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Exhibit 10.3
AMENDMENT NO. 1
THIS INSTRUMENT, dated as of June 1, 1996, by and between Birman
Managed Care, Inc., a Tennessee corporation (the "Company"), and Robert D. Arkin
("Executive"), constitutes a first amendment to that certain Employment
Agreement by and between Executive and the. Company dated as of March 1, 1996
(the "Agreement"). The Company and Executive are hereinafter referred to as the
"Parties."
R E C I T A L S:
WHEREAS, the Parties desire to amend the Agreement;
NOW, THEREFORE, for and in consideration of the premises set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which are acknowledged by each of the parties, intending to be legally bound,
agree as follows:
1. The preamble and Section 1 of the Agreement are hereby amended
by deleting "Secretary and General Counsel" and by inserting in lieu thereof
"Chief Operating Officer, Secretary and General Counsel."
2. Section 4.02 is hereby amended by adding at the foot thereof
the following new sentence". In addition, the Company shall provide to Executive
an automobile allowance of seven hundred fifty and no/100 dollars ($750) per
month."
The Agreement, as above amended, shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
BIRMAN MANAGED CARE, INC.
By:____________________________________________
David N. Birman, M.D.,
President and Chief Executive Officer
EXECUTIVE:
_______________________________________________
Robert D. Arkin
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of the 1st day of March, 1996, by and between BIRMAN MANAGED CARE, INC., a
Tennessee corporation (the "Company"), and ROBERT D. ARKIN, a Georgia resident
("Executive").
W I T N E S S E T H:
WHEREAS, the Company and Executive mutually desire that Executive be
employed in accordance with the terms and conditions hereof as the Company's
Secretary and General Counsel;
NOW, THEREFORE, in consideration of the foregoing, the payment of $1.00
and other good and valuable consideration and the mutual covenants and
agreements contained herein, the receipt and sufficiency whereof the parties
hereby acknowledge, the parties hereto, intending to be legally bound, hereby
agree as follows:
SECTION 1
EMPLOYMENT
The Company hereby employs Executive, and Executive hereby accepts
employment from the Company as Secretary and General Counsel. Executive shall
perform services for the Company for the period and upon the terms and
conditions set forth in the Agreement and shall hold such other positions with
the Company or any Affiliate as the Company may specify from time to time.
"Affiliate" means a person that, directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
the person specified.
SECTION 2
TERM
Subject to the provisions for termination set forth herein, the term of
Executive's employment under the Agreement shall commence as of the date hereof
and shall continue up to and including June 30, 2001 (the "Initial Term").
Following the expiration of the Initial Term, the Company may extend the
Agreement for an additional term of five (5) years.
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SECTION 3
POSITION AND DUTIES
3.1 SERVICES. During the term of the Agreement, Executive shall perform
such duties as are customary to Executive's office and as are designated by the
Chief Executive Officer or the Board of Directors from time to time. Executive
also shall serve, for any period for which Executive is elected, as a member of
the Board of Directors of the Company and/or any of its Affiliates without
additional compensation.
3.2 PERFORMANCE OF DUTIES. Executive shall serve the Company faithfully
and to the best of Executive's ability and such time, attention, skill and
effort as is required to effectively discharge his duties hereunder. Once
Executive is employed by the Company on a full-time basis in accordance with
Section 4.01(b), Executive shall provide services to the Company on an exclusive
basis and, except with respect to the activities described at Schedule 3.02
(which scheduled activities Executive hereby represents do not consume a
material portion of Executive's time and are essentially passive in nature), and
shall not be employed or otherwise provide services to any other entity without
the prior written consent of the Company, which consent shall not be
unreasonably withheld. Executive shall undertake such reasonable Gavel to the
corporate headquarters of the Company in Cookeville, Tennessee and to such other
locations in which the Company does, or proposes to do, business as shall be
necessary to perform Executive's duties hereunder.
SECTION 4
COMPENSATION; BENEFITS
4.1 BASE SALARY. During the Initial Term and any renewal thereof, the
Company shall pay to Executive as compensation for all personal services to be
rendered by Executive under the Agreement, a base salary ("Base Salary") subject
to the Base Salary Adjustment (as hereinafter defined), in accordance with the
Company's customary payroll practices, reduced by applicable federal, state and
local withholding taxes, as follows:
(a) One hundred sixty-five thousand and no/100 dollars
($165,000) per annum (representing the delivery of services to the
Company on an eighty percent (80%) basis) until the Company enters into
a letter of intent confirming an investment banking firm's interest in
underwriting, on a firm commitment basis, an initial public offering of
the Company's securities (the "Milestone").
(b) Two hundred six thousand two hundred fifty and no/100
dollars ($206,250) per annum from and after the date the Milestone is
achieved.
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"Base Salary Adjustment" means the following: Beginning on July 1, 1997 and each
July 1 thereafter during the term of the Agreement, the Base Salary shall be
increased by the product of (i) a fraction, the numerator of which is the
Extension CPI Index, and the denominator of which is the Beginning CPI Index,
times (ii) the Base Salary. "Beginning CPI Index means the U.S. Consumer Price
Index for all Urban Consumers, U.S. City Average (Base year 1982-84=100),
published most immediately preceding July 1, 1996 by the U.S. Department of
Labor, Bureau of Labor Statistics. Extension CPI Index" means the CPI Index
published most immediately preceding the July 1, 1997 and each successive July 1
st thereafter during the term hereof. In the event the CPI Index is changed or
discontinued, the most nearly comparable price index of the U.S. government for
computing the foregoing calculation of the Base Salary Adjustment, after
converting said new index so that the same shall correspond with the changed or
discontinued CPI Index.
In addition, in reviewing and setting Executive's Base Salary, the
Board or Compensation Committee, as the case may be, shall consider results of
operations, financial condition, prospects, salary levels for similarly sized
companies in the Company's industry for comparable executive positions,
Executive's performance and other criteria deemed relevant by the Company in
assessing Executive's compensation.
4.2 EXECUTIVE BONUS PLAN AND OTHER COMPENSATION. In addition to the
Base Salary described in Section 4.01, Executive shall be entitled to
participate in the Company's Executive Bonus Plan according to the terms and
conditions thereof, and receive incentive compensation thereunder ("Incentive
Compensation").
4.3 PARTICIPATION IN DEFERRED COMPENSATION AND STOCK OPTION PLANS.
Executive shall be entitled to participate in all employee qualified and
non-qualified deferred compensation plans or supplemental income plans or
programs maintained by the Company, including any Section 401(k) plan adopted by
the Company, according to the terms and conditions thereof. Executive shall also
be entitled to participate in the Company's 1995 Stock Option Plan, according to
the terms and conditions of said plan.
4.4 OTHER INSURANCE PLANS. Executive shall be entitled to participate
in any and all plans, arrangements or distributions maintained by the Company
pertaining to or in connection with any pension, life, health insurance,
disability insurance or similar benefits provided by the Company to its
employees, as determined by the Board of Directors pursuant to the governing
instruments which establish and determine eligibility and other rights of the
participants and beneficiaries under such plans or other benefit programs. To
the extent permitted under any applicable group or individual disability policy,
the premium payable by the Company for Executive's benefit shall be reported as
income to Executive on Forms W-2 or 1099.
4.5 VACATION AND SICK LEAVE. Executive will be entitled to participate
in the vacation and sick leave benefit program of the Company to the extent that
Executive's position, title,
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salary and other qualifications make him eligible to participate. Vacation time
and sick leave may not be accumulated after the end of any year and, to the
extent unused, shall have no economic value to Executive. Executive's use of
vacation time shall be subject to the prior approval of the Company.
4.6 EXPENSES. The Company will pay or reimburse Executive for all
reasonable and necessary travel and other out-of-pocket expenses incurred by
Executive in the performance of duties under the Agreement, subject to the
presentment of appropriate vouchers in accordance with the Company's policies
and procedures as adopted from time to time.
SECTION 5
CONFIDENTIALITY RETURN OF MATERIALS
5.1 CONSEQUENCES OF ENTRUSTMENT. Executive hereby acknowledges that (i)
Executive's services to the Company and its Affiliates will be of a special,
unique, extraordinary and intellectual character, (ii) Executive's position with
the Company or its Affiliates will place Executive in a position of confidence,
responsibility and trust with respect to the operations of the Company and its
Affiliates, (iii) in reliance on Executive's ethical responsibility and loyalty,
the Company and its Affiliates have entrusted and expect to entrust Executive
with highly sensitive, confidential, restricted and proprietary information
involving Trade Secret Information (as hereinafter defined). Executive
acknowledges that Executive is legally and ethically responsible for protecting
and preserving the proprietary rights of the Company and its Affiliates for use
only for the benefit of the Company and its Affiliates, responsibilities may
impose limitations on Executive's ability to pursue some kinds of business
opportunities that might interest Executive after the termination of Executive's
employment.
5.2 DEFINITION OF "TRADE SECRET INFORMATION". For purposes of the
Agreement, "Trade Secret Information" means information, whether or not in
written or tangible form, in the possession of the Company or its Affiliates and
considered by the Company or its Affiliates to be proprietary, valuable and
confidential, from which the Company or any of its Affiliates derives economic
value, actual or potential, by such information not being generally known to,
and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use, and is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy. Trade
Secret Information includes, without limitation, (a) any data or information
acquired by Executive during Executive's employment by the Company or its
Affiliates relating to the products, services, business methods, customer
accounts or operations of the Company or any Affiliate or any customer or
business partner of the Company or its Affiliates, and (b) the techniques and
business methods for (i) applying scientific literature to merge resources and
clinical language used in defining medical payments for purposes of quality
management, (ii) utilizing concurrent case review activity to merge resources
and clinical language used in defining medical payments for the purpose of
quality management,
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(iii) developing and managing health care provider organizations and providing
services thereto, (iv) developing reimbursement and at-risk systems under
capitation, prepayment, indemnity and other forms of compensatory arrangements,
and (v) managing the delivery, reporting and financing of health care services
in managed care and managed cost settings, including the systems, techniques,
strategies and methods used to compete successfully in these lines of business
and the Managed Care Business generally.
5.3 RESTRICTIONS ON USE AND DISCLOSURE OF TRADE SECRET INFORMATION.
Except as authorized by the Company or any Affiliate, Executive shall not,
during the term of the Agreement and for so long after the termination of
employment as the information or data remains Trade Secret Information, directly
or indirectly divulge, furnish or make accessible to anyone or use in any way
(other than in the ordinary course of business of the Company or its Affiliates)
the Trade Secret Information.
5.4 RETURN OF MATERIALS. Upon the request of the Company or any
Affiliate and, in any event, upon the termination of Executive's employment,
Executive shall return to the Company and leave at the disposal of the Company
all copies of memoranda, notes, records, drawings, manuals, computer programs,
documentation, diskettes and other documents or media, in Executive's possession
or control, pertaining in any way to the business, practices or techniques of
the Company or its Affiliates.
5.5 DURATION. The restrictions contained in this Section 5 shall inure
to the benefit of the Company and each of its Affiliates and shall survive the
termination of the Agreement.
SECTION 6
RESTRICTIONS ON COMPETITION
6.1 PREMISES. The Company has invested prior to the date hereof and
expects to continue to invest considerable time, effort, and capital in
developing the business of the Company and its Affiliates enhancing the value
and desirability of the skills of its executives and technical personnel. This
investment, together with the compensation payable to Executive pursuant to
Article 4, reflect the Company's expectation of receiving a considerable return
from the exclusive use of Executive's services and know-how in the future, free
from any risk that the Company's competitors may attempt to induce Executive to
leave the Company and wrongfully gain the benefit of the Company's investment.
The partial restraint set forth in Section 6.2 hereof does not, and cannot,
provide complete protection for the Company's investment, but the Company and
Executive believe that, in combination with the other provisions of the
Agreement, it is a fair and reasonable measure permitted under applicable law to
protect the Company's interests, giving due regard to both the interests of
Executive and the interests of the Company. Executive hereby (i) agrees that the
restrictions contained within Section 6 are reasonable and necessary for the
protection of the goodwill of the business of the
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Company during the term of the Agreement and thereafter and that the limitations
as to period of time and geographic area contained in Section 6.2 are reasonable
and necessary for the protection of the Company's business; and (ii)
acknowledges that the Company would not have entered into the Agreement but for
these restrictions. For purposes of this Section 6, "Company" means the Company
and its subsidiaries and affiliates.
6.2 COVENANT NOT TO COMPETE SOLICIT. Subject to receipt by Executive of
the compensation payable pursuant to Article 4 and Section 8.5, during the term
of the Agreement and for a period equal to two (2) years from the earlier of the
date of expiration or termination of the Agreement (at any time for any reason),
Executive shall not:
(a) directly or indirectly, for himself, as an owner,
partner, principal, shareholder, officer, director, employee, or
independent contractor engage in the development, management or
operation of any Managed Care Plan (i) within two hundred (200) miles
from any city, town where the Company has established a Managed Care
Plan or (ii) in any state in which a Managed Care Plan established by
the Company has contracted with state Medicaid agencies for the
delivery of health care services within such state; or
(b) attempt, directly or indirectly, to solicit or entice
(i) any employee or consultant of the Company to terminate his or her
employment or consultants with the Company or to become employed by or
associated with any person, firm or corporation other than the Company,
or approach any such employee or associate of any of the foregoing
purposes or authorize or assist in the taking of any such action by any
third party; (ii) any existing customer, business partner or client of
the Company to terminate or reduce its relationship with the Company;
or (iii) any prospective customer, business partner or client of the
Company to refrain from doing business with the Company.
6.3 INTERPRETATION. If Executive violates the restrictive covenant in
Section 6.02 and the Company brings legal action for injunctive or other relief,
the Company shall not, as a result of the time involved in obtaining the relief,
be deprived of the benefit of the full period of the restrictive covenant.
Accordingly, unless Executive contests the alleged violation in a court of law
and is the prevailing party in a nonappealable decision of the applicable court,
the restrictive covenant shall be deemed to have the two-year post-employment
duration specified in Section 6.2 hereof computed from the date the relief is
granted but reduced by the period when the restriction began to run and the date
of the first violation by Executive. Notwithstanding the foregoing, however, to
the extent this provision is invalid or unenforceable under the laws of any
applicable jurisdiction, the remainder of Section 6 shall be interpreted, status
quo ante, as if Section 6.3 had never been included herein and was an absolute
nullity.
6.4 NO ADEQUATE REMEDY AT LAW. Executive hereby acknowledges and agrees
that a violation of any of the provisions contained in Section 6.02 will cause
irreparable damage to
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the Company, the exact amount of which may be impossible to ascertain and that,
for such reason, among others, the Company shall be entitled to injunctive
relief, both pendente lite and permanently, against Executive to restrain any
further violation of such provisions, and Executive hereby (i) consents to any
initiation by the Company in a court of competent jurisdiction of any action to
enjoin immediately any breach of the Agreement, and (ii) hereby releases the
Company from the requirement of posting any bond in connection with temporary or
interlocutory injunctive relief, to the extent permitted by law. This provision
with respect to injunctive relief shall not, however, diminish the right of the
Company to pursue any other rights and remedies the Company may have against
Executive, including, but not limited to, the recovery of damages.
6.5 DURATION. The restrictions contained in this Section 6 shall inure
to the benefit of the Company and each of its Affiliates and shall survive the
termination of the Agreement.
SECTION 7
TERMINATION OF EMPLOYMENT
The Agreement shall terminate prior to its expiration upon the earliest
to occur of any of the following events:
7.1 FOR CAUSE. Upon written notice by the Company to Executive, which
shall specify the "cause" for termination. For purposes hereof, "cause" shall
include, without limitation Conviction of a felony; habitual drunkenness; and/or
material breach of the Agreement. If thirty (30) days after receipt by Executive
of written notice thereof from the Company, to correct, cease, or otherwise
alter any material breach of the Agreement, or other willful action that
recklessly affects the Company's business, Executive has not reasonably
corrected the alleged "cause," the Agreement may be terminated. If Executive
disputes that "cause" exists for the termination of Executive's employment, the
decision with respect to the existence of "cause" for termination shall be made
by an arbitrator selected in accordance with the rules of the American
Arbitration Association.
7.2 DEATH. Upon Executive's death;
7.3 DISABILITY. Upon the Company's written notice, at the Company's
sole option, upon Executive's disability. "Disability" shall have the definition
ascribed in the Company's group disability policy if coverage under the policy
is conditioned on using such definition. If no such policy exists or if coverage
is not conditioned on using such definition, then, for purposes of the
Agreement, "Disability" means the inability of Executive to perform Executive's
duties with reasonable accommodation by the Company for ninety (90) days in any
one hundred eighty ( 180) consecutive day period.
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SECTION 8
SEVERANCE
8.1 DEATH. If Executive's employment is terminated pursuant to Section
7.02 as a result of Executive's death, the following provisions shall apply:
(a) The Company shall pay to Executive's personal
representative the Base Salary (as adjusted) through the end of the
calendar month in which Executive's death occurs.
(b) The Company shall pay to Executive's personal
representative (i) the earned but unpaid Incentive Compensation for the
calculation period ended prior to the date of Executive's death and
(ii) a pro rata share (based on the number of days in the period during
which Executive was alive) of Executive's Incentive Compensation for
the calculation period in which Executive died provided that more than
three (3) months of such calculation period has elapsed as of
Executive's death. Such amounts shall be payable in accordance with the
Executive Bonus Plan. If Executive's death occurs during the first
three (3) months of an Incentive Compensation calculation period, no
Incentive Compensation shall be payable with respect to such period.
8.2 DISABILITY. If Executive's employment is terminated pursuant to
Section 7.03 as a result of Executive's Disability, the following provisions
shall apply:
(a) The Company shall maintain any health insurance
coverage provided to Executive hereunder until the expiration of the
Initial Term or any applicable renewal term for Executive and
Executive's dependents, or, if the Company's benefit insurer does not
permit such continuation, pay to Executive the amount of the health
insurance premium the Company would have paid to provide such insurance
to Executive and Executive's dependents. Nothing herein shall affect
any rights to continuation coverage of Executive or Executive's
dependents with respect to any insurance coverage as provided by law.
(b) The Company shall maintain any life insurance
coverage provided to Executive hereunder on Executive's life, payable
to Executive or, as designated by Executive, Executive's beneficiaries
until the expiration of the Initial Term or any applicable renewal
term.
(c) The Company shall pay to Executive the Base Salary
(as adjusted) through the end of the calendar month immediately prior
to the initiation of periodic payments under the Company's group
disability policy.
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(d) The Company shall pay to Executive (i) the earned but
unpaid Incentive Compensation for the calculation period ended prior to
the date of employment termination and (ii) a pro rata share (based on
the number of days in the period during which Executive not disabled)
of Executive's Incentive Compensation for the calculation period in
which Executive was terminated from employment provided that more than
three (3) months of such calculation period has elapsed as of the date
of termination. Such amounts shall be payable in accordance with the
Executive Bonus Plan. If Executive's employment termination occurs
during the first three (3) months of an Incentive Compensation
calculation period, no Incentive Compensation shall be payable with
respect to such period.
8.3 TERMINATION FOR CAUSE. If Executive's employment is terminated for
"cause" pursuant to Section 7.01, the following provisions shall apply:
(a) The Company shall pay to Executive the Base Salary
(as adjusted) through the date of termination.
(b) Executive shall forfeit all accrued but unpaid
Incentive Compensation and all invested options under the Company's
1995 Stock Option Plan. The foregoing sentence is not a penalty, but is
intended to constitute liquidated damages to compensate the Company for
damages, which may be difficult to measure, suffered by the Company as
a result of Executive's conduct. Nothing contained in this Section 8.03
shall be deemed to limit the Company's ability to obtain equitable
relief.
(c) Health insurance coverage provided to Executive
hereunder for Executive and Executive's dependents and any life
insurance coverage provided to Executive hereunder on Executive's life,
payable to Executive or, as designated by Executive, Executive's
beneficiaries shall terminate as of the last day of the month in which
Executive's employment terminates. Nothing herein shall affect any
rights to continuation coverage of Executive or Executive's dependents
with respect to any insurance coverage as provided by law.
8.4 TERMINATION BY MUTUAL AGREEMENT. If Executive's employment is
terminated by mutual agreement, the parties hereto shall structure a mutually
acceptable severance benefits program which shall be documented in a Termination
Agreement to be executed by the parties immediately prior to Executive's
resignation from employment.
8.5 OTHER. If Executive's employment is terminated for reasons other
than death, "cause," mutual agreement or Disability, Executive shall be entitled
to receive the Base Salary, as adjusted by the Base Salary Adjustment, for the
remainder of the Initial Term or the applicable renewal term and all invested
stock options granted pursuant to the Company's 1995 Stock Option Plan shall
accelerate and become vested. If Executive's employment is not renewed
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following expiration of the Initial Term or the applicable renewal term,
Executive shall be entitled to receive, as severance, the Base Salary, as last
adjusted by the Base Salary Adjustment, for the twelve (12) month period
following Executive's severance of employment.
SECTION 9
MISCELLANEOUS
9.1 GOVERNING LAW. The Agreement shall be deemed to have been executed
in the State of Tennessee and shall be governed and construed as to both
substantive and procedural matters in accordance with the laws of the State of
Tennessee, but excepting (i) any State' of Tennessee rule which would result in
judicial failure to enforce the arbitration provisions of Section 9.4 hereof or
any portion thereof and (ii) any State of Tennessee rule which would result in
the application of the law of a jurisdiction other than the State of Tennessee.
9.2 PRIOR AGREEMENTS. The Agreement, together with any Option Award
Agreement and Executive Bonus Plan, contains the entire agreement of the parties
relating to the subject matter hereof and supersedes all prior agreements and
understandings with respect to such subject matter, and the parties hereto have
made no agreements, representations or warranties relating to the subject matter
of the Agreement which are not set forth herein.
9.3 AMENDMENT. The Agreement may not be amended, modified, superseded,
canceled or terminated, and any of the matters, covenants, representations,
warranties or conditions hereof may not be waived, except by written instrument
executed by the parties hereto or, in the case of a waiver, by the party to be
charged with such waiver.
9.4 ARBITRATION. Any controversy or claim arising out of or relating to
the Agreement, or the breach hereof, shall be settled by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, in the county in which the principal office of the Company is
located, and judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction over the parties hereto. The dispute shall be
resolved by a panel of three arbitrators if the dollar amount in question that
is being arbitrated exceeds fifty thousand dollars ($50,000). The parties hereto
shall have full rights to pursue equitable remedies in furtherance of enforcing
the Agreement without interference from any arbitration proceedings.
9.5 SEVERABILITY. To the extent any provision of the Agreement shall be
invalid or unenforceable, it shall be considered deleted herefrom and the
remainder of such provision and of the Agreement shall be unaffected and not in
limitation of business activities covered by, any provision of the Agreement be
in excess of that which is valid and enforceable under applicable law, then such
provision shall be construed to cover only that duration, extent or activities
which may validly and enforceably be covered. Executive acknowledges the
uncertainty of the law in
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this respect and expressly stipulates that the Agreement be given the
construction which renders its provisions valid and enforceable to the maxims
extent possible under applicable law.
9.6 ASSIGNMENT. The Agreement shall not be assignable, in whole or in
part, by either party without the written consent of the other party, except
that the Company may, without the consent of Executive, assign its rights and
obligations under the Agreement to any corporation, firm or other business
entity with or into which the Company may merge or consolidate, or to which the
Company may sell or transfer all or substantially all of its assets, or of which
fifty (50%) percent or more of the equity investment and of the voting control
is owned, directly or indirectly, by, or is under common ownership with the
Company. After any such assignment by the Company, the Company shall be
discharged from all further liability hereunder, and such assignee shall
thereafter be deemed to be the Company for the purposes of all provisions of the
Agreement including this Section 9.
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IN WITNESS WHEREOF, the parties hereto have caused the Agreement to be
duly executed as of the day and year first above written.
BIRMAN MANAGED CARE, INC., a
Tennessee corporation
By:___________________________
David N. Birman, M.D.
Chairman and Chief Executive Officer
[CORPORATE SEAL]
EXECUTIVE:
_________________________(SEAL)
ROBERT D. ARKIN
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SCHEDULE 3.2
Board of Directors, Virtual School Technologies, Inc., Global Cellular Network,
Inc. and Monuments of America, Inc.
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