EXHIBIT 2.3
PLAN AND AGREEMENT OF TRIANGULAR MERGER
BETWEEN
ENVIRONMENTAL TECHNOLOGIES, INC.,
▇▇▇▇ SUB TWO, INC.
AND
ADVANCED FUEL FILTRATION SYSTEMS, INC.
THIS AGREEMENT is made this 29 day of December, 2003 by and between
ENVIRONMENTAL TECHNOLOGIES, INC., a Nevada corporation ("Environmental
Technologies"), ▇▇▇▇ SUB TWO, INC., a California corporation ("▇▇▇▇ Sub Two"),
ADVANCED FUEL FILTRATION SYSTEMS, INC., a California corporation ("AFFS"), and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, and ▇▇▇▇▇▇ ▇. ST. CLAIR
(collectively, the "stockholders of AFFS").
WHEREAS, ▇▇▇▇ Sub Two is a wholly-owned subsidiary of Environmental
Technologies; and
WHEREAS, Environmental Technologies and the stockholders of AFFS desire
to cause the merger of ▇▇▇▇ Sub Two with and into AFFS (the "Merger"); and
WHEREAS, as a result of the Merger, the stockholders of AFFS will
receive shares of the common stock of Environmental Technologies, par value
$0.001 per share (the "Environmental Technologies Common Stock") in exchange for
all of their shares of the common stock of AFFS, no par value per share (the
"AFFS Common Stock"); and
WHEREAS, after the Merger, AFFS will become a wholly-owned subsidiary
of Environmental Technologies;
NOW, THEREFORE, in consideration of the foregoing and the following
mutual covenants and agreements, the parties agree as follows:
1. PLAN ADOPTED. A plan of merger whereby ▇▇▇▇ Sub Two merges with and
into AFFS (this "Plan of Merger"), pursuant to the provisions of Chapter 92A of
the Nevada Revised Statutes, Section 1101 of the California Corporations Code,
and Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as amended, is
adopted as follows:
(a) ▇▇▇▇ Sub Two shall be merged with and into AFFS, to exist
and be governed by the laws of the State of California.
(b) AFFS shall be the Surviving Corporation (the "Surviving
Corporation") and a wholly-owned subsidiary of Environmental Technologies.
(c) When this Plan of Merger shall become effective, the
separate existence of ▇▇▇▇ Sub Two shall cease and the Surviving Corporation
shall succeed, without other transfer, to all the rights and properties of ▇▇▇▇
Sub Two and shall be subject to all the debts and liabilities of such
corporation in the same manner as if the Surviving Corporation had itself
incurred them. All rights of creditors and all liens upon the property of each
constituent entity shall be preserved unimpaired, limited in lien to the
property affected by such liens immediately prior to the Merger.
(d) The Surviving Corporation will be responsible for the
payment of all fees and franchise taxes of the constituent entities payable to
the States of California and Nevada, if any.
(e) The Surviving Corporation will carry on business with the
assets of AFFS, as well as the assets of ▇▇▇▇ Sub Two.
(f) The Surviving Corporation will be responsible for the
payment of the fair value of shares, if any, required under the Nevada Revised
Statutes and the California Corporations Code.
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(g) The stockholders of AFFS will surrender all of their
shares of the AFFS Common Stock in the manner hereinafter set forth.
(h) In exchange for the shares of AFFS Common Stock
surrendered by the stockholders of AFFS, Environmental Technologies will issue
and transfer to such stockholders on the basis hereinafter set forth, shares of
the Environmental Technologies Common Stock.
(i) Environmental Technologies, the sole stockholder of ▇▇▇▇
Sub Two, will surrender its shares of the ▇▇▇▇ Sub Two Common Stock held by it
in exchange for shares of the AFFS Common Stock.
2. EFFECTIVE DATE. The effective date of the Merger (the "Effective
Date") shall be the date of the filing of instruments effecting the Merger for
AFFS and ▇▇▇▇ Sub Two in the State of California.
3. SUBMISSION TO STOCKHOLDERS. This Plan of Merger shall be submitted
for approval separately to the stockholders of AFFS and ▇▇▇▇ Sub Two in the
manner provided by the laws of the State of California.
4. MANNER OF EXCHANGE. On the Effective Date, the stockholders of AFFS
shall surrender their stock certificates representing the AFFS Common Stock to
Environmental Technologies in exchange for certificates representing the shares
of the Environmental Technologies Common Stock to which they are entitled. In
exchange, Environmental Technologies shall receive all of the issued and
outstanding shares of the AFFS Common Stock held by the stockholders of AFFS.
The 1,000 shares of the ▇▇▇▇ Sub Two Common Stock will be cancelled.
5. BASIS OF EXCHANGE. The stockholders of AFFS currently own 100 shares
of the AFFS Common Stock, which shares constitute all of the issued and
outstanding shares of the capital stock of AFFS. As a result of the Merger, the
stockholders of AFFS shall be entitled to receive, in exchange for all of their
AFFS Common Stock, 2,000,000 shares of the Environmental Technologies Common
Stock, having an agreed value of $4,000,000 on the Effective Date. The shares to
be transferred to the stockholders of AFFS shall contain a legend restricting
the transfer thereof as required by the Securities Act of 1933, as amended.
6. ADDITIONAL CONSIDERATION. As additional consideration for the
Merger:
(a) Environmental Technologies shall deliver to the
stockholders of AFFS on the Effective Date the sum of $1,000,000.00, to be
payable pursuant to a promissory note due on or before March 31, 2004.
(b) It is acknowledged that Environmental Technologies made an
advance to AFFS of $250,000 (the "Advance") which was applied against debts
owing by AFFS as of the date of the Advance which was November 14, 2003. In the
event that the Merger is not consummated, the Advance will be considered
irrevocable and non-refundable.
(c) On the Effective Date, the stockholders of AFFS will
assign, transfer, and convey to Environmental Technologies all of their shares
of the capital stock of Advanced Petroleum Transport, Inc., a California
corporation, which shares will constitute all of the issued and outstanding
shares of the capital stock of Advanced Petroleum Transport, Inc.
(d) On the Effective Date, Environmental Technologies will
assume all of the AFFS Third Party Liability Debts described in ATTACHMENT A,
(the "AFFS Third Party Liability Debts").
(e) It is contemplated by the parties that Environmental
Technologies will commence a private placement of its securities (the "Private
Placement") after the Effective Date. Environmental Technologies agrees, that as
soon as possible after the commencement of the Private Placement, but in no
event later than March 31, 2004, Environmental Technologies will cause the
release of all continuing guaranties of the stockholders of AFFS in connection
with the AFFS Third Party Liability Debts. Provided, however, notwithstanding
anything herein contained to the contrary, if the Board of Directors of
Environmental Technologies determines in its sole and unfettered discretion that
it would not be in the best interest of Environmental Technologies to effectuate
the release on or before March 31, 2004 of such continuing guaranties of the
stockholders of AFFS in connection with the AFFS Third Party Liability Debts,
the Board of Environmental Technologies may extend the deadline when it must
secure a release of the AFFS Third Party Liability Debts for successive periods
of 90 days, up to June 30, 2005.
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7. DIRECTORS AND OFFICERS.
(a) The present Board of Directors of AFFS shall serve as the
Board of Directors of the Surviving Corporation until the next annual meeting or
until such time as their successors have been elected and qualified.
(b) If a vacancy shall exist on the Board of Directors of the
Surviving Corporation on the Effective Date, such vacancy may be filled by the
Board of Directors as provided in the Bylaws of the Surviving Corporation.
(c) All persons who, on the Effective Date, are executive or
administrative officers of AFFS shall be officers of the Surviving Corporation
until the Board of Directors of the Surviving Corporation shall otherwise
determine. The Board of Directors of the Surviving Corporation may elect or
appoint such additional officers as it may deem necessary or appropriate.
8. ARTICLES OF INCORPORATION. The Articles of Incorporation of AFFS
existing on the Effective Date, a copy of which is attached hereto as ATTACHMENT
B, shall continue in full force as the Articles of Incorporation of the
Surviving Corporation until altered, amended, or repealed as provided therein or
as provided by law.
9. BYLAWS. The Bylaws of AFFS existing on the Effective Date, a copy of
which is attached hereto as ATTACHMENT C, shall continue in full force as the
Bylaws of the Surviving Corporation until altered, amended, or repealed as
provided therein or as provided by law.
10. COPIES OF THE PLAN OF MERGER. A copy of this Plan of Merger is on
file at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the principal offices of
AFFS, and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the
principal offices of Environmental Technologies and ▇▇▇▇ Sub Two. A copy of this
Plan of Merger will be furnished to any stockholder of AFFS, Environmental
Technologies, or ▇▇▇▇ Sub Two, on written request and without cost.
11. RECORDS OF AFFS. For a period of five years following the Effective
Date, the books of account and records of AFFS pertaining to all periods prior
to the Effective Date shall be available for inspection by the stockholders of
AFFS for use in connection with tax audits.
12. NO REPRESENTATION. It is acknowledged, understood and agreed that
Environmental Technologies has relied on its own investigations and due
diligence endeavors in making its decision to proceed with the Merger in
accordance with the terms hereof and will never claim that, in making its
decision to proceed with the Merger it has relied on any statements,
representations, or warranties (regardless of the form thereof) which may have
been made, directly or indirectly, by the Surviving Corporation, or any of its
officers, directors, stockholders, legal or financial representatives, or any
person, former entity affiliated or associated therewith and that Environmental
Technologies is acquiring the Surviving Corporation in the manner specified
herein on an "as is" basis and assumes all risks associated with the status of
the assets and liabilities of the Surviving Corporation as they may exist at the
Effective Date.
13. AGREEMENT REGARDING COLLATERAL. The undersigned, do hereby
acknowledge, understand and agree that in conjunction with the business
combination of ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Development, a California corporation, ▇.▇.
▇▇▇▇▇, Inc., a California corporation, AFFS, and Environmental Technologies, and
with respect to any affiliate or successor in interest to any of such
corporations, as well as their officers, directors, and stockholders, no asset
belonging to any of the constituent corporations, or which may be made available
for their use, will be allowed to, or become, collateral for security of the
performance of any debt obligation arising out of the implementation of such
business combination in favor of any of the constituent corporations or any of
their officers, directors, stockholders or affiliates.
14. NO ASSIGNMENT. This Agreement shall not be assignable by any party
without the prior written consent of the other parties, which consent shall be
subject to such parties' sole, absolute and unfettered discretion.
15. ATTORNEYS' FEES. In the event that it should become necessary for
any party entitled hereunder to bring suit against any other party to this
Agreement for a breach of this Agreement, the parties hereby covenant and
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agree that the party who is found to be in breach of this Agreement shall also
be liable for all reasonable attorneys' fees and costs of court incurred by the
other parties. Provided, however, in the event that there has been no breach of
this Agreement, whether or not the transactions contemplated hereby are
consummated, each party shall bear its own costs and expenses (including any
fees or disbursements of its counsel, accountants, brokers, investment bankers,
and finder's fees).
16. BENEFIT. All the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
17. NOTICES. All notices, requests, demands, and other communications
hereunder shall be in writing and delivered personally or sent by registered or
certified United States mail, return receipt requested with postage prepaid, or
by telecopy or e-mail, if to AFFS and the stockholders of AFFS, addressed to ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopier
(▇▇▇) ▇▇▇-▇▇▇▇, and e-mail ▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇; and if to Environmental
Technologies and ▇▇▇▇ Sub Two, addressed to ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopier (▇▇▇) ▇▇▇-▇▇▇▇,
and e-mail ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. Any party hereto may change its address
upon 10 days' written notice to any other party hereto.
18. CONSTRUCTION. Words of any gender used in this Agreement shall be
held and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise.
19. WAIVER. No course of dealing on the part of any party hereto or its
agents, or any failure or delay by any such party with respect to exercising any
right, power or privilege of such party under this Agreement or any instrument
referred to herein shall operate as a waiver thereof, and any single or partial
exercise of any such right, power or privilege shall not preclude any later
exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
20. CUMULATIVE RIGHTS. The rights and remedies of any party under this
Agreement and the instruments executed or to be executed in connection herewith,
or any of them, shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
21. INVALIDITY. In the event any one or more of the provisions
contained in this Agreement or in any instrument referred to herein or executed
in connection herewith shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect the other provisions of this Agreement or any such other
instrument.
22. TIME OF THE ESSENCE. Time is of the essence of this Agreement.
23. INCORPORATION BY REFERENCE. The Attachments to this Agreement
referred to or included herein constitute integral parts to this Agreement and
are incorporated into this Agreement by this reference.
24. MULTIPLE COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
25. LAW GOVERNING; JURISDICTION. This Agreement shall be governed by
and construed in accordance with the laws of the State of California, without
regard to any conflicts of laws provisions thereof. Each party hereby
irrevocably submits to the personal jurisdiction of the United States District
Court for the Central District of California, as well as of the Superior Courts
of the State of California in Riverside County, California over any suit, action
or proceeding arising out of or relating to this Agreement. Each party hereby
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such mediation,
arbitration, suit, action or proceeding brought in any such county and any claim
that any such mediation, arbitration, suit, action or proceeding brought in such
county has been brought in an inconvenient forum.
26. ENTIRE AGREEMENT. This instrument and the attachments hereto, as
well as any collateral agreements relating to the subject matter hereto or the
operation of Environmental Technologies and the Surviving Corporation following
the Merger, contain the entire understanding of the parties with respect to the
subject matter
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hereof and may not be changed orally, but only by an instrument in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
IN WITNESS WHEREOF, this Agreement has been executed in multiple
counterparts on the date first written above.
ENVIRONMENTAL TECHNOLOGIES, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Chairman and Chief Executive Officer
▇▇▇▇ SUB TWO, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Chairman and Chief Executive Officer
ADVANCED FUEL FILTRATION SYSTEMS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. St. Clair
---------------------------------------
▇▇▇▇▇▇ ▇. ST. CLAIR
ATTACHMENTS:
------------
Attachment A - AFFS Third Party Liability Debts
Attachment B - Articles of Incorporation of Advanced Fuel Filtration Systems,
Inc.
Attachment C - Bylaws of Advanced Fuel Filtration Systems, Inc.
5
ATTACHMENT A
AFFS THIRD PARTY LIABILITY DEBTS
6
AFFS THIRD PARTY LIABILITY DEBTS
$4,484,066.00
ATTACHMENT B
ARTICLES OF INCORPORATION OF
ADVANCED FUEL FILTRATION SYSTEMS, INC.
1770199
ENDORSED
FILED
In the office of the Secretary of State
of the State of California
SEP 18 1995
ARTICLES OF INCORPORATION OF
YLD/CLEAN FUELS, INC.
A California Corporation
ARTICLE ONE: The name of this corporation shall be YLD/CLEAN FUELS,
INC.
ARTICLE TWO: The purpose of the corporation is to engage in any lawful
act or activity for which a corporation may be organized under the General
Corporation Law of the State of California other than the banking business, the
trust company business or the practice of a profession permitted to be
incorporated by the California Corporations Code.
ARTICLE THREE: The existence of the corporation is perpetual.
ARTICLE FOUR: The name and complete business address within the State
of California of the corporation's initial agent for service of process within
the State of California, in accordance with the provisions of subdivision (b) of
Section 1502 of the General Corporation Law of the State of California, are as
follows:
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ARTICLE FIVE: The total number of shares which the corporation is
authorized to issue is One thousand (1,000) common shares. All of such shares
shall be of a single class, and shall be without par value.
No preferences, qualifications, limitations, restrictions, or special
rights, other than those provided by law, shall exist with respect to any of the
shares of the corporation or by of the holders of such shares.
All or any part of the aforesaid shares may be issued for such
consideration as from time
to time may be determined by the word of Directors.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Incorporation on this 12th day of the month of September, 1995.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
INCORPORATOR
The undersigned does hereby declare and acknowledge that he is the
person who execute the foregoing Articles of Incorporation as the incorporator
of the corporation named therein an( does hereby further declare and acknowledge
that his execution of said Articles of Incorporation is his act and deed as
said incorporator.
Dated: September 12, 1995
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
INCORPORATOR
Page 2
1770199
STATE
OF CALIFORNIA
SECRETARY OF STATE'S OFFICE
CORPORATE DIVISION
I, ▇▇▇▇ ▇▇▇▇▇, Secretary of State of the State of California, hereby certify:
That the annexed transcript has been compared with the corporate record
on file in this office, of which it purports to be a copy, and that same is
full, true and correct.
IN WITNESS WHEREOF, I execute
this certificate and affix the Great
Seal of the State of California this
SEP 19 1995
--------------------
[Seal of the State of California]
CERTIFICATE OF AMENDMENT OF
ARTICLES OF INCORPORATION OF
YLD/CLEAN FUELS, INC.
▇▇▇▇▇ L, ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇, being respectively the President and Treasurer
of YLD/CLEAN FUELS, INC., certify that;
1. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ has been and continues to be the President of the
corporation. ▇▇▇▇ ▇▇▇▇▇▇ has been and continues to be the Treasurer of the
corporation.
2. At a meeting of the Board of Directors of the corporation duly held
at Huntington Beach, California, on May 27, 1997, the board unanimously approved
and adopted the following amendment of ARTICLE ONE of the Articles of
Incorporation of this corporation.
"ARTICLE ONE: The name of this corporation shall be
ADVANCED FUEL FILTRATION SYSTEMS, INC."
3. The shareholders of all of the 167 outstanding shares of common
stock of the corporation, have unanimously adopted and approved the same on May
27, 1997, both by written consent and written resolution, both of which have
been duly filed with the Secretary of the corporation.
In witness whereof, the undersigned have executed this Certificate of
Amendment on September 27, 1997.
We declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, PRESIDENT
/s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇, TREASURER
STATE OF CALIFORNIA
SECRETARY OF STATE
I, ▇▇▇▇ ▇▇▇▇▇, secretary of state of the state of California, hereby
certify:
That the attached transcript has been compared with the record on file
in this office, of which it purports to be a copy, and that it is full, true and
correct.
IN WITNESS WHEREOF, I execute
this certificate and affix the Great
Seal of the state of California this
[SEAL OF THE STATE OF CALIFORNIA]
ATTACHMENT C
BYLAWS OF
ADVANCED FUEL FILTRATION SYSTEMS, INC.
BYLAWS OF
YLD/CLEAN FUELS, INC.
A California Corporation
ARTICLE I. SHAREHOLDERS
SECTION ONE. ANNUAL MEETING
(a) An annual meeting of shareholders shall be held in each year on the
6TH day in the month of OCTOBER at 10:00 o'clock a.m., unless such day should
fall on a legal holiday, in which event the meeting shall be held at the same
hour on the next succeeding business day that is not a legal holiday. Annual
meetings shall he held at the principal executive office of the corporation or
at such other place within the state of California as may be determined by the
Board of Directors and designated in the notice of such meeting.
(b) If in any year, the election of directors is not held at the annual
meeting of shareholders or an adjournment thereof, the Board of Directors shall
call a special meeting of shareholders as soon thereafter as reasonably possible
for the purpose of holding such election and transacting such other business as
may properly be brought before the meeting. In the event the Board of Directors
fails to call a special meeting within two months after the date prescribed for
the annual meeting, any shareholder may call such a meeting, and at such a
meeting the shareholders may elect directors and transact all other business
brought before the meeting.
(c) No change in the time or place of a meeting for the election of
directors may be made within twenty (20) days of the date for which such meeting
is scheduled, and written notice of any change in the date of such a meeting
must be given to each shareholder of record at least ten (10) days prior to the
date for which any such meeting is rescheduled.
(d) Any shareholders' meeting, annual or special, may be adjourned from
time to time by the affirmative vote of a majority of the shares represented at
such meeting either in person or by proxy. An adjournment may BE voted
regardless of whether a quorum is present. When a shareholders' meeting is
adjourned for forty-five (45) days or more, notice of the adjourned meeting must
be given as in the case of an original meeting. When a meeting is adjourned for
less than forty-five (45) days, no notice of the time and place of the adjourned
meeting need be given other than by announcement at the meeting at which the
adjournment is voted, unless after the adjournment a new record date is fixed
for the adjourned meeting.
SECTION TWO: SPECIAL MEETINGS. Special meetings of shareholders may be
called for any purpose. Such meetings may be called at any time by the Chairman
of the Board, the President, the Board of Directors, or by holders of shares
entitled to cast not less than Ten Percent (10%) of the votes at the meeting. On
the written request of any person or persons entitled to call a special meeting,
secretary shall inform the Board of Directors as to such call., and the Board
shall fix a time and place for the meeting. If the Board fails to fix such a
time and place, the meeting shall he held at the
principal executive office of the Corporation at the time fixed by the
secretary.
SECTION THREE: ACTON BY WRITTEN CONSENT. Any action required by law to
be taken at a meeting of the shareholders, except for the election of directors,
and any other action that may be taken at a meeting of shareholders may be taken
without a meeting if a consent in writing, setting forth the action so taken, is
signed by the holders of outstanding shares having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted, if
the consents of all shareholders entitled to vote were solicited in writing.
Directors may not be elected by written consent except by unanimous written
consent of all shares entitled to vote for the election of directors.
SECTION FOUR: NOTICE OF MEETINGS. Written notice stating the place,
day. and hour of the meeting and, in the case of a special meeting, the general
nature of the business to be transacted, shall be given not less than ten (10)
days nor more than sixty (60) days before the date of the meeting either
personally or by mail or other means of written communication, addressed to the
shareholder at the address of such shareholder appearing on the books of the
corporation or given by the shareholder to the corporation for the purpose of
notice; or if no such address appears or is given, at the place where the
principal executive office of the corporation is located by publication at least
once in a newspaper of general circulation in the county in which the principal
executive office is located, to each shareholder of record entitled to vote at
the meeting. The notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or sent by other means of written
communication. An affidavit of mailing of any notice in accordance with the
provisions of this section executed by the secretary.. assistant secretary or
any transfer agent shall be prima facie evidence of the giving of the notice.
SECTION FIVE: WAIVER OF NOTICE. A shareholder may waive notice of any
annual or special meeting by signing a written notice of waiver either before or
after the date of such meeting.
SECTION SIX: RECORD DATE.
(a) For the purpose of determining shareholders entitled to notice of
or to vote at any meeting of shareholders, or to receive payment of any
dividend, or in order to make a determination of shareholders for any other
proper purpose. the Board of Directors may fix, in advance, a date as the record
date for a determination of shareholders for any of the purposes enumerated in
Paragraph (a) above, Such date shall be not more than sixty (60) days, and for a
meeting of shareholders, not less than ten (10) days, or in the case of a
meeting at which a merger or consolidation will be considered, not less than
twenty (20) days, immediately preceding such meeting.
(b) If a record date is not fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, the record date
shall be at the close of business on the business day next preceding the day on
which the meeting is held.
(c) If no record date is fixed, the record date for determining
shareholders entitled to give consent to corporate action in writing without a
meeting, when no prior action by the Board is necessary, shall be the day on
which the first written consent is given.
(d) If no record date is fixed, the record date for determining
shareholders for any other purpose shall be at the close of business on the day
on which the Board adopts the resolution relating thereto, or the sixtieth
(60th) day prior to the date of such other action, whichever is later.
(e) When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this section, such
determination shall apply to any adjournment of such meeting, unless the Board
fixes a new record date for the adjourned meeting.
SECTION SEVEN: QUORUM. The presence, at any shareholders' meeting, in
person or by proxy, of persons entitled to vote a majority of the shares of the
corporation then outstanding shall constitute a quorum for the transaction of
business. In determining whether quorum requirements for a meeting have been
met, any share that has been enjoined from voting or that for any reason cannot
be lawfully voted shall not be counted.
SECTION EIGHT: PROXIES. Every person entitled to vote at a
shareholders' meeting of the corporation, or entitled to execute written consent
authorizing action in lieu of a meeting, may do so either in person or by proxy
executed in writing by the shareholder or by his duly authorized attorney in
fact. No proxy shall be valid after eleven (11) months from the date of its
execution unless otherwise provided in the proxy.
SECTION NINE: Except in elections for directors, in which each
shareholder shall have the right to cumulate his votes, each outstanding share
shall be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. The affirmative vote of the majority of shares represented at a
meeting at which a quorum is present shall be the act of the shareholders unless
the vote of a greater number or a vote by classes is required by the Articles of
Incorporation, these bylaws, or the laws of the state of California.
SECTION TEN: ORDER OF BUSINESS. The order of business at the annual
meeting of shareholders and, insofar as possible, at all other meetings of
shareholders, shall be as follows:
(a) Call to order.
(b) Proof of notice of meeting.
(c) Reading and disposing of any unapproved minutes.
(d) Reports of officers.
(e) Reports of committees.
(f) Election of directors.
(g) Disposition of unfinished business.
(h) Disposition of new business.
(i) Adjournment.
ARTICLE II. BOARD OF DIRECTORS
SECTION ONE: GENERAL POWERS. Subject to the limitations of the Articles
of lncorporation, these bylaws, and the California General Corporation Law
concerning corporate action that must be authorized or approved by the
shareholders of the corporation, all corporate powers shall be exercised by or
under the authority of the Board of Directors. and the business and affairs of
the corporation shall be controlled by the Board.
SECTION TWO: NUMBER, QUALIFICATIONS, AND ELECTION, The Board of
Directors shall consist of seven (7) persons. The number of directors may be
increased or decreased from time to time by approval of the outstanding shares,
Directors of the corporation shall be elected at the annual meeting of
shareholders, or at a meeting held in lieu thereof as provided in Article I,
Section One (b), above, and shall serve until the next succeeding annual meeting
and until their successors have been elected and qualified.
This corporation requiring only one director, and so long as there is
only one director, then any reference herein to notices, waivers, consents,
meeting or other actions by a majority or quorum of the directors shall be
deemed to be the exclusive rights, powers, duties and responsibilities of said
sole director, otherwise described herein as given to a Board of Directors.
SECTION THREE: MEETINGS.
(a) The Board of Directors shall hold an organizational meeting
immediately following each annual meeting of shareholders. Additionally, regular
meetings of the Board of Directors shall be held at such times as shall be fixed
from time to time by resolution of the Board.
(b) Special meetings of the Board may be called AT any time by the
President, or, if the president is absent or if unable or refuses to act, by any
vice-president or by any two members of the Board.
(c) Notice need not be given of regular meetings of the Board, nor need
notice be given of adjourned meetings. Notice of special meetings shall be in
writing by mail at least four (4) days prior to the date of the meeting or by
forty-eight hours' notice delivered personally or by telephone or telegraph,
Neither the business to be transacted at nor the purpose of any such meeting
need be specified in the notice. Attendance of a director at a meeting shall
constitute a waiver of notice of that meeting except when the director attends
for the express purpose of objecting to the transaction of any business because
the meeting is not lawfully called or convened.
SECTION FOUR: QUORUM AND VOTING. A majority of the authorized number of
directors shall constitute a quorum for the transaction of business, and the
acts of a majority of directors present at a meeting at which a quorum is
present shall constitute the acts of the Board of Directors.
** As amended at Special Meeting of June 3, 1996.
if, at any meeting of the Board of Directors, less than a quorum is present, a
majority of those present may adjourn the meeting, from Lime to time, until a
quorum is present. if the meeting is adjourned for more than twenty-four (24)
hours, notice of any adjournment to another time or place shall be given prior
to the time of the adjourned meeting to the directors who were not present at
the time of the adjournment
SECTION FIVE: VACANCIES.
(a) A vacancy in the Board of Directors shall exist on the happening of
any of the following events:
(1) A director dies, resigns, or is removed from office:
(2) The authorized number of directors is increased without the
simultaneous election of a director or directors to fill the newly
authorized position;
(3) The shareholders at any annual, regular, or special meeting at
which directors are to be elected, elect less than the number of
directors authorized to be elected at that meeting;
(4) The Board of Directors declares vacant the office of a director who
has been adjudicated of unsound mind or has been finally convicted
of a felony or, within thirty (30) days after notice of his
election to the Board, neither accepts the office in writing, nor
attends a meeting of the Board of Directors.
A reduction in the authorized number of directors does not remove any
director from office prior to the expiration of his term of office.
(b) A vacancy in the Board of Directors, except a vacancy occurring by
the removal of a director, may be filled by the vote of a majority of the
remaining directors, even though less than a quorum is present. Each director so
elected shall hold office for the unexpired term of his predecessor in office.
Any directorship that is to be filled as a result of an increase in the number
of directors must be filled by election at any annual or special meeting of
shareholders called for that purpose.
SECTION SIX: REMOVAL.
(a) At any regular meeting of shareholders, or at any special meeting
called for such purpose. any director or directors may be removed from office,
with or without cause, by approval of the outstanding shares, except that if
less than all the directors are to be removed, no individual director may be
removed if the number of votes cast against his removal would be sufficient, if
voted cumulatively at an election of the whole Board, to elect such director.
(b) New directors may be elected by the shareholders for the unexpired
terms of directors removed from office at the same meetings at which such
removals are voted. If the shareholders fail to elect persons to fill the
unexpired terms of removed directors, uch terms shall be sidered vacancies to be
filled by the remaining directors as provided in Section Five, above.
SECTION SEVEN: COMPENSATION. Directors including directors also serving
the corporation in another capacity and receiving separate compensation therefor
shall be entitled to receive from the corporation as compensation for their
services as directors such reasonable compensation as the Board may from time to
time determine, and shall also he entitled to reimbursement for any reasonable
expenses incurred in attending meetings of directors.
SECTION EIGHT: INDEMNIFICATION. The corporation shall indemnity all
persons who have served or may serve at any time as officers or directors of the
corporation and heirs, executors, administrators, successors, and assigns, from
and against any and all loss and expense, including amounts paid in settlement
before or after suit is commenced, and reasonable attorneys' fees, actually and
necessarily incurred as a result of any claim, demand, action, proceeding, or
judgment that may be asserted against any such persons, or in which any such
persons are made parties by reason of their being or having been officers or
directors of the corporation. However, this right of indemnification shall not
exist in relation to matters as to which it is adjudged in any action, suit, or
proceeding that any such persons are liable for negligence or misconduct in the
performance of duty.
SECTION NINE: COMMITTEES.
(a) The Board of Directors may, by resolution adopted by a majority of
the whole Board, in the event that the number of directors of this corporation
is increased by approval of the outstanding shares, designate two or more
directors to constitute an executive committee which, to the extent provided in
such resolution, shall have and may exercise all of the authority of the Board
of Directors in the management of the corporation, except that such committee
shall have no authority in reference to amending the Articles of Incorporation,
adopting a plan of merger OR consolidation, suggesting to shareholders the sale,
lease, exchange, mortgage, or other disposition of all or substantially all of
the property and assets of the corporation other than in the usual course of
business, recommending to the shareholders a voluntary dissolution or a
revocation thereof, amending, altering, or repealing any provision of these
bylaws, electing or removing directors or officers of the corporation, or
members of the executive committee, declaring dividends. or amending, altering,
or repealing any resolution of the Board of Directors which, by its terms,
provides that it shall not be amended, altered, or repealed by the executive
committee. The Board of Directors shall have power at any time to fill vacancies
in, to change the size or membership of, and to discharge any such committee.
(b) Any such executive committee shall keep a written record of its
proceedings and shall submit such record to the whole Board at each regular
meeting thereof and at such other times as may be requested by the Board.
However, failure to submit such record, or failure of the Board to approve any
action indicated therein shall not invalidate such action to the extent it has
been carried out by the corporation prior to the time the record thereof was or
should have been submitted to the Board as provided herein.
ARTICLE III. OFFICERS
SECTION ONE: ENUMERATION OF OFFICES. The corporation shall have as
officers President, a secretary, and a chief financial officer. The Board of
Directors, in its discretion, may appoint a Chairman of the Board, one or more
vice-presidents, one or more assistant secretaries, one or more assistant
financial officers. and such other officers as the business of the corporation
may require.
section two: ELECTION AND TERM OF OFFICE. The principal officers of the
corporation shall be elected by the Board of Directors at its organizational
meeting immediately following the annual meeting of shareholders or as soon
thereafter as is reasonable possible. Subordinate officers may be elected from
time to time as the Board may see fit. Each officer shall hold office until his
successor is elected and qualified, or until his resignation, death or removal.
SECTION THREE: REMOVAL. Any officer may be removed from office at any
time, with or without cause, on the affirmative vote of a majority of the Board
of Directors. Removal shall be without prejudice to any contract of rights of
the officer removed.
SECTION FOUR: VACANCIES. Vacancies in offices, however occasioned, may
be filled by election by the Board of Directors at any time for the unexpired
terms of such offices.
SECTION FIVE: PRESIDENT; POWERS AND DUTIES. Subject to any supervisory
duties that may be given by the Board of Directors to any chairman of the board,
the president shall be the principal executive officer of the corporation.
Subject to the control of the Board of Directors, the president shall supervise
and direct generally all the business and affairs of the corporation. The
president shall preside at all meetings of shareholders at which he is present.
In the absence of the chairman of the board, or if there is no such chairman,
the president shall preside at all meetings of the Board of Directors at which
he is present. The president may sign, with the secretary or any other officer
of THE corporation so authorized by the Board of Directors, certificates for
shares of the corporation, and any deeds, mortgages, bonds, contracts, or other
instruments that the Board of Directors has authorized for execution, except
when the signing and execution thereof has been expressly delegated by the Board
of Directors or these bylaws to some other officer or agent of the corporation
or is required by law to be otherwise signed or executed. The president shall
also make reports to the Board of Directors and shareholders and in general
shall perform all duties as may he prescribed from time to time by the Board of
Directors.
SECTION SIX: VICE PRESIDENT; POWERS AND DUTIES. In the absence of the
president of the corporation, or in the event of his death or inability or
refusal to act, the vice-president, such officer be elected by the Board of
Directors in its discretion, shall perform the duties of the president and, when
so acting, shall art with all of the powers of and be subject to all of the
restrictions
on the president. In the event more than one vice-president is elected, the
vice-presidents shall serve in the capacity of the president in the order
designated at the time of their election, or, in the absence of any such
designation, in the order of their election. Any vice-president may sign share
certificates with the secretary or an assistant secretary, The vice-president or
vice-presidents shall also perform such other duties as may be assigned, from
time to time. by the president or the Board of Directors.
SECTION SEVEN: CHIEF FINANCIAL OFFICER; POWERS AND DUTIES. The chief
financial officer of the corporation shall have the following powers and duties:
(a) To be custodian and take charge of and be responsible for all funds
and securities of the corporation;
(b)To receive and give receipts for money doe and paid to the
corporation from any source whatsoever;
(c) To deposit all such monies paid to the corporation in the name of
the corporation in such banks, trust companies, or other depositories as shall
be selected in accordance with the provisions of these bylaws;
(d) To perform all of the duties incidental to the office of treasurer
and such other duties as may be assigned to the chief financial officer, from
time to time, by the president or the Board of Directors;
(e) To give a bond for faithful discharge of his duties when required
to do so by the Board of Directors.
SECTION EIGHT: SECRETARY; POWERS AND DUTIES. The secretary of the
corporation shall have the following powers and duties:
(a) To keep the minutes for the meetings of shareholders and of the
Board of Directors, in one or more books provided for that purpose;
(b)To see that all notices are duly given, in accordance with these
bylaws or as required by law;
(c) To be custodian of the corporate records and the seal of the
corporation;
(d) To see that the seal of the corporation is affixed to all documents
duly authorized for execution under seal On behalf of the corporation;
(e) To keep a register of the post-office address of each shareholder
whose address shall be furnished to the secretary by the shareholder;
(f) To sign with the president, or a vice-president., certificates for
corporate shares the issuance of which have been authorized by resolution of the
Board of Directors;
(g) To have general charge of the stock transfer books of the
corporation; and
(h) To perform all duties incidental to the office of secretary and
such other duties as may be assigned to the secretary, from time to time, by the
president or the Board of Directors.
SECTION NINE: SUBORDINATE OFFICERS. Other subordinate officers,
including without limitation an assistant financial officer and an assistant
secretary or secretaries may be appointed by the Board of Directors from time to
time, and shall exercise such powers and perform such duties
as may be delegated to them by the resolutions appointing them, or by subsequent
resolutions adopted by the Board of Directors from time to time.
SECTION TEN: ABSENCE OR DISABILITY OF OFFICERS. In the case of the
absence or disability of any officer of the corporation and of any person hereby
authorized to act in his place during his absence or disability, the Board of
Directors may by resolution delegate the powers and duties of such officer to
any other officer, or to any director, or to any other person whom it may
select.
SECTION ELEVEN: SALARIES. The salaries of all officers of the
corporation shall be fixed from time to time by the Board of Directors. No
officer shall be disqualified from receiving a salary by reason of his also
being a director, whether or not he receives compensation therefor.
SECTION TWELVE: REPAYMENT OF EXCESSIVE COMPENSATION. The officers of
the corporation shall be and remain at all times liable to repay to the
corporation all amounts paid to such officers by the corporation as salary or
other compensation to the extent such amounts have been disallowed to the
corporation as deductions in computing the federal income taxes of the
corporation.
ARTICLE IV. STOCK CERTIFICATES
SECTION ONE: FORM. The shares of the corporation shall be represented
by certificates signed by the chairman or a vice-chairman of the Board of
Directors, if any, or the president or a vice-president, and by the chief
financial officer or an assistant financial officer or the secretary or an
assistant secretary. Any and all of such signatures may be facsimile. Each such
certificate shall also state:
(1) The name of the record holder of the shares represented by such
certificate;
(2) The number of shares represented thereby;
(3) A designation of any class or series of which such shares are a
part;
(4) That the shares are without par value;
(5) The restrictions on transfer of such shares;
SECTION TWO: SUBSCRIPTIONS FOR STOCK. Unless otherwise provided in the
subscription agreement, subscriptions for shares shall be paid in full at such
time, or in such installments and at such times as shall he determined by the
Board of Directors. Any call made by the Board of Directors for payment on
subscriptions shall be uniform as to all shares of the same class or as to all
shares of the same series, as the case may be. In case of default in the payment
of any installment or call when such payment is due. the corporation may proceed
to collect the amount due in the same manner as any debt due the corporation.
SECTION THREE: TRANSFERS. Transfer of shares of the corporation shall
be made in the manner specified in the California Uniform Commercial Code, The
corporation shall maintain stock transfer books, and any transfer shall be
registered thereon only on request and surrender of the stock certificate
representing the transferred shares, duly endorsed, Additionally, the Board of
Directors may appoint one or more registrars as custodians of the transfer
books, and may require all transfers to be made with and a l share certificates
to bear the signatures of any of them. The corporation shalt have the absolute
right to recognize as the owner of any shares of stock issued by it, for all
proper corporate purposes, including the voting of such shares and the issuance
and payment of dividends on such shares, the person or persons in whose name the
certificate representing such shares stands on its books. However, if a transfer
of shares is made solely for the purpose of furnishing collateral security, and
if such fact is made known to the secretary of the corporation, or to the
corporation's transfer agent or transfer clerk, the record entry of such
transfer shall state the limited nature thereof.
Section FOUR: DESTROYED AND STOLEN CERTIFICATES. No certificate for
shares of stock in the corporation shall be issued in place of any certificate
alleged to have been lost, destroyed, stolen, or mutilated, except on production
of such evidence and provision of such indemnity to the corporation as the Board
of Directors may prescribe.
ARTICLE V. CORPORATE ACTIONS
SECTION ONE: CONTRACTS. The Board of Directors may authorize any
officer or officers, or any agent or agents of the corporation to enter into any
contract or to execute and deliver any instrument in the name of and on behalf
of the corporation, and such authority may be general or confined to specific
instances.
SECTION TWO: LOANS. No loans shall be made by the corporation to its
officers or directors, and no loans shall be made by the corporation secured by
its shares. No loans shall be made or contracted on behalf of the corporation
and no evidences of indebtedness shall be issued in its name unless authorized
by resolution of the Board of Directors. Such authority may be general or
confined to specific instances.
SECTION THREE: CHECKS, DRAFTS, OR ORDERS. All checks, drafts, or other
orders for the payment of money by or to the corporation, and all notes and
other evidence of indebtedness issued in the name of the corporation shall be
signed by such officer or officers, agents or agents of the corporation and in
such manner as shall from time to time be determined by resolution of the Board
of Directors.
SECTION FOUR: BANK DEPOSITS. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks. trust companies, or other depositories as the Board of Directors
may select.
SECTION FIVE: VOTING SECURITIES FIELD BY THE CORPORATION. Unless
otherwise ordered by the Board of Directors, the president, or any
vice-president and the secretary or an assistant secretary of the corporation
shall have authority to vote, represent, and exercise on behalf of the
corporation all rights incidental to any and all shares of any other corporation
standing in the name of the corporation. Such authority may be exercised by the
designated officers in person or by proxy.
ARTICLE VI. MISCELLANEOUS
SECTION ONE: REPORTS TO STOCKHOLDERS. The Board of Directors shall
cause an annual report to be sent to the shareholders of the corporation, not
later than One hundred and twenty (120) days after the close of the fiscal year
of the corporation. Such report shall include a balance sheet as of the close of
the fiscal year of the corporation and an income statement and statement of
changes in financial position for such fiscal year. Such financial statements
shall be prepared from and in accordance with the books of the corporation, in
conformity with generally accepted accounting principals applied on a consistent
basis, and shall be certified by an independent certified public accountant.
SECTION TWO: INSPECTION OF CORPORATE RECORDS. The corporation
shall keep correct and complete books and records of account and shall also keep
minutes of all meetings of shareholders and directors. Additionally, a record
shall be kept at the principal executive office of the corporation, giving the
names and addresses of all shareholders and the number and class or classes of
shares held by each. Any person who is the holder of a voting trust certificate
or who is the holder of record of at least five (5%) percent of the outstanding
voting shares of the corporation shall have the right to examine and copy, in
person or by agent or attorney, at any reasonable time or times, for any proper
purpose, the books and records of account of the corporation, the minutes, and
the record of shareholders.
On the written request of any shareholder, the corporation shall mail
to such shareholder within fourteen (14) days after receipt of such request, a
balance sheet as of the close of its latest fiscal year and a profit and loss
statement for such fiscal year. If such request is received by the corporation
before such financial statements are available for its latest fiscal year, the
corporation shall mail such financial statements within fourteen (14) days after
they become available, but in any event within one hundred and twenty (120) days
after the close of its latest fiscal year.
SECTION THREE: INSPECTION OF ARTICLES OF INCORPORATION AND BYLAWS. The
original or a copy of the Articles of Incorporation and Bylaws of the
corporation, as amended or otherwise altered to date, and certified by the
secretary of the corporation, shall, at all
times, be kept at the principal executive office of the corporation. Such
articles and bylaws shall be open to inspection by all shareholders of record or
holders of voting trust certificates at all reasonable times during the business
hours of the corporation.
SECTION FOUR: FISCAL YEAR. The fiscal year of the corporation shall
begin on the 1st day of January of each year and end at midnight on the 31st day
of December of the following year.
SECTION Fine: CORPORATE SEAL. The Board of Directors shall adopt an
official seal for the corporation, which shall be circular in form and be
inscribed with the name of the corporation, the state of incorporation, and the
date of incorporation.
ARTICLE VII. AMENDMENTS
These bylaws may be altered, amended, or repealed by a majority vote of
the Board of Directors.
THIS IS TO CERTIFY that I am the duly elected, qualified and acting
secretary of YLD/CLEAN ELS, INC., a California corporation, and that the above
and foregoing Bylaws were adopted as the Bylaws of said corporation on the 6Th
day of the month of OCTOBER, 1995, by the persons elected first directors of
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this 6TH day of
OCTOBER, 1995.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Secretary