S250Companies
Act(CA)2006 defines a director as anybody occupying that
position. While
S1173CA2006
defines a director as an officer of the company.
Millet
J in Re : Hydrodan
Ltd1
identified the three main types of directors as de jure,that
is those who have been validly appointed to the office, de
facto, that is to say those who assume to act as directors
without having been appointed validly or at all and shadow
directors who are persons falling within the definition (in
s.25IA 1986).In
Secretary of state
for trade v Devrell2
Moritt LJ elaborated
the functions of the shadow director as somebody lurking in
the shadows ,though he may be frequently consulted.In
s.251(1)CAO6 a shadow director in relation to the company
means a person in accordance with whose directions or
instructions the directors of the company are accustomed to
act.
According
to s.155(1)CA2006 a company must have at least one director
who is a natural person with a minimum age of 16
years.(s.157CA06).This minimum age has been criticized since the
minimum age for entering into a contract is 18 years.
Chapter
One-
Directors’
Duties Under Common Law
At
common law the director’s duty is to act bona fide in the
interests of the company. In Percival
v Wright3
(1902) it was held
that the duties of the director were owed to the company
.The application of this common law principle is illustrated
in Peskin v
Anderson4
(2001)
where the claimants failed to establish that the directors
owed duties to the shareholders of the company. However, in
Liquidator of West Mercia Safetywear Ltd v Dodd5
it was held that creditor’s interest must be taken into
account if the company is insolvent.
This
common law principle is expressed in
s.170(1)CA2006.Consequently, enforcement of the general duties
is a matter for the company.
In
City Equitable Fire
Insurance Co Ltd6
some directors who were negligent escaped liability due to an
exclusion clause in the company’s articles. It was held that
the director had no obligation to give continuous attention to
the affairs of the company. While in Re
D’Jan 7
a director was negligent in not reading a fire insurance form
which resulted in the company going into liquidation. Hoffmann LJ
held that the standard of care expected of a director was
contained in the wrongful trading provisions in s214(4)IA
1986.This recognises the idea of a reasonable director and
applies the higher of either an objective or subjective
standard.
Directors
are seen as agents of the company and as such subject to
those fiduciary duties
developed
by equity to ensure that compliance with the overriding
principle that fiduciaries
must
not benefit from their positions of trust. The position of
directors was clearly outlined
in
Aberdeen Railway Co Ltd
v Blaikie(1854)8
by Lord Cronworth :”The directors are a body to whom is
delegated the duty of managing the general affairs of the
company. A corporate body
can
only act by agents and it is of course the duty of those
agents to act as best to
promote
the interests of the corporation whose affairs they are
conducting. Such agents have discharge of a fiduciary nature
towards their principal.”The fiduciary principle was applied
in regulating the conduct of a trustee in
Keech v Sandford9(1726)
where the trustee was prevented from renewing a lease of a
child on whose behalf he was acting.
Chapter
Two
Scope
of duties under CA2006
Collectively
directors have extensive actual authority. Individually ,it
arises from an express conferring of authority on a director
which would typically be recorded at board meetings.
Apparent
authority is the authority of an agent as it appears to
others.(Hely-Hutchinson
v
actual
authority or create authority where it is non-existent. But it
cannot be relied on
if
the third party knows that that the agent has no actual
authority.
The
directors mandate to manage the business is derived from the
constitution(s.257) and the
authority
conferred on them through agency law. In addition, he must
exercise powers for the purposes for which they are conferred
in s171-to act within the constitution and exercise their
powers for their proper purpose. In Hogg
v Cromphorn11(1967)
it was held that the power to issue shares was a fiduciary
power that had been exercised for an improper purpose and it
was irrelevant that the managing director acted bonafide in
what he felt was in the best interests of the company. The
breach was ,however, ratified by referring the matter to the
general meeting for approval by the members.
directors
had improperly used their power to issue shares. Their primary
motive was to
destroy
one majority and to create a new majority shareholding in HS
Ltd.Where shares are
issued
for more than one purpose,it is essential to determine the
primary purpose of the issue.HS Ltd can be distinguished from
Hogg v Cromphorn
because here, the majority
who
were claimants had made it clear they were against the
share issue, so there
was
no point in referring the matter back to them. Currently, a
decision by directors to issue shares now requires the
approval of members under s551CA2006.Further,in
Exposure Travel
Insurances
Ltd v Scattergood13
where directors
transferred funds to another company in the group so that a
sister company could pay a creditor, it was held that the
directors’ power to deal with the company’s assets was
intended to promote the company’s interests so that by
using the power to enable the recipient pay its debts, it was
improperly exercised.
The
statutory statement of the general duties is outlined in CA
2006,Part 10,chapter 2 as
follows
: duty to act within their powers(s.171); duty to promote the
success of the company(s.172); duty to exercise independent
judgment(s.173);duty to exercise reasonable care, skill and
diligence(s.174);duty to avoid conflicts of
interests.(s.175);duty not accept benefits from third
parties.(176) and duty to declare interest in proposed
transactions with the company(s177).
All
the duties are fiduciary in nature other than the duty of
care skill and diligence.(s178) which reflects the common law
of negligence.( s.178(2)The general duties are owed by the de
jure and de facto directors;s172(2) ensures that former
directors are subject to ss 175 and 176 regarding the
exploitation of property, information or opportunity and the
receipt of benefit from third parties after they resign.175(5)
states that the general duties of directors apply to shadow
directors and s179 provides that these duties are cumulative
and may even overlap sometimes.
s.170(1)CA2006
gives statutory effect to the decision in
Percival v Wright(1902).It
provides that the general duties specified in ss171-177 are owed
by a director of a company to the company. A breach of duty
is therefore a wrong committed against the company itself. It
was confirmed by the court of Appeal in Hawkes
v Cuddy (no 2)(2009)14
that the fact that a director was nominated by a shareholder did
not in itself impose any duty owed to his nominator by the
director. A nominee director could take into account the
interests of his nominator without being in breach of his
duties to the company provided that his decisions as a
director were taken in what he bona fide considered to be in in
the interests of the company.
However,
the shareholders may appoint directors as their agents in
which case
the
directors will owe them fiduciary duties arising from that
agency relationship.(Allen
vHyatt15.Directors
may also find themselves liable to shareholders under ordinary
legal principles, for example in misrepresentation, if they give
misleading advice or abuse their position.
a)Duty
to promote success of the company.(s.171)
The
proper purpose doctrine is reflected in s.171 CA2006.The duty
to act bona fide has been modified and restated in s172(1)
as a duty to promote the success of the company as follows;
firstly, a director must act in the way he considers, in good
faith, is most likely to promote the success of the company
for the benefit of its members taking into account :
1).the
likely consequences of any decision in the long-term.
2)
the interests of the company employees
3)the
need to foster the company’s contacts with suppliers,
customers and others
4)the
impact of the company’s operations on the community
5)maintaining
high standards of business conduct
6)The
need to act fairly as between members of the company.
This
duty has effect “subject to any enactment or rule of law
requiring directors, in certain circumstances to consider or act
in the interests of creditors of the company(s.172(3).
b)
Duty to act in good faith(s.172(1)CA2006
The
duty in 172(1) CA2006 is a subjective test. A director who acts
in a way that he considers in good faith is most likely
to promote the success of the company for the benefit of
its members. The issue was explained by Jonathan Parker J in
Regentcrest v
Cohen(2001)16
at 105:
“The
question is not is not whether, viewed objectively by the
court, the particular act or omission which is challenged
was in fact in the interests of the company; still less is
the question whether the court had it been in the position
of the director at the relevant time might have acted
differently.” Using a subjective perspective the court found
that the board had acted bona fide.The decisive consideration
in the minds of the directors in agreeing to waive the claw
back claim
(valued
at £1.5) had been the need to maintain a united board and
not to create a situation in which two of the directors
were being sued by the company and were contesting the
claim. The company was in difficult negotiations with its
creditors at the time and suing two directors would have given
rise to the gravest misgivings on the part of anyone
concerned in trying to save the company. In voting for a
waiver the court concluded that the directors were acting in
the best interest of the company.
The
underlying philosophy is that the courts must not interfere
with the exercise
of
business judgment by the directors and avoid reviewing
situations with the
benefit
of hindsight. For example in GHLM
Trading Ltd V Maroo(2012)17
the court considered various aspects of directors duties in
the context of a company whose shareholding had been
purchased via a cash injection from a third party and found
the directors had breached their fiduciary to act in good
faith by acting to advance their own interests in pursuing
repayment of their own personal loan which was still outstanding
and ignoring the interests of creditors as a class when the
company was in financial difficulties despite having been told
that it was unacceptable to do so.
Nevertheless,
while the test is essentially subjective, there are limits to
it, so the court will
not
tolerate a director’s assertion that he acted bona fide when
the facts might appear
to
suggest the contrary ,bearing in mind Bowen LJ’s comments in
Hutton v West Cork Rhly
(1993)18
to the effect that bonafides test cannot be the sole test,
for a lunatic may act perfectly bonafide yet irrationally.
The
limits of the subjective test lie along the boundaries of
unreasonableness and detriment to the company. The issue is
whether an intelligent and honest director could in the whole
of
the circumstances reasonably believe the transaction to be
for the benefit of the company. As Jonathan Parker J noted in
Regent Crest plc v
Cohen(2001) 19
where it is clear that the act or omission under challenge
resulted in substantial detriment to the company, the director
will have difficulty in persuading the court he honestly
believed it to be in the company’s interest. For example in
Re Genosysis Technology
Management ,Wallach v
Secretary of state for Trade and Industry(2007 )20,two
directors were disqualified for entering ,on behalf of the
company into a settlement agreement with a customer under which
a claim for 1.25m Euros was made(which was instead paid to a
parent company) and gained a maximum of £166,000.Regardless, of
the fact that they honestly believed this to be in the
interests of the company, the court found they had no
reasonable grounds for that belief and were in breach of
their duties.
c)The
success of the company for the benefit of the members as a
whole.(s172(2)CA2006
Some
companies exist for purposes other than the benefit of
its members and s172(2) suggests that companies have a
variety of purposes, commercial and altruistic.Basically,where
there are different classes of shareholders so decisions may
adversely affect the interests of one class and benefit
another, the director must promote fairness between the
different shareholders. The position on these matters has not
been altered by s172.Directors must also be mindful of the
long-term consequences of any decisions on the commercial entity
as a whole.
d)Duty
of Care ,skill and independent judgment(174 CA2006)
s.174(2)
makes it clear that the duty of care, skill and judgment
is not a fiduciary duty
but
a common law duty which is governed by the normal rules of
common law as to liability for negligence. Millett J explained
the difference in Bristol&West
Building Society v
Mattew(1996
)21
where he stressed that fiduciary duties are peculiar to
fiduciaries, breach of which attract legal consequences
different from those consequent upon breach of other duties.
Breach of fiduciary duty attracts equitable remedies which are
primarily
restorative
rather than compensatory as would be the case on a breach of
a duty of care. He said the core of fiduciary duties is
loyalty so its breach is about disloyalty so mere incompetence
is not enough. The duty of care and skill is a common law duty
and liability may lie in tort or contract where a director has
a contract of employment as it is an implied term that an
employee will exercise reasonable care and skill in the
performance of his duties.(Lister
v Romford&Ice Cold Storage Ltd (1957) 22
Enforcement
of the duty of care and skill takes place when the company goes
into
insolvent
liquidation or administration where a liquidator or administrator
may find it useful to pursue a director for misfeasance or
wrongful trading under IA 1986 s 214.Disqualification proceedings
may also be brought on grounds of unfitness.
For
solvent private companies allegations of negligence often arise
in the context of unfairly prejudicial petitions under s994 with
limited success. There is a judicial view that directors are
elected by shareholders and if they choose to appoint poor
managers, then short of insolvency this is a matter for them.
Another constraint on judicial enthusiasm for negligence claims
against directors is the view that the courts must not interfere
or second-guess on matters of business judgement and often what
is presented as a claim in negligence is merely a disagreement
on business strategy.
In
addition, directors are not trustees and are appointed
specifically to take risks in an environment of risk which is
the purpose of the limited company. Any attempt to pursue a claim
in negligence faces the difficulty of establishing that a duty
of care was owed in respect of the loss which has
occurred. Where the breach is constituted by inactivity, the
court must construct as Briggs J put it in Lexi
Holdings plc v
Luqman(2008 )23
a hypothetical edifice so as to ascertain what would probably
have happened if the relevant duties had been performed, so as to
verify whether in that case the losses actually suffered would
probably not have occurred. In Lexi the court found two
directors
of
a company in breach of their duties in not informing the
board of the criminal convictions for fraud of another
director(their brother) who went on to misappropriate large
sums of the company’s money.However,the court held that had
the directors disclosed the convictions ,the result would
have been that other directors would have resigned and the
company’s bank might not have increased its credit to the
business. As a result the claim against the two directors
failed.
d)Duty
to exercise independent judgment( s.173 CA 2006)
s173(2)
CA2006 states that as a fiduciary a director must exercise
independent judgement.s173(2)(a) reflects a common law
obligation on the directors not to fetter their discretion. In
Thorby v Goldberg24
the directors of a
company agreed as part of a broader restructuring
transaction to allot shares in a particular manner by a
certain date. They then failed to do as they had promised. In a
move to compel them to act ,they pleaded that the undertaking
was an invalid fettering of their discretion. The court
rejected their argument, holding that the time for exercising their
discretion was when entering into the agreement.
The
court of Appeal endorsed this approach in Fulham
Football Club Lt v Cabra Estates plc(1994)
25.In
this case the directors of a company had entered into an
undertaking to support and refrain from opposing planning
applications by another party for the development of certain
land in return for the receipt by the company of large sums
of money. The directors subsequently wanted to give evidence to
a planning inquiry opposing the development and sought a
declaration that they were not bound by the undertakings and
were entitled to give such evidence to the inquiry as they
considered to be in the interests of the company. The court of
Appeal disagreed. It held that they had not improperly fettered
their discretion.
The
court drew a distinction between directors fettering their
discretion(which is prohibited) and acting in a way which
restricts their future discretion(which is permissible).The
directors had exercised their independent judgments at the
time they gave the promise not to oppose the planning
application and hence it was not a case of fettering their
discretion but rather a case that they had already exercised
it.
e)Duty
to avoid conflict of interest(s.175(1) CA 2006)
Directors
duty of loyalty which includes the two key components of
duty to avoid conflicts of interest and not to make secret
profits from their fiduciary position are stated in
s175CA2006.The courts interpret and apply these duties in the
light of corresponding common law rules and equitable
principles.(s.170(4)CA2006.The no-profit no conflict rule operate
independently of each other ; are mutually exclusive and so
either or both may apply in a given situation.
Liability
under s.175(1) arises from a situation of conflict or possible
conflict, with possible being limited, in the words of Lord
Upjohn in Boardman v
Phipps(1966 )26
to “whether a reasonable man looking at the relevant facts
and circumstances would think that there is a real sensible
possibility of conflict” with the interests of those whom
the fiduciary is bound to protect.
In
Aberdeen Railway Co
Ltd v Blaikie(1854)
Aberdeen ordered some iron chairs from Blaikie Bros.John
Blaikie was a partner in this business as well as chairman
and director of Aberdeen.When Aberdeen refused to take
delivery of the chairs and were sued for damages by
Blaikie Bros,it was held that John Blaikie was in breach of
his fiduciary duty to avoid conflict of interest between him
and the company. The contract was voidable at the company’s
option.
f)
Avoiding conflict between interest and duty and between
duties.(s.175(7)CA2006
The
no- conflict rule applies (s.175(7) where there is a clash
between personal interest
of
the director and his duty to advance the interest of the
company as well as where
there
is a conflict or possible conflict between duties where the
director is a director of two
or
more companies and has a separate duty to advance the
interests of each company.
In
IDC v Cooley(1972)27
it was held that the former managing director had allowed
his own interest to conflict with those of the company by
faking illness and later taking the benefit of a contract which
he was offered in a private capacity while negotiating with a
client of the company after he was released on grounds of
illhealth.He was ordered to account for the benefit he had
received under the contract for breach of duty.
While
in Island Export
Finance Ltd v Umunna(1986)28
Umunna was the
managing director of Island Export who negotiated a contract
to supply postboxes to the Cameroonian government on behalf of
the company.He subsequently resigned for personal reasons and
acquired two contracts for the supply of postboxes with the
Cameroonian government through his own company formed after
leaving
Island
Export who alleged
breach of fiduciary duty.It was held that the fiduciary duties
of a director do not end automatically on resignation but on
the facts there was no breach of duty.Umunna had not taken
‘ a maturing business opportunity’ which Island
Export was actively
pursuing and had not used confidential information in
acquiring the contracts.
IDC
was followed in Bhullar
v Bhullar (2003 )29
where two directors of a family company were held to be in
breach of the no-conflict rule when they acquired property
adjacent to the company without telling the company that the
property was available for purchase. Their personal interest in
acquiring the land was in conflict with their duty to
promote the company’s interest which required them to pass on
the existence of the opportunity to the company which could
then have assessed whether to acquire it.
Similarly
in Re Allied Business
Financial consultants Ltd (2009)30
the court of Appeal found that two company directors,in
purchasing investment property on their own behalf rather
than through the company, were in breach of their fiduciary
duties to act only in the company’s interests and the
no-conflict rule by taking for themselves business
opportunities that were properly the company’s.
In
practice the no-conflict rule means directors must disclose
the conflict of interest and seek authorization or resign. The
issue of disclosure was addressed by the court of Appeal
in Item Software(UK)Ltd
v Fassihi(2005) 31
where a director should have disclosed that while the company
was negotiating a renewal contract, the director was also
negotiating to secure the contract for his personal benefit. It
was held that he could not have fulfilled his duty of
loyalty
to
the company without disclosing his plans including that he
had set up his own company as well
as
acquiring the distribution contract for himself.Ultimately,since
the director will be unwilling to disclose his plans, the
requirement of disclosure calls for his resignation.
F)Duty
not to accept benefits from third parties(s.176 CA 2006)
In
Towers v Premier
waste management Ltd (2011)32
the court of Appeal held that a company director had breached
his fiduciary duty when he accepted a free loan of
equipment
from a customer without disclosing the transaction or
seeking approval for it.
g)duty
to disclose interests (s177CA2006)
to
comply with s177 F ,the former director of the company
should have declared his interest and recorded in the minutes
the resolutions terminating his employment contract and the
payment of £100,000 compensation when a new management sought
a declaration that F should have declared his interest in
the contract.
2.1
Remedies
s.178
CA2006 provides that the consequences of breaching ss 171-177
have the same
consequences
as if a corresponding common law rule or equitable principle
applied. Regarding the no-conflict rule a director must account
for any secret profit resulting from his breach of duty unless
it was authorised (s.175(4)(b) CA 2006.)In
A-G for Hong Kong V Reid34
Lord Templeman
explained that Boardman v Phipps “ demonstrates the strictness
with which equity regards the conduct of a fiduciary and the
extent to which equity is willing to impose a constructive
trust on property obtained by a fiduciary by virtue of his office.”
Chapter
Three
Discussion
and Conclusion
Indeed, the courts have some
difficulty in interpreting the statutory provisions
regarding directors’s duties where there have been
allegations of breach of duty. For example ,striking
a balance between the short
and long-term interests of the company when it comes to
exercising reasonable care and skill can be a difficult task.
In his article “ Challenging directors’ bonuses: the
application of directors’ duties to service contracts”
Ranulph Day argues that the bonuses paid to the directors of a
company may be incompatible with their duties to have regard to the
long-term interests, to exercise independent judgment and to exercise
reasonable care and skill per ss.172-174 of the Companies Act 2006.
The rationale for this is that the nature of a bonus when it acts as
a short-term risk incentive is incompatible with the fiduciary
obligation which a director owes to the company per Percival
v Wright.
He stresses that the service contracts of directors which contain
incentives to short-term risk without a balance of equally valuable
long-term objectives, and which encourage the pursuit of one or more
agendas at the expense of a holistic agenda, are contrary to the
fiduciary duties of directors. Consequently, these schemes may be
challenged at law under the current provisions of UK law.
Another problematic area is
post resignation conflicts of interest.In their article” “
Judicial Pragmatism: directors duties and post resignation
conflicts of interest “ John Lowry and Jen Slozar question
the wisdom in the assertion by James L.J that the duties
are “inflexible”and must be applied “ inexorably”
following the Appeal Court decision in Pyke35
that there was no rigid rule prohibiting a director from being
involved in a competing business, and there was no breach of
fiduciary duty on the facts.
They point
out that “the
modern case law demonstrates that while the rigours of directors'
duties are beyond question, their application must be sensitive both
to facts surrounding an alleged breach and to other considerations
such as the rules on restraint of trade and the freedom to compete.
Clearly there are lines that will not be crossed, such as the misuse
of corporate property or trade secrets. In clear cases of abuse of
position such as occurred in Cooley
no one can challenge
the imposition of equity's strict sanctions against conflicts of
duty. However, the law must be capable of adopting nuanced approaches
in cases where the question is far from being clear-cut.”
In
his article “Good
faith and directors' duty to promote the success of their company,”
Andrew Keay argues that “How
often a judge will either disbelieve the evidence of directors that
they acted in good faith so as to promote the success of the company,
or find that directors did not consider whether their actions would
promote the success of the company, is something that one cannot
estimate. He suggests that claimants can seek to have the issue of
whether the director acted in good faith examined in light of
objective considerations. Where a director has acted in good faith,
but his or her actions were not reasonable, any claimant would
probably have to seek to make out a case for breach of the duty of
care set out in s.174.
Ngoye
Okozi in his article “
The BIS (Dept of Business Innovation and Skills) review and
section 172 of the Companies Act 2006: what manner of clarity is
needed?”
stresses that
“the personality and behaviour of a director invariably has a
significant influence on his application of the provisions of any
statute, as with that of the provisions of s.172 of the Companies
Act. In the light of the BIS review and the ensuing report, which
calls for improvement and change as regards s.172 and directors'
duties, one would be minded to state that if there is no change in
the wording and interpretation of that section, it would be
unreasonable to expect a radical change in the behaviour of directors
in response to its provisions.”
In
conclusion, although the duties of directors have been spelt
out clearly under common law and statute, a careful analysis
of the case law suggests that the dynamic conditions under
which business is carried implies that the rules must be
applied with flexibility taking into account objective
conditions and the best interests of the company as a
whole.
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Articles
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“Directors’
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“
Company
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1
Hydrodan(Corby)(In Liquidation(1994) BCC 161
2
Secretary of State v Deverell (2000) 2 WLR 907
3
Perceival v Wright(1902) 2 CH 421
4
Peskin v Anderson(2000) BCC 1110
5
Liquidator of West Mercia Safety Wear v Dodd 1988 BCLC 250
6
City Equitable Insurance(1925)Court of Appeal
CH 407
7
Re D’Jan of London Ltd 1993 BCC 646
8
Aberdeen Railway Co v Blaikie Bros(1853) 15
D(HL)20
10
Hely- Hutchinson v Brayhead 1967 3 All ER 98
11
Hogg v Cromphorn(1967) CH 254
12
Smith Ltd v Ampol Petroleum Ltd(1974) AC 821
14
Hawkes v Cuddy (no
2)(2009) EWCA
15
Allen
vHyatt
1914 30 TLR 444
16
Regentcrest
v Cohen(2001)BCLC 80
17
GHLM Trading Ltd V
Maroo(2012)EWCH 61(CH)
19
Regent Crest plc v
Cohen(2001) 2 BCLC 80 at 105,
20
Re Genosysis Technology
Management ,Wallach v
Secretary of state for Trade and Industry(2007 BCLC 208 at
231) ,
23
Lexi Holdings plc v
Luqman(2008) 2 BCLC
752
24
Thorby v Goldberg (1964 )
112 CLR H Ct of Australia v Goldberg
25
Fulham Football Club Lt v
Cabra Estates plc(1994 1
BCLC 363
26
Boardman v Phipps HL 1966
27
IDC v Cooley(1972 1 WLR
443)
28
Island Export Finance Ltd v
Umunna(1986) BCLC 460
29
Bhullar v Bhullar (2003 2
BCLC 441)
30
Re
Allied Business Financial consultants Ltd 2009 EWCA Civ 751
32
Towers v Premier Waste Management Ltd 2011 EWCA Civ 923
33
In Neptune (Vehicle washing
equipment)Ltd v Fitzgerald 1996 Ch 274
34
A-G for Hong Kong V Reid
35
In Plus Group Ltd v Pyke Court of
Appeal(Civil Division)2002
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