Securities Registration: Employee Benefit Plan (s-8)
December 01 2021 - 6:06AM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on November 30, 2021
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
HEARTBEAM,
INC.
(Exact
name of Registrant as specified in its charter)
Delaware
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47-4881450
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(State
or other jurisdiction of
incorporation or organization)
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(I.R.S.
Employer
Identification Number)
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2118
Walsh Avenue, Suite 210
Santa
Clara, CA 95050
(Address
of principal executive offices including zip code)
2015
EQUITY INCENTIVE PLAN
(Full
title of the plans)
Branislav
Vajdic
Chief
Executive Officer
HeartBeam,
Inc.
2118
Walsh Avenue, Suite 210
Santa
Clara, CA 95050
Telephone:
408-899-4443
(Name,
address, and telephone number, including area code, of agent for service)
Copy
to:
Scott
K. Murano
Brian
C. Appel
Wilson
Sonsini Goodrich & Rosati, P.C.
Page
Mill Road, Palo Alto, CA 94304
(650)
493-9300
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”,
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer ☐
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Accelerated
filer ☐
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Non-accelerated
filer ☒
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Smaller
reporting company ☒
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Emerging
growth company ☒
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION
OF REGISTRATION FEE
Title of Securities to be Registered
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Maximum
Amount
to be
Registered(1)
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Proposed
Maximum
Offering
Price Per
Share
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Proposed
Maximum
Aggregate
Offering
Price
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Amount of
Registration
Fee
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Common stock, $0.0001 par value per share:
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- Reserved for issuance pursuant to outstanding awards under the 2015 Equity Incentive Plan
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1,107,786 shares(2)
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$
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2.02
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(3)
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$
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2,237,728
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$
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207.44
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- Reserved for issuance under the 2015 Equity Incentive Plan
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265,030 shares(4)
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$
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4.15
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(5)
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$
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1,099,875
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$
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101.96
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TOTAL
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1,372,816 shares
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$
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3,337,603
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$
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309.40
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(1)
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Pursuant
to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”),
this Registration Statement on form S-8 (this “Registration Statement”)
shall also cover any additional shares of HeartBeam, Inc.’s (the “Registrant”)
common stock that become issuable under the Registrant’s 2015 Equity Incentive Plan
(“2015 Plan”), by reason of any stock dividend, stock split, recapitalization
or other similar transaction effected without receipt of consideration that increases the
number of the Registrant’s outstanding shares of common stock.
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(2)
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Represents
1,107,786 shares of the Registrant’s common stock reserved for issuance pursuant to
options outstanding under the 2015 Plan as of the date of this Registration Statement and
includes 27,085 shares of the Registrant’s common stock subject to early exercisable
options.
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(3)
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Estimated
in accordance with Rule 457(h) under the Securities Act (“Rule 457(h)”)
solely for the purpose of calculating the registration fee. The price of $2.02 represents
the weighted average exercise price for outstanding options under the 2015 Plan as of the
date of this Registration Statement.
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(4)
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Represents
265,030 shares of the Registrant’s common stock reserved for issuance pursuant to future
equity awards under the 2015 Plan as of the date of this Registration Statement.
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(5)
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Estimated
pursuant to Rule 457(c) and 457(h) of the Securities Act solely for purposes of calculating the registration fee. The price per share
is based upon the average of the high and low prices of the common stock on November 24, 2021, as reported by the NASDAQ Capital Market.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement on Form S-8 (the “Registration
Statement”) in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities
Act”), and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form
S-8 will be delivered to the participants in the equity benefit plans covered by this Registration Statement as specified by Rule 428(b)(1)
under the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
HeartBeam,
Inc. (the “Registrant”) hereby incorporates by reference into this Registration Statement the following documents
and information heretofore filed with the Securities and Exchange Commission (the “Commission”):
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(1)
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The
Registrant’s Prospectus dated November 12, 2021, filed with the Commission pursuant to Rule 424(b) under the Securities Act, relating
to the Registration Statement on Form S-1, as amended (File No. 333-259358), which contains the Registrant’s audited consolidated
financial statements for the latest fiscal year for which such statements have been filed;
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(2)
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The
description of the Registrant’s common stock contained in the Registrant’s Registration
Statement on Form 8-A (File No. 001-14060) filed with the Commission on November 10, 2021
pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), including any amendment or report filed for the purpose of updating such
description; and
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(3)
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All
reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the filing
of the Registrant’s Prospectus referred to in (1) above (other than information
in any Current Report on Form 8-K deemed to have been furnished and not filed in accordance
with the rules of the Commission and, except as may be noted in any such Form 8-K, exhibits
filed on such Form 8-K that are related to such information).
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All
documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration
Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered
have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to
have been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this
Registration Statement. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in
any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not
applicable.
Item 5. Interests of Named Experts and Counsel.
Not
applicable.
Item 6. Indemnification of Directors and Officers.
Section
145 of the Delaware General Corporation Law empowers a corporation to indemnify its directors and officers and to purchase insurance
with respect to liability arising out of their capacity or status as directors and officers, provided that the person acted in good faith
and in a manner the person reasonably believed to be in its best interests, and, with respect to any criminal action, had no reasonable
cause to believe the person’s actions were unlawful. The Delaware General Corporation Law further provides that the indemnification
permitted thereunder shall not be deemed exclusive of any other rights to which the directors and officers may be entitled under the
corporation’s bylaws, any agreement, a vote of stockholders or otherwise. The certificate of incorporation of the Registrant provides
for the indemnification of the Registrant’s directors and officers from personal liability in respect of their good faith service
to or for the benefit of the Registrant to the fullest extent permitted under the Delaware General Corporation Law. In addition, the
bylaws of the Registrant require the Registrant to fully indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason
of the fact that such person is or was a director, or officer of the Registrant, or is or was a director or officer of the Registrant
serving at the Registrant’s request as a director, officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such person in connection with such action, suit or proceeding, to the fullest extent permitted by applicable
law.
Section
102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director
of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (2) for
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) for payments of unlawful
dividends or unlawful stock repurchases, redemptions or other distributions or (4) for any transaction from which the director derived
an improper personal benefit. The Registrant’s certificate of incorporation provides that the Registrant’s directors shall
not be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director and that
if the Delaware General Corporation Law is amended after approval by the stockholders to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of the Registrant’s directors shall be eliminated or limited
to the fullest extent permitted by the Delaware General Corporation Law, as so amended.
Section
174 of the Delaware General Corporation Law provides, among other things, that a director who willfully or negligently approves of an
unlawful payment of dividends or an unlawful stock purchase or redemption may be held liable for such actions. A director who was either
absent when the unlawful actions were approved, or dissented at the time, may avoid liability by causing his or her dissent to such actions
to be entered in the books containing minutes of the meetings of the board of directors at the time such action occurred or immediately
after such absent director receives notice of the unlawful acts.
As
permitted by the Delaware General Corporation Law, the Registrant has entered into separate indemnification agreements with each of the
Registrant’s directors and certain of the Registrant’s officers which require the Registrant, among other things, to indemnify
them against certain liabilities which may arise by reason of their status as directors, officers or certain other employees.
The
Registrant plans on obtaining directors’ and officers’ liability insurance insuring its directors and officers against liability
for acts or omissions in their capacities as directors or officers, subject to certain exclusions. Such insurance may also insure the
Registrant against losses, which it may incur in indemnifying its officers and directors.
These
indemnification provisions and the indemnification agreements entered into between the Registrant and the Registrant’s officers
and directors may be sufficiently broad to permit indemnification of the Registrant’s officers and directors for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act of 1933.
Item 7. Exemption from Registration Claimed.
Not
applicable.
Item 8. Exhibits.
Item 9. Undertakings.
A. The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement.
Provided,
however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
B. The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
C. Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Santa Clara, State of California on November 30, 2021.
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HEARTBEAM, INC.
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By:
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/s/
Branislav Vajdic
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Branislav
Vajdic
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Chief
Executive Officer
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POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Branislav Vajdic and Richard
Brounstein, and each of them acting individually, as his or her true and lawful attorneys-in-fact and agents, with full power of each
to act alone, with full powers of substitution and resubstitution, for him or her in his or her name, place and stead, in any and all
capacities to sign any and all amendments to this Registration Statement on Form S-8 (including post-effective amendments), and to file
the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, with full power of each to act alone, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his, her or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature
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Title
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Date
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/s/
Branislav Vajdic
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Chief
Executive Officer and
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November
30, 2021
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Branislav
Vajdic
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Director
(Principal Executive Officer)
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/s/
Richard Brounstein
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Chief
Financial Officer
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November
30, 2021
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Richard
Brounstein
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(Principal
Financial and Accounting Officer)
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/s/
Richard Ferrari
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Director
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November
30, 2021
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Richard
Ferrari
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/s/
Willem Elfrink
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Director
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November
30, 2021
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Willem
Elfrink
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/s/
Marga Ortigas-Wedekind
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Director
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November
30, 2021
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Marga
Ortigas-Wedekind
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/s/
George de Urioste
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Director
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November
30, 2021
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George
de Urioste
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