This document is a court ruling in a case between Ace Precision Inc. and FHP Associates Inc. regarding a disputed asset purchase agreement. The court found that Ace Precision purchased certain tooling, inventory, files and other assets from FHP Associates for $50,000 upfront and agreed to pay additional royalties of 5% on gross sales up to $150,000 over 30 months. The court calculated that Ace owed $42,619.36 in royalties but had not paid any. However, the court found that Ace had not acted in bad faith or failed to use its best efforts to generate sufficient sales to pay the full $150,000 in royalties as required by the agreement.
This document is a court ruling in a case between Ace Precision Inc. and FHP Associates Inc. regarding a disputed asset purchase agreement. The court found that Ace Precision purchased certain tooling, inventory, files and other assets from FHP Associates for $50,000 upfront and agreed to pay additional royalties of 5% on gross sales up to $150,000 over 30 months. The court calculated that Ace owed $42,619.36 in royalties but had not paid any. However, the court found that Ace had not acted in bad faith or failed to use its best efforts to generate sufficient sales to pay the full $150,000 in royalties as required by the agreement.
This document is a court ruling in a case between Ace Precision Inc. and FHP Associates Inc. regarding a disputed asset purchase agreement. The court found that Ace Precision purchased certain tooling, inventory, files and other assets from FHP Associates for $50,000 upfront and agreed to pay additional royalties of 5% on gross sales up to $150,000 over 30 months. The court calculated that Ace owed $42,619.36 in royalties but had not paid any. However, the court found that Ace had not acted in bad faith or failed to use its best efforts to generate sufficient sales to pay the full $150,000 in royalties as required by the agreement.
This document is a court ruling in a case between Ace Precision Inc. and FHP Associates Inc. regarding a disputed asset purchase agreement. The court found that Ace Precision purchased certain tooling, inventory, files and other assets from FHP Associates for $50,000 upfront and agreed to pay additional royalties of 5% on gross sales up to $150,000 over 30 months. The court calculated that Ace owed $42,619.36 in royalties but had not paid any. However, the court found that Ace had not acted in bad faith or failed to use its best efforts to generate sufficient sales to pay the full $150,000 in royalties as required by the agreement.
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MAR-SO-20IZ 11:49AM FROM-HAMPDEN SUPERIOR COURT CLERKS OFFICE
413 737 1611
T-250 P.002/014 F-754 HAMPDEN, ss. HAMPDEN OOUNTY SUPERIOR COURT FILED FEB 2~ 2012 COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT CIVIL ACTION NO. 2009-1084 ACE PRECISlON, INC., v. FHPASSOCIATES INC. & others l FlNDINGS OF FACT, RULINGS OF LA'V, AND ORDERFORroDGMENT INTRODUCTION Plaintiff t Ace Precision Ino. ("Acet')t alleges that defendants, FHP Associates Ir.c. ("FHP"). fonnerly known as Sequel Systems, Inc. ("Sequel"), Roselyn Parkhurst t Leslie J. Farrell, Jennifer Farrell, Allison Farrell-Hannigan and Unlimited Manufacturing Servi4:e Inc. ("iUMS") breached a contract to sell certain of Sequel's business assets to Ace and, in so doing, interfered with Ace's advantageous business relationships. Ace further alleges that the defendants violated a non-competition agreement by directly competing with Ace. Finally, Ace claims that the defendants' conduct was willful and constitutes an unfair and deceptive business practice within the meaning of G. L. c. 93A. The defendants respond in kind, counterclaiming that Ace: (l) breached the asset purchase agreement by failing to make payment as promised; (2) interfered with the defendants' advantageous business relationships; (3) converted certain ofthe defendants' assets to its own use; and (4) engaged in willful unfair and deceptive business practice within the meaning of G. L. c. 93A. A jury-waived trial commenced before nle on I The other defendants are Roselyn A. ParkhUnlt, Leslie 1. Farrell, Jennifer M. Farrell, Allison J. fllIldl-Hannigan and Unlimited Manufacturing Service, Inc. MAR-30-2012 11:50AM FRroA-HAMPOEN SUPERIOR COURT CLERKS OFFICE 413 737 1611 T-250 P.003/014 F-754 Page 2 Qfl2 February 6,2012. At the close ofthe plaintiffs case, the allegations ofbreach of the non- competition agreements were dismissed without opposition as to Leslie Farrell, Jennifer Farren and Allison Farrell-Hannigan. The trial concluded on February 13, 2012. For the reasons that follow, judgment will enter for the defendants on Counts I and II of Acets Complaint. As to the Counterclaims, judgment will enter for the defendants on Count I and for defendant UMS on Count III. Judgment will enter for Ace on the remaining Counterclaims. FINDINGS OF FACT Based on the relevant, credible evidence admitted at trial and the reasonable in1:erences drawn therefrom, I find the following facts: A. T!le Parties Prior to April 8, 2009, Sequel was a small, family-owned business located in Lowell, Massachusetts, engaged in the business of manufacturing and distributing variom. parts and goods for sale to commercial customers, the U. S. Department of Defense and its various agencies. Sisters Roselyn Parkhurst, Leslie Farrell, Jennifer Farrell, and Allison Fmmll-Hanigan were all Sequel shareholders. VMS is a small company in Lowell, Massachusetts operated by Roselyn Parkhurst and her husband James W. Parkhurst. UMS also sells parts to commercial customers ar..d the U. S. Department of Defense. UMS bas not operated as a machine shop. It has always functioned primarily as an assembly and packaging facility. VMS has no employees other than Roselyn and James Parkhurst Prior to April 8, 2009, for approximately 20 years, VMS sold its products from the same physioal space as Sequel. Some of these products had been previollsly manufactured and sold by Container Service, Inc., a company owned and operated by the sisters' father, Thomas Farrell. MAR-30-2012 11:50AM FROM-HAMPDEN SUPERIOR COURT CLERKS OFFICE 413 737 1611 T-250 P.004/014 F-754 Page 3 of12 When Container Service, Inc. went out of business in 1988, ownership of tooling for some ofits product line, including coupling assemblies and fire handles, was trallsferred to UMS. Ace, a Massachusetts corporation with a principal place of business in Agawam, Massachusetts, maintains a machine shop with approximately 20 employees. Ace manufactures and sells precision-machined, specially manufactured parts to the aerospace industry. Prior to April 8, 2009, Ace had limited experience in selling parts to govenunent defense eontracting purchasers. B. The Asset Purcbase Agreement In March 2009, Ace and Sequel entered into negotiations for the sale of certain Sequel assets. Sequel had already begun winding down its business and effectively ceased doing business before the sale. On or about April 8, 2009, Sequel, as Seller, entered into an "Agreement for Purchase and Sale of Certain Assets" (lithe Asset Purchase Agreenent") with Ace, as Buyer, in which Ace purchased certain "tooling, inventory, assorted files and certain other assets'I of Sequel. (Ex. 4- Tabs 1-13). A Bill of Sale executed by Sequel and made part of the Asset Furchase Agreement provided in relevant part that the "SELLER hereby sells the Inventory, Tooling a:nd other physical assets descn'bed above in 'as is' and 'where is' condition." The "physical assets" included "the files located in Seller's office at the above address as of the date hereof." (Ex. 4 ~ Tab I-last page). The principals of both Sequel and Ace were experienced and sopmsticat.::d business people. They negotiated the Asset Purchase Agreement over time with both sides ret,resented by counsel. Although Ace's principal, Antoine Elias ("Elias") testified that he believed that he was bUying Sequel's <'whole business," the plain language of the agreement stated othE:1Wise. Not only were the assets limited to "tooling, inventory, assorted files and certain other assets," but the MAR-SO-lOll 11:50AM FROM-HAMPDEN SUPERIOR COURT CLERKS OFFICE 413 737 1611 T-25U P.005/014 F-754 Page 4 o12 Asset Purchase Agreement specifically stated that Ace was not buying the entire bu;iness and that certain business assets had already been sold to others. The Asset Purchase Agteement provided in Section IX that Ace would pay the "Purchase Price" by paying a $10,000.00 deposit, which had already been paid on March 23, 2009, and an additional $40,000 at the time of closing, which Ace paid. The balance of the Purchase Price; "not to exceed $150,000", was to be 'paid monthly to Sequel in the form of' 'royalties consisting of 5% of gross sales," by Ace or its successors within 30 months after the closillg. These royalties were applicable "to all government Contracts and purchase orders (exduding only"those which Ace had on March 18, 2009 and also excluding payments for work done by Ace for Sequel prior to the Closing) and also to aUcommercial purchase orders resulting from the Use of Sequel's name, telephone number, fax number, email and addresses, technical data, tooling Or efforts such as supplying of govemmentsoHcitations to Ace to bid and training of Ace or its employees on aspects ot"contracting." (Ex. 4 - Tab 1), There is a dispute regarding \/hether this contract language limits revenue subject to royalties to all sales with a Sequel history or siw.ply commercial sales with Sequel history. Lconclude that the parenthetical phrase referenced above lists the onlycxclusions to governm:ent contracts that the parnes for those.. ',... -.-,,-, ...:.'.' .... :" ... '.' ,." ..... ' "',',.. -'." --.'.'<.,,:. :-.';"';'.' -.:" "'--'---.' ,.' -:':.:"-"', ", ",' , _. '-.' '.'" ----_.. --. whether pad with,the;govemmemtiOmrll9L .' ,. - - .'-, - - ".' ____. ;.. . , .. '.-.,_ _-_-, :- .-- _" . OCOC __ OC. '.--'.' In the 30. monthperiodfroril April 8, 2009, thrQugh October 8, 2011, Ace made gross sales of $852,381.13, which were subject to a5% royalty under the Asset Purchase Agreei:nent. Total royalties owed by Ace to PaP under the Asset Purchase Agreement are therefore MAR-30-2012 11:50AM FROM-HAMPDEN SUPERIOR COURT CLERKS OFFICE 413 737 1611 T-250 P.006/014 F-754 Page 5 ofl2 $42,619.36.' (Exs. 51, 52 and 53). It is undisputed that Ace has not paid FHP any royalties under the Asset Purchase Agreement. 2 The Asset Purchase Agreement also provided that "The BUYER warrants BUYER will use its best efforts to produce sales sufficient to provide SELLER with $150.000.00 in royalties as provided in IX above as soon as feasible after the closing" and that "BINERwill make monthly royalty payments of such royalties not later th3n the end of the month after the gross sales are earned." (Ex. 4 - Tab 1). FHP claims that Ace has failed to use its best efforts to produce sales sufficient to provide SEtLER with $150,000.00 in royalties by: (1) not actively bidding on government contracts that would generate royalties; (2) canceling contracts; and (3) intentionally misclassifying jobs to avoid paying royalties to FliP. After consideration of all of the evidence and assessing the credibility of the principals, I am not persuaded that Ace, either by acts of commission or omission, acted in bad faith to reduce royalty generating sales. I therefore conclude that Ace used its best efforts to generate sales that were royalty eligible under the tenns ofthe Asset Purchase Agreement. The Asset Purchase Agreement required Leslie and Jennifer Farrell, as part of the purchase price, to provide training to Ace for 16 days. The Asset Purchase Agreement further provided that any additional training was to be negotiated and paid for separately. Elias acknowledged, and I find, that the 16 days oftraining were provided. In the months immediately following the sale of assets to Ace, Leslie and Jennifer Farrell agreed to provid: additional training at Ace's request. Ace agreed to pay the Farrell's $20 per hour for the. additional I On or about April 8, 2009, Sequel changed its name to FHP Associates, Inc. FHP is the successor iI. interest to Sequel under the Asset Purchase Agreement 2 There was evidence dult Ace has placed certain funds in escrow pending resolution of this dispute. MAR-30-2012 11:51AM FROM-HAMPDEN SUPERIOR COURT CLERKS OFFICE 413 737 1611 T-250 P.OOTI014 F-754 :>age6 of 12 training. I find that the additional training was provided and that the Farrell's properl)l invoicecJ. Ace for these services in the amount of$1,600.00 (Ex. 48). Ace has not paid for these services. There was a conflict in the evidence as to whether or not Sequel transferred all of its job files to Ace as required by the Asset Purchase Agreement. Ace employee Robert Rowe testified that after the dispute with Sequel arose, he perfonned an analysis of Sequel's jcb files by comparing the parts and jobs referenced in Sequel's computer data base with the physical job files transferred to Ace by Sequel. Based on that comparison he concluded that were 150 files missing which he believed should have been transferred pursuant to the MSt:t purchase agreement. Ace provided this list to Leslie Farrell, Sequel's accounting and finant:e director, who conducted her own analysis of the claimed missing files. She testified that none :>fSequel's job files had been held back fot any reason, that her own analysis ofthe physical files transferred revealed that there were only 19-20 files missing, or 4% of the total files transferred. By way of explanation, Leslie Farrell testified that separate job files were not created for every job. Historically, Leslies father would direct her as to whether or not a physical job should be created. In other instances, files for govenunent contracts were not maintained if the contracts had been cancelled. Finally, she testified that some ofthe files Ace claimed as missing were in a black box of files that had been transferred to Ace along with the approximately 30 file cabinets of historical Sequel job files. r found Leslie Farrell's testimony and the documentary evidence she presented to be more credible than the testimony and documents presented by Robert Rowe. Accordingly, I conclude that substantially all of Sequel's job files were transferred to Ace as set forth in the Asset Purchase Agreement. In short, I :find that Sequel, now known as FHP7 fully perfonned its obligations under the Asset Purchase Agreement including the obligation to transfer to Ace all tooling. inventory and MAR-30-2012 11:51AM FROM-HAMPDEN SUPERIOR COURT CLERKS OFFICE 413 737 1611 T-250 P.008/014 F-754 J 1 age7of12 contract :files, history files and other files in "as is" and "where is" condition, as set forth in that Agreement. c. The Non-competition A g r e e m e n ~ The Asset Purchase Agreement provided that "[t]he shareholders of the SELLER agree to enter into a non-compete agreement with the BUYER providing that so long tIS BUYER is not in default of this Agreement, the shareholders will not directly or indirectly own and operate a company that directly com.petes with the business being sold hereunder for 2 years frcm the date ofclosing" (emphasis added) Ex. (4 - Tab 1). The Asset Purchase Agreement also provided that the non-compete agreement executed by shareholder Roselyn Parkhurst i'shall not preclude [her] from continuing her ownership and operation ofUnHmited Manufacturing Service, Inc. (or a successor or assign) as a. business that engages in defense contracting SO long as such company does not have more than twenty (20%) percent of its business as the same product line sold by SELLERto the BUYER heretnder:' (Ex. 4-Tab 1). Pursuant to the Asset Purchase Agreement, Sequel's shareholders each entered into a Non-competition Agreement with Ace providing that, with certain exceptions, they were not to directly or indirectly own and operate a company that directly competes with the bm:iness being sold for 2 years from the date of closing. Roselyn Parkhurst's Non-Competition Agreement also provided that she would not be prohibited l'fTom operating as a business that e n g a g e ~ in defense contracting so long as such company does not have more than twenty (20%) pErcent of its business as the same product line sold by Sequel to the Ace." (Ex. 4 - Tab 5). Although the Asset Purchase Agreement did not require VMS to enter into a Non- Compete Agreement, UMS entered into a Non-competition Agreement as part and parcel of the MAR-30"2012 11:51AM FROMrHAMPDEN SUPERIOR COURT CLERKS OFFICE 413 737 1611 T-250 P.009/014 F-754 hgc8of12 Asset Purchase Agreement. VMS's Non-competition Agreement does not prohibit "fi:om operating as a business that engages in defense contracting so long as such compan)' does not have more than twenty (20%) percent of its business as the same product line sold by Sequel to Ace." (Exh. 4 - Tab 5). D. Tbe Con'fersion 1. The Castings On May 4, 2009, VMS requested that Ace machine 25 aluminum plug castings for a coupling assembly and return the machined castings upon completion. (Ex. 63). Elias acknowledged receipt of the castings. He stated that after the dispute with Sequel and VMS arose, the work was never done and the castings were never returned. VMS purchased the castings for $11.85 each or $296.25. 2. The Computer To facilitate the training of Ace employees, Leslie and Jennifer Farrell took two desktop computers and a laptop computer to Ace's office. They intentionally left one of the desktop computers behind when the training ended. Approximately four months later, after the dispute with Ace arose, the Farrell's, through their attorney, demanded that the computer he returned. Ace refused and continued to use the computer for ten months. Ultimately, Ace Ietwlled the computer in May 2010. Before doing so, Ace copied and transferred all fihs to Ace's computer. There was no evidence regarding the value ofthe computer or its contents. CONCLUSIONS OF LAW A. Claims Related to The Asset Purchase Agreement In order to prevail on a breach of contract claim, a party must establish: (l) the existence of an enforceable contract; (2) breach of that contract; and (3) resulting damages. v. MAR-SO-2012 11:51AM SUPERIOR COURT CLERKS OFFICE 413 737 ISll T-250 P.OIO/014 F-754 )lage90f12 City ofBoston, 342 Mass. 385,387 (1961). In my judgment, Ace has failed to establish a breach of the Asset Purchase Agreement. For the reasons set forth in greater detail in my findings of fact, I conclude that the defendants transferred Sequel's tooling, inventory and assorted files to Ace as required by the Asset Purchase Agreement. The job files Ace claims are miHsing were not improperly withheld by Sequel. Moreover. even if there was evidence that Sequel was responsible for some missing files. I conclude that the small number of files not transferred would not have amounted to a material breach of the Asset Purchase Agreement. J therefore, conclude that the defendants fully perfonned their obligations under the Assel; Purchase Agreement. Judgment win enter for the defendants on Count I ofAce's Verified Complaint. I further conclude that Ace breached the Asset Purchase Agreement by failing to make royalty payments as agreed in the amount of $42,619.36 and failing to pay the $1.600 invoice for training provided by Leslie and Jennifer Farrell. However, as set forth the defendants failed to prove that Ace breached the Asset Purchase Agreement by failing to use its best efforts to generate royalty sales and failed to prove that Ace diverted business frOID. UMS to Ace. Accordingly, the defendants are entitled to judgment on Count 1 of their Counterclaim in the amount of$44,219.36. B. Claims Related To The Non-Competition Agreement Ace was "in default" ofthe Asset Purchase Agreement no later than June 1, 2(109, when it failed and refused to pay FHP royalties owed under the Agreement on gross sales previously earned by Ace. Ace continued to be in default of the Agreement by refusing to pay FHP any royalties due and owing \U1der the Agreement. Because the Non-Competition Agreements entered into by UMS and Roselyn Parkhurst only apply so long as BUYER is not in difault ofthe Asset Purchase Agreement, I conclude it is \U1enforceable in this case. I need not MAR-30-2012 fl:52AM FROM-HAMPDEN SUPERIOR COURT CLERKS OFFICE 413 T37 1511 T-Z50 P. 011/014 F-754 Prjge 10 of 12 reach the questions of consideration for the Agreemen4 reasonableness ofits time and ~ ; c o p e . and the alleged breach of the agreement by VMS and Roselyn Parkhurst. To the extent that Ace's Verified Complaint alleges that UMS and Roselyn Parkhurst breached the Non-competition Agreements, judgment will enter for UMS and Parkhurst. D. Claims Alleging Interference with Advantageous Business Relationships In order to make out a claim for interference with advantageous business relationships, a plaintiff must prove that: (l) he had a business relationship for economic benefit with a third party; (2) the defendants knew of the relationship; (3) the defendants interfered with the relationship through improper motive or means, and (4) the plaintiff's loss of advantage resulted directly from the defendant's conduct. b,dcom Prods.. Inc. v. Konica Business Machines. USA, Inc., 41 Mass. App. Ct. 101, 104 (1996). After consideration of all the evidence, and for the reasons set forth above, I am not persuaded that any party has established by a prepollderance of the evidcmce that their advantageous business relationships were interfered wi th through improper motive or means. Accordingly, to the extent that Count I alleges such interference, judgment will enter for the defendants. As to Count nofthe Counterclaim, judgment will enter for Ace. C. ConversioJ!..Claims The elements of conversion may be established by a shDwing that one parly ex.ercised dominion and control over the property of another, without right, thereby depriving the owner of its use. In re Hilson, 448 Mass. 603 1 611 (2007). I conclude that VMS has proven that Ace, by refusing to return the 25 castings which belonged to VMS, converted that property tc. its own use without right. VMS is therefore entitled to judgment against Ace on Count III of the Counterclaim in the amount of$296.25. 11:52AM SUPERIOR COURT CLERKS OFFICE 413 737 1611 T-Z50 P. 0121014 F-754 11 of 12 As to the desktop computer that Leslie and Jennifer Farrell left behind, I am not persuaded that Ace ex.ercised dominion and control over it when it was left behind. I conclude from the evidence before me that Leslie Farrell. knowing that Sequel had effectively ceased ,)peration, either gave Ace the desktop computer or abandoned it. Even assuming that a conversion occurred when Ace failed to immediately return Sequel's desktop computer it was requested after the dispute arose, the defendants failed to prove damages for the 1,)s5 of the computer. Accordingly, judgment will enter for Ace on Count VI ofthe Counterclaim. D. Unfair and Deceptive Business Practices Both sides allege that the other engaged in unfair and deceptive business practices in violation of G. L. c. 93A, Sections 2 and 11. Section 2 prohibits '1mfair or deceptlve acts or practices in the conduct ofany trade or commerce." An action is "unfair" if it is "(1) within the penumbra of a common law, statutory, or other established concept of unfairness; [or] (2) immoral, unethical, oppressive or unscrupulous." Milliken & Co. v. Duro Textiles. LLC, 451 Mass. 547, 563 (2004), quoting Morrison v. Toys "R" Us, Inc., 441 Mass. 451, 457 (2004). Businesses seeking reliefunder Section 11 are held to a stricter standard than in terms of what constitntes unfair or deceptive conduct. Anthony's Pier Four, Inc. v. HBC Associates. 411 Mass. 451, 475-476 (1991). "In such circumstances, a claimant would have to show a greater 'rascality' than would a less sophisticated party:' Id. at 475. Considering these standards and the evidence before me. I am not persuaded that any party engaged in the kind of sharp practice actionable under c. 93A. especially of the type required in the rough and tumble world of commerce, Accordingly, judgment will t:nter for the defendants on Count II and for Ace on Counts N and V ofthe Counterclaim. MAR-30-2012 ll:52AM FROM-HAMPDEN SUPERIOR COURT CLERKS OFFICE ORDER. 413 737 1611 T-Z50 P.013/014 F-754 Pf.ge 12 of 12 1. As to Counts I and II of Ace's Verified Complaint, Judgment will enter for the defendants. 2. As to Count I of the Counterclaim, judgment will enter for FHP in the :illlOunt of $44,219.36. 3. As to Count II ofthe Counterclaim, judgment will enter for Ace. 4. As to Count III of the Counterclaim, judgment will enter for UMS in the amount of $296.25. 5. As to Counts IV, V and VI ofthe Counterclaim, judgment will enter for A C t ~ . As to statutory interest owed from. the date of the breach, counsel for the defe:i1dants will serve his proposed calculation on Ace pursuant to Superior Court Rule 9A on or be::ore March 16,2012. C.Je r Justice of the Superior Court DATED: February 24,2012 MAR-30-Z0lZ 11:5SAM FROM-HAMPDEN SUPERIOR COURT CLERKS OFFICE 413737 1611 Commonwealth of Massachusetts County of Hampden The Superior Court 1-250 P.014/014 F-754 Ace Precision. Inc., Plaintiff J1AMPDEN COUNW'L DOCKET# HDCV2009010B4 SUPERIOR COURT FILED MAR 30 2012 v. FHP Associates, Inc., f/k/a, Roselyn A. Parkhurst, Leslie J. Farrell, Jennifer M. Farrell, Allison J. Farrell-Hannigan and Unlimited ManUfacturing Service, Inc., Defendants JUDGMENT ON FINDING OF THE COURT This action came on for trial before the Court, C. Jeffrey Kinder. Justice presiding, and the issues having been duly tried, and findings having been rendElred, It is ORDERED and ADJUDGED as follows: 1. As to Counts I and II of Ace's Verified Complaint, Judgment will enter f,)r the defendants. 2. As to Count I of the Counterclaim. JUdgment will enter for FHP in the smount of $44.219.36. 3. As to Count II of the Counterclaim, Judgment will enter for Ace. 4. As to Count III of the Counterclaim, Judgment will enter for UMS in the! amount of $296.25 5. As to Counts IV, V and VI of the Counterclaim, Judgment will enter for Ace. SO ORDERED. Dated at Springfield, Massachusetts this 30th day of March. 2012 ,,1 .., 1/ .,......./ C""l _. __....,-._- ,,,,' I / .,,-. I By: 4<d4.:!J . .... / . I
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