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EXHIBIT 99.2
NETCREATIONS, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
PURPOSE The NetCreations, Inc. 2000 Employee Stock
Purchase Plan (the "2000 ESPP" or the "Plan")
provides employees of NetCreations, Inc. (the
"Company") with an opportunity to become
owners of the Company through purchasing
shares of the Company's common stock (the
"Common Stock"). The Company intends this
Plan to qualify as an employee stock purchase
plan under Section 423 of the Internal
Revenue Code of 1986, as amended (the
"Code"), and its terms should be construed
accordingly. The Plan is effective as of July
1, 2000.
ELIGIBILITY An Employee whom the Company employs as of
the first day of a Payroll Deduction Period
(and has employed for such prior waiting
period, initially set at 90 days, as the
Committee determines) is eligible to
participate in the 2000 ESPP for that Payroll
Deduction Period. However, an Employee may
not make a purchase under the 2000 ESPP if
such purchase would result in the Employee's
owning Common Stock possessing 5% or more of
the total combined voting power or value of
the Company's outstanding stock. In
determining an individual's amount of stock
ownership, any options to acquire shares of
Company Common Stock are counted as shares of
stock, and the attribution rules of Section
424(d) of the Code apply.
Employee means any person employed as a
common law employee of the Company. Employee
excludes anyone who, with respect to any
particular period of time, was not treated
initially on the payroll records as a common
law employee, unless the Committee determines
that including the person is necessary to
preserve tax treatment.
ADMINISTRATOR The Compensation Committee of the Board of
Directors (the "Board") of the Company, or
such other committee as the Board designates
(the "Committee"), will administer the 2000
ESPP. The Committee is vested with full
authority and discretion to make, administer,
and interpret such rules and regulations as
it deems necessary to administer the 2000
ESPP (including rules and regulations deemed
necessary in order to comply with the
requirements of Section 423 of the Code). Any
determination or action of the Committee in
connection with administering or interpreting
the 2000 ESPP will be final and binding upon
each Employee, Participant, and all persons
claiming under or through any Employee or
Participant.
Without shareholder consent and without
regard to whether the actions might adversely
affect Participants, the Committee (or the
Board) may
establish and change the Payroll Deduction
Periods,
limit or increase the frequency and/or
number of changes in the amounts withheld
during a Payroll Deduction Period,
establish the exchange ratio applicable to
amounts withheld in a currency other than
U.S. dollars,
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lengthen or shorten the waiting period
before an Employee becomes eligible to
participate, so long as the change applies
uniformly,
permit payroll withholding in excess of
the amount the Participant designated to
adjust for delays or mistakes in the
Company's processing of properly completed
withholding elections,
establish reasonable waiting and
adjustment periods and/or accounting and
crediting procedures to ensure that
amounts applied toward the purchase of
Common Stock for each Participant properly
correspond with amounts withheld from the
Participant's Compensation,
delegate its functions (other than those
with respect to setting Payroll Deduction
Periods or determining the price of stock
and the number of shares to be offered
under the Plan) to officers or employees
of the Company; and
establish such other limitations or
procedures as it determines in its sole
discretion advisable and consistent with
the Plan.
The Committee may also increase the price
provided in Step 2 under GRANTING OF OPTIONS
(by decreasing the discount and/or by
designating that the price is determined as
of either the beginning or the ending date of
a Payroll Deduction Period or the higher of
both rather than as of the lower) for Payroll
Deduction Periods beginning after Committee
action.
PAYROLL DEDUCTION PERIOD Payroll Deduction Periods are the periods
during which the Company collects payroll
deductions for a particular purchase. Unless
the Committee specifies otherwise, the
Payroll Deduction Periods will be successive
calendar quarters beginning January 1, April
1, July 1, and October 1, beginning when the
Committee determines they should begin.
PARTICIPATION An eligible Employee may become a
"Participant" for a Payroll Deduction Period
by completing an authorization notice and
delivering it to the Committee through the
Company's Human Resources professionals
within a reasonable period of time before the
first day of such Payroll Deduction Period.
All Participants receiving options under the
2000 ESPP will have the same rights and
privileges.
METHOD OF PAYMENT A Participant may contribute to the 2000 ESPP
solely through payroll deductions as follows:
The Participant must elect on an
authorization notice or other required
documentation to have deductions made from
his Compensation for each payroll period
during the Payroll Deduction Period at or
above a minimum rate and under terms the
Committee determines. Compensation under the
Plan means an Employee's regular
compensation, including overtime, bonuses,
and commissions (but expressly excluding
income from stock options or other noncash
compensation), from the Company paid during a
Payroll Deduction Period.
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All payroll deductions will be credited to
the Participant's account under the 2000
ESPP. No interest will accrue on the account.
Payroll deductions will begin on the first
payday coinciding with or following the first
day of each Payroll Deduction Period and will
end with the last payday preceding or
coinciding with the end of that Payroll
Deduction Period, unless the Participant
sooner withdraws as authorized under
WITHDRAWALS below.
A Participant may not alter the rate of
payroll deductions during the Payroll
Deduction Period.
The Company may use the consideration it
receives for general corporate purposes.
GRANTING OF OPTIONS On the first day of each Payroll Deduction
Period, a Participant will receive options to
purchase a number of shares of Common Stock
with funds withheld from his or her
Compensation. Such number of shares will be
determined at the end of the Payroll
Deduction Period according to the following
procedure:
STEP 1 -- Determine the amount the Company
withheld from Compensation since the
beginning of the Payroll Deduction Period;
STEP 2 -- Determine the "Purchase Price"
to be the amount that represents 85% of
the lower of the Fair Market Value of a
share of Common Stock on the first day of
the Payroll Deduction Period and the last
day of the Payroll Deduction Period
(provided that the Committee can increase
the price before a Payroll Deduction
Period begins); and
STEP 3 -- Divide the amount determined in
Step 1 by the amount determined in Step 2.
The Committee will determine the treatment of
any fractional shares from among the
following:
The results of Step 3 will be used to
purchase whole and fractional shares,
Any amounts in Step 3 not used to purchase
whole shares will be refunded to the
Participant,
Any amounts in Step 3 not used to purchase
whole shares will be carried forward to
the next Payment Deduction Period, or Such
other treatment as the Committee approves.
FAIR MARKET VALUEx The Fair Market Value of a share of Common
Stock for purposes of the Plan as of each
date described in Step 2 will be determined
as follows:
if the Company has no publicly-traded
stock, the Committee will determine the
Fair Market Value for purposes of the Plan
using any measure of value it determines
in good faith to be appropriate;
if the Common Stock trades on a national
securities exchange, the closing sale
price on that date;
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if the Common Stock does not trade on any
such exchange, the closing sale price as
reported by the National Association of
Securities Dealers, Inc. Automated
Quotation System ("Nasdaq") for such date;
if no such closing sale price information
is available, the average of the closing
bid and asked prices that Nasdaq reports
for such date; or
if there are no such closing bid and asked
prices, the average of the closing bid and
asked prices as reported by any other
commercial service for such date.
For January 1 and any other date described in
Step 2 that is not a trading day, the Fair
Market Value of a share of Common Stock for
such date shall be determined by using the
closing sale price or the average of the
closing bid and asked prices, as appropriate,
for the immediately following trading day
when determining the price for the first day
of the Payroll Deduction Period and the
immediately preceding trading day when
determining the price on the last day. The
Committee can substitute a particular time of
day or other measure of "closing sale price"
if appropriate because of changes in exchange
or market procedures.
The Committee has sole discretion to
determine the Fair Market Value for purposes
of this Plan, and all participation is
conditioned on the participant's agreement
that the Committee's determination is
conclusive and binding even though others
might make a different and also reasonable
determination.
No Participant shall receive options:
if, immediately after the grant, that
Participant would own shares, or hold
outstanding options to purchase shares, or
both, possessing 5% or more of the total
combined voting power or value of all
classes of shares of the Company or any
Subsidiaries (as defined below); or
that permit the Participant to purchase
shares under all employee stock purchase
plans of the Company and any Subsidiary
with a Fair Market Value (determined at
the time the options are granted) that
exceeds $25,000 in any calendar year.
EXERCISE OF OPTION Unless a Participant effects a timely
withdrawal under the WITHDRAWAL paragraph
below, his option for the purchase of shares
of Common Stock during a Payroll Deduction
Period will be automatically exercised as of
the last day of the Payroll Deduction Period
for the purchase of the maximum number of
shares (including, if the Committee so
provides, fractional shares) that the sum of
the payroll deductions credited to the
Participant's account during such Payroll
Deduction Period can purchase under the
formula specified in GRANTING OF OPTIONS.
DELIVERY OF COMMON STOCK As soon as administratively feasible after
the options are used to purchase Common
Stock, the Company will
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credit to each Participant or, in the
alternative, to an agent or custodian that
the Committee designates, the shares of
Common Stock the Participant purchased upon
the exercise of the option. If delivered to
an agent or custodian, the agent or custodian
may hold the shares in nominee name and may
commingle shares held in its custody in a
single account or stock certificate without
identification as to individual Participants.
Unless the Committee determines otherwise,
Participants who are holding shares and any
persons to whom they transfer part or all of
their shares other than by sale must retain
those shares with a Company specified broker
or agent until the second anniversary of the
first day of the Payroll Deduction Period in
which they bought the shares. Unless the
Committee determines otherwise, a Participant
may sell the shares despite the foregoing
restriction but may not transfer them to
another broker until the foregoing two year
period (the "Account Restriction Period")
ends. The Committee may require that the
specified agent or custodian hold the shares
of Common Stock for a minimum period of time
after receipt (including through and beyond
the Participant's active employment) and
reinvest any dividends received in additional
shares of Common Stock. The Committee may, in
its discretion, establish a program for
cashless sales of Common Stock received under
the 2000 ESPP.
SUBSEQUENT OFFERINGS A Participant will be deemed to have elected
to participate in each subsequent Payroll
Deduction Period following his initial
election to participate in the 2000 ESPP,
unless the Participant files a written
withdrawal notice with the Human Resources
Department at corporate headquarters (or such
other recipient as the Department designates)
at least 10 days before the beginning of the
Payroll Deduction Period as of which the
Participant desires to withdraw from the 2000
ESPP.
WITHDRAWAL FROM THE PLAN A Participant may withdraw all, but not less
than all, payroll deductions credited to his
account for a Payroll Deduction Period before
the end of such Payroll Deduction Period by
delivering a written notice to the Human
Resources Department or its designee on
behalf of the Committee at least 30 days
before the end of such Payroll Deduction
Period (or by such other deadline as the
Committee determines). A Participant who for
any reason, including retirement, termination
of employment, or death, ceases to be an
Employee before the last day of any Payroll
Deduction Period will be deemed to have
withdrawn from the 2000 ESPP as of the date
of such cessation, unless the Committee
establishes other procedures.
When a Participant withdraws from the 2000
ESPP, his or her outstanding options under
the 2000 ESPP will immediately terminate.
Unless the Committee determines otherwise, if
a Participant withdraws from the 2000 ESPP
for any reason, the Company will pay to the
Participant all payroll deductions credited
to his account or, in the event of death, to
the persons designated as provided in
Designation of Beneficiary, as soon as
administratively feasible after the date of
such withdrawal and no further deductions
will be made from the Participant's
Compensation.
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A Participant who has elected to withdraw
from the 2000 ESPP may resume participation
in the same manner and under the same rules
as any Employee making an initial election to
participate in the 2000 ESPP (i.e., he may
elect to participate in the next following
Payroll Deduction Period so long as he or she
files the authorization form by the deadline
for that Payroll Deduction Period). Any
Participant who is subject to Section 16 of
the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and who
withdraws from the 2000 ESPP for any reason
will only be permitted toresume participation
in a manner that will permit transactions
under the 2000 ESPP to continue to be exempt
within the meaning of Rule 16b-3, as issued
under the Exchange Act.
STOCK SUBJECT TO PLAN The shares of Common Stock that the Company
will sell to Participants under the 2000 ESPP
will be shares of authorized but unissued
Common Stock, shares held as treasury stock,
and shares purchased on the market. The
maximum number of shares made available for
sale under the 2000 ESPP will be 1,000,000,
increased beginning December 31, 2001 and
each succeeding December 31 by 200,000 shares
(with both numbers subject to the provisions
in ADJUSTMENTS UPON CHANGES IN CAPITAL STOCK
below). If the total number of shares for
which options are to be exercised in a
Payroll Deduction Period exceeds the number
of shares then available under the 2000 ESPP,
the Company will make, so far as is
practicable, a pro rata allocation of the
shares available.
A Participant will have no interest in shares
covered by his participation until the last
day of the applicable Payroll Deduction
Period.
After the end of the Account Restriction
Period, shares that a Participant purchases
under the ESPP will be registered in the name
of the Participant or, at the Participant's
election, in street name.
ADJUSTMENTS UPON CHANGES IN
CAPITAL STOCK Subject to any required action by the Company
(which it will promptly take) or its
shareholders, and subject to the provisions
of applicable corporate law, if, during a
Payroll Deduction Period,
the outstanding shares of Common Stock
increase or decrease or change into or are
exchanged for a different number or kind
of security because of any
recapitalization, reclassification, stock
split, reverse stock split, combination of
shares, exchange of shares, stock
dividend, or other distribution payable in
capital stock, or
some other increase or decrease in such
Common Stock occurs without the Company's
receiving consideration (excluding, unless
the Committee determines otherwise, stock
repurchases),
the Committee must make a proportionate and
appropriate adjustment in the number of
shares of Common Stock underlying the
options, so that the proportionate interest
of the Participant immediately following such
event will, to the extent practicable, be the
same as immediately
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before such event. Any such adjustment to the
options will not change the total price with
respect to shares of Common Stock underlying
the Participant's election but will include a
corresponding proportionate adjustment in the
price of the Common Stock, to the extent
consistent with Section 424 of the Code.
The Board or the Committee may take any
actions described in the ADJUSTMENTS UPON
CHANGES IN CAPITAL STOCK section without any
requirement to seek optionee consent.
The Committee will make a commensurate change
to the maximum number and kind of shares
provided in the STOCK SUBJECT TO PLAN
section.
Any issue by the Company of any class of
preferred stock, or securities convertible
into shares of common or preferred stock of
any class, will not affect, and no adjustment
by reason thereof will be made with respect
to, the number of shares of Common Stock
subject to any options or the price to be
paid for stock except as this ADJUSTMENTS
section specifically provides. The grant of
an option under the Plan will not affect in
any way the right or power of the Company to
make adjustments, reclassifications,
reorganizations or changes of its capital or
business structure, or to merge or to
consolidate, or to dissolve, liquidate, sell,
or transfer all or any part of its business
or assets.
SUBSTANTIAL CORPORATE
CHANGE Upon a Substantial Corporate Change, the Plan
and the offering will TERMINATE and all
accumulated funds will be distributed as
though the Participants had elected to
withdraw unless either (i) such termination
would prevent use of "pooling of interest"
accounting for a reorganization, merger, or
consolidation of the Company that the Board
approves or (ii) unless provision is made in
writing in connection with such transaction
for
the assumption or continuation of
outstanding elections, or
the substitution for such options or
grants of any options covering the stock
or securities of a successor employer
corporation, or a parent or subsidiary of
such successor, with appropriate
adjustments as to the number and kind of
shares of stock and prices, in which event
the options will continue in the manner
and under the terms so provided.
A Substantial Corporate Change means the
sale of all or substantially all of the
assets of the Company to one or more
individuals, entities, or groups (other
than an "Excluded Owner" as defined
below),
complete or substantially complete
dissolution or liquidation of the Company;
a person, entity, or group (other than an
Excluded Owner) acquires or attains
ownership of 100% of the undiluted total
voting power of the Company's then-
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outstanding securities eligible to vote to
elect members of the Board ("Company
Voting Securities");
completion of a merger or consolidation of
the Company with or into any other entity
(other than an Excluded Owner) unless the
holders of the Company Voting Securities
outstanding immediately before such
completion, together with any trustee or
other fiduciary holding securities under a
Company benefit plan, retain control
because they hold securities that
represent immediately after such merger or
consolidation more than 20% of the
combined voting power of the then
outstanding voting securities of either
the Company or the other surviving entity
or its ultimate parent, or
any other transaction (including a merger
or reorganization in which the Company
survives) approved by the Board that
results in any person or entity (other
than an Excluded Owner) owning 100% of
Company Voting Securities.
An "Excluded Owner" consists of the Company,
any Company Subsidiary, any Company benefit
plan, or any underwriter temporarily holding
securities for an offering of such
securities.
DESIGNATION OF BENEFICIARY A Participant may file with the Committee a
written designation of a beneficiary who is
to receive any payroll deductions credited to
the Participant's account under the 2000 ESPP
or any shares of Common Stock owed to the
Participant under the 2000 ESPP if the
Participant dies. A Participant may change a
beneficiary at any time by filing a notice in
writing with the Human Resources
professionals on behalf of the Committee.
Upon the death of a Participant and upon
receipt by the Committee of proof of the
identity and existence of the Participant's
designated beneficiary, the Company will
deliver such cash or shares, or both, to the
beneficiary. If a Participant dies and is not
survived by a beneficiary that the
Participant designated in accordance with the
immediate preceding paragraph, the Company
will deliver such cash or shares, or both, to
the personal representative of the estate of
the deceased Participant. If, to the
knowledge of the Committee, no personal
representative has been appointed within 90
days following the date of the Participant's
death, the Committee, in its discretion, may
direct the Company to deliver such cash or
shares, or both, to the surviving spouse of
the deceased Participant, or to any one or
more dependents or relatives of the deceased
Participant, or if no spouse, dependent, or
relative is known to the Committee, then to
such other person as the Committee may
designate.
No designated beneficiary may acquire any
interest in such cash or shares before the
death of the Participant.
TRANSFERS, ASSIGNMENTS, AND
PLEDGES A Participant may not assign, pledge, or
otherwise dispose of payroll deductions
credited to the Participant's account or any
rights to exercise an option or to receive
shares of Common Stock under the
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2000 ESPP other than by will or the laws of
descent and distribution or under a qualified
domestic relations order, as defined in the
Employee Retirement Income Security Act. Any
other attempted assignment, pledge or other
disposition will be without effect, except
that the Company may treat such act as an
election to withdraw under the WITHDRAWAL
section.
AMENDMENT OR TERMINATION OF
PLAN The Board of Directors of the Company or the
Committee may at any time terminate or amend
the 2000 ESPP. Any amendment of the 2000 ESPP
that (i) materially increases the benefits to
Participants, (ii) materially increases the
number of securities that may be issued under
the 2000 ESPP, or (iii) materially modifies
the eligibility requirements for
participation in the 2000 ESPP must be
approved by the shareholders of the Company
to take effect. The Company will refund to
each Participant the amount of payroll
deductions credited to his account as of the
date of termination as soon as
administratively feasible following the
effective date of the termination.
EFFECT ON OTHER PLANS Whether exercising or receiving an option
causes the participant to accrue or receive
additional benefits under any pension or
other plan is governed solely by the terms of
such other plan.
NOTICES All notices or other communications by a
Participant to the Committee or the Company
shall be deemed to have been duly given when
the Human Resources Department or local Human
Resources professionals of the Company
receive them or when any other person or
entity the Company designates receives the
notice or other communication in the form the
Company specifies.
GENERAL ASSETS Any amounts the Company invests or otherwise
sets aside or segregates to satisfy its
obligations under this 2000 ESPP will be
solely the Company's property (except as
otherwise required by Federal or state wage
laws), and the optionee's claim against the
Company under the 2000 ESPP, if any, will be
only as a general creditor. The optionee will
have no right, title, or interest whatever in
or to any investments that the Company may
make to aid it in meeting its obligations
under the 2000 ESPP. Nothing contained in the
2000 ESPP, and no action taken under its
provisions, will create or be construed to
create an implied or constructive trust of
any kind or a fiduciary relationship between
the Company and any Employee, Participant,
former Employee, former Participant, or any
beneficiary.
PRIVILEGES OF STOCK
OWNERSHIP No Participant and no beneficiary or other
person claiming under or through such
Participant will have any right, title, or
interest in or to any shares of Common Stock
allocated or reserved under the Plan except
as to such shares of Common Stock, if any,
that have been issued to such Participant.
TAX WITHHOLDING To the extent that a Participant realizes
ordinary income or wages for employment tax
purposes in connection with a sale or other
transfer of any shares of Common Stock
purchased under the Plan or the crediting of
interest to an account, the Company may
withhold amounts needed to cover such taxes
from any payments otherwise due to the
Participant. Any
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Participant who sells or otherwise transfers
shares purchased under the Plan within two
years after the beginning of the Payroll
Deduction Period in which he purchased the
shares must, within 30 days of such transfer,
notify the Company's Payroll Department in
writing of such transfer. Each Participant,
as a condition of participation, agrees that
the Company may treat the purchase of shares
and/or their disposition as taxable events
requiring the withholding or other collection
of income and employment taxes and further
agrees to pay any such taxes for which the
Company cannot reasonably withhold.
LIMITATIONS ON LIABILITY Notwithstanding any other provisions of the
2000 ESPP, no individual acting as a
director, employee, or agent of the Company
shall be liable to any Employee, Participant,
former Employee, former Participant, or any
spouse or beneficiary for any claim, loss,
liability, or expense incurred in connection
with the 2000 ESPP, nor shall such individual
be personally liable because of any contract
or other instrument he executes in such other
capacity. The Company will indemnify and hold
harmless each director, employee, or agent of
the Company to whom any duty or power
relating to the administration or
interpretation of the 2000 ESPP has been or
will be delegated, against any cost or
expense (including attorneys' fees) or
liability (including any sum paid in
settlement of a claim with the Board's
approval) arising out of any act or omission
to act concerning this 2000 ESPP unless
arising out of such person's own fraud or bad
faith.
NO EMPLOYMENT CONTRACT Nothing contained in this Plan constitutes an
employment contract between the Company and
any Employee. The 2000 ESPP does not give an
Employee any right to be retained in the
Company's employ, nor does it enlarge or
diminish the Company's right to terminate the
Employee's employment.
DURATION OF ESPP Unless the Company's Board extends the Plan's
term, no Payroll Deduction Period will end
after June 30, 2010.
APPLICABLE LAW The laws of the State of Delaware (other than
its choice of law provisions) govern the 2000
ESPP and its interpretation.
LEGAL COMPLIANCE The Company will not issue any shares of
Common Stock under the Plan until the
issuance satisfies all applicable
requirements imposed by Federal and state
securities and other laws, rules, and
regulations, and by any applicable regulatory
agencies or stock exchanges. To that end, the
Company may require the optionee to take any
reasonable action to comply with such
requirements before issuing such shares. No
provision in the Plan or action taken under
it authorizes any action that Federal or
state laws otherwise prohibit.
The Plan is intended to conform to the extent
necessary with all provisions of the
Securities Act of 1933, as amended,
("Securities Act") and the Securities
Exchange Act of 1934, as amended, and all
regulations and rules the Securities and
Exchange Commission issues under those laws,
including specifically Rule 16b-3.
Notwithstanding anything in the Plan to the
contrary, the Committee and the Board must
administer the Plan, and Participants may
purchase Common Stock, only in a
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way that conforms to such laws, rules, and
regulations. To the extent applicable law
permits, the Plan and any offers will be
deemed amended to the extent necessary to
conform to such laws, rules, and regulations.
APPROVAL OF SHAREHOLDERS The ESPP must be submitted to the
shareholders of the Company for their
approval within 12 months after the Board
adopts the ESPP. The adoption of the ESPP is
conditioned upon the approval of the
shareholders of the Company, and failure to
receive their approval will render the ESPP
and any outstanding options thereunder void
and of no effect.
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