Equity derivates – getting the deal through in Norway

Other than transactions between dealers, what are the most typical types of over-the-counter (OTC) equity derivatives transactions and what are the common uses of these transactions?

The most typical types of equity-based OTC derivatives in the Norwegian market are share options, forwards and different swap transactions, including total return swaps. The underlying asset can be individual shares, a group of shares or an index. In this chapter, the term OTC refers to equity derivatives that are not standardised or subject to mandatory clearing obligations.

May market participants borrow shares and sell them short in the local market? If so, what rules govern short selling?

Short selling is regulated by the Norwegian Securities Trading Act (STA). Market participants are only permitted to short sell financial instruments (eg, shares and other securities comparable to shares) if they have such access to the financial instruments that timely delivery is ensured on the agreement date. Accordingly, intermediaries, securities firms and banks can only pass on and execute short sale orders to the extent that the customer has secure access to the financial instrument sold short, which secures the firm timely delivery. The mentioned conditions need to be in place at the time the short sale agreement is entered into. 

Describe the primary laws and regulations surrounding OTC equity derivatives transactions between dealers. What regulatory authorities are primarily responsible for administering those rules?

The primary laws surrounding OTC equity derivatives transactions between dealers in the Norwegian market are the STA, the Security Register Act, the Stock Exchange Act, the Public Limited Liability Companies Act and the Private Limited Liability Companies Act (Company Acts) and regulations given pursuant to appropriate authorisations, mainly in the STA. General contract law is also relevant for determining the relevant parties’ rights and obligations under OTC equity derivatives contracts. The Regulation (EU) no. 648/2012) on OTC derivatives, central counterparties and trade repositories – the European Market Infrastructure Regulation (EMIR) was implemented in the STA in 2017. Other EU legislation (including the Markets in Financial Instruments Directive MIFID II (Directive 2014/65EU) and the Markets in Financial Instruments Regulation EU No 648/2012 (MiFIR)), the prospectus directive (Directive 2003/71/EC) and the Takeover Directive (Directive 2004/25/EC) are also implemented in Norwegian law, mainly in the STA with appurtenant regulations. In this relation, it is important to note that OTC derivatives, subject to detailed rules and complex assessment, may have implications regarding, inter alia, market manipulation, inside information, disclosure obligations, prospectus obligations and takeover considerations. The Financial Supervisory Authority of Norway (FSA) has the primary responsibility for administering these rules.

In addition to dealers, what types of entities may enter into OTC equity derivatives transactions?

Equity derivatives are offered by banks and securities firms (dealers) to appropriate customers. Norwegian law has implemented MiFID and its rules governing customer classification. The investor protections and disclosure requirements are most stringent for the group of unprofessional customers. Corporates, insurance companies, pension funds, securities funds and municipalities may, as a starting point, enter into OTC equity derivatives contracts. However, certain of the mentioned institutions may only use derivatives for hedging purposes or if they are in line with internal guidelines or if other conditions are met.

Describe the primary laws and regulations surrounding OTC equity derivatives transactions between a dealer and an eligible counterparty that is not the issuer of the underlying shares or an affiliate of the issuer. What regulatory authorities are primarily responsible for administering those rules?

The primary laws surrounding OTC equity derivatives transactions between a dealer and an eligible counterparty that is not the issuer of the underlying shares or an affiliate of the issuer in the Norwegian market are the STA, the Security Register Act, the Stock Exchange Act, the Company Acts and regulations given pursuant to appropriate authorisations, mainly in the STA. General contract law is also relevant for determining the relevant parties’ rights and obligations under OTC equity derivatives contracts. The FSA has the primary responsibility for administering these rules.

Do securities registration issues arise if the issuer of the underlying shares or an affiliate of the issuer sells the issuer’s shares via an OTC equity derivative?

If the issuer sells the issuer’s shares by way of issuing independent subscription rights, such rights are required to be registered in the issuer’s register of subscription rights in the Norwegian Central Securities Depository (VPS). In addition, the subscription rights are required to be registered at the account the holder of the subscription rights has in the VPS (unless the subscription rights are held by a foreign holder on a nominee account). Depending on the transaction, prospectus requirements can be relevant. We have assumed that the issuer is a public limited company or that the shares of the issuer are registered in the VPS.

May issuers repurchase their shares directly or via a derivative?

The Company Acts contain certain requirements relevant for the issuer’s possibility of acquiring of own shares, including by way of a derivative. Provided that the issuer may repurchase its shares via a derivative pursuant to the Company Acts, the regulations in the STA regarding market manipulation only apply if the derivative itself or the issuer’s shares are listed; if admission to listing has been requested on the Norwegian regulated market; or if the repurchase is undertaken in Norway in connection with financial instruments that are listed, or for which admission to listing has been requested, on a regulated market in another EEA state. The issuer’s transactions in own shares or derivatives relating to its shares must be entered into on arm’s length market terms. The principle of equal treatment of shareholders applies.

What types of risks do dealers face in the event of a bankruptcy or insolvency of the counterparty? Do any special bankruptcy or insolvency rules apply if the counterparty is the issuer or an affiliate of the issuer?

In case a customer becomes insolvent or bankrupt the dealer faces the same risks as other creditors of the customer. Most counterparts will be subject to the same bankruptcy legislation, with certain exceptions. The STA includes provisions protecting netting by a dealer in case the customer becomes insolvent and prohibits the bankruptcy estate of the customer from cherry-picking the transactions it wishes to continue. These netting rules apply to equity derivatives. No special bankruptcy or insolvency rules apply if the counterparty is the issuer or an affiliate of the issuer.

What types of reporting obligations does an issuer or a shareholder face when entering into an OTC equity derivatives transaction on the issuer’s shares?

An issuer has a reporting obligation when entering into an OTC equity derivatives transaction based on the issuer’s shares, if the shares are listed on a regulated market. The same reporting obligation applies to a shareholder of the issuer, or related parties of such shareholder, provided that the shareholder is a ‘primary insider’ within the meaning of the STA. This duty to notify requires the issuer or said shareholder, or related parties of said shareholder, to give notice immediately and to publicise the notice in the market.

The notification shall be sent no later than the opening of the regulated market the day after the purchase, sale, exchange or subscription of shares. The notification shall contain information about:

• the name of the notifiable;
• the background for the notice;
• the name of the issuer;
• a description of the financial instrument;
• the type of transaction and market;
• the price and volume of the transaction; and
• the balance after the transaction.

Are counterparties restricted from entering into OTC equity derivatives transactions during certain periods? What other rules apply to OTC equity derivatives transactions that address insider trading?

The STA prohibits insider trading. The main rule is that the prohibition applies to financial instruments listed on a regulated market. Additionally, the insider trading rules apply directly to financial instruments where the value of the financial instrument depends on the value of financial instruments listed on a regulated market. This includes OTC derivatives where the underlying financial instruments are listed on a regulated market.

The use of inside information, if not regulated by the inside trading provision, may be considered as an unreasonable business ethic and prohibited by the section of the STA generally applicable to unreasonable business methods.

What additional legal issues arise if a counterparty to an OTC equity derivatives transaction is the issuer of the underlying shares or an affiliate of the issuer?

Market manipulation provisions, insider trading regulations and general company law considerations may apply – depending on the OTC derivative at hand and its method of settlement – when the issuer or its affiliate enters into an OTC equity derivatives transaction. With the same reservation, and subject to other fact-based assessments, the entering into of an OTC derivative transaction between the issuer and its affiliate may require approval by the issuer’s general meeting (shareholders’ meeting) in order to be legally binding.

What types of taxation issues arise in issuer OTC equity derivatives transactions and third-party OTC equity derivatives transactions?

The three main tax issues typically raised by equity derivatives are whether profit or loss on the derivative is taxable or deductible; how profit or loss is estimated; and when profit or loss is taxable, as outlined in more detail below.

• Profit (or loss) is, as general rule, taxable and deductible for Norwegian entities and persons. However, as the Norwegian exemption method applies for derivatives where the underlying object qualifies under the exemption method (stock, mutual stock funds and certain other equity securities), profit may be tax exempt and loss non-deductible (eg, shares in companies within the EEA). If there are several underlying objects, and some of the objects do not qualify under the exemption method, or if there are special clauses disconnecting the derivate from the underlying object, the exemption method may not apply for the derivative.
• The ways in which profit or loss is estimated will depend on the derivative and how the profit or loss arises (transfer or exercise). Typically, the profit or loss will be estimated based on the underlying object and in accordance with legislation on how output and input values should be estimated. Any payment in relation to the derivative will be added to the input value of the derivative and be taken into account in the profit or loss estimate on realisation.
• Profits and losses are taxable in the year of realisation.

Describe the liability regime related to OTC equity derivatives transactions. What transaction participants are subject to liability?

The Norwegian liability regime related to OTC equity derivatives transactions is principally twofold.

First, any party to an OTC equity derivatives transaction that breaches any of the relevant regulations in the STA (eg, regulations regarding take-overs, insider trading, market manipulation, prospectuses, certain disclosure obligations and clearing) can be sanctioned by the FSA, the Oslo Stock Exchange or the courts, depending on the particular breach, its materiality, duration, etc, by way of daily fines, surrender of gain, criminal penalties (fines or imprisonment) or violation penalties.

Second, civil law liability may arise from OTC equity derivatives transactions under general contract law. A dealer or investment adviser may incur liability because of misrepresentation, for example, or for breaching other advisory services obligations when selling OTC equity derivatives, typically in the form of damages. In a special case, the Norwegian Supreme Court held that the contract governing an OTC equity derivative investment between a commercial bank and a consumer was void because of the bank’s misrepresentations when selling the derivative investment, leaving the latter with liability to pay back the customer’s payments.

Further, a party to an OTC equity derivatives transaction may incur civil law liability by way of damages arising from a breach of the obligations in the agreement governing the OTC equity derivatives transaction at issue, for instance.

What stock exchange filings must be made in connection with OTC equity derivatives transactions?

Certain stock exchange filings must be made in connection with OTC equity derivatives transactions if the underlying asset is shares admitted to trading on a regulated market of an issuer having Norway as its home state.

One filing requirement is that ‘primary insiders’ (as defined in the STA) are required to notify any agreements on exchange, purchase or sale of subscription rights, options and corresponding rights connected to shares admitted to trading, regardless of whether such financial instrument gives rise to a physical or financial settlement.

Further, the requirement that a shareholder or other person must disclose acquisitions of large shareholdings when exceeding or falling below certain thresholds applies similarly for OTC equity derivatives regarding borrowing of shares, return of shares, subscription rights, and options or equivalent rights, as such rights are regarded as rights attached to shares.

In addition, an issuer of shares is required to immediately make public any change in the rights attached to the issuer’s shares, including changes in related financial instruments issued by the issuer.

What types of documents are typical in an OTC equity derivatives transaction?

OTC equity derivative transactions are typically documented either by an ISDA Master Agreement (used by the most sophisticated parties) or each dealer’s general terms of business. The latter documentation is fairly standardised and meant to document transactions between the dealer and different kinds of customers, from private individuals and small securities’ firms to larger corporates.

Smaller dealers often only document transactions by way of its general terms of business. It is common that customers have to provide security for their exposure under OTC equity derivatives. Security documentation is based on local standard-form documentation. Sophisticated parties often use ISDA’s Credit Support Annex with daily valuation.

For what types of OTC equity derivatives transactions are legal opinions typically given?

Legal opinions are typically given in significant transactions or where there is doubt about a customer’s ability to enter into an OTC derivative contract. Factors such as the type of customer (eg, a municipality or pension fund) and whether the dealer is familiar with Norwegian law will be relevant when determining if a legal opinion is required.

May an issuer lend its shares or enter into a repurchase transaction with respect to its shares to support hedging activities by third parties in the issuer’s shares?

To our knowledge, it is not customary that an issuer lends its shares or enters into a repurchase transaction with respect to its shares to support third parties’ hedging activities. There is, on the other hand, no specific prohibition against such transactions. However, according to the Companies Acts, a company is only entitled to acquire a certain amount of its own shares. Provided that the transaction is entered into on bona fide arm’s length market terms this should be permissible. If the issuer intends to enter into such a transaction with a shareholder, the Company Acts may require extraordinary general meeting approval and certain case handling. In Norwegian corporate law, equal treatment of shareholders is a basic principle and the issuer will need to act in accordance with such principle.

What securities registration or other issues arise if a borrower pledges restricted or controlling shareholdings to secure a margin loan or a collar loan?

The pledging of restricted or controlling shareholdings to secure different kinds of loans will generally not lead to a registration requirement or trigger other issues. In this chapter, ‘pledging’ refers to the establishment of a security interest while the pledgor keeps its ownership position of the pledged shareholdings at least until enforcement.

In case the security is established by way of title transfer several issues can arise. Title transfer leads to the transfer of the shareholding to the secured party and following such transaction, the secured party will appear as the owner of the shareholding. Disclosure obligations placed on primary insiders and owners of large shareholdings in listed companies (above defined thresholds), may require public notification on such transfer, dependent on the entities involved and the size of the shareholding transferred. If the transfer of title is deemed as a real acquisition of the shareholding, a mandatory bid obligation could be triggered if the transferee becomes the owner of shares representing more than one-third of the voting rights in a Norwegian company, the shares of which are listed on a Norwegian-regulated market. It is not clear in Norwegian law which consequences a title transfer transaction for security purposes could have in relation to the mandatory bid rules and ownership rules applicable to credit institutions, securities firms and financial institutions.

The providing of security over a controlling shareholding should not trigger prospectus requirements, irrespective of whether the security is in the form of a pledge or by way of title transfer.

A Norwegian security interest over shares is dependent on the shares being transferable. To the extent shares are not transferable, it needs to be verified if a security interest can be established, for example, with the consent of a party.

If a borrower in a margin loan files for bankruptcy protection, can the lender seize and sell the pledged shares without interference from the bankruptcy court or any other creditors of the borrower? If not, what techniques are used to reduce the lender’s risk that the borrower will file for bankruptcy or to prevent the bankruptcy court from staying enforcement of the lender’s remedies?

The answer to this question depends on, among others, who the parties to the transaction are. If the lender, for instance, is a financial institution and the borrower is a legal entity the Financial Collateral Act of 26 March 2004 is applicable. This act protects the rights of the secured lender to enforce the security over the pledged shares. Enforcement can be made as agreed in the security agreement between the parties, provided enforcement is done in a commercially reasonable way. This may include that the secured party take ownership to the pledged shares after a valuation is made. If the lender has a valid and perfected security interest the lender will generally be able to enforce its security even after initiation of bankruptcy or debt settlement proceedings.

If the Financial Collateral Act is not applicable, enforcement as a starting point needs to be made in accordance with the Enforcement Act of 26 June 1992. There is an exception for pledges over securities (including shares) that are listed on a regulated market if the parties have, in advance, entered into a security agreement permitting the lender to sell the pledged shares through an independent securities firm. If this exception is not applicable, enforcement has to be undertaken by following the provisions of the Enforcement Act. Another important consequence if enforcement has to be made according to the Enforcement Act is that if the borrower or pledgor becomes bankrupt, or is subject to debt-settlement proceedings, a six-month stay period would apply. If such stay applies, enforcement may not be carried out without the consent of the debt-settlement committee or the bankruptcy estate.

What is the structure of the market for listed equity options?

The Oslo Stock Exchange organises the daily trading of listed equity and index derivatives. The structure of the market for listed derivatives is divided into index futures, index options, share forwards and futures, and share options (equity options). The underlying instruments regarding index futures and index options are the OBX Index and the OBX Oil Service Index. The OBX Index comprises the 25 most traded stocks on the Oslo Stock Exchange. The underlying instruments regarding share forwards and futures and share options cover approximately 20 of the major companies with the most-traded shares. Further information about the listed derivatives can be found on www.oslobors.no/ob_eng/Oslo-Boers/Trading/Instruments/Derivatives.

Describe the rules governing the trading of listed equity options.

The rules governing the trading of listed equity options are the derivatives rules of the Oslo Stock Exchange – ‘Rules for Trading in Derivatives Contracts on Oslo Børs’ of January2018 (Derivatives Rules). The Derivatives Rules contain rules governing:

• regulation of membership;
• trading and price quotation provisions;
• price quotation interventions and sanctions;
• duty of confidentiality;
• intellectual property rights;
• liability;
• fees;
• amendments; and
• effective date.

The contract specifications of share options, stock forwards, stock futures, index options and index futures with primary listing on the Oslo Stock Exchange regulate:

• contract type;
• option type;
• underlying instrument;
• contract size;
• price;
• option premium;
• tick size;
• final trading time;
• closing;
• exercise;
• fixing value;
• settlement date;
• expiration date;
• month and year;
• term of series;
• series designation;
• contract adjustment; and
• primary exchange.

What categories of equity derivatives transactions must be centrally cleared and what rules govern clearing?

Equity derivatives transactions listed on the Oslo Stock Exchange must be centrally cleared through SIX x-clear Ltd, Norwegian Branch. The clearing house or the central counterparty (CCP) accedes to the agreement as the counterparty – both as purchaser towards the seller and seller towards the purchaser, and guarantees settlement between the parties and the delivery of securities that are traded. The most important task of the CCP is to act as counterparty and guarantee performance of the contract.

What categories of equity derivatives must be exchange-traded and what rules govern trading?

Securities firms trading in derivatives listed on a regulated market shall be settled via an authorised CCP. The Oslo Stock Exchange decides which derivatives are to be listed on the regulated market and it is these derivatives that must be exchange-traded. 

Describe common collateral arrangements for listed, cleared and uncleared equity derivatives transactions.

The collateral arrangements for derivatives can be divided into two major groups. In the local market and in transactions between dealers and its customers the collateral arrangements utilise local-law-governed security documents. Such documentation is standardised and the collateral mostly consists of cash or securities (bonds or shares). Daily valuations of the collateral and the mark-to-market value of the outstanding transactions is common, and the customers must be prepared to post additional collateral on a daily basis.

In transactions between the major dealers and the most sophisticated customers, it is common to use the ISDA Master Agreement and a Credit Support Annex.

The collateral arrangements for listed and cleared derivatives are based on standardised local documentation.

Must counterparties exchange collateral for some categories of equity derivatives transactions?

With respect to options, both the issuer and the dealer are required to provide collateral as security for their obligations (the dealer on behalf of the investor). The collateral may be cash, shares, government bonds, listed funds, warrants or derivatives registered at the dealer’s derivative account with SIX x-clear Ltd, Norwegian Branch.

With respect to forwards and futures, both the buyer and the seller are required to place collateral as security for their obligations. The collateral must be valid until the term lapses or is closed.

Daily mark-to-market valuations of the exposure and value of the collateral is commonly applied in the market. The collateral requirements are estimated with the use of the margin calculating system Midas Margin Model SIX x-clear Ltd, Norwegian Branch.

What is the territorial scope of the laws and regulations governing listed, cleared and uncleared equity derivatives transactions?

Determining the territorial scope of the laws and regulations governing listed, cleared and uncleared equity derivatives transactions requires a detailed assessment of the relevant facts and is influenced by factors such as:

• who the parties are;
• where they are resident;
• what products or services are offered;
• the overall connection to Norway; and
• the context in which the assessment is to be made.

The STA, with relevant regulations, provides the basic and generally applicable framework for derivatives transactions. As a starting point, the STA applies to ‘activities in Norway’. In addition to this, certain rules, such as insider trading rules, apply to financial instruments listed on a Norwegian regulated market or if admission to listing has been requested, and to derivatives where the value of the derivative fluctuates based on the value of the listed financial instrument.

If none of the parties to an equity derivative transaction is resident in Norway, and the only connection to Norway is that the issuer of the shares is a Norwegian resident company, the majority of the provisions of the STA will not apply. If one of the parties to the derivative contract is resident in Norway it will often lead to the STA being applicable. This will apply even more so where the party offering the investment service is resident in Norway.

The STA further sets out which of its provisions apply to foreign branches of securities firms offering investment services in Norway and to securities firms offering such services into Norway on a cross-border basis.

What registration or authorisation requirements apply to market participants that deal or invest in equity derivatives, and what are the implications of registration?

Equity derivatives are offered by banks and securities firms (dealers) to appropriate customers. Such dealers need to obtain authorisation from, and be approved by, the FSA, unless legally exempted from obtaining such authorisation by provisions in the STA. If the derivative contract in question is a standardised derivative listed on the Oslo Stock Exchange, dealers must, in addition to the aforementioned, fulfil certain requirements in the Derivatives Rules when applying for registration as a member of the Oslo Stock Exchange marketplace for standardised derivatives.

Equity derivatives in the form of independent subscription rights are required to be registered in the issuer’s register of subscription rights in the VPS (provided that the company is a public limited company or its shares are registered in the VPS). In addition, the subscription rights are required to be registered at the account the holder of the subscription rights has in the VPS. Registration in the VPS has certain legal implications including, for example, that the holder of the registered right obtains legal protection against a colliding right registered at a later point in time and against a right not registered in the VPS.

What reporting requirements apply to market participants that deal or invest in equity derivatives?

There are many reporting requirements applicable for market participants that deal or invest in equity derivatives. Pursuant to the STA, dealers shall make available to the public information about its business, its business risks and its subordinated capital pursuant to applicable regulations. Further, market participants conducting or arranging transactions in equity derivatives on a professional basis shall report to the FSA without delay if there is reason to suspect that a transaction might constitute insider trading or market manipulation. In addition, market participants that deal or invest in equity derivatives need to adhere to reporting requirements such as mandatory notifications and disclosure of acquisitions of large shareholdings as stated in the STA.

If the particular market participant that deals or invests in equity derivatives is an employee of an investment firm or their tied agents, a management company for securities funds, a financial institution, a pensions fund and another entity as stated in the STA, such employee is required to report its own account trading to the particular undertaking. Any such reporting by an employee must be kept available for the FSA at all times by the undertaking, and the reports must be retained for at least three years.

It is notable that EMIR, for example, contains requirements for the reporting of derivative transactions to transactions registers by the parties. This is different from the reporting requirements under MiFID II where the reporting requirement lies with dealers that carry out transactions in listed securities.

What legal issues arise in the design and issuance of structured products linked to an unaffiliated third party’s shares or to a basket or index of third-party shares? What additional disclosure and other legal issues arise if the structured product is linked to a proprietary index?

Issuance of structured products has decreased significantly over recent years in Norway. If such products are issued to the retail market the disclosure requirements are very strict. These products have also caught the attention of the FSA and one investor took a case to the Supreme Court of Norway.

With the exception of the aforementioned, there arise no specific Norwegian legal issues in the design and issuance of structured products linked to an unaffiliated third party’s shares or to a basket or index of third-party shares. If the product is physically settled (not cash-settled), this complicates the structure of the product. Depending on the number of underlying shares included in the structured product and whether physical hedging transactions are entered into, general rules relating to, for example, disclosure, ownership and mandatory offers may be relevant. If the product is linked to a proprietary index there are no specific Norwegian law issues that arise.

What registration, disclosure, tax and other legal issues arise when an issuer sells a security that is convertible for shares of the same issuer?

When an issuer issues a convertible security, the possible increase of the stated share capital of the issuer shall be registered with the Norwegian Register of Business Enterprises. There are no particular disclosure requirements and no tax consequences for the issuer of the convertible security. If the initial sale of the convertible security is made as a public offer, it may trigger a prospectus requirement depending on the transaction specifications (including number of investors and size). If a controlling shareholder of the issuer subscribes for convertible securities of the issuer, the right to tax deduction could be affected. Please also note that transactions with related parties need to be separately scrutinised for possible tax consequences.

What registration, disclosure, tax and other legal issues arise when an issuer sells a security that is exchangeable for shares of a third party? Does it matter whether the third party is an affiliate of the issuer?

Generally, the same legal issues arise when an issuer issues a security that is exchangeable into shares of a third party, as opposed to shares in the issuer. However, in such circumstances, the issuer must have access to the relevant shares. If the shares to be exchanged are acquired, the acquisition can trigger disclosure and other legal consequences depending on the size of the shareholding, type of company and other deal-specific issues.

As a starting point, it should not matter whether the third party is an affiliate of the issuer, although in practice it can be important. Securities that are exchangeable into shares of an entity other than the issuer itself are rare in the Norwegian market. This is, presumably, largely because of the difficulty in getting access to the relevant shares in case exchange occurs and a lack of commercial reasons to issue such instruments. In some of the transactions witnessed in the Norwegian market, the issuer has offered to exchange the instrument into shares of an affiliate as part of a restructuring or other merger and acquisition transaction.

Are there any other current developments or emerging trends that should be noted?

Equity derivatives and derivatives generally remain high on the regulators agenda. New legislation is usually based on relevant EU legislation, such as MiFID II. In the market for listed equity derivatives our impression is that it is business as usual without any significant new developments.

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Reproduced with permission from Law Business Research Ltd.

This article was first published in Getting the Deal Through –Equity Derivatives 2018 (Published: April 2018). For further information please visit www.gettingthedealthrough.com.