In light of the government shutdown, I really wasn’t expecting any bombshell announcements from the SEC any time soon. Well, that shows you what I know, because yesterday the SEC announced that it had snagged the alleged perpetrators of the infamous 2016 hack of the Edgar system. Here’s an excerpt from the SEC’s press release:
The Securities and Exchange Commission today announced charges against nine defendants for participating in a previously disclosed scheme to hack into the SEC’s EDGAR system and extract nonpublic information to use for illegal trading. The SEC charged a Ukrainian hacker, six individual traders in California, Ukraine, and Russia, and two entities. The hacker and some of the traders were also involved in a similar scheme to hack into newswire services and trade on information that had not yet been released to the public. The SEC charged the hacker and other traders for that conduct in 2015.
The SEC’s complaint alleges that after hacking the newswire services, Ukrainian hacker Oleksandr Ieremenko turned his attention to EDGAR and, using deceptive hacking techniques, gained access in 2016. Ieremenko extracted EDGAR files containing nonpublic earnings results. The information was passed to individuals who used it to trade in the narrow window between when the files were extracted from SEC systems and when the companies released the information to the public. In total, the traders traded before at least 157 earnings releases from May to October 2016 and generated at least $4.1 million in illegal profits.
Here’s the SEC’s complaint – which lays out how the hackers allegedly exploited Edgar test filings for fun & profit. The SEC’s press release notes that this isn’t its first go-around with Oleksandr Ieremenko. This guy was allegedly one of the masterminds behind one of the largest securities frauds schemes of all time. As Broc blogged at the time, Iremenko and others hacked into 150,000 earnings releases over a 5-year period, & the info they obtained resulted in over $100 million in illicit profits. Check out this article for more details on Oleksandr Ieremenko & how that scam came to be.
Parallel criminal charges have been brought against the defendants by the New Jersey US Attorney’s office. Criminal charges also were brought in connection with the newswire hack – which raises the question of why Mr. Ieremenko isn’t making big rocks into little rocks as a guest of the US government? Well, it turns out that he’s in Kiev, and the Ukraine does not extradite its citizens.
Gun Jumping: “I’m Not Dead. . . I’m Getting Better”
I hope you aren’t getting tired of my Monty Python references – but after reading this blog from Bass Berry’s Jay Knight about some recent Staff comments on “gun jumping,” I couldn’t resist borrowing from The Holy Grail’s “Bring Out Your Dead” scene for this blog’s title. Jay says that, like the old man in the movie, gun jumping’s not dead yet:
Despite the trend toward a more relaxed approach on offering related communications, gun jumping in some form or another is still alive and well for most offerings conducted, and securities lawyers continue to provide counsel to management on how to navigate the potential minefield.
For example, in monitoring SEC comment letters I came across this SEC comment letter recently made public, which asks the issuer to explain why gun jumping laws were not violated when two of its shareholders issued press releases with respect to the issuer’s confidential IPO submissions and an article on the same matter was published in the Israeli business newspaper Globes.
Jay says that the company’s response appeared to satisfactorily address the Staff’s concerns (it appears no follow-up comments were issued). He also reviews the still hale & hearty ground rules for avoiding potential gun jumping issues in securities offerings.
ICOs: The Crypto’s Blowin’ Up on Reg D
Although at least one token sponsor has publicly filed an S-1 & a few others have made confidential draft S-1 filings in preparation for registered ICOs, MarketWatch’s Francine McKenna reports that Reg D remains the preferred path for coin offerings:
MarketWatch counted 287 ICO-related fundraisings accepted by the SEC with a total stated value of $8.7 billion in 2018, peaking at 99 in the second quarter. That’s a significant increase from 44 fundraisings filed with a total stated value of $2.1 billion in 2017.
As we blogged early last year, Francine previously reported that reliance on Reg D skyrocketed following the SEC’s issuance of guidance on coin offerings in 2017, and it looks like it that trend remained strong throughout 2018.
I probably should preface this blog by conceding that when it comes to constitutional law, I was never anybody’s idea of SCOTUS clerk material. In fact, about all I can remember from my Con Law class is the time that Prof. Howard called on me and began his questioning with “Mr. Jenkins, Justice Black dissents in this case. . .” To which I responded, “Yes he does, Professor – and I pass.”
Anyway, some lawyers for The Cato Institute who obviously paid more attention in Con Law than did I have filed a federal lawsuit on behalf of the libertarian think tank challenging the constitutionality of the SEC’s Rule 202.5(e). That rule reads as follows:
The Commission has adopted the policy that in any civil lawsuit brought by it or in any administrative proceeding of an accusatory nature pending before it, it is important to avoid creating, or permitting to be created, an impression that a decree is being entered or a sanction imposed, when the conduct alleged did not, in fact, occur. Accordingly, it hereby announces its policy not to permit a defendant or respondent to consent to a judgment or order that imposes a sanction while denying the allegations in the complaint or order for proceedings. In this regard, the Commission believes that a refusal to admit the allegations is equivalent to a denial, unless the defendant or respondent states that he neither admits nor denies the allegations.
This rule is why every SEC settlement contains language providing that the defendant “neither admits nor denies” the SEC’s allegations. In its complaint, Cato says it wants to publish a book critical of the Division of Enforcement written by a former target of an SEC enforcement action, but alleges that the “neither admit nor deny” language in the author’s settlement effectively prevents it from doing so. Cato says that what it refers to as the SEC’s “gag rule” is a content-based restriction on speech that’s prohibited under the 1st Amendment.
Over the years, the SEC’s “neither admit nor deny” settlement policy has come in for plenty of criticism. After the financial crisis, critics complained about the SEC’s failure to require admissions of wrongdoing in its settlements with major financial institutions. That ultimately led the SEC to adopt a policy of requiring admissions in some instances.
This time, the SEC’s rule is facing challenges from the “Kill the Administrative State! Kill it with Fire!” side of the political spectrum – and this lawsuit is not the first time the rule has been questioned on 1st Amendment grounds. In October of last year, a rulemaking petition was filed with the SEC challenging the rule’s constitutionality & calling for its revision.
Now, this is where those caveats about my ineptitude as a constitutional scholar come into play. Despite my complete lack of qualifications, I’m going to play the pundit & speculate that this lawsuit just might get some traction. The federal courts are becoming less deferential to regulatory agencies – as evidenced by last summer’s SCOTUS decision invalidating the SEC’s ALJ appointment process. My guess is that this lawsuit may get a boost from the current “Death to the Administrative State!” zeitgeist – but recent experience also suggests that proponents should be careful what they wish for.
SEC Shutdown: “Rules? We Ain’t Publishin’ No Stinkin’ Rules!”
Meanwhile, as America nears the four week mark in its anarchy experiment, over on our ’Q&A Forum’ (#9717) people are starting to wonder what’s become of the rules the SEC adopted before the shutdown. Here’s one member’s question:
On December 19, 2018, the SEC adopted final rules regarding the amendment of Regulation A. I’ve yet to see them published in the Federal Register (or the Govinfo site). Any insight as to why not, and any idea when we can expect this?
In his answer, Broc pointed to the shutdown as the likely culprit for the delay in publication. That’s certainly part of it, but I imagine some of the delay also may be associated with the need to press the remaining essential employees at the Gov. Printing Office into service delivering 300 Big Macs & assorted other fast food delicacies to the White House.
I guess some expected fancier fare for the Clemson Tigers, but as someone who once ate 4 Sausage McMuffins with Egg at the Angola service area on the NYS Thruway & enjoyed a “Royale with Cheese” at the Louvre, it’s all good with me.
Transcript: “GDPR’s Impact on M&A”
We have posted the transcript for the recent DealLawyers.com webcast: “GDPR’s Impact on M&A.”
As we blogged when the government shutdown started a few weeks ago, Corp Fin issued a set of FAQs to help us since its down to a skeletal level of staffing. Corp Fin has now updated its FAQs to revise #4 and 5 – and to add #6 and 9.
New #6 deals with removing a delaying amendment when you have unresolved staff comments on your filing (the answer is “yes, but you’re still responsible for the completeness & accuracy of the disclosure”) – #9 deals with the Staff considering a request for emergency relief under Rule 3-13 of Reg S-X (the answer is “not likely unless there needs to be protection of property”). Kudos to the Staff for numbering the FAQs!
Removing the Delaying Amendment: Need “Magic Words” to Start the Clock
Broc blogged last week about some examples of companies that removed the delaying amendment – and noted the lack of uniformity in the language. If you’re thinking of doing this, be sure to check out the update to FAQ #5. As this excerpt notes, merely deleting the delaying amendment won’t get the 20 day clock running:
Simply omitting the delaying amendment from an amendment will not begin the 20 day period. A company that intends to remove the delaying amendment must amend its registration statement to include the following language provided by Rule 473(b) – “This registration statement shall hereafter become effective in accordance with the provisions of section 8(a) of the Securities Act of 1933.” It must also amend to include all information required by the form, including the price of the securities it will sell.
FAQ #5 also highlights the fact that Rule 430A isn’t available in the absence of a delaying amendment – it can only be used for registration statements that are declared effective by the Commission or the Staff.
Privacy: California’s Consumer Privacy Act is Coming – And So Are Class Actions
If you’re feeling lucky that your company has largely dodged the GDPR bullet, I’ve got some bad news for you – California’s recently enacted consumer privacy legislation goes into effect on January 1, 2020. The statute provides substantial new protections to California consumers, and according to this DLA Piper memo, its private right of action provisions ensure that class actions will be coming:
The statute provides a private right of action under certain circumstances to California consumers whose “nonencrypted and nonredacted” personal information is “subject to an unauthorized access and exfiltration, theft, or disclosure as a result of the business’s violation of the duty to implement and maintain reasonable security procedures and practices appropriate to the nature of the information to protect the information . . . .” Cal. Civ. Code § 1798.150.
Significantly, the Act provides such consumers with the ability to obtain relief in the form of either actual damages or statutory damages between $100 and $750 per violation, whichever is greater. In setting the statutory damages amount, courts are instructed to consider, among other factors, “the nature, seriousness . . . and persistence of the misconduct,” number of violations, “the length of time over which the misconduct occurred,” willfulness, and ability to pay. In addition to damages, the Act provides for injunctive or declaratory relief and “any other relief the court deems proper.”
The memo also notes the possibility of class actions under the state’s unfair competition statute as a result of violations of the CCPA. Because of the significant class action risks, companies should begin to prepare for the statute now – and the memo offers up some specific suggestions along those lines.
Is there a difference between a “concept release” and a “request for comment”? That’s what I pondered when I wrote my blog about the SEC’s open meeting on quarterly reports a few weeks ago. I think the distinction is that a “concept release” includes within it a request for comment – and a “request for comment” standing on its own is distinguished by not having all of the background information & identification of various alternatives or concepts as you see in a concept release. What’s your ten cents?
Anti-Activism: US Chamber Announces “Aggressive & Comprehensive” Campaign
Yesterday, US Chamber President Tom Donohue delivered this speech that announced a new aggressive offensive to stop attacks on companies. Here’s an excerpt from page 7:
So today we’re announcing that the Chamber is launching an aggressive and comprehensive new campaign to meet these coordinated attacks head on. We are pursuing regulatory and legislative changes that make it easier for businesses to go and stay public … and that allow companies to focus on long-term growth. We’re working with the SEC and Congress to bring real transparency and oversight to proxy advisory firms and to reform the shareholder voting process. We’re educating directors so they are better armed to deal with public policy battles that are waged in the boardroom.
We’re vigorously opposing proposed legislation to federalize large public and private companies through the requirement of a federal charter. That’s one of the worst ideas I’ve heard in a town that knows no shortage of bad ideas. And we will work for meaningful ESG reporting that is grounded in reality and reflects the diversity of American business, across sectors and all over the country.
Daddy, tell me a bedtime story. Do you want to hear the one about when the SEC was closed for the longest time ever? If so, you’re living it. While the government has been shut down before, the SEC nearly always has had “emergency” funds that allowed it to run at full strength while other agencies were closed. For the long government shutdown in ’95 – which this shutdown will soon pass for the “longest ever” – my recollection is that the SEC Staff was off only for a few days. The current SEC shutdown far exceeds that – two weeks today.
So we truly are in a “brave new world.” And the number of shutdown-related questions that members are posting in our “Q&A Forum” grows daily…
Removing the Delaying Amendment: More Examples
Following up on yesterday’s blog that included an example of someone removing the delaying amendment, Jeffrey Rubin of Ellenoff Grossman sent the additional examples below. Interesting to note that some companies include a reference to Section 8(a) (“This registration statement shall hereinafter become effective in accordance with the provisions of Section 8(a) of the Securities Act of 1933, as amended”), while others are silent. Some of these registration statements erroneously state that they shall become effective “As soon as practicable after this Registration Statement is declared effective.” If a registration statement is filed with no delaying amendment, companies should consider language such as “As soon as practicable after the effective date of this Registration Statement” or some variant thereof.
We continue to post new items daily on our blog – “The Mentor Blog” – for TheCorporateCounsel.net members. Members can sign up to get that blog pushed out to them via email whenever there is a new entry by simply inputting their email address on the left side of that blog. Here are some of the latest entries:
– Securities Litigation: The Rise of “Event Driven” Claims
– How Common are “Finance Board Committees”?
– Annual Meeting Minutes: Must They Be Signed?
– Audit Committees: What to Consider Now
– “Fake News”: Crisis Management’s New Horizon?
Now that we’re getting pretty deep into this government shutdown, you might be wondering whether all those no-action requests for Rule 14a-8 are just sitting in a pile in Corp Fin’s Office of Chief Counsel. Yep, they are (except everything is digital now – that really kills the imagination). Given that most no-action letter requests come in towards the end of December – beginning of January, that could really back things up this proxy season. And this webpage on the SEC’s site shows a bunch of requests pending from November & December. At some point, those companies may have to decide whether to exclude (or not) without the benefit of a Corp Fin no-action response…
Here’s a few random thoughts:
1. Any other former members of Corp Fin’s “Shareholder Proposal Task Force” fantasize about being called back into action for a short stint to help the Staff catch-up? An all-nighter with pizza & apple sodas? Akin to a “hackathon”…
2. When I get asked how I think I’m gonna go – yes, people do ask me that! – I typically reply “death by suffocation.” They then ask me to explain. And I describe being in a small room with someone pouring in reams of blank paper from a hole in the ceiling. Not stopping til I can’t breathe anymore…
3. Headline news when shutdown ends? “Staff Decides All No-Action Requests by Flip of a Coin.”
Removing the Delaying Amendment: An Example
Speaking of the SEC’s shutdown, Bass Berry’s Jay Knight blogged yesterday about an example of someone pulling their “delaying amendment.” Last month, I blogged about how Corp Fin’s 14 FAQs for the shutdown allow for this – and I noted how that’s pretty wild stuff given the sacred nature of “delaying amendments” to this former Staffer…
Tomorrow’s Webcast: “Pat McGurn’s Forecast for 2019 Proxy Season”
Tune in tomorrow for the webcast — “Pat McGurn’s Forecast for 2019 Proxy Season” — when Davis Polk’s Ning Chiu and Gunster’s Bob Lamm join Pat McGurn of ISS to recap what transpired during the 2018 proxy season — and predict what to expect for 2019. Please print these “Course Materials” in advance – it’s Pat’s deck that he will be working with…
A new bill in the New Jersey legislature would require many public companies based in the state to have at least three women on the board by 2021. The measure is the first to mimic a California law signed in September and signals the potential for more states to follow. Both the California law and New Jersey’s proposal call for public companies domiciled in the state to have at least one female director by 2019. Those with more than five directors are supposed to have three women by 2021. “Many times with legislation, timing is everything,” said Assemblywoman Nancy Pinkin, a Democrat from Edison. “I think this is a time that things are resonating.”
As of today, 42 percent of New Jersey companies would have to change the composition of their boards, allocating as many as 132 seats to women, according to estimates by advocacy organization 2020 Women on Boards. The law in California, which is home to four times as many companies as New Jersey, could open up as many as 711 director roles for women.
California’s Board Diversity Law: No Legal Challenges?
Now that California’s law is on the books, though, the California Chamber doesn’t have plans to sue to block it, a spokeswoman for the group said. Nor is the organization aware of any other constitutional challenges, which Governor Jerry Brown had said was his chief concern. “There’s definitely an equal protection question,” said Nicole Crum, a partner at Washington law firm Sullivan & Worcester. “But it’s hard to imagine a company coming out and litigating on this just from a public relations standpoint. For a lot of companies, it would be great for them to have the opportunity to buy into this if they are looking to add women anyway, which a lot of people are.”
Tomorrow’s Webcast: “The Latest – Your Upcoming Proxy Disclosures”
Tune in tomorrow for the CompensationStandards.com webcast – “The Latest: Your Upcoming Proxy Disclosures” – to hear Mark Borges of Compensia, Alan Dye of Hogan Lovells and Section16.net, Dave Lynn of TheCorporateCounsel.net and Morrison & Foerster and Ron Mueller of Gibson Dunn discuss all the latest guidance about your upcoming pay ratio & say-on-pay disclosures – including the new hedging rules and the latest SEC positions, as well as how to handle the most difficult ongoing issues that many of us face.
Recently, I blogged about how Fortune 500 compensation committees have received letters from a group of 48 institutional investors requesting them to disclose more information on workforce compensation practices relative to CEO pay. These letters note that since “disclosure of the median employee’s pay provides a reference point for understanding the company’s workforce,” companies should move “to help investors put this pay information into the context of your company’s overall approach to human capital management” with more expansive disclosure.
Now, the NY Comptroller – which was a signatory to those letters – has announced agreements with five companies to withdraw a shareholder proposal on a related topic. That shareholder proposal urges companies to adopt policies that take into account the compensation of their workforce when setting CEO pay – and the companies’ agreements range from adding “human capital” disclosure, to enhancing workforce benefits, to committing to consider the CEO pay ratio when determining executive pay. For those reading this blog for a while, you know that we have been advocating the use of internal pay ratios as an alternative tool for compensation committees to consider since peer group benchmarking is tainted due to the slippery slope of most companies deciding to pay CEOs in the top quartile for decades…
UK: Pay Ratio & LTIP Disclosures Coming Next Year
As noted in this press release, the UK kicked off mandatory pay ratio and LTIP disclosure obligations for companies yesterday. This Deloitte memo – and Baker McKenzie memo – provide the details. The pay ratio disclosures will be different than those for US-companies. The new requirements apply to companies reporting on financial years starting yesterday or later – so the first actual reporting will be in next year’s disclosures…
Can Footnotes Be “Sexy”?
Recently, I blogged about the value of footnotes. Given the interest in the topic – my poll revealed that 40% always read them; 35% do if they’re in the mood and 20% only if they’re in a SEC release or court opinion – I thought you may find this footnote by SEC Commissioner Rob Jackson in his statement in connection with the SEC’s adoption of the final rules regarding Regulation ATS (Alternative Trading Systems) a few months ago deserving of your attention:
But as millions of ordinary American investors approach retirement, they are increasingly seeking the safety and stability of fixed income. And those markets are still in the dark ages, costing retirees precious savings. Stock markets are sexy, but fixed income will fund ordinary investors’ retirements. It’s time for the Commission to bring common-sense reforms like those we’re finalizing today to the bond markets that millions of Americans will rely upon for the secure retirements they deserve.
 I’m using the word “sexy” loosely, but in financial regulation it’s important to remember that all things are relative. Compare Right Said Fred, I’m Too Sexy (Charisma Records, 1991) with John Stuart Mill, On Social Freedom: Or the Necessary Limits of Individual Freedom Arising Out of the Conditions of our Social Life, Oxford and Cambridge Rev. 57-83 (1907) (noting, in connection with the notion that measures of utility are appropriately characterized as marginal, that “[m]en do not desire to be rich, but richer than other men.”) and George Sylvester Viereck, What Life Means to Einstein: An Interview, The Saturday Evening Post (Oct. 26, 1929), at 17 (“Relativity . . . merely denotes that certain physical and mechanical facts, which have been regarded as positive and permanent, are relative with regard to certain other facts.”).
Here’s the intro from this blog by Davis Polk’s Ning Chiu:
The SEC instituted a cease-and-desist proceeding in a fairly straightforward enforcement action that nonetheless emphasizes the importance of the requirement that GAAP measures must be provided with “equal or greater prominence” when a company discloses non-GAAP measures.
The SEC found that a company provided non-GAAP financial measures, such as adjusted EBITDA, adjusted net income and free cash flow before special items, without giving equal or greater prominence to the comparable GAAP measures. In the headline for the FY 2017 earnings release, the company presented its adjusted EBITDA for the fiscal year and stated that it was up 8% year-over-year, without mentioning its net income or loss (the comparable GAAP financial measure) in the headline.
Similarly, in the headline for the Q1 2018 earnings release, the company presented its adjusted EBITA for the first quarter of 2018 and stated that it was up 7% year-over-year, without mentioning its net income or loss (the comparable GAAP financial measure) in the headline. On the top of the first page, in a section called “Highlights,” the company then listed nine bullet points about the first quarter, including bullet points that provided adjusted EBITDA, adjusted net income and adjusted net income per share. These three non-GAAP financial measures were not accompanied by comparable GAAP measures in the same section. The GAAP measures were instead reported in the second and sixth full paragraphs of the earnings release.
The New Hedging Rule’s Novel “Fair & Accurate Summary” Requirement
Here’s the intro from this blog by Allen Matkins’ Keith Bishop:
Earlier this month, the SEC added a new paragraph (i) to Item 407 requiring a company to describe any practices or policies regarding hedging transactions. The fact that the SEC took this action should have been no surprise because Section 955 of Dodd-Frank required the SEC to do so. I was surprised, however, to see that the final rule includes a novel disclosure standard. I was especially surprised because this standard was not included in the text of the rule as proposed. Thus, the public was denied any opportunity to comment on the standard.
As adopted, Item 407(i) requires a company to provide a “fair and accurate” summary of its practices or policies. That sounds innocuous until one considers that Regulation S-K nowhere else imposes a “fair and accurate” disclosure standard (the standard does make an appearance in Rule 403(c) under the Securities Act requiring a fair and accurate English translation). The concept of accuracy seems clear enough, but what does it mean for a summary to be “fair”? Originally, the word “fair” meant pleasing or attractive (e.g., “Show a fair presence and put off these frowns” Wm. Shakespeare, Romeo and Juliet, Act I, scene 5). Eventually, it acquired a sense of being equitable or in accordance with the rules. Shakespeare in fact also employs this meaning of “fair” as when Hector in Act 5, scene 3 of Troilus and Cressida states “O, ’tis fair play”. (See also, King John, Act 5, scene 2 and The Tempest, Act 5, scene 1). Neither sense of the word seems particularly apt when applied to a summary of a hedging policy.
Further, a company will be required either to provide a fair and accurate summary of any practices or policies that apply, including the categories of persons covered and any categories of hedging transactions that are specifically permitted and any categories that are specifically prohibited, or to disclose the practices or policies in full. The “fair and accurate” standard is uncommon in SEC regulations and thus may raise concerns over its meaning, but it is a concept used elsewhere, including in typical opinions given to underwriters.
California Court Confirms Enforceability of Delaware Forum-Selection Bylaws
As noted in this Wachtell Lipton memo, the California Court of Appeal recently became the second appellate court outside of Delaware – in Drulias v. 1st Century Bancshares – to recognize the enforceability of forum-selection bylaws adopted by Delaware corporations designating the Delaware Court of Chancery as the exclusive forum for the litigation of intracorporate & fiduciary disputes.
Last week, I blogged about the SEC’s shutdown – along with Corp Fin’s 14 FAQs about “what now.” The SEC quickly ran out of “emergency funds” and has been down to a skeletal staff since last Thursday. If you’re working on a deal in registration, you may be freaking out. Corp Fin’s 14 FAQs are helpful here – and well as this Davis Polk memo and White & Case memo.
If you’re not working on a deal, you may not care. But if you live in Washington DC, the government shutdown is big news as many of your friends & neighbors are nervously sitting at home. Or maybe they have run out to one of Jose Andres’ restaurants, as the famous chef is handing out free food if you can flash a government ID. Some DC bars are offering speciality cocktails, such as as “Nothing Really Mattis” (Mad Dog 20/20 and Vodka) and “Mexico Will Pay for This” (Montezuma Blue tequila, orange juice and grenadine).
The SEC’s Staff’s “Out of Office” Reply
Did you know that when the government is shut down, the Staff is not permitted to check email even if they are willing to work for free? That is true (unless a Staffer is part of the skeletal crew that is forced to work for free). Anyway, this is the standard reply that you now get when you email a SEC Staffer:
Due to a lapse in appropriations for the federal government, the U.S. Securities and Exchange Commission is currently closed. I am currently out of the office and will return to the office once an appropriation has been enacted. During the closure, I will not be monitoring or responding to my emails. Thank you.
Our January Eminders is Posted!
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