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Exhibit 1.1
UnitedHealth Group
Incorporated
Debt
Securities
Underwriting
Agreement
February 4,
2008
Banc of America Securities
LLC
Citigroup Global Markets Inc.
J.P. Morgan Securities Inc.
As Representatives of the
several Underwriters
named in Schedule I to the
applicable Pricing Agreement
c/o Citigroup Global Markets
Inc.
388 Greenwich Street New York, New York
10013
Ladies and Gentlemen:
From time to time
UnitedHealth Group Incorporated, a Minnesota corporation (the
“ Company ”), proposes to enter into one or more
Pricing Agreements (each a “ Pricing Agreement
”) in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the
terms and conditions stated herein and therein, to issue and sell
to the firms named in Schedule I to the applicable Pricing
Agreement (such firms constituting the “ Underwriters
” with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the “
Securities ”) specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the “
Designated Securities ”).
The terms and rights of any
particular issuance of Designated Securities shall be as specified
in the Pricing Agreement relating thereto and in or pursuant to the
Indenture, dated as of February 4, 2008 (the “
Indenture ”), between the Company and U.S. Bank
National Association, as Trustee (the “ Trustee
”).
1. Particular sales of
Designated Securities may be made from time to time to the
Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
“ Representatives ”). The term
“Representatives” also refers to a single firm acting
as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or
their representatives. This Underwriting Agreement shall not be
construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to
purchase the Securities. The obligation of the Company to issue and
sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced
by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the
aggregate principal amount of such Designated Securities, the
initial public offering price of such Designated Securities, the
purchase price to the Underwriters of such Designated Securities,
the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal
amount of such Designated Securities to be purchased by each
Underwriter and shall set
forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The
Pricing Agreement shall also specify (to the extent not set forth
in the Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing
Agreement shall be in the form of an executed writing (which may be
in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted.
The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company has prepared
and filed with the Securities and Exchange Commission (the “
Commission ”) under the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “ Securities Act ”), an
“automatic shelf registration statement” (as defined in
Rule 405 under the Securities Act) on Form S-3 (File
No. 333-149031), including a base prospectus, relating to the
Securities. The base prospectus filed as part of such registration
statement, in the form in which it has most recently been filed
with the Commission prior to or on the date of the Pricing
Agreement relating to the Designated Securities, shall be
hereinafter called the “ Base Prospectus ”; any
preliminary prospectus (including any preliminary prospectus
supplement) relating to the Designated Securities filed with the
Commission pursuant to Rule 424(b) under the Securities Act, shall
be hereinafter called a “ Preliminary Prospectus
”; the various parts of such registration statement,
including all exhibits thereto (other than the Form T–1 of
U.S. Bank National Association) and any prospectus supplement
relating to the Designated Securities that is filed with the
Commission and deemed by Rule 430B under the Securities Act to be
part of such registration statement, each at the time such part of
such registration statement became effective, shall be hereinafter
called the “ Registration Statement ”; the form
of the final prospectus (including the final prospectus supplement)
relating to the Designated Securities filed with the Commission
pursuant to Rule 424(b) under the Securities Act in accordance with
Section 7(a) hereof shall be hereinafter called the “
Prospectus ”; any reference herein to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act, as of the date of such prospectus;
any reference to any amendment or supplement to the Base
Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date
of such prospectus under the Securities Exchange Act of 1934, as
amended (the “ Exchange Act ”), and incorporated
by reference in such prospectus; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include
any annual report on Form 10–K of the Company filed pursuant
to Section 13(a) or 15(d) of the Exchange Act after the
applicable effective date of the Registration Statement and that is
incorporated by reference in the Registration Statement. All
references in this Agreement to the Registration Statement, the
Preliminary Prospectus, the Prospectus, any other preliminary
prospectus relating to the Securities, or any amendments or
supplements to any of the foregoing, shall include any copy thereof
filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System (“ EDGAR
”).
3. The Company represents and
warrants to, and agrees with, each of the Underwriters
that:
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(a) The Registration
Statement and any post-effective amendment thereto, each in the
form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to the Registration Statement but including
all documents incorporated by reference in each prospectus
contained therein, delivered to the Representatives for each of the
other Underwriters, became effective under the Securities Act upon
filing with the Commission; no other document with respect to the
Registration Statement or any such document incorporated by
reference therein has heretofore been filed or transmitted for
filing with the Commission except for: (i) any prospectuses,
preliminary prospectus supplements and prospectus supplements
previously filed in connection with the offer and sale of
Securities (other than the Designated Securities) pursuant to the
Registration Statement; (ii) any prospectus and preliminary
prospectus supplement relating to the Designated Securities; and
(iii) any other documents identified in the Pricing Agreement
with respect to the Designated Securities. No stop order suspending
the effectiveness of the Registration Statement or any
post-effective amendment thereto has been issued, no proceeding for
that purpose has been initiated or, to the knowledge of the
Company, threatened by the Commission, and no notice of objection
of the Commission to the use of the Registration Statement or any
post-effective amendment thereto for the registration of the offer
and sale of the Securities by the Company pursuant to Rule
401(g)(2) under the Securities Act has been received by the
Company;
(b) The documents
incorporated by reference in the Registration Statement, the Time
of Sale Information (as defined in the Pricing Agreement) or the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement, the Time
of Sale Information, the Prospectus, or any further amendment or
supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of an Underwriter of
Designated Securities through the Representatives expressly for use
in the Time of Sale Information or the Prospectus as amended or
supplemented relating to such Securities;
(c) The Registration
Statement and the Prospectus conform, and any further amendments or
supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the
Securities Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission thereunder
(collectively, the “ Trust Indenture Act ”) and
do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of its date
as to the Prospectus and as of the Time of Delivery as to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
provided, however,
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that this representation and warranty
shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of an Underwriter of Designated Securities
through the Representatives expressly for use in the Time of Sale
Information or the Prospectus as amended or supplemented relating
to such Securities;
(d) The Time of Sale
Information at the Time of Sale (as defined in the Pricing
Agreement) did not, and at the Time of Delivery will not, contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by or on behalf of
such Underwriter through the Representative expressly for use in
such Time of Sale Information;
(e) Other than the
Preliminary Prospectus and the Prospectus, the Company (including
its agents and representatives, other than the Underwriters in
their capacity as such) has not made, used, prepared, authorized,
approved or referred to and will not prepare, make, use, authorize,
approve or refer to any “written communication” (as
defined in Rule 405 under the Securities Act) that constitutes an
offer to sell or solicitation of an offer to buy the Securities
(each such communication by the Company or its agents and
representatives (other than a communication referred to in clause
(i) below) an “ Issuer Free Writing Prospectus
”) other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Securities
Act or Rule 134 under the Securities Act or (ii) the documents
listed on Schedule III to the Pricing Agreement, any electronic
road show and other written communications approved in writing in
advance by the Representative; and each such Issuer Free Writing
Prospectus has been filed in accordance with the Securities Act (to
the extent required thereby) and does not conflict with the
information contained in the Registration Statement, the
Preliminary Prospectus or the Prospectus and, when taken together
with the Preliminary Prospectus accompanying, or delivered prior to
delivery of, such Issuer Free Writing Prospectus, did not at the
Time of Sale, and at the Time of Delivery will not, contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in each
such Issuer Free Writing Prospectus in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by or on behalf of such Underwriter
through the Representative expressly for use in any Issuer Free
Writing Prospectus;
(f) The financial statements
and the related notes thereto included or incorporated by reference
in the Registration Statement, the Time of Sale Information and the
Prospectus comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly the consolidated financial position
of the Company as of the dates indicated and the results of
operations and the changes in cash flows for the periods specified;
such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis throughout the periods covered thereby, except as may be
expressly stated in the related notes thereto, and the supporting
schedules included or incorporated by reference in the Registration
Statement present fairly the
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information required to be stated
therein; and the other financial information with respect to the
Company included or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus has been
derived from the accounting records of the Company and its
subsidiaries and presents fairly the information shown
thereby;
(g) Except as otherwise set
forth in the Time of Sale Information and the Prospectus, since the
date of the most recent financial statements included or
incorporated by reference in the Time of Sale Information and the
Prospectus, there has been no material adverse change, or any
development that could reasonably be expected to result in a
material adverse change, in the financial condition, earnings,
business, properties or results of operations of the Company and
its subsidiaries, taken as a whole (any such change, a
“Material Adverse Change”);
(h) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Minnesota, with corporate
power and authority to own its properties and conduct its business
as described in the Time of Sale Information and the Prospectus,
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except
where the failure to be so qualified would not have a material
adverse effect on the financial condition, earnings, business,
properties or results of operations of the Company and its
subsidiaries taken as a whole (a “ Material Adverse
Effect ”); and each of the Company’s Subsidiaries
(as used herein, “ Subsidiaries ” shall mean any
subsidiaries of the Company that meet the conditions for a
“significant subsidiary” set forth in Rule 1-02(w) of
the Commission’s Regulation S-X) has been duly incorporated
or formed and is validly existing as a corporation or a limited
liability company in good standing under the laws of its
jurisdiction of incorporation or formation and has been duly
qualified as a foreign corporation or limited liability company for
the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except
where such failure to qualify would not have a Material Adverse
Effect; all of the issued shares of capital stock of each of the
Subsidiaries of the Company, or membership interests, as the case
may be, are (except for director’s qualifying shares) owned
directly or indirectly by the Company;
(i) The Securities have been
duly authorized and, when Designated Securities are issued and
delivered pursuant to this Agreement and the Pricing Agreement with
respect to such Designated Securities, such Designated Securities
will have been duly executed, issued and delivered by the Company
and will constitute valid and binding obligations of the Company
entitled to the benefits provided by the Indenture, under which
they are to be issued; the Indenture has been duly authorized,
executed and delivered, is duly qualified under the Trust Indenture
Act, conforms in all material respects with the requirements of the
Trust Indenture Act and constitutes a valid and binding instrument,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; this
Agreement and the Pricing Agreement with respect to the applicable
Designated Securities have been duly authorized, executed and
delivered by the Company; and the Indenture conforms, and the
Designated Securities will conform, in all material respects to the
descriptions thereof contained in the Time of Sale Information and
the Prospectus as amended or supplemented with respect to such
Designated Securities;
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(j) The issue and sale of the
Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture, this Agreement and any
Pricing Agreement, and the consummation of the transactions
contemplated herein and therein and in the Time of Sale Information
and the Prospectus (including the issuance and sale of the
Designated Securities and the use of proceeds from the sale of the
Designated Securities as described in the Time of Sale Information
and the Prospectus) will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, (i) the Articles of Incorporation or By-laws of
the Company, (ii) any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, or (iii) any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their
properties, except in the case of (ii) and (iii) for any
such breach or violation or default which would not have a Material
Adverse Effect; and no consent, approval, authorization, order,
filing, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the
transactions contemplated by this Agreement, or any Pricing
Agreement, or the Indenture, except filings pursuant to the
Securities Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(k) The statements set forth
in the Preliminary Prospectus and Prospectus as amended or
supplemented under the captions “Description of Senior Debt
Securities” and “Description of the Notes”,
insofar as they purport to constitute a summary of the terms of the
Designated Securities and the Indenture and purport to constitute
matters of law or legal conclusions, are accurate in all material
respects;
(l) Neither the Company nor
any of its subsidiaries is in default in the performance or
observance of any obligation, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it
or any of its properties may be bound other than those defaults
which would not individually or in the aggregate would have a
Material Adverse Effect, and neither the Company nor any of its
subsidiaries is in violation of its Articles of Incorporation (or
Certificate of Incorporation or Certificate of Formation, as the
case may be) or By-laws (or Limited Liability Company Agreements,
as the case may be) except for any such violation that would not
have a Material Adverse Effect;
(m) Other than as set forth
in the Time of Sale Information and the Prospectus, there are no
legal or governmental proceedings pending or, to the
Company’s knowledge, threatened to which the Company or any
of its subsidiaries is would be a party or of which any property of
the Company or any of its subsidiaries is or would be the subject
which would individually or in the aggregate result in a Material
Adverse Effect;
(n) The Company is not and,
after giving effect to the offering and sale of the Securities,
will not be an “investment company”, as such term is
defined in the Investment Company Act of 1940, as amended (the
“ Investment Company Act ”);
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(o) The Company maintains a
system of “internal control over financial reporting”
(as defined in Rule 13a-15(f) of the Exchange Act) that complies
with the requirements of the Exchange Act and provides reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles; and
except as disclosed in the Time of Sale Information and the
Prospectus, there are no material weaknesses in the Company’s
internal controls;
(p) The Company, and to the
knowledge of the Company, the Company’s directors or
officers, in their capacities as such, are, and have been in,
material compliance with any applicable provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith;
(q) The Company is not an
ineligible issuer and is a well-known seasoned issuer, in each case
as defined under the Securities Act, in each case at the times
specified in the Securities Act in connection with the offering of
the Designated Securities; and
(r) Deloitte &
Touche LLP, who have certified certain financial statements of the
Company and its subsidiaries incorporated by reference in the Time
of Sale Information and the Prospectus, are independent public
accountants as required by the Securities Act and the rules and
regulations of the Commission thereunder.
4. Upon the execution of the
Pricing Agreement applicable to any Designated Securities and
authorization by the Representatives of the release of such
Designated Securities, the several Underwriters propose to offer
such Designated Securities for sale upon the terms and conditions
set forth in the Prospectus as amended or supplemented.
5. Designated Securities to
be purchased by each Underwriter pursuant to the Pricing Agreement
relating thereto, in the form specified in such Pricing Agreement,
and in such authorized denominations and registered in such names
as the Representatives may request upon at least forty-eight
hours’ prior notice to the Company, shall be delivered by or
on behalf of the Company to the Representatives for the account of
such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company to the
Representatives at least forty-eight hours in advance or at such
other place and time and date as the Representatives and the
Company may agree upon in writing, such time and date being herein
called the “ Time of Delivery ” for such
Securities.
6. The Company acknowledges
and agrees that the Underwriters are acting solely in the capacity
of an arm’s length contractual counterparty to the Company
with respect to the offering of Securities contemplated hereby
(including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally, neither
the Representative nor any other Underwriter is advising the
Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company
shall consult with its own advisors concerning such matters and
shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the
Company with respect thereto, except as expressly set forth in
Section 11 hereof. Any review by the
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Underwriters of the Company, the
transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the
Underwriters and shall not be on behalf of the Company. The Company
hereby waives and releases, to the fullest extent permitted by law,
any claims that the Company may have against the several
Underwriters with respect to any breach or alleged breach of
fiduciary duty in connection with the transaction contemplated
herein.
7. The Company further agrees
with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus
as amended or supplemented in relation to the applicable Designated
Securities in a form approved by to the Representatives and to file
such Prospectus pursuant to Rule 424(b) under the Securities Act
not later than the Commission’s close of business on the
second business day following the execution and delivery of the
Pricing Agreement relating to the applicable Designated Securities
or, if applicable, such earlier time as may be required by Rule
424(b); to file any Issuer Free Writing Prospectus to the extent
required by Rule 433 under the Securities Act; to make no further
amendment or any supplement to the Registration Statement, any
Issuer Free Writing Prospectus or the Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such
Securities which amendment or supplement is not approved by the
Representatives for such Securities promptly after reasonable
notice thereof; to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so
long as the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Securities Act) is
required in connection with the offering or sale of such
Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been
filed or becomes effective or any amendment or supplement to any
Issuer Free Writing Prospectus or the Prospectus has been filed
with the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of the
Preliminary Prospectus or any other prospectus relating to the
Securities, of the suspension of the qualification of such
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose or
pursuant to Section 8A of the Securities Act, of the
occurrence of any event during the Prospectus Delivery Period (as
defined in Section 8(e) hereof) as a result of which any Time
of Sale Information, any Issuer Free Writing Prospectus or the
Prospectus, as then amended or supplemented, would include any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances existing
when any such Time of Sale Information, Issuer Free Writing
Prospectus or the Prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Securities Act) is delivered
to a purchaser, not misleading and of the receipt by the Company of
any notice with respect to any suspension of the qualification of
the Securities for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
the Company will use its reasonable best efforts to prevent the
issuance of any such order suspending the effectiveness of the
Registration Statement, preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification of the Securities; and if any such order is issued or
the Company receives
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notice suspending the Registration
Statement, preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification
of the Securities and, if any such order is issued, will obtain as
soon as possible the withdrawal thereof;
(b) Promptly from time to
time to take such action as the Representatives may reasonably
request to qualify such Securities for offering and sale under the
securities laws of such jurisdictions as the Representatives may
request and to comply with such laws so as t
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