such notice; (ii) the performance by
the Executive of any act or acts constituting a felony
involving moral turpitude and which results or is
<page 7>
intended to result in damage or harm to the Company, whether
monetary or otherwise, or which results in or is intended to result
in improper gain or personal enrichment; and (iii) violations of
the Company's Personnel Policy Manual, as constituted at any time
prior to a Change in Control, concerning personal conduct;
provided, that the Company must follow its disciplinary procedures
as set forth therein.
d) Good Reason
The Executive may terminate the Executive's employment
with the Company and retain his rights to benefits
hereunder if Good Reason exists at any time following a
Change in Control of the Company. For the purposes of
this Agreement, Good Reason shall mean any of the
following, unless the Executive has expressly consented
in writing otherwise:
(i) within six months after a Change in Control of
the Company occurs, the Executive, at his
discretion, determines that he will not be able
to work in a harmonious and effective manner in
the performance of his duties on behalf of the
Company; provided that, notwithstanding anything
in this Agreement to the contrary, the six month
period set forth above does not commence until
the satisfaction of all conditions precedent to
and the closing of the transactions contemplated
<page 8>
in paragraph 3)a) (i), (ii), (iii), (iv), or (v)
of this Agreement;
(ii) the Executive is assigned by the Company to a
position or duties which are inconsistent with or
materially different from the Executive's duties
or position with the Company immediately prior to
the Change in Control of the Company;
(iii) the Company removes the Executive from or fails
to re-elect the Executive to any positions or
offices held by the Executive immediately prior
to the Change in Control of the Company, unless
such action is for Disability, Cause, the
Executive's death or the Executive's voluntary
termination or retirement if Good Reason does not
exist prior to such termination or retirement;
(iv) the Executive's base salary or total compensation
in effect immediately prior to the Change in
Control of the Company is reduced by the Company;
(v) the Company fails to increase the Executive's
base salary and total compensation after the
Change in Control of the Company by the average
percentage increase in base salary and total
compensation of other persons holding similar
positions and titles within the Company;
<page 9>
(vi) any failure by the Company to continue in effect
any benefit plan or arrangement, or related
trust, in which the Executive is participating or
in which he may participate at the time of a
Change in Control of the Company. Such plans,
arrangements, or related trusts (collectively
"Plans"), include, but are not limited to, Texas-
New Mexico Power Company's Thrift Plan for
Employees and Trust Agreement ("Thrift Plan"),
Texas-New Mexico Power Company's Pension Plan
("Pension Plan"), Excess Benefit Plan, group life
insurance plan, medical, dental, accident and
disability plans and any other plans and related
trusts which might exist at the time of a Change
in Control of the Company; the Company's
obligation hereunder to continue in effect any
benefit plan or arrangement includes the
obligation to irrevocably fund such Plans to the
fullest extent allowed by any applicable rules
and regulations, within 90 days of the occurrence
of a Change in Control of the Company, and to
maintain such funding thereafter;
(vii) any action taken by the Company which would
adversely affect the Executive's participation in
<page 10>
or reduce the Executive's benefits received from
any Plan;
(viii) any action requiring the Executive to relocate
outside the county in which he was officed prior
to the Change in Control of the Company, except
for travel required in the performance of his
duties for the Company to an extent substantially
consistent with the Executive's travel
obligations immediately prior to a Change in
Control of the Company;
(ix) any failure by the Company to provide an
automobile of similar style, class and size which
was provided to the Executive by the Company
immediately prior to a Change in Control of the
Company;
(x) any failure by the Company to provide the
Executive with the number of paid vacation days
to which the Executive was entitled immediately
prior to a Change in Control of the Company;
(xi) any material breach by the Company of any
provision of this Agreement following a Change in
Control of the Company;
<page 11>
(xii) any failure by the Company to obtain the
assumption of this Agreement by any successor or
assign of the Company;
(xiii) any purported termination by the Company not in
compliance with the Notice of Termination
provision in paragraph 4)e) below following a
Change in Control of the Company; and
(xiv) after a Change in Control of the Company, the
Company gives notice to the Executive that the
term of this Agreement shall not be extended as
provided in paragraph 2)a)(i).
e) Notice of Termination
Any termination of the Executive by the Company pursuant
to paragraphs 4)b) or 4)c) for Disability or Cause shall
be communicated by a Notice of Termination in substantial
compliance with the provisions of paragraph 8). For the
purpose of this Agreement, a Notice of Termination shall
mean a written notice which shall indicate the specific
provisions in this Agreement relied upon for termination
of Executive's employment and which sets forth in
reasonable detail the facts and circumstances claimed to
provide a basis for such termination. For the purposes
of this Agreement, no purported termination by the
<page 12>
Company shall be effective without such Notice of
Termination.
f) Effective Date of Termination
Any termination of the Executive for Disability or Cause
pursuant to paragraphs 4)b) or 4)c) shall be effective 30
calendar days after the Notice of Termination is
delivered to the Executive; provided that, in the event
the termination is for Disability as set out in paragraph
4)b), the Executive has not returned to full time
performance of his duties within the 30-day period. All
other terminations subject to the terms of this
Agreement, whether by the Company or the Executive, shall
be effective immediately upon the giving of the Notice of
Termination.
5) Severance Compensation upon Termination of Employment
If, during the period commencing upon a Change in Control of
the Company and ending two years following the satisfaction
of all conditions precedent to and consummation of an event
described in clauses (i), (ii), (iii), (iv), or (v) of
paragraph 3), the Company shall terminate the Executive's
employment for any reason other than as a result of the
Executive's death or the reasons set out in paragraphs 4)b)
or 4)c) in full compliance of the requirements for notice
set out in paragraph 4)e) or if the Executive shall
<page 13>
terminate his employment with the Company when Good Reason
exists, then the Company shall provide for and pay to the
Executive the following compensation:
a) severance pay in a lump sum, in cash, no later than the
fifth calendar day following the date of termination, an
amount equal to three times the annual salary as
calculated by reference to the Executive's rate of pay
set forth in the Company's payroll records and in effect
for the Executive immediately prior to a Change in
Control of the Company;
b) medical, dental, disability and life insurance and other
employee benefits upon the same terms and conditions and
at the same cost to the Executive that existed
immediately prior to the Change in Control of the Company
for the lesser of three years or until substantially
similar employee benefits are available through other
employment;
c) if the Executive is fifty years of age or older and has
at least twenty years of service with the Company, the
Company, in addition to the foregoing benefits, shall pay
to the Executive, as an early retirement incentive, an
amount, on a monthly basis for the remainder of his life,
that is equal to what the Executive's retirement pay
would be, calculated using the formula set forth in the
<page 14>
Company's Pension Plan as supplemented by the Excess
Benefit Plan based upon the base salary earned by the
Executive for the necessary number of years immediately
prior to the Change in Control of the Company and the
number of service credits that the Executive would
accumulate if he continued his employment until age 62;
provided that to the extent that the Executive would be
entitled to retire on the date of termination or upon his
achieving an age upon which the Executive could retire
pursuant to the Company's Pension Plan as supplemented by
the Excess Benefit Plan, and receive payments pursuant to
said Pension Plan and Excess Benefit Plan, the Company's
obligation to make monthly payments shall be equal to the
difference between the amount actually received by the
Executive under the Pension Plan as supplemented by the
Excess Benefit Plan and the amount required to be paid by
the Company as set forth above; provided further that if
the Executive becomes entitled to any of the benefits set
forth in paragraph 5)b) as a retiree under the Company's
Pension Plan on or after the date of termination, then
the benefits provided under said Pension Plan and Excess
Benefit Plan shall be substituted for and take the place
of the benefits that the Company would otherwise be
required to provide; and further provided that to the
<page 15>
extent any payment or obligation to pay under this
paragraph 5)c) is determined by the Internal Revenue
Service to be subject to taxation upon the net present
value of the stream of payments for which the Company is
obligated to pay, then the Company shall pay to the
Executive within 30 days of such determination, a lump
sum equal to the amount determined by the Internal
Revenue Service to be subject to taxation;
d) without limiting the generality or effect of any other
provision hereof, employee benefit plan, arrangement, or
related trust referred to in paragraph 4)d)(vi), the
Company shall fully fund each Plan in which the Executive
is a participant or is otherwise entitled to payments or
benefits within 5 calendar days of the termination of the
Executive's employment;
e) any excise tax payable pursuant to Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"),
as a result of the payment of the amounts described in
subparagraphs a), b), and c); and
f) any additional federal, state, or local income tax
liability (calculated at the highest effective rate
applicable to individuals) and excise tax liability
(under Section 4999 of the Code) attributable to payments
made pursuant to this paragraph 5) hereof.
<page 16>
6) No Obligation to Mitigate Damages; No Effect on Other
Contractual Rights
a) The Company hereby acknowledges that it will be
difficult, and may be impossible, for the Executive to
find reasonably comparable employment following the date
of termination. In addition, the Company acknowledges
that its severance pay plans applicable in general to its
salaried employees do not provide for mitigation, offset,
or reduction of any severance payment received
thereunder. Accordingly, the parties hereto expressly
agree that the payment of the severance compensation by
the Company to the Executive in accordance with the terms
of this Agreement will be liquidated damages, and that
the Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by
seeking other employment or otherwise, nor shall any
profits, income, earnings, or other benefits from any
source whatsoever create any mitigation, offset,
reduction, or any other obligation on the part of the
Executive hereunder or otherwise;
b) The provisions of this Agreement, and any payment
provided for hereunder, shall not reduce any amounts
otherwise payable, or in any way diminish the Executive's
existing rights, or rights which would accrue solely as
<page 17>
a result of the passage of time, under any benefit plan, incentive
plan or securities plan, employment agreement or other contract,
plan or arrangement.
7) Successor to the Company
a) The Company will require any successor or assign (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business
and/or assets of the Company, by agreement in form and
substance satisfactory to the Executive, expressly,
absolutely and unconditionally to assume and agree to
perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it
if no such succession or assignment had taken place. Any
failure of the Company to obtain such agreement prior to
the effectiveness of any such succession or assignment
shall be a material breach of this Agreement and shall
entitle the Executive to terminate the Executive's
employment for Good Reason. As used in this paragraph 7,
Company shall have the same meaning as hereinbefore
defined and shall include any successor or assign to its
business and/or assets as aforesaid which executes and
delivers the agreement provided for in this paragraph 7
or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law. If at
<page 18>
any time during the term of this Agreement, the Executive
is employed by any corporation a majority of the voting
securities of which is then owned by the Company, the
Company as used in paragraphs 3, 4, 5, 12, and 13 hereof
shall in addition include such employer. In such event,
the Company shall pay or shall cause such employer to pay
any amount owed to the Executive pursuant to paragraph 5
hereof;
b) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal and legal
representatives, executors, administrators, successors,
heirs, distributees, devisees and legatees. If the
Executive should die while any amounts are still payable
to him hereunder, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the
terms of this Agreement to the Executive's devisee,
legatee, or other designee or, if there be no such
designee, to the Executive's estate;
c) This Agreement is personal in nature and neither of the
parties hereto shall, without the consent of the other,
assign, transfer, or delegate this Agreement or any
rights or obligations hereunder except as expressly
provided in paragraph 7)a) above. Without limiting the
generality of the foregoing, the Executive's right to
<page 19>
receive payments hereunder shall not be assignable,
transferable, or delegable, whether by pledge, creation
of a security interest, or otherwise, other than by a
transfer by his or her will or by the laws of descent and
distribution and, in the event of any attempted
assignment or transfer contrary to this paragraph 7)c),
the Company shall have no liability to pay any amount so
attempted to be assigned, transferred, or delegated;
d) The Company and the Executive recognize that each party
will have no adequate remedy at law for breach by the
other of any of the agreements contained herein and, in
the event of any such breach, the Company and the
Executive hereby agree and consent that the other shall
be entitled to a decree of specific performance,
mandamus, or other appropriate remedy to enforce
performance of this Agreement.
8) Notice
For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in
writing and shall be deemed to have been duly given when
delivered or mailed by United States registered mail, return
receipt requested, postage prepaid, as follows:
If to the Company:
Texas-New Mexico Power Company
<page 20>
4100 International Plaza, Tower II
Fort Worth, Texas 76109
If to the Executive:
4361 Westdale Dr.
Fortworth, Texas 76109
or such other address as either party may have furnished to
the other in writing in accordance herewith, except that
notices of change of address shall be effective only upon
receipt.
9) Miscellaneous
No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and the
Company. No waiver by either party hereto at any time of
any breach by the other party hereto of, or compliance with,
any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which
are not set forth expressly in this Agreement. This
Agreement shall be governed by and construed in accordance
with the laws of the State of Texas.
<page 21>
10) Validity
The invalidity or unenforceability of any provision or any
part of a provision of this Agreement shall not affect the
validity or enforceability of the remaining provisions of
this Agreement, which shall remain in full force and effect.
11) Counterparts
This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
12) Legal Fees and Expenses
The Company is aware that the Board of Directors or a
shareholder of the Company or the Company's parent may then
cause or attempt to cause the Company to refuse to comply
with its obligations under this Agreement, or may cause or
attempt to cause the Company or the Company's parent to
institute, or may institute, litigation seeking to have this
Agreement declared unenforceable, or may take, or attempt to
take other action to deny the Executive the benefits
intended under this Agreement. In these circumstances, the
purpose of this Agreement could be frustrated. It is the
intent of the Company that the Executive not be required to
incur the expenses associated with the enforcement of his
rights under this Agreement by litigation or other legal
action because the cost and expense thereof would
<page 22>
substantially detract from the benefits intended to be extended to
the Executive hereunder, nor be bound to negotiate any settlement
of his rights hereunder under threat of incurring such expenses.
Accordingly, if it should appear to the Executive that the Company
has failed to comply with any of its obligations under this
Agreement or in the event that the Company or any other person
takes any action to declare this Agreement void or unenforceable,
or institutes any litigation or other legal action designed to
deny, diminish or to recover from the Executive the benefits
intended to be provided to the Executive hereunder, the Company
irrevocably authorizes the Executive from time to time to retain
counsel of his choice at the expense of the Company as provided in
this paragraph 12, to represent the Executive in connection with
the initiation or defense of any litigation or other legal action,
whether by or against the Company or any Director, officer,
shareholder or other person affiliated with the Company, in any
jurisdiction. Notwithstanding any existing or prior attorney-
client relationship between the Company and such counsel, the
Company irrevocably consents to the Executive entering into an
attorney-client relationship with such counsel, and in that
connection the Company and Executive agree that a confidential
relationship shall exist between
<page 23>
the Executive and such counsel. The Company shall pay or cause to
be paid and shall be solely responsible for any and all attorneys'
and related fees and expenses incurred by the Executive as a result
of the Company's failure to perform this Agreement or any provision
hereof or as a result of the Company or any person contesting the
validity or enforceability of this Agreement or any provision
hereof. Such fees and expenses shall be paid or reimbursed to the
Executive by the Company on a regular, periodic basis, within
thirty days following receipt by the Company of statements of such
counsel in accordance with such counsel's customary practice. In
no event shall the Executive be required to reimburse the Company
for attorneys' fees or expenses previously paid on behalf of the
Executive or reimbursed to the Executive, or for any attorneys'
fees or expenses incurred by the Company in connection with any
contest of validity or enforceability of this Agreement or any
provisions hereof; provided, however, that any litigation by the
Executive, whether as plaintiff or defendant, shall be in good
faith.
13) Confidentiality
The Executive shall retain in confidence any and all
confidential information known to the Executive concerning
<page 24>
the Company and its business so long as such information is not
otherwise publicly disclosed.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
TEXAS-NEW MEXICO POWER COMPANY
By \s\ Dwight Spurlock
Name: D. R. Spurlock
Title: Interim President &
Chief Executive
Officer
\s\ D. R. Barnard
Name: D. R. BARNARD
Title: Sector Vice President
& Chief Officer
ATTEST:
B. Jan Adkins
Asst.Secretary
<page 25>
EXECUTIVE POSITIONS*
EXECUTION DATE
TERM
Sector Vice President & Chief
Financial Officer
November 11, 1993
3 years
Sector Vice President - Revenue
Production
November 11, 1993
3 years
Vice President - Chief Engineer
November 11,
1993
3 years
Vice President - Corporate
Affairs
November 11, 1993
3 years
Vice President - Corporate
Services/Generation
November 11, 1993
3 years
Corporate Secretary & General
Counsel
November 11, 1993
3 years
Treasurer
November 11, 1993
3 years
Assistant Vice President/Manager
- - Contracts & Regulatory Projects
November 11, 1993
3 years
Assistant Corporate Secretary
November 11, 1993
3 years
Division Manager - Central
November 11, 1993
3 years
Division Manager - New Mexico
November 11, 1993
3 years
Division Manager - Northern
November 11, 1993
3 years
Division Manager - Southeast
November 11, 1993
3 years
Division Manager - Western
November 11, 1993
3 years
Plant Manager - TNP One
November 11, 1993
3 years
* Names of the individuals who are parties to the listed
Agreements have been omitted. Each Agreement inures to the
benefit of the person holding the position indicated above at
any point in time.