INVESTMENT SUB-ADVISORY AGREEMENT
This Investment Sub-Advisory Agreement ("Agreement") is made as of the 15th day
of April, 2003 by and between Wilshire Associates Incorporated, a California
corporation ("Adviser") and Xxxxxx Advisory Company, LLC, a Massachusetts
limited liability company ("Sub-Adviser").
WHEREAS Adviser is the investment adviser of the Wilshire Target Funds,
Incorporated (the "Fund"), an open-end diversified, management investment
company registered under the Investment Company Act of 1940, as amended
("1940 Act"), currently consisting of five separate series or portfolios
(collectively, the "Fund Portfolios") including the Large Company Growth
Portfolio, the Large Company Value Portfolio, the Small Company Growth
Portfolio, the Small Company Value Portfolio, and the Wilshire 5000 Index
Portfolio;
WHEREAS Adviser desires to retain Sub-Adviser to furnish investment
advisory services for the Fund Portfolios as described in Exhibit 1 - Fund
Portfolio Listing, as may be amended from time to time, and Sub-Adviser
wishes to provide such services, upon the terms and conditions set forth
herein;
NOW THEREFORE, in consideration of the mutual covenants herein contained,
the parties agree as follows:
1. APPOINTMENT Adviser hereby appoints Sub-Adviser to provide certain
sub-investment advisory services to each Fund Portfolio for the period and on
the terms set forth in this Agreement. Sub-Adviser hereby accepts such
appointment and agrees to furnish the services set forth for the compensation
herein provided.
2. SUB-ADVISER SERVICES Subject always to the supervision of the Fund's Board
of Directors and Adviser, Sub-Adviser will furnish an investment program in
respect of, and make investment decisions for, such portion of the assets of
each Fund Portfolio as Adviser shall from time to time designate (each a
"Portfolio Segment") and place all orders for the purchase and sale of
securities on behalf of each Portfolio Segment. In the performance of its
duties, Sub-Adviser will satisfy its fiduciary duties to the Fund and each Fund
Portfolio and will monitor each Portfolio Segment's investments, and will comply
with the provisions of the Fund's Articles of Incorporation and By-laws, as
amended from time to time, and the stated investment objectives, policies and
restrictions of each Fund Portfolio as set forth in the prospectus and Statement
of Additional Information for each Fund Portfolio, as amended from time to time,
as well as any other objectives, policies or limitations as may be provided by
Adviser to Sub-Adviser in writing from time to time.
Sub-Adviser will provide reports at least quarterly to the Adviser. Sub-Adviser
will make its officers and employees available to Adviser and the Board of
Directors from time to time at reasonable times to review investment policies of
each Fund Portfolio with respect to each
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Portfolio Segment and to consult with Adviser regarding the investment affairs
of each Portfolio Segment.
Sub-Adviser agrees that it:
(a) will use the same skill and care in providing such services as are
required to provide services to fiduciary accounts;
(b) will conform with all applicable provisions of the 1940 Act and rules
and regulations of the Securities and Exchange Commission in all material
respects and in addition will conduct its activities under this Agreement
in accordance with any applicable laws and regulations of any governmental
authority pertaining to its investment advisory activities, including all
portfolio diversification requirements necessary for each Portfolio Segment
to comply with subchapter M of the Internal Revenue Code as if it were a
regulated investment company thereunder;
(c) to the extent directed by Adviser in writing, and to the extent
permitted by law, will execute purchases and sales of portfolio securities
for each Portfolio Segment through brokers or dealers designated by
management of the Fund to Adviser for the purpose of providing direct
benefits to the Fund, provided that Sub-Adviser determines that such
brokers or dealers will provide best execution in view of such other
benefits (the parties will agree at the time of such direction as to how to
assess value of such other benefits), and is hereby authorized as the agent
of the Fund to give instructions to the Fund's custodian as to deliveries
of securities or other investments and payments of cash of each Portfolio
Segment to such brokers or dealers for the account of the relevant Fund
Portfolio. Adviser and the Fund understand that the brokerage commissions
or transaction costs in such transactions may be higher than those which
the Sub-Adviser could obtain from another broker or dealer, in order to
obtain such benefits for the Fund;
(d) is authorized to and will select all other brokers or dealers that
will execute the purchases and sales of portfolio securities for each
Portfolio Segment and is hereby authorized as the agent of the Fund to give
instructions to the Fund's custodian as to deliveries of securities or
other investments and payments of cash of each Portfolio Segment for the
account of each Fund Portfolio. In making such selection, Sub-Adviser is
directed to use its best efforts to obtain best execution, which includes
most favorable net results and execution of each Portfolio Segment's
orders, taking into account all appropriate factors, including, but not
limited to, price, dealer spread or commission, size and difficulty of the
transaction and research or other services provided. With respect to
transactions under this paragraph (d), it is understood that Sub-Adviser
will not be deemed to have acted unlawfully, or to have breached a
fiduciary duty to the Fund or in respect of any Fund Portfolio, or be in
breach of any obligation owing to the Fund or in respect of each Fund
Portfolio under this Agreement, or otherwise, solely by reason of its
having caused a Fund Portfolio to pay a member of a securities exchange, a
broker or a dealer a commission for effecting a securities transaction of a
Fund Portfolio in excess of
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the amount of commission another member of an exchange, broker or dealer
would have charged if Sub-Adviser determined in good faith that the
commission paid was reasonable in relation to the brokerage and research
services provided by such member, broker, or dealer, viewed in terms of
that particular transaction or Sub-Adviser's overall responsibilities with
respect to its accounts, including the Fund, as to which it exercises
investment discretion;
(e) is authorized to consider for investment by each Portfolio Segment
securities that may also be appropriate for other funds and/or clients
served by Sub-Adviser. To assure fair treatment of each Portfolio Segment
and all other clients of Sub-Adviser in situations in which a Fund and one
or more other clients' accounts participate simultaneously in a buy or sell
program involving the same security, such transactions will be allocated
among each Portfolio Segment and such other clients in a manner deemed
equitable by Sub-Adviser. Sub-Adviser is authorized to aggregate purchase
and sale orders for securities held (or to be held) in each Portfolio
Segment with similar orders being made on the same day for other eligible
client accounts or portfolios managed by Sub-Adviser. When an order is so
aggregated, the actual prices applicable to the aggregated transaction will
be averaged and each Portfolio Segment and each other account or portfolio
participating in the aggregated transaction will be treated as having
purchased or sold its portion of the securities at such average price, and
all transaction costs incurred in effecting the aggregated transaction will
be shared on a pro-rata basis among the accounts or portfolios (including
the Portfolio Segment) participating in the transaction. Adviser and the
Fund understand that Sub-Adviser may not be able to aggregate transactions
through brokers or dealers designated by Adviser with transactions through
brokers or dealers selected by Sub-Adviser, in which event the prices paid
or received by each Portfolio Segment will not be so averaged and may be
higher or lower than those paid or received by other accounts or portfolios
of Sub-Adviser;
(f) will report regularly to Adviser and to the Board of Directors and
will make appropriate persons available for the purpose of reviewing with
representatives of Adviser and the Board of Directors on a regular basis at
reasonable times the management of each Portfolio Segment, including
without limitation, review of the general investment strategies of each
Portfolio Segment, the performance of each Portfolio Segment in relation to
standard industry indices, stock market and interest rate considerations
and general conditions affecting the marketplace, and will provide various
other reports from time to time as reasonably requested by Adviser;
(g) will prepare such books and records with respect to each Portfolio
Segment's securities transactions as requested by Adviser and will furnish
Adviser and the Fund's Board of Directors such periodic and special reports
as the Board or Adviser may reasonably request;
(h) will vote all proxies with respect to securities in each Portfolio
Segment; and
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(i) will act upon reasonable instructions from Adviser which, in the
reasonable determination of Sub-Adviser, are lawful and not inconsistent
with Sub-Adviser's fiduciary duties under this Agreement.
Sub-Adviser's ability to provide the services in this Section (2) is pursuant to
the Adviser's authority to delegate advisory duties under the Advisory Agreement
between the Adviser and the Fund, dated April 1, 2002. To the extent that the
terms of this Section (2) differ from the terms the Advisory Agreement, the
terms of the Advisory Agreement shall govern.
3. EXPENSES During the term of this Agreement, Sub-Adviser will provide the
office space, furnishings, equipment and personnel required to perform its
activities under this Agreement, and will pay all customary management expenses
incurred by it in connection with its activities under this Agreement, which
shall not include the cost of securities (including brokerage commissions, if
any) purchased for each Portfolio Segment. The Fund shall bear all other
expenses incurred in the operation of the Fund and the portfolios, including
without limitation taxes, interest, brokerage fees and commissions, if any, fees
of directors who are not officers, directors, partners, employees or holders of
5 percent or more of the outstanding voting securities of the Adviser or any
Sub-Adviser or any of their affiliates, Securities and Exchange Commission
("Commission") fees and state blue sky registration and qualification fees,
charges of custodians, transfer and dividend disbursing agents' fees, certain
insurance premiums, outside auditing and legal expenses, costs of maintaining
corporate existence, costs of preparing and printing prospectuses and statements
of additional information or any supplements or amendments thereto necessary for
the continued effective registration of the Fund's shares ("Shares") under
federal or state securities laws, costs of printing and distributing any
prospectus, statement of additional information, supplement or amendment thereto
for existing shareholders of the Funds, costs of shareholders' reports and
meetings, and any extraordinary expenses. It is understood that certain
advertising, marketing, shareholder servicing, administration and/or
distribution expenses to be incurred in connection with the Shares may be paid
by the Fund as provided in any plan which may in the sole discretion of the Fund
be adopted in accordance with Rule 12b-1 under the 1940 Act, and that such
expenses shall be paid apart from any fees paid under this Agreement.
4. COMPENSATION For the services provided and the expenses assumed under this
Agreement, Adviser will pay Sub-Adviser, and Sub-Adviser agrees to accept as
full compensation therefor, a sub-advisory fee computed and paid as set forth in
Exhibit 2 - Fee Schedule. Sub-Adviser agrees that any amendment to this fee
schedule will be upon the mutual written agreement between Adviser and
Sub-Adviser.
5. OTHER SERVICES Sub-Adviser will for all purposes herein be deemed to be an
independent contractor and will, unless otherwise expressly provided or
authorized, have no authority to act for or represent Adviser, the Fund or a
Fund Portfolio or otherwise be deemed an agent of Adviser, the Fund or a Fund
Portfolio. Adviser understands and has advised the Fund's Board of Directors
that Sub-Adviser may act as an investment adviser or sub-investment adviser to
other investment companies and other advisory clients, some of which may have
different objectives
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than those of the Fund and Fund portfolios. Sub-Adviser understands that during
the term of this Agreement Adviser may retain one or more other sub-advisers
with respect to any portion of the assets of a Fund Portfolio other than the
Portfolio Segment.
6. AFFILIATED BROKER In connection with the purchase or sale of securities or
other investments for a Portfolio Segment, Sub-Adviser may allocate orders for
purchase and sale transactions to any broker-dealer affiliated with Sub-Adviser
or Adviser ("Affiliated Broker"), may purchase securities underwritten by
Affiliated Broker, and may cause the Fund Portfolio to compensate Affiliated
Broker for effecting such transactions, subject to: (a) the requirement that
Sub-Adviser seek to obtain best execution as set forth above; (b) compliance
with procedures adopted by the Fund pursuant to Rule 17e-1 and Rule 10f-3 under
the 1940 Act; ; (c) the provisions of the Investment Advisers Act of 1940, as
amended (the "Advisers Act"); (d) the provisions of the Securities Exchange Act
of 1934, as amended; and (e) other applicable provisions of law.
Adviser or the Fund may revoke any or all of the consents and authorizations
given hereby at any time and without penalty by providing written notice to
Sub-Adviser.
7. REPRESENTATIONS OF SUB-ADVISER Sub-Adviser is registered with the
Securities and Exchange Commission under the Advisers Act. Sub-Adviser will use
all commercially reasonable efforts to remain so registered throughout the term
of this Agreement and will notify Adviser immediately if Sub-Adviser ceases to
be so registered as an investment adviser. Sub-Adviser: (a) is duly organized
and validly existing under the laws of the state of its organization with the
power to own and possess its assets and carry on its business as it is now being
conducted, (b) has the authority to enter into and perform the services
contemplated by this Agreement, (c) is not prohibited by the 1940 Act or the
Advisers Act from performing the services contemplated by this Agreement, (d)
has met, and will continue to seek to meet for the duration of this Agreement,
any other applicable federal or state requirements, and the applicable
requirements of any regulatory or industry self-regulatory agency, necessary to
be met in order to perform its services under this Agreement, (e) will promptly
notify Adviser of the occurrence of any event that would disqualify it from
serving as an investment adviser to an investment company pursuant to Section
9(a) of the 1940 Act, and (f) will notify Adviser of any change in the
controlling shareholder of the Sub-Adviser within a reasonable time after such
change.
In addition, Sub-Adviser represents that it has provided Adviser with copies of
each of the following documents: (i) Sub-Adviser's Form ADV as filed with the
Securities Exchange Commission; and (ii) separate lists of persons who
Sub-Adviser wishes to have authorized to give written and/or oral instructions
to Custodians of Fund assets for the Fund Portfolios. Sub-Adviser will furnish
Adviser from time to time with copies, properly certified or otherwise
authenticated, of all material amendments of or supplements to the foregoing, if
any. Such amendments or supplements will be provided within 30 days of the time
such materials became available to Sub-Adviser.
8. BOOKS AND RECORDS Sub-Adviser will maintain, in the form and for the period
required by Rule 31a-2 under the 1940 Act, all records relating to each
Portfolio Segment's investments that
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are required to be maintained by the Fund pursuant to the requirements of
paragraphs (b)(5), (b)(6), (b)(7), (b)(9), (b)(10) and (f) of Rule 31a-1 under
the 1940 Act. Sub-Adviser agrees that all books and records which it maintains
for each the Fund Portfolios or the Fund are the property of the Fund and
further agrees to surrender promptly to the Adviser or the Fund any such books,
records or information upon the Adviser's or the Fund's request (provided,
however, that Sub-Adviser may retain copies of such records and, to the extent
the Sub-Adviser is required by law to maintain copies of such books, records or
information, the copies shall be property of Sub-Adviser). All such books and
records shall be made available, within five business days of a written request,
to the Fund's accountants or auditors during regular business hours at
Sub-Adviser's offices. Adviser and the Fund or either of their authorized
representatives shall have the right to copy any records in the possession of
Sub-Adviser which pertain to each Fund Portfolio or the Fund. Such books,
records, information or reports shall be made available to properly authorized
government representatives consistent with state and federal law and/or
regulations. In the event of the termination of this Agreement, all such books,
records or other information shall be returned to Adviser or the Fund (provided,
however, that Sub-Adviser may retain copies of such records as required by law).
Sub-Adviser agrees that it will not disclose or use any records or confidential
information obtained pursuant to this Agreement in any manner whatsoever except
as authorized in this Agreement or in writing by Adviser or the Fund, or if such
disclosure is required by federal or state regulatory authorities. Sub-Adviser
may disclose the investment performance of each Portfolio Segment, provided that
such disclosure does not reveal the identity of Adviser, any Fund Portfolio or
the Fund or the composition of each Portfolio Segment. Sub-Adviser may, however,
disclose that Adviser, the Fund and each Fund Portfolio are its clients. Adviser
may identify Sub-Adviser as a sub-adviser in connection with marketing its funds
management services, and Sub-Adviser hereby consents to being so identified. All
relevant and applicable portions of prospectuses, sales literature and similar
documents which name or describe the Sub-Adviser shall be subject to the review
and consent of Sub-Adviser prior to use.
9. CODE OF ETHICS Sub-Adviser has adopted a written code of ethics complying
with the requirements of Rule 17j-1(b), (c), (d), and (e) under the 1940 Act and
will provide Adviser and the Fund with a copy of such code. Within 20 days of
the end of each calendar quarter during which this Agreement remains in effect,
the president or a vice president of Sub-Adviser shall certify to Adviser or the
Fund that Sub-Adviser has complied with the requirements of Rule 17j-1 during
the previous quarter; that Sub-Adviser has adopted procedures reasonably
necessary to prevent its access persons from violating such code; and that there
have been no material violations of Sub-Adviser's code of ethics or, if any such
violation has occurred, the nature of such violation and of the action taken in
response to such violation.
10. LIMITATION OF LIABILITY Neither Sub-Adviser nor any of its directors,
officers, members, partners, stockholders, agents or employees shall have any
liability to Adviser, the Fund or any shareholder of the Fund for any error of
judgment, mistake of law, or loss arising out of any investment, or for any
other act or omission in the performance by Sub-Adviser of its duties hereunder,
except for liability resulting from willful misfeasance, bad faith, or gross
negligence
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on Sub-Adviser's part in the performance of its duties or from reckless
disregard by it of its obligations and duties under this Agreement. Sub-Adviser
specifically acknowledges that the Fund is a third party beneficiary of this
Agreement and that the Fund is entitled to bring a lawsuit against the
Sub-Adviser for breach of this Agreement or any other duty in any court of
competent jurisdiction. Also Sub-Adviser acknowledges that the Fund is not
subject to or bound by any of the provisions of paragraph 14 of this Agreement.
Sub-Adviser agrees to indemnify and defend Adviser, the Fund, and their
representative officers, directors, employees and any person who controls
Adviser for any loss or expense (including reasonable attorneys' fees) arising
out of or in connection with any claim, demand, action, suit or proceeding
relating to any actual material misstatement or omission in the Fund's
registration statement, any proxy statement, or any written communication to
current or prospective investors in any Fund Portfolio, if such material
misstatement or omission was made in reliance upon and in conformity with
written information furnished by Sub-Adviser to Adviser or the Fund for use in
such document.
11. TERM AND TERMINATION Unless otherwise agreed in writing, this Agreement
shall become effective with respect to each Portfolio Segment on April 15, 2003,
and shall remain in full force until March 31, 2004, unless sooner terminated as
hereinafter provided. This Agreement shall continue in force from year to year
thereafter with respect to each Fund Portfolio, but only as long as such
continuance is specifically approved for each Fund Portfolio at least annually
in the manner required by the 1940 Act and the rules and regulations thereunder;
provided, however, that if the continuation of this Agreement is not approved
for a Fund Portfolio, Sub-Adviser may continue to serve in such capacity for
such Fund Portfolio in the manner and to the extent permitted by the 1940 Act
and the rules and regulations thereunder.
This Agreement shall terminate as follows:
(a) This Agreement shall automatically terminate in the event of its
assignment (as defined in the 0000 Xxx) and may be terminated with respect
to any Fund Portfolio at any time without the payment of any penalty by
Adviser or by Sub-Adviser on sixty days prior written notice to the other
party. This Agreement may also be terminated by the Fund with respect to
any Fund Portfolio at any time without the payment of any penalty by action
of the Board of Directors or by a vote of a majority of the outstanding
voting securities of such Fund Portfolio (as defined in the 0000 Xxx) on
sixty days prior written notice to Sub-Adviser by the Fund.
(b) This Agreement may be terminated with respect to any Fund Portfolio at
any time upon written notice without payment of any penalty by Adviser, the
Board of Directors or a vote of majority of the outstanding voting
securities of such Fund Portfolio in the event that Sub-Adviser or any
officer or director of Sub-Adviser has breached any representation or
warranty in this Agreement or has taken any action which results in a
material breach of the covenants of Sub-Adviser under this Agreement.
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(c) This Agreement shall automatically terminate with respect to a Fund
Portfolio in the event the Investment Management Agreement between Adviser
and the Fund with respect to such Fund Portfolio is terminated, assigned or
not renewed.
Termination of this Agreement shall not affect the right of Sub-Adviser to
receive payments of any unpaid balance of the compensation described in Section
4 earned prior to such termination.
12. NOTICE Any notice under this Agreement by a party shall be in writing,
addressed and personally delivered, mailed postage prepaid, or sent by facsimile
transmission with confirmation of receipt, to the other party at such address as
such other party may designate for the receipt of such notice.
13. ADVISER RESPONSIBILITY Adviser has provided and will continue to provide
Sub-Adviser with copies of the Fund's Articles of Incorporation, By-laws,
prospectus, and Statement of Additional Information and any amendment thereto,
and any objectives, policies or limitations not appearing therein as they may be
relevant to Sub-Adviser's performance under this Agreement, and the Advisory
Agreement between the Fund and the Adviser, and the resolutions of the Directors
selecting Adviser as investment manager to the Fund and the Code of Ethics of
the Fund and of Adviser as currently in effect; provided, however, that such
documents are provided to the Adviser by the Fund, and provided further that no
changes or modifications to the foregoing shall be binding on Sub-Adviser until
it is notified thereof. The Adviser represents that it is authorized to appoint
the Sub-Adviser and to execute and deliver this Agreement and that all
shareholder and Board action on the part of the Fund and the Adviser required to
be taken to make such appointment and enter into this Agreement has been taken.
14. ARBITRATION OF DISPUTES Any claim or controversy arising out of or relating
to this Agreement which is not settled by agreement of the parties shall be
settled by arbitration in Santa Monica, California before a panel of three
arbitrators in accordance with the commercial arbitration rules of the American
Arbitration Association then in effect. The parties agree that such arbitration
shall be the exclusive remedy hereunder, and each party expressly waives any
right it may have to seek redress in any other forum. Any arbitrator acting
hereunder shall be empowered to assess no remedy other than payment of fees and
out-of-pocket damages. Each party shall bear its own expenses of arbitration,
and the expenses of the arbitrators and of a transcript of any arbitration
proceeding shall be divided equally between the parties. Any decision and award
of the arbitrators shall be binding upon the parties, and judgment thereon may
be entered in the Superior Court of the State of California or any other court
having jurisdiction. If litigation is commenced to enforce any such award, the
prevailing party will be entitled to recover reasonable attorneys' fees and
costs.
15. MISCELLANEOUS This Agreement sets forth the entire understanding of the
parties with respect to the subject matter hereof and may be amended only by
written consent of both parties. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement is held or made invalid by a court decision,
statute, rule or
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otherwise, the remainder of this Agreement will not be affected thereby. Subject
to the provisions of Section 11, this Agreement will be binding upon and shall
inure to the benefit of the parties and their respective successors.
16. APPLICABLE LAW This Agreement shall be construed in accordance with
applicable federal law and the laws of the state of California, without regard
to principles of conflict of laws.
Adviser and Sub-Adviser have caused this Agreement to be executed as of the date
and year first above written.
WILSHIRE ASSOCIATES INCORPORATED XXXXXX ADVISORY COMPANY, LLC
By By
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Title Title
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EXHIBIT 1
FUND PORTFOLIO LISTING
Wilshire Target Funds, Incorporated:
Large Company Growth Portfolio
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EXHIBIT 2
FEE SCHEDULE
Adviser shall pay Sub-Adviser, promptly after receipt by Adviser of its advisory
fee from the Fund with respect to each Fund Portfolio each calendar month during
the term of this Agreement, a fee based on the average daily net assets of each
Portfolio Segment, at the following annual rate:
For the Large Company Growth Portfolio:
0.315% on the first $50 million in assets under management
0.243% on the next $50 million
0.180% on the balance
Sub-Adviser's fee shall be accrued daily at 1/365th of the annual rate set forth
above and be paid monthly. For the purpose of accruing compensation, the net
assets of each Portfolio Segment will be determined in the manner and on the
dates set forth in the current prospectus of the Fund with respect to each Fund
Portfolio and, on days on which the net assets are not so determined, the net
asset value computation to be used will be as determined on the immediately
preceding day on which the net assets were determined. Upon the termination of
this Agreement, all compensation due through the date of termination will be
calculated on a pro-rata basis through the date of termination and paid within
thirty business days of the date of termination.
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