Speech by SEC Staff:
|The Securities and Exchange Commission, as a matter of policy, disclaims responsibility for any private publication or statement by any of its employees. The views expressed herein are those of Mr. Roye and do not necessarily reflect the views of the Commission, the Commissioners, or other members of the Commission's staff.|
Thank you and good morning. It's a pleasure to be here with all of you today as you begin a rigorous immersion in the world of investment company regulation. In my view, the regulatory scheme governing investment companies is one of the most important areas of the federal securities laws. This is because of the tremendous size of the industry that it regulates and the importance of the fund industry to the financial health of millions of Americans.
Investment companies are one of America's primary savings and investment vehicles. A strong stock market and robust American economy provided a favorable environment for continued investment company growth during 1999, as assets increased by more than $1.3 trillion. As of March 31, 2000, over $7.6 trillion was invested in investment companies. At the end of 1999, a total of 30,455 investment company portfolios were managed or sponsored by 1,080 investment company complexes. The $7.6 trillion in assets managed by investment companies today is more than double the $3 trillion on deposit at commercial banks.
The Investment Company Act, the principal statute that regulates investment companies, is perhaps the most complex of the federal securities laws. A reason the '40 Act is somewhat daunting is the fact that it specifically addresses virtually every aspect of investment companies' operations. Fortunately, the securities lawyer just beginning to delve into the regulation of investment companies will find some familiar territory. The regulation of investment companies is based on the same principles of full and fair disclosure that are the foundation of the federal securities laws. Therefore, investment companies are subject to substantially similar disclosure and reporting requirements that apply to other issuers, embodied in the Securities Act of 1933 and the Securities Exchange Act of 1934, with one major difference. Mutual funds typically offer their shares continuously and thus must maintain current prospectuses.
However, the reach of the '40 Act extends beyond mere disclosure and reporting requirements. The '40 Act is, in effect, a comprehensive corporate statute. It places substantive restrictions on virtually every aspect of the operations of investment companies; their governance and structure, their issuance of debt and other senior securities, their investments, sales and redemptions of their shares, and, perhaps most importantly, their dealings with service providers and other affiliates.
As evidenced by the conference program, you will be receiving an excellent introduction to the nuts and bolts of the '40 Act. I want to give you a very brief historical perspective of why the statute and our regulation of investment companies are so comprehensive, and then discuss some recent regulatory developments that you will undoubtedly confront if you practice in this area.
One source of the '40 Act's highly regulatory nature is the unique structure of the typical investment company. Unlike a regular operating company, investment company employees do not operate investment companies. Instead, funds typically rely on external service providers, like the fund's investment adviser, to conduct the fund's day-to-day business, including managing the fund's portfolio and providing administrative services. Additionally, the officers of funds are usually affiliated with the fund's adviser, or the other outside service providers, such as the fund's administrator or underwriter. Consequently, the interests of fund management and shareholders of a fund may diverge in important ways.
A fund's investment adviser has a separate interest in maximizing its own profits. In contrast, officers of an operating company are paid directly by the company, often have an equity interest in the company, and are devoted to profit maximization to benefit both the company and themselves. While a fund's management and its shareholders have some common interests, such as seeking outstanding investment performance, there are important areas in which these interests may conflict, such as the level of management fees.
Based on the unique conflicts that are inherent in the typical investment company structure, you probably can imagine the kinds of problems that existed when funds were relatively unregulated. Indeed, the turbulent, early history of the investment company industry is a primary source of the principles reflected in the '40 Act.
Before 1940, most investment companies were closed-end funds. This means that shareholders did not have a right to redeem their shares based on the value of the fund's net assets. Shares of these funds traded in the secondary market at market prices. And before the market crash of 1929, these shares frequently traded at a premium to the funds' net asset values. After the crash, not surprisingly, the supply of shares of closed-end funds exceeded the demand, and their shares began trading at a discount.
The liquidity crisis aided the emergence of two other kinds of investment companies: the unit investment trust, which held a fixed portfolio of securities, and the open-end managed fund, now known as the mutual fund. Shareholders were attracted to these types of funds because they offered the ability to redeem shares for cash at the funds' net asset values. Needless to say, mutual funds have continued to retain their popularity: their asset now total more than 20 times the combined assets of unit investment trusts and closed-end funds.
By the mid-1930's, it had became apparent that there were problems prevalent throughout the investment company industry. The close relationships between investment companies and their sponsors proved disastrous as unscrupulous sponsors treated fund assets as their own. Many funds failed, and many shareholders lost their investments.
In 1935, Congress asked the Commission to conduct a comprehensive study of the investment company industry, looking specifically at the functions and activities of investment companies, their corporate structures and their investment policies. Congress also wanted to know how investment company sponsors and affiliates exerted influence over the investment companies they controlled. The resulting report, called the Investment Trust Study, laid the foundation for the '40 Act.
The Investment Trust Study, and the subsequent Congressional hearings, found that, to an alarming extent, investment companies were being organized and operated to benefit the interests of their affiliates rather than the interests of their shareholders. Furthermore, investment companies were structured to ensure that they remained under the control of their sponsors. The Study and subsequent hearings also revealed that the capital structures of many investment companies were highly complex, often consisting of many classes of securities with different dividend, liquidation and voting rights. In addition, investment companies often issued debt securities without adequate assets and reserves. This excessive leverage often led investment companies to make risky investments to produce the income needed to cover their obligations. Finally, the fact that investment companies generally attracted small, unsophisticated investors allowed sponsors to mislead these investors as to the actual nature of their investment. These investors often did not understand their rights, the sales charges they were obligated to pay, or how the investment company's manager was managing the company's assets.
And so, Congress, the Commission, and the investment company industry worked to address these problems. The resulting legislation – the Investment Company Act of 1940 – was truly a negotiated statute, with extensive hearings before Congress, punctuated by intensive discussions between the Commission and the industry.
Since 1940, the '40 Act has proved to be remarkably resilient. Indeed, the true genius of the Act was its drafters' understanding that markets and circumstances change, and that industries evolve. For example, the '40 Act gives the Commission express authority to exempt any person, security, or transaction from any section of the Act – consistent with the protection of investors. This authority makes the Act flexible and allows it to accommodate change and innovation in ways that preserve its underlying principles. This flexibility has permitted the development of money market funds, variable insurance products, expanded international investing, securities lending programs, and unique exchange-traded products that serve particular investor needs.
While the basic structure of the '40 Act has served investors well, we at the Commission are currently in the midst of several significant initiatives designed to further its goal of investor protection while keeping it apace with the rapid evolution of the financial products and services that the statute regulates.
The financial services industry is in the midst of a technological revolution and mutual funds are at the forefront. The Commission faces the formidable challenge of applying the existing regulatory framework that has helped ensure the integrity of the industry, while at the same time providing a regulatory scheme to keep pace with the increased competition and technological revolution underway in the securities markets. Since they will undoubtedly generate a significant amount of work for '40 Act practitioners, I want to devote the rest of my remarks to a discussion of the regulatory reforms currently proposed by the Commission to identify other areas of reform that we intend to carefully examine in the future, as well as discuss several recently adopted rules. The regulatory initiatives currently before us today are aimed at promoting the integrity of fund governance, enhancing and improving disclosures made to investors, and modernizing the regulatory structure to accommodate the increased competitiveness and globalization of the investment management industry.
Consistent with a goal Chairman Levitt set for all the Commission, our initiatives are also aimed at streamlining regulations and simplification where possible. I was reminded recently that while the 10 Commandments have 179 words, the Gettysburg Address has 286 words, and 1300 words were sufficient for Thomas Jefferson to cover the subject of the Declaration of Independence, the U.S. Government regulations on the sale of cabbage have 26,911 words. Hopefully, we can keep this goal in mind as we move forward on our rule proposals.
One of the most significant initiatives we have undertaken is in the area of fund governance. Last year at this conference, which followed the Commission's Roundtable on the Role of Independent Investment Company Directors, I spoke about our preliminary findings and the possible avenues for reform. Since then, the Commission has issued a comprehensive package of fund governance reforms and a staff interpretive release providing guidance on specific issues relating to independent directors.
The rule proposal is designed to reaffirm the important role that independent directors play in protecting fund investors, strengthen their hand in dealing with fund management, reinforce their independence, and provide investors with better information to assess the independence of directors. The proposal would amend certain exemptive rules under the Investment Company Act by adding a number of conditions to the exemptive rules that any fund must meet to rely on the rules. These conditions are: (1) independent directors must constitute at least a majority of their board of directors; (2) independent directors must select and nominate other independent directors; and (3) any legal counsel for the independent directors must be an independent legal counsel. We also have proposed rules that would prevent qualified individuals from being unnecessarily disqualified from serving as independent directors, protect independent directors from the costs of legal disputes with fund management, and monitor the independence of directors by requiring funds to keep records of their assessment of director independence.
We also have proposed a number of disclosure requirements that will enhance shareholders' ability to evaluate whether the independent directors can act as an independent, vigorous, and effective force in overseeing fund operations. These proposals would require funds to provide basic information about directors to shareholders annually so that shareholders will know the identity and experience of all directors. They also would require disclosure of directors' ownership of fund shares, information about director's potential conflicts of interest, and would provide information to shareholders on the board's role in governing the fund. By requiring funds to provide this information, the proposals will give shareholders the tools to determine how effectively the directors serve their interests.
We have received many thoughtful comments on this initiative that will enable us to improve upon the proposed rules. Many commenters felt that the disclosure requirements, especially as they related to directors' family members, went too far. It is likely that our recommendation to the Commission will be to scale back the proposed disclosures in several areas, particularly with regard to family members. Many commenters also believed that the proposal regarding independent counsel for directors was too paternalistic or that our definition of independent counsel was too rigid. However, we believe that encouraging the use of truly independent counsel by independent directors is one of the strongest pieces of our proposal. We are encouraged by the formation of the American Bar Association Task force to provide guidance to independent directors of funds regarding choosing and retaining legal counsel, as well as to provide guidance regarding counsel's professional responsibilities when representing independent directors. Their recommendations should be helpful as we continue in the process of refining the proposed amendments.
In addition to the protections that will be afforded to shareholders as a result of the independent director proposals, the Commission has issued a number of rule proposals, and is considering a number of other proposals, that further our continuing effort to improve the quality of mutual fund disclosure in order to help investors make better-informed decisions.
In March, the Commission issued a rule proposal to improve disclosure to investors of the effect of taxes on the performance of mutual funds. Taxes are one of the largest costs associated with a mutual fund investment. Estimates show that over two and a half percentage points of the average stock fund's total return is lost each year to taxes, an amount significantly in excess of average expense ratios for these funds. Our proposal will help investors to understand the magnitude of tax costs and compare the impact of taxes on the performance of different funds. The proposed amendments would require mutual funds to disclose after-tax returns for 1-, 5-, and 10- year periods, based on standardized formulas comparable to the formula currently used to calculate before-tax average annual total returns. The after-tax returns would be required to be disclosed in the risk/return summary of the prospectus and in Management's Discussion of Fund Performance, which is typically contained in the annual report. The proposal also would require funds that include after-tax returns in advertisements and other sales materials to include standardized after-tax returns in those materials.
The proposal would require funds to disclose after-tax returns on both a "pre-liquidation" and "post-liquidation basis. Pre-liquidation after-tax return assumes that the investor continues to hold fund shares at the end of the measurement period. Post-liquidation after-tax return assumes that the investor sells his or her fund shares at the end of the measurement period. Thus, pre-liquidation after-tax return reflects the tax effects on shareholders of the portfolio manager's purchases and sales of portfolio securities, while post liquidation after-tax return also reflects the tax effects of a shareholders' individual decision to sell fund shares. We believe both measures are important for shareholders to gain a better understanding of the tax consequences of investing in mutual funds. Pre-liquidation after-tax return is important because it provides information about the tax-efficiency of portfolio management decisions. Post-liquidation return also is important for shareholders, many of whom hold shares for a relatively brief period, to understand the full impact that taxes have on a mutual fund investment that has been sold. The comment period on the proposal ends June 30.
The Commission also has proposed amendments that would permit funds to "household" proxy and information statements. The proposed amendments would allow funds to satisfy the proxy and information statement delivery requirements of the Securities and Exchange Act of 1934, by sending or forwarding a single proxy or information statement to two or more shareholders sharing the same address. The proposed amendments are designed not only to save trees, and reduce costs to fund shareholders, but to deliver information to investors in quantities that are manageable and more likely to be actually read. The proposal also would allow, for the first time, intermediaries to household proxy and information statements as well as annual reports, to beneficial shareholders. In a companion release, that was issued on the same day as the proposal, the Commission adopted similar amendments to the proxy rules that govern the delivery of prospectuses and annual reports to shareholders, and to the rules under the Investment Company Act that govern the delivery of semiannual reports to investment company investors. Under the amendments, the rules no longer require companies to get written consent from shareholders for the householding of prospectuses, annual reports and semiannual reports provided the document is delivered to members of the same family with the same last name sharing a common address, the shareholders receive advance notice, and they do not object to householding.
We also are exploring ways to eliminate the need for funds to annually deliver updated prospectuses to existing shareholders. Most funds deliver updated prospectuses to existing shareholders annually in order to avoid having to keep records of shareholders who have received updated prospectuses and deliver prospectuses throughout the entire year when new investments are made by these shareholders. In addition, we also are examining whether the profile could serve the purpose of an annual updating document. In other words, funds would be deemed to have delivered a current prospectus to existing shareholders if they deliver to them the profile. This could be a more effective way of communicating updated information to shareholders than delivering an entire new statutory prospectus. Of course, any fund shareholder wanting the full prospectus could request one from the fund. Such as approach could result in significant savings to funds and their shareholders.
In our continuing efforts to improve disclosures to shareholders, we also are working on revisions to the shareholder report and financial statement requirements. Our goal is to make the prospectus and the shareholder reports work together to provide information that investors need, when they need it, and in a format that is useful. In a shareholder report, fund management can tell the story of what it has done for shareholders. Our goal will be to facilitate getting that information from management to the fund's shareholders.
We also will continue our efforts to simplify and streamline mutual fund prospectuses, as we expect to proceed with further amendments to Form N-1A to address issues that we have identified in working with the new form over the last year.
In addition to enhancing disclosures to shareholders, the Commission also is faced with the regulatory challenges of industry competitiveness, brought about by rapid technological advances and consolidation of the financial services industry. As funds face increased competition, one fear we have is that funds will respond to the competitive environment with overly aggressive advertising. A recent example of this can be seen in the Commission's administrative proceedings last month against The Dreyfus Corporation and a portfolio manager for one of its funds. The Commission settled with Dreyfus and its portfolio manager on charges that Dreyfus failed to disclose its practice of preferentially allocating IPOs, and in particular hot IPOs, to one fund over other funds managed by the same portfolio manager. The fund's prospectus disclosed that investment opportunities would be allocated equitably among the funds. The fund that received preferential treatment had exceptional returns during its first fiscal year in large part because of the investments in IPOs. The Commission also found that the fund's failure to disclose in its advertisements the large impact of the IPOs on its performance, when it was questionable whether the fund could replicate that performance, made the advertisements materially false and misleading. This latest action continues to reflect the Commission's increasing concerns regarding fund advertising in the wake of the Van Kampen case this past year, in which the Commission instituted similar charges against Van Kampen for failure to disclose that a fund's high performance was generated by investing in hot IPOs.
This is an area of particular concern to Chairman Levitt. He has asked the Division of Investment Management and our Office of Compliance, Inspections and Examinations, or "OCIE," to conduct a special review of fund marketing – including websites, sales literature and advertisements. The purpose of the review is to determine whether a fund's actual portfolio performance and investment strategies are consistent with its website statements, its advertising and its prospectus disclosure.
OCIE has found some troubling practices in a few fund ads. As you may know, if funds use performance numbers in ads, they must show a fund's 1-, 5- and 10-year total return numbers, current as of the last quarter. OCIE has found some funds using total return numbers updated for odd one-year periods. Upon review of these situations, OCIE found that the dates chosen by some of these funds coincided with days on which the funds' net asset value reached a new high. They also found that the NAVs of some of these funds were very volatile and the performance numbers varied significantly over relatively short periods of time. There clearly was cherry picking of performance numbers. Other concerns include performance numbers as of the end of the most recent quarter that should be updated. The NASD has reminded its members that use of the most recent quarter numbers alone has the potential to mislead, if the performance suffers prior to updating at the next calendar quarter end. We also are concerned about advertising funds with good performance that are closed, the possibility of style creep, such as value managers buying growth stocks to boost sagging performance, and the use of scales or graphs that exaggerate performance.
At the same time that we are scrutinizing ads for misleading practices, we are proceeding with amendments to Rule 482, to enhance funds' ability to provide investors with better and timelier information. The proposal would eliminate the requirement that the substance of the information contained in the advertisement be included in the statutory prospectus. The Rule 482 revisions also will serve as an occasion to remind issuers that technical compliance with the rule may nevertheless run afoul of antifraud prohibitions of the federal securities laws. We will seek to promote in the rule, balance and responsibility in fund advertising. We have indicated however that we will not tolerate the misuse of performance information to mislead investors, and our recent enforcement actions and the penalties associated therewith, most notably the $1 million penalty in the Dreyfus case ($2 million to settle with the New York Attorney General) demonstrates that we are indeed serious about this issue.
The industry has responded to competitive pressures and rapid technological changes by creating and marketing new types of funds. We need to ensure that the rush to develop attractive products does not come at the expense of products and services that offer investors real financial benefits and value. An area that presents a unique regulatory challenge is the evolution of exchange-traded funds. Assets in exchange traded funds listed on the American Stock Exchange, where almost all of these funds are traded, have risen from $2.4 billion three years ago to over $38 billion. These funds, with names like SPDRs, WEBs, Diamonds, and Cubes, have obtained exemptive relief from the Commission to facilitate secondary market trading in their shares. They are bought and sold throughout the day and are priced continuously, rather than once a day at 4 p.m., which is the pattern for conventional funds. Unlike mutual funds, they can be sold short. Their expense ratios are a fraction of those charged by an actively managed mutual fund.
There are many issues to consider as these products evolve. For example, we must consider whether the development of these products would encourage investors to view mutual funds as something other than long-term investments and encourage short-term trading of mutual funds. The Commission is currently considering an application that would allow an exchange-traded class of an existing index fund. So far, relief has been extended only to index funds but not to managed funds. Is there even a framework pursuant to which a managed exchange traded fund can work? And what impact, if any, would an exchange-traded class of a managed fund have on an existing non-exchange traded class?
Another area where there is increasing competition is in the use of electronic media. The Commission recently issued an interpretive release in an effort to clarify the application of the federal securities laws to electronic media. The increased use of the Internet by issuers as a means of widespread information dissemination has resulted in uncertainty about the application of the federal securities laws to these communications. The release builds on previous Commission interpretations and seeks to remove interpretively some of the barriers to the use of electronic media, while preserving important investor protections. The release provides guidance on the use of electronic media to deliver documents under the federal securities laws, addresses an issuer's liability for website content and hyperlinks and outlines basic legal principles that issuers and market intermediaries should consider in conducting online offerings. We recognize, however, that continuing guidance will be necessary in this area as use of electronic media continues to evolve.
We recognize the competitive pressures facing funds and are considering proposing rules that would allow funds to proceed with certain transactions without the need for an exemptive order. For example, we intend to propose amendments that would expand Rule 17a-8, which involves fund mergers. Any rule in this area would place heavy emphasis on the fund's board to assure the fairness and appropriateness of the transaction. We also are planning on proposing amendments to Rule 10f-3, which allows a fund to buy securities from an affiliated underwriting or selling syndicate. The proposal would permit funds to buy government securities issued by government agencies or government sponsored enterprises such as Fannie Mae. The rule has not permitted purchases of these types of securities, because they typically have not been offered through syndicates. The amendment would respond to the fact that some government sponsored enterprises have begun to issue their securities through syndicates.
I noted that there is a session devoted to designing effective compliance systems. One concern we have is how the new financial services modernization legislation will impact the fund industry. Will Citigroup, through the merger of banking giant Citicorp and the insurance behemoth, Travelers Group, be the model for future consolidation?
How will these consolidated industries meet the needs and expectations of investors? What about compliance strategies in a mega-firm, that suddenly finds itself more diverse, with divergent practices, conflicting cultures and increasingly complex affiliations? Newly consolidated firms will bear a great deal of responsibility in developing and implementing compliance programs that blend different cultures. The compliance structure of securities firms, traditionally has differed from that of a bank or insurance company. An entity that combines two or more of these industries will have to find a way to craft a compliance program that addresses the unique conflicts of interest that can arise in each industry. Inconsistent personal trading policies, conflicting policies governing transactions between affiliates or how these policies are enforced, are examples of the problems that may be created by these consolidations. One of our focuses will be to ensure that responsible oversight of compliance systems is a central component of these consolidations.
We also have been working on a number of rules that will help funds keep pace with, and be responsive, to the increasing globalization of the mutual fund industry. The Commission recently adopted amendments to Rule 17f-5 and a new rule 17f-7, which establish new standards governing the maintenance of a fund's assets with a foreign securities depository. The rule and rule amendments together will permit funds to maintain their assets in foreign securities depositories based on conditions that reflect the operations and role of these depositories. They generally require that a fund's contract with its global custodian obligate the custodian to analyze and monitor the custody risks of using a depository, and provide information about the risks to the fund or its adviser, as well as any information regarding material changes in the risks.
The Commission just approved a rule that permits Canadians who reside in the United States and hold certain tax-deferred retirement accounts in Canada, to manage the investments by purchasing and selling foreign securities in those accounts. Before this rule, Canadian "snowbirds" could not make changes in these accounts because the Canadian mutual funds or other securities in which they would like to invest are not registered in the United States. As a result, they were unable to reallocate assets in their accounts as they approach retirement or their financial needs change. The new rule permits Canadian funds to offer and sell their securities to U.S. participants under these circumstances without having to register as investment companies under the Act.
To this point, my discussion has focused on the Division's rulemaking initiatives. However, I should also bring your attention to several important letters we issued that provide interpretive guidance in the areas of fair value pricing and affiliated transactions.
In a letter to the Investment Company Institute the Division expressed its views on fair value pricing. The letter clarifies that market quotations for portfolio securities are not readily available, when the exchanges or markets on which those securities trade do not open for trading for the entire day. On those days, the fund must price those securities based on their fair value. The letter also provides guidance regarding the process of fair value pricing, and describes certain factors that funds should consider when fair value pricing portfolio securities. It also discusses the obligations of fund boards of directors for fair value pricing of securities, and discusses measures that boards may take when discharging those responsibilities.
The staff issued a no-action letter under Section 17(a) of the Investment Company Act to permit a mutual fund to satisfy a redemption request from an affiliated person by means of an in-kind distribution of portfolio securities. The letter clarifies the staff's position that while cash redemptions to affiliated shareholders do not trigger Section 17(a) of the Act, that section governs redemptions in kind to affiliated shareholders. The staff recognized that there are benefits to redemptions in kind, and that redemptions in kind to affiliated persons can be effected fairly without implicating the concerns underlying Section 17(a) under certain circumstances. We expect that the letter will significantly reduce the need for funds to seek exemptive relief for such transactions.
Additionally, we have under active consideration several other letters in the affiliated transactions area, specifically under Section 17(d), that should also reduce the need for funds to seek exemptive relief. Last week we issued a letter to Massachusetts Mutual Life Insurance Company that expanded the position we took in the SMC letter that indicates it is not a violation of Section 17(d) and Rule 17d-1 if an investment company aggregates orders with affiliated persons for the purchase or sale of private placement securities, such as securities issued in reliance on Rule 144A, under certain conditions.
Finally, while this conference primarily focuses on Investment Company Act issues, it also touches on the other '40 Act, the Investment Advisers Act. We are currently engaged in revisiting our regulatory approach on many issues under the Advisers Act, in a comprehensive effort to modernize our regulations to respond to changes affecting the investment advisory industry. We have several pending rule proposals that reflect this effort and other ideas that will generate rule proposals in the near future. Last month the Commission hosted a roundtable which elicited opinions regarding key issues under the Advisers Act, which will inform our efforts. We have taken a significant step to modernize the adviser regulatory regime in proposing the Investment Adviser Registration Depository, an electronic filing system for investment advisers, representing the first major update of the form since Uniform Form ADV was adopted in 1985. We have a rule proposal pending that addresses the circumstances under which broker-dealers would not be subject to regulation under the Advisers Act and a rule to address pay-to-pay practices in connection with the management of public pension plans. As a result of the roundtable and our analysis we are giving active consideration to the following under the Investment Advisers Act:
We will examine these and other issues as we seek to modernize and improve the investment adviser regulatory regime.
Hopefully, this overview of investment company regulation and the outline of the Commission's major regulatory priorities for the year ahead in the investment management area, lead you to conclude that this is an exciting area in which to practice law. I hope this conference stimulates your interest in becoming a '40 Act practitioner.
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