Banking and Finance Law Articles

Articles written by attorneys and experts worldwide
discussing legal aspects related to Banking and Finance.




SEC Prevents Bogus Receiverships By Suspending Zombie Tickers

On June 24, 2013, the Securities and Exchange Commission (“SEC”) instituted administrative proceedings to revoke the registration of Green Solutions China, Inc., Yarraman Winery, Inc. (n/k/a Global Beverages, Inc.; (GBVI), and Yinlips Technology, Inc. pursuant to the Securities Exchange Act of 1934.

Going Public Bootcamp

The going public process involves a number of steps that vary depending on the characteristics of the private company wishing to go public, and whether it will become a Securities and Exchange Commission (“SEC”) reporting issuer.

ESMA’s Opinion on the Practical Arrangements for the Late Transposition of the AIFMD

ESMA - the European Securities and Markets Authority - published its opinion on arrangements for the late transposition of the AIFMD on 1st August 2013.

Payment Services New Rules for the Benefit of Consumers and Retailers - EU

In order to adapt the EU payments market to the opportunities of the single market and to support the growth of the EU economy, the European Commission adopted a package on 24th July 2013.

Asset Protection Strategies: Proactive, Prioritize, Get Informed

Asset Protection as a concept is fairly simple; you’ve worked hard and earned what you have, and you want to do everything that the law allows to keep as much of it as possible. However, asset protection as an executable legal strategy can be much more complex. Depending on your situation, estate planning, bankruptcy laws, real estate and business law can all come into play.

Going Public Options for Foreign Companies

Going Public Options for Foreign Companies

How Finra Rule 6490 Impacts Going Public Transactions

Smooth Sailing for Companies Avoiding Reverse Mergers in their Going Public Transactions.

IPO Prospectus Delivery

Under the Securities Act of 1933 as amended (the “Securites Act”), a Company that conducts an initial public offering (“IPO”) including in a going public transaction must adequately disclose material information to investors.

The SEC Registration Process

The offer and sale of securities is regulated by the Securities Act of 1933, as amended (“1933 Act”). Section 5 of the 1933 Act requires any offering to be registered with the SEC or exempt from registration.

Form 10 Shells l Reverse Mergers

Issuers seeking to raise capital often attempt to go public using a reverse merger with a public shell. Blank check companies that file Form 10 Registration Statements (“Form 10 Shells”) are marketed as handy vehicles private companies can use to go public easily.

Form 10 Registration Statements

Form 10 is a Registration Statement used to register a class of securities pursuant to Section 12(g) of the Securities Exchange Act of 1934 (“Exchange Act”). This article addresses common questions we receive from clients about Form 10 registration statements.

DTC Chills: A Big Conspiracy or Just Fraud?

The Depository Trust Company (DTC) is the only stock depository in the United States. When DTC provides services as the depository for an issuer’s securities, its securities can trade electronically.

SEC Comments 101

Securities offerings are regulated by the Securities Act of 1933, as amended, (the “Securities Act”). Section 5 of the Securities Act requires that securities offerings be registered with the Securities and Exchange Commission (the “SEC”) or be exempt from the SEC’s registration requirements.

Going Public l OTCMarkets OTCQB

Many private companies seeking to go public are opting to list on the OTCMarkets OTCQB. The OTCMarkets Group operates an electronic inter-dealer quotation system called OTC Link.

Registration Statements

This article addresses the most common questions we receive about going public using Form S-1 and the SEC registration statement process.

SEC Registration Statement Comments

Securities offerings are regulated by the Securities Act of 1933, as amended, (the “Securities Act”). Section 5 of the Securities Act requires that securities offerings be registered with the Securities and Exchange Commission (the “SEC”) or be exempt from the SEC’s registration requirements.

Using Rule 506 in Going Public Transactions

Private companies going public often file a registration statement with the Securities and exchange Commission (“SEC”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), as part of their going public transaction.

Securities Registration 101

Many private companies file a registration statement filing with the SEC in connection with their going public transaction. The most commonly used registration statement form is Form S-1.

Advantages of Using Cayman Islands Exempted Companies for Investment Purposes and Finance Transactions

  By Loeb Smith
The Cayman Islands exempted company is the corporate vehicle of choice among international investment fund managers and investors. The popularity of the exempted company is principally as a result of the Cayman Islands being rightly recognized as a stable jurisdiction for structuring international investments owing to the following features.

FIAU Annual Report 2012 - Malta

On the 15th July 2013, the Malta Financial Services Authority (MFSA) issued a Notice for the purpose of formally notifying all Financial Services License Holders of the recent publication of the Malta Financial Intelligence Analysis Unit (FIAU) Annual Report for 2012, issued in terms of Article 42(1) of the Prevention of Money Laundering Act (Chapter 373, Laws of Malta).

Reverse Mergers 101

Traditionally, private companies become publicly traded by registering an offering under the Securities Act of 1933, as amended. Another established method for private companies to obtain public company status is through a Reverse Merger (“Reverse Merger”) with a public shell company.

The OTC Pink Tier

OTCMarkets Group operates the world’s largest electronic inter-dealer quotation system for broker-dealers to trade unlisted securities. The OTCMarkets Group categorizes issuers into three tiers to fit the wide spectrum of OTC issuers.

OTCMarkets Disclosure Tiers

Companies who go public can list on national securities exchanges such as NASDAQ, the American Stock Exchange or the New York Stock Exchange. The securities of companies who go public can also be quoted by The OTCMarkets Group, Inc. (“OTCMarkets”).

Initial Public Offerings 101

An Initial Public Offering (“IPO”) is often used by a private issuer seeking to go public as part of its going public transaction. An IPO involves registration with the SEC of an offering of securities by a private issuer.

Direct Public Offerings 101

Many private companies are unable to locate an underwriter prior to going public. A direct public offering (“Direct Public Offering”) provides a viable solution to this dilemma.

EC Proposal for New Investment Fund Framework - ELTIF

On the 28th June 2013, the Malta Financial Services Authority (MFSA) issued a Circular to the Financial Services Industry on the proposal by the European Commission for the implementation of a new investment fund framework designed for investors desirous of effecting long-term investments into corporate entities and projects.

MFSA Circular - Binary Options

On the 17th July 2013, the Malta Financial Services Authority (MFSA) issued a Circular to the financial services industry confirming its position in respect of investment services provided in relative to binary options. The Circular follows clarification by the European Commission of the relevant issues in terms of the Markets in Financial Instruments Directive, 2004/39/EC, (MiFID) and expressly confirms that binary options do fall within scope of the said MiFID Directive.

AIFMD Q&A - Malta

We are a custodian bank based outside the EU currently considering establishing a presence in Malta with a view towards servicing Malta-licensed alternative investment funds. When should we expect Malta-based funds to be required to engage the services of a Malta-based depositary in conformity with the new AIFMD requirements? Are there any exceptions that apply, permitting other non-Maltese depositaries to service Malta-licensed funds?

Alternative Investment Fund Managers Directive – Implications for Non-EU Managers of Non-EU Funds

  By Loeb Smith
As 22 July 2013 looms ever closer, as part of our continuing legal update series on this topic, this Guidance Note seeks to consider the impact of the Alternative Investment Fund Managers Directive (the “Directive”) for non-EU Managers who manage Cayman Islands domiciled funds.

SEC Approves JOBS Act Requirement to Lift General Solicitation Ban

On July 10, 2013, the Securities and Exchange Commission (“SEC”) adopted a new rule to implement a JOBS Act requirement to lift the ban on general solicitation or general advertising for certain private securities offerings. The SEC also adopted rules that disqualify felons and other bad actors from participating in certain securities offerings as required by the Dodd-Frank Act.

Proposals for a Fourth Anti-Money Laundering Directive - EU

The European Central Bank ("ECB") and the Economic and Monetary Affairs Committee ("ECON") have issued opinions following the adoption by the European Commission, on 5th February 2013, of a Proposal for a Fourth Anti-Money Laundering Directive and a Proposal for a Regulation on Information Accompanying Transfers of Funds, to reinforce the EU's existing rules on anti-money laundering and fund transfers.

Spin-Offs 101

A spin-off (“Spin-off”) involves a transaction in which a parent company (“Parent”) distributes shares of its subsidiary (“Subsidiary”) to the Parent’s shareholders so that the Subsidiary becomes a separate, independent company.

Permissible Uses of Form S-8

Registration of securities on Form S-8 (“Form S-8”) is a short-form registration statement under the Securities Act of 1933, as amended (the “Securities Act”).

Rule 144 Checklist

The Securities Act of 1933, as amended (the “Securities Act”) requires the sale of a security to be registered under the Securities Act, unless the security or transaction qualifies for an exemption from registration.

SEC Suspends Trading in the Securities of Norstra Energy

On June 26, 2013, the Securities and Exchange Commission (“SEC”) suspended trading in the stock of Norstra Energy, Inc. (NORX).

Rule 506 of Regulation D Requirements

To offer and sell securities in the United States, an issuer must comply with the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), or must offer and sell the securities pursuant to an exemption from the registration statement requirements.

Malta Is AIFMD Ready

With approximately a month to go from the transposition deadline, Malta has announced that it is first member state to have fully transposed the Alternative Investment Fund Management Directive (“AIFMD / Directive”).

Securities Registration in Going Public Transactions

Many companies file a registration statement filing with the SEC in connection with their going public transaction. The most commonly used registration statement form is Form S-1.

Getting Current l SEC Filings

Public companies with a class of securities registered under Section 12 or subject to Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are subject to the periodic and current reporting requirements of Section 13 or 15(d) of the Securities Exchange Act.

SEC Sues Imaging3 and CEO Dean Janes for Fraud

On June 26, 2013, the Securities and Exchange Commission (“SEC”) filed an enforcement action charging Imaging3, Inc. (IMGGQ), and Dean Janes, its CEO, with securities fraud, accusing Janes of misleading shareholders about actions taken by the Food and Drug Administration (“FDA”) in connection with the company’s product.

Reverse Mergers l The Game Changers

Shell brokers continue to tout the virtues of reverse merger transactions, despite recent rule changes that eliminate many if not all of the benefits once conferred by them.

Note for Consultation - Implementation of AIFMD - Malta

On the 18th June 2013, the Malta Financial Services Authority (MFSA) issued a Note for Consultation on the proposed implementation of the Alternative Investment Fund Managers Directive (‘AIFMD’).

Confidential Submission of Draft SEC Registration Statements

The Jumpstart Our Business Startups Act (the “JOBS Act”) allows an “emerging growth company” to submit a draft of its registration statement and exhibits to the Securities and Exchange Commission (the “SEC”) on a confidential basis.

Funding Portals 101

The JOBS Act includes provisions to allow intermediaries known as “Crowdfunding Portals” to assist companies with raising capital using the internet. Crowdfunding Portals will serve as attractive capital raising centers for private companies seeking to go public in need of seed capital.

The JOBS Act – The Crowdfunding Limbo

The Jumpstart Our Business Startups (“JOBS”) Act was signed into law by President Obama on April 5, 2012. The JOBS Act requires the Securities and Exchange Commission (the “SEC”) to issue final regulations regarding the portions of the JOBS Act relating to crowdfunding within 270 days of the law’s enactment on December 31, 2012.

The OTCBB – an Obsolete Marketplace

The OTC Bulletin Board (“OTCBB”) is an electronic quotation system that provides real-time quotes, last-sale prices, and volume information for some over-the-counter securities not listed on a national securities exchange such as NASDAQ.

Market Makers 101

The last step in going public transactions is for the soon-to-be-public company to obtain a stock trading or ticker symbol. In order to obtain a ticker symbol, the company seeking to go public’s stock must first be listed on a national securities exchange or qualify for quotation on the OTCMarkets’ Pink Sheets, OTCQB, or OTCQX markets.

Crowdfunding l The SEC’s Invisible Rule

The Jumpstart Our Business Startups (“JOBS”) Act was signed into law by President Obama on April 5, 2012. The JOBS Act requires the Securities and Exchange Commission (the “SEC”) to issue final regulations regarding the portions of the JOBS Act relating to crowdfunding within 270 days of the law’s enactment on December 31, 2012. As of May 5, 2012, the SEC still has not issued the required JOBS Act’s final regulations concerning crowdfunding.

Rule 144’s Adequate Current Public Information Requirement

Rule 144(c) of the Securities Act of 1933, as amended (the “Securities Act”) requires that stockholders of public companies relying upon Rule 144 satisfy its adequate current public information requirement. The requirements depend upon whether the issuer is a reporting or non-reporting company.

Form 211 l Going Public l OTC Pink Sheets

Many private companies that go public are opting for the listing on the OTCMarket’s Pink Sheets due to the increased costs and more stringent regulations associated with Securities and Exchange Commission (“SEC”) reporting.

Rules of the Road l Uplisting to the OTCMarkets OTC Pink Sheets

The OTCMarkets Group operates an electronic inter-dealer quotation system called OTC Link that broker-dealers use to trade securities not listed on a national securities-related exchange. OTCMarkets rank issuers in tiers; each issuer’s rank depends upon the amount of disclosure provided. Issuers using SEC Rule 15c2-11 qualify for the “OTC Pink Current Information” tier.

Going Public Question & Answer l Ask Securities Lawyer 101

Going public is a big step for any company. The process of “going public” is complex and at times precarious. While going public offers many benefits it also comes with risks and quantities of regulations with which issuers must become familiar.

OTCQX Eliminates Penny Stocks l Securities Lawyer 101

The OTCMarkets describes its OTCQX marketplace as the premier tier of the U.S. Over-the-Counter (OTC) markets, providing investors with an objective measure to ide3ntify exceptional OTC-traded companies.

Why Both Private and Public Companies Need a Securities Attorney

Why Both Private and Public Companies Need a Securities Attorney

Broker-Dealer Registration 101

Broker-dealers are subject to regulation by the SEC, FINRA, Self Regulatory Organizations (“SROs”) such as stock exchanges, and the states in which they do business.

Bogus State Court Actions Used in $28 million fraud Lead to Indictments

Bogus State Court Actions Used in $28 million fraud Lead to Indictments

SCOR Offerings l State Blue Sky Laws

State Blue Sky laws play a significant role in the enforcement of the securities laws. Each State has its own securities laws and regulations.

SEC Approves FINRA Rule 5123

The Securities and Exchange Commission recently approved the Financial Industry Regulatory Authority (“FINRA”) proposals to amend Rule 5123 governing FINRA members who participate in private offerings of securities (“Rule 5123″).

Supreme Court Says the Statute of Limitations for SEC Enforcement Actions Is 5 Years

On February 27, 2013, in the case of Gabelli v. Securities and Exchange Commission, the U.S. Supreme Court unanimously concluded that the statute of limitations for SEC enforcement actions seeking civil penalties expires 5 years after the time when the alleged fraud takes place, not when it is discovered.

Dead Stock Walking – Chinese Reverse Mergers

Recent actions by the Securities and Exchange Commission (the “SEC”) and the media have alerted the public to fraud involving reverse mergers and Chinese issuers.

SEC Charges Securities Lawyer with Churning Bogus Legal Opinions

On March 8, 2013, the Securities and Exchange Commission (the “SEC”) charged Brian Reiss, a California securities lawyer, with churning out baseless legal opinions for penny stocks traded on the OTC Markets platform.

Private Placements 101

The Securities Act of 1933 (the “Securities Act”) provides for a private offering or private placement exemption from federal securities registration which is increasingly being used by both public companies and private companies seeking to go public to raise capital during market downturns and in times of market uncertainty.

FINRA Bars Florida Broker for Transactions Involving 31 NFL Players

On March 7, 2013, the Financial Industry Regulatory Authority (“FINRA”) barred Jeffrey Rubin of Lighthouse Point, Florida, from the securities industry.

Squattership Proceedings 101 l Corporate Hijacking Series

Familiar to everyone in connection with real property, squatting consists of occupying an abandoned or empty property that the squatter does not have lawful permission to use.

Malta – Redefining Collective Investment Schemes

The Investment Services Act (CHAP. 370 of the laws of Malta) currently defines collective investment schemes as arrangements which, inter alia, “operate according to the principle of risk spreading”. By virtue of this definition, the requirement of risk spreading has been imposed on all licensed collective investment schemes alike and this irrespective of the type of collective investment scheme licence.

Restricted Securities 101

It has become routine for public companies and private companies seeking to go public to place restrictive legends (“Restrictive Legends” on the certificates representing their Restricted Securities not covered by a registration statement under the Securities Act of 1933, as amended (the “Securities Act”).

Disclosure Obligations & Wells Notices

A Wells Notice is sent to subjects of a Securities and Exchange Commission (“SEC”) investigation when Enforcement staff has substantially completed its investigation and intends to recommend that an enforcement be pursued.

Ask Securities Lawyer 101 l OTC Pink Current Disclosures

The author answers the most frequently asked questions on OTC Pink Current Disclosures.

Ask Securities Lawyer 101 l Form S-8 Question & Answer

The author answers the most common questions on Form S-8.

Ask Securities Lawyer 101 l Short Sale Question & Answer

Short selling can be a legitimate trading strategy. It is often endorsed for its beneficial effects on the securities markets, which include increasing liquidity. It is also criticized. Short sellers profit by identifying companies that are weak or overvalued, and companies whose shares have been manipulated to rise to artificially high share prices.

SEC Charges Laidlaw and Its CEO for Securities Violations

SEC Charges Laidlaw and Its CEO for Securities Violations

FINRA Granted Authority to Initiate Trade & Quotation Halts

Recent SEC amendments to FINRA Rule 6440, grant authority for FINRA to initiate trading and quotation halts in OTC equity securities when it is deemed necessary to protect investors. As amended, Rule 6440 grants FINRA the authority to impose foreign regulatory halts, derivative halts and extraordinary halts.

Ask Securities Lawyer 101 l Rule 144 Non-Affiliate Question & Answer

The author answers the most common questions on Rule 144.

Reverse Mergers l The Corporate Hijacking Agenda

Corporate hijackings of public shell companies–also called corporate identity theft–has been around for more than two decades. The public companies taken over in hijackings have become a valuable assets for shell peddlers (frequently securities lawyers & accountants) seeking reverse merger companies for their clients. They have also become a new target for the SEC.

How FINRA Rule 6490 lmpacts Reverse Mergers

How FINRA Rule 6490 lmpacts Reverse Mergers

Foreign Private Issuers l Choice of SEC Registration Statement

The securities laws provide numerous benefits to issuers who qualify as foreign private issuers including but not limited to reduced disclosure obligations and relaxed financial statement requirements.

Raising Capital - Regulation S - Foreign Private Issuers

Foreign private issuers may raise capital in the U.S. using an offering registered on a registration statement under the Securities Act or by selling securities that are exempt from the SEC’s registration requirements.

SEC Suspends Trading of the Securities of Polar Petroleum Corp

On June 10, 2013, the Securities and Exchange Commission (the “SEC”)announced that it had suspended the trading in the securities of Polar Petroleum Corp. a company quoted on the OTC Markets with the symbol POLR.

Due Diligence in the SEC Registration Statement Process

Private companies in going public transactions that intend to be quoted on the OTC Markets OTCQB must first become reporting with the Securities and Exchange Commission (the “SEC”). This is typically accomplished by the private company filing a Form S-1 registration statement under the Securities Act of 1933, as amended (the “Securities Act”).

Rejection of Haircut Appeals by the Supreme Court of Cyprus

The Supreme Court on Friday, 7 of March, delivered its long-awaited decision with regard to the appeals lodged by Laiki’s and BoC’s depositors who lost part of their money in the €10 billion bail-in plan for Cyprus. More than 3.000 appeals of uninsured depositors were filed before the Supreme Court requesting the decision to be revoked.

Updated Publication Cross-Investments between sub-funds of Malta-registered SICAVs

An investment company with variable share capital (“SICAV”) is by far the most common vehicle utilised by promoters for the licensing of Collective Investment Schemes in Malta. This is attributable to the flexibility associated with such vehicles, as provided by the Companies Act (Investment Companies with Variable Share Capital) Regulations (the “Regulations”).

Judicial Review against the Haircut on Laiki’s and BoC’s Depositors - Cyprus

The judicial proceedings against the haircut on Laiki and Bank of Cyprus’ depositors are ongoing. The objective of the applications filed for judicial review is to annul the governmental decrees by which deposits in excess of €100.000 in Laiki and BoC were subjected to massive reductions.

New Securities Law in Panama

Law 67 implements a multiple institutional coordination and cooperation system between regulatory entities as a multilateral board that gathers Panamanian regulatory government agencies.

Change in Belize Legislation Regarding Bearer Share Certificates

A registered agent shall at all times retain physical possession of the bearer shares certificate, whether he deals directly with the end-user customer or with a professional intermediary customer.

MFSA Publishes a Self-Assessment Questionnaires for Fund Managers & Self-Managed Collective Investment Schemes - Malta

In view of the AIFMD coming into force on 22nd July 2013, Category 2 Licence Holders authorised to provide investment management services to collective investment schemes; Self-Managed Retail Non-UCITS Schemes; and Professional Investor Schemes licensed in terms of the Investment Services Act, 1994 (the “Act”), will be issued with a revised licence to operate as AlFMs, unless they opt for the ‘de minimis’ classification in accordance with the provisions of the AIFMD.

Stocks in Panamanian Corporations

In few months the Rules of the game for Panamanian Corporations could be changed.

Outsourcing of AML Compliance: How Far Can a Financial Institution Go?

Several banking giants, such as HSBC and Standard Chartered, are currently being investigated by US regulators for alleged failings in anti-money laundering (AML) compliance. All fingers point to lapses involving outsourcing units operating without adequate oversight.

Open a Bank Account in Panama

The authors offer an overview of the process to obtain a bank account in Panama.

Malta Does Not Face Same Bank System Risks as Cyprus

On the 16th April 2013, Fitch Ratings issued a statement regarding a special report published by Fitch, highlighting the main differences between the Maltese and Cypriot banking systems and concluded that these differences far outweigh the similarities and that, as such, ‘Malta Does Not Face Same Bank System Risks as Cyprus’ meaning the Maltese banking sector does not present the same level of risk to the sovereign that was seen in Cyprus.

Why Bankig in Panama?

Stability is important to consider when you decide to open an offshore bank account…Why Panama?

Reduce Personal Liability from Your Business

Here is a quick outline to help you avoid personal liability from your business. You’ll see that most of the authors advice derives from an informed use of corporations and corporate law, which is why…

An Update on the Forthcoming CRD IV Rules - Malta

On 27th March 2013, the Permanent Representatives Committee approved the compromise text on the Capital Requirements Directive, better known as the “CRD 4” package proposed to amend and replace the existing rules on capital requirements, applicable to banks and certain investment firms. The new proposals come in the form of a Directive that governs access to deposit-taking activities and a Regulation that establishes the prudential requirements that institutions need to respect.

FATCA from the Account Holder's View

While banks and other financial institutions are already preparing for the introduction of FATCA, the system is less commonly known by banking clients. The objective of this article is to summarise the most important changes and decision points the introduction of the FATCA system will mean to clients holding their bank accounts with non-US banks.

Consultation Document- De Minimis AIFMs - Malta

On the 22nd March 2013, the Malta Financial Services Authority (MFSA) issued a Consultation Document on the proposed rulebook applicable to De Minimis Licence Holders in terms of Article 3 of the Alternative Investment Fund Managers Directive (‘AIFMD’), which provides for exemptions and lays the foundations for the said de minimis regime.

Situation of Banks in Cyprus as of 29 March 2013

A brief overview of the emergency measures approved by the Cypriot parlament in relation to the banking sector.

The Amendments and Innovations Brought by the New Financial Leasing Law - Turkey

This article is a comparative study which points the differences between the Law on Financial Leasing, Factoring and Financing Companies and the repealed Financial Leasing Law.

Cyprus Developments on Banking Sector – Overcoming the Difficulties

Cyprus is struggling with the worst crisis in its history since the 1974 invasion by Turkish military forces that divided the country in two.

The Advantages of Investing in the Democratic Republic of Congo and in Other 16th OHADA Members

OHADA is the Organisation for the Harmonisation of Business Law in Africa. With this law, doing business has become secured in 17th African members countries including the DR. Congo. This has many advantages not only for local economic operators but also for foreign investors who wish to invest in the OHADA states such as the Democratic Republic of Congo.

Severe Debt Default Crisis Looming: Saudi Economists

Saudi economist warned that the defaulting tendency would only worsen unless the local and global economy made a rapid recovery. He, however, expressed satisfaction over the present practice of banks to set tough conditions for granting loans.

Combatting Counterparty Risk with Central Counter-Parties - Malta

Chasing payment of dues is a mundane yet critical element of every business process. Hugely time consuming, it could expose any activity large or small to counter-party risk, even more so in times of economic crisis.


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