BYLAWS
FOR THE REGULATION, EXCEPT AS OTHERWISE
PROVIDED BY STATUTE OR ITS ARTICLES OF INCORPORATION
OF
CYBERBOTANICAL, INC.
ARTICLE I
Offices
Section 1.01 -- Principal And Registered Office.
The principal and registered office for the transaction of the business of the
Corporation is hereby fixed and located at: c/o Oasis Country Store State Route
233 and Interstate 80, P.O. Box 2004, Wells, Nevada 89835. Corporation may have
such other offices, either within or without the State of Nevada as the
Corporation's board of directors (the "Board) may designate or as the business
of the Corporation may require from time to time.
Section 1.02 -- Other Offices.
Branch or subordinate offices may at any time be established by the Board at any
place or places wherein the Corporation is qualified to do business.
ARTICLE 2
Meetings of Shareholders
Section 2.01 -- Meeting Place.
All annual meetings of shareholders and all other meetings of shareholders shall
be held either at the principal office or at any other place within or without
the State of Nevada which may be designated either by the Board, pursuant to
authority hereinafter granted, or by the written consent of all shareholders
entitled to vote thereat, given either before or after the meeting and filed
with the secretary of the Corporation.
Section 2.02 -- Annual Meetings.
A. The annual meetings of shareholders shall be held on the anniversary date of
the date of incorporation at the hour of 2:00 o'clock p.m., commencing with the
year 1996, provided, however, that should the day of the annual meeting fall
upon a legal holiday, then any such annual meeting of shareholders shall be held
at the same time and place on the next business day thereafter which is not a
legal holiday.
B. Written notice of each annual meeting signed by the president or vice
president, or the secretary, or an assistant secretary, or by such other person
or persons as the Board may designate, shall be given to each shareholder
entitled to vote thereat, either personally or by mail or other means of written
communication, charges prepaid, addressed to such shareholder at his address
appearing on the books of the Corporation or given by him to the Corporation for
the purpose of notice. If a shareholder gives no address, notice shall be deemed
to have een given to him if sent by mail or other means of written communication
addressed to the place where the principal office of the Corporation is
situated, or if published at least once in some newspaper of general circulation
in the county in which said office is located.
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All such notices shall be sent to each shareholder entitled thereto, or
published, not less than ten (10) nor more than sixty (60) days before each
annual meeting, and shall specify the place, the day and the hour of such
meeting, and shall also state the purpose or purposes for which the meeting is
called.
C. Failure to hold the annual meeting shall not constitute dissolution or
forfeiture of the Corporation, and a special meeting of the shareholders may
take the place thereof.
Section 2.03 -- Special Meetings.
Special meetings of the shareholders, for any purpose or purposes whatsoever,
may be called at any time by the president or by the Board, or by one or more
shareholders holding not less that ten percent (10%) of the voting power of the
Corporation. Except in special cases where other express provision is made by
statute, notice of such special meetings shall be given in the same manner as
for annual meetings of shareholders. Notices of any special meeting shall
specify in addition to the place, day and hour of such meeting, the purpose or
purposes for which the meeting is called.
Section 2.04 -- Adjourned Meetings And Notice Thereof.
A. Any shareholders' meeting, annual or special, whether or not a quorum is
present, may be adjourned from time to time by the vote of a majority of the
shares, the holders of which are either present in person or represented by
proxy thereat, but in the absence of a quorum, no other business may be
transacted at any such meeting.
B. When any shareholders' meeting, either annual or special, is adjourned for
thirty (30) days or more, notice of the adjourned meeting shall be given as in
the case of an original meeting. Otherwise, it shall not be necessary to give
any notice of an adjournment or of the business to be transacted at an adjourned
meeting, other than by announcement at the meeting at which such adjournment is
taken.
Section 2.05 -- Entry Of Notice.
Whenever any shareholder entitled to vote has been absent from any meeting of
shareholders, whether annual or special, an entry in the minutes to the effect
that notice has been duly given shall be conclusive and incontrovertible
evidence that due notice of such meeting was given to such shareholder, as
required by law and these bylaws.
Section 2.06 -- Voting.
At all annual and special meetings of shareholders, each shareholder entitled to
vote thereat shall have one vote for each share of stock so held and represented
at such meetings, either in person or by written proxy, unless the Corporation's
articles of incorporation ("Articles") provide otherwise, in which event, the
voting rights, powers and privileges prescribed in the Articles shall prevail.
Voting for directors and, upon demand of any shareholder, upon any question at
any meeting, shall be by ballot. If a quorum is present at a meeting of the
shareholders, the vote of a majority of the shares represented at such meeting
shall be sufficient to bind the corporation, unless otherwise provided by law or
the Articles.
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Section 2.07 -- Quorum.
The presence in person or by proxy of the holders of a majority of the shares
entitled to vote at any meeting shall constitute a quorum for the transaction of
business. The shareholders present at a duly called or held meeting at which a
quorum is present may continue to do business until adjournment, notwithstanding
the withdrawal of enough shareholders to leave less than a quorum.
Section 2.08 -- Consent Of Absentees.
The transactions of any meeting of shareholders, either annual or special,
however called and notice given thereof, shall be as valid as though done at a
meeting duly held after regular call and notice, if a quorum be present either
in person or by proxy, and if, either before of after the meeting, each of the
shareholders entitled to vote, not present in person or by proxy, sign a written
Waiver of Notice, or a consent to the holding of such meeting, or an approval of
the minutes thereof. All such waivers, consents or approvals shall be filed with
the corporate records or made a part of the minutes of such meeting.
Section 2.09 -- Proxies.
Every person entitled to vote or execute consents shall have the right to do so
either in person or by an agent or agents authorized by a written proxy executed
by such person or his duly authorized agent and filed with the secretary of the
Corporation; provided however, that no such proxy shall be valid after the
expiration of eleven (11) months from the date of its execution, unless the
shareholder executing it specifies therein the length of time for which such
proxy is to continue in force, which in no case shall exceed seven (7) years
from the date of its execution.
Section 2.10 -- Shareholder Action Without A Meeting.
Any action required or permitted to be taken at a meeting of the shareholders
may be taken without a meeting if a written consent thereto is signed by
shareholders holding at least a majority of the voting power, except that if a
different proportion of voting power is required for such an action at a
meeting, then that proportion of written consents is required. In no instance
where action is authorized by this written consent need a meeting of
shareholders be called or notice given. The written consent must be filed with
the proceedings of the shareholders.
ARTICLE 3
Board of Directors
Section 3.01 -- Powers.
Subject to the limitations of the Articles, these bylaws, and the provisions of
Nevada corporate law as to action to be authorized or approved by the
shareholders, and subject to the duties of directors as prescribed by these
bylaws, all corporate powers shall be exercised by or under the authority of,
and the business and affairs of the corporation shall be controlled by, the
Board. Without prejudice to such general powers, but subject to the same
limitations, it is hereby expressly declared that the directors shall have the
following powers:
A. To select and remove all the other officers, agents and employees of the
Corporation, prescribe such powers and duties for them as are not inconsistent
with law, with the Articles, or these bylaws, fix their compensation, and
require from them security for faithful service.
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B. To conduct, manage and control the affairs and business of the Corporation,
and to make such rules and regulations therefore not inconsistent with the law,
the Articles, or these bylaws, as they may deem best.
C. To change the principal office for the transaction of the business if such
change becomes necessary or useful; to fix and locate from time to time one or
more subsidiary offices of the Corporation within or without the State of
Nevada, as provided in Section 1.02 of Article 1 hereof; to designate any place
within or without the State of Nevada for the holding of any shareholders'
meeting or meetings; and to adopt, make and use a corporate seal, and to
prescribe the forms of certificates of stock, and to alter the form of such seal
and of such certificates from time to time, as in their judgment they may deem
best, provided such seal and such certificates shall at all times comply with
the provisions of law.
D. To authorize the issuance of shares of stock of the Corporation from time to
time, upon such terms as may be lawful, in consideration of money paid, labor
done or services actually rendered, debts or securities canceled, or tangible or
intangible property actually received, or in the case of shares issued as a
dividend, against amounts transferred from surplus to stated capital.
E. To borrow money and incur indebtedness for the purposes of the Corporation,
and to cause to be executed and delivered therefore, in the corporate name,
promissory notes, bonds, debentures, deeds of trust, mortgages, pledges,
hypothecation or other evidences of debt and securities therefore.
F. To appoint an executive committee and other committees and to delegate to the
executive committee any of the powers and authority of the Board in management
of the business and affairs of the Corporation, except the power to declare
dividends and to adopt, amend or repeal bylaws. The executive committee shall be
composed of one or more directors.
Section 3.02 -- Number And Qualification Of Directors.
The authorized number of directors of the Corporation shall not be less than one
(1) nor more than twelve (12).
Section 3.03 -- Election And Term Of Office.
The directors shall be elected at each annual meeting of shareholders, but if
any such annual meeting is not held, or the directors are not elected thereat,
the directors may be elected at any special meeting of shareholders. All
directors shall hold office until their respective successors are elected.
Section 3.04 -- Vacancies.
A. Vacancies in the Board may be filled by a majority of the remaining
directors, though less than a quorum, or by a sole remaining director, and each
director so elected or appointed shall hold office until his successor is
elected at an annual or a special meeting of the shareholders.
B. A vacancy or vacancies in the Board shall be deemed to exist in case of the
death, resignation or removal of any director, or if the authorized number of
directors be increased, or if the shareholders fail at any annual or special
meeting of shareholders at which any director or directors are elected to elect
the full authorized number of directors to be voted for at that meeting.
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C. The shareholders may elect a director or directors at any time to fill any
vacancy or vacancies not filled by the directors.
D. No reduction of the authorized number of directors shall have the effect of
removing any director unless also authorized by a vote of the shareholders.
ARTICLE 4
Meetings of the Board of Directors
Section 4.01 -- Place Of Meetings.
Regular meetings of the Board shall be held at any place within or without the
State of Nevada which has been designated from time to time by resolution of the
Board or by written consent of all members of the Board. In the absence of such
designation, regular meetings shall be held at the principal office of the
Corporation. Special meetings of the Board may be held either at a place so
designated, or at the principal office. Failure to hold an annual meeting of the
Board shall not constitute forfeiture or dissolution of the Corporation.
Section 4.02 -- Organization Meeting.
Immediately following each annual meeting of shareholders, the Board shall hold
a regular meeting for the purpose of organization, election of officers, and the
transaction of other business. Notice of such meeting is hereby dispensed with.
Section 4.03 -- Other Regular Meetings.
Other regular meetings of the Board shall be held, whether monthly or quarterly
or by some other schedule, at a day and time as set by the president; provided
however, that should the day of the meeting fall upon a legal holiday, then such
meeting shall be held at the same time on the next business day thereafter which
is not a legal holiday. Notice of all such regular meetings of the Board is
hereby required.
Section 4.04 -- Special Meetings.
A. Special meetings of the Board may be called at any time for any purpose or
purposes by the president, or, if he is absent or unable or refuses to act, by
any vice president or by any two directors.
B. Written notice of the time and place of special meetings shall be delivered
personally to each director or sent to each director by mail (including
overnight delivery services such as Federal Express) or telegraph, charges
prepaid, addressed to him at his address as it is shown upon the records of the
Corporation, or if it is not shown upon such records or is not readily
ascertainable, at the place in which the regular meetings of the directors are
normally held. No such notice is valid unless delivered to the director to whom
it was addressed at least twenty-four (24) hours prior to the time of the
holding of the meeting. However, such mailing, telegraphing, or delivery as
above provided herein shall constitute prima facie evidence that such director
received proper and timely notice.
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Section 4.05 -- Notice Of Adjournment.
Notice of the time and place of holding an adjourned meeting need not be given
to absent directors, if the time and place be fixed at the meeting adjourned.
Section 4.06 -- Waiver Of Notice.
The transactions of any meeting of the Board, however called and noticed or
wherever held, shall be as valid as though a meeting had been duly held after
regular call and notice, if a quorum be present, and if, either before or after
the meeting, each of the directors not present sign a written waiver of notice
or a consent to holding such meeting or an approval of the minutes thereof. All
such waivers, consents or approvals shall be filed with the corporate records or
made a part of the minutes of the meeting.
Section 4.07 -- Quorum.
If the Corporation has only one director, then the presence of that one director
constitutes a quorum. If the Corporation has only two directors, then the
presence of both such directors is necessary to constitute a quorum. If the
Corporation has three or more directors, then a majority of those directors
shall be necessary to constitute a quorum for the transaction of business,
except to adjourn as hereinafter provided. A director may be present at a
meeting either in person or by telephone. Every act or decision done or made by
a majority of the directors present at a meeting duly held at which a quorum is
present, shall be regarded as the act of the Board, unless a greater number be
required by law or by the Articles.
Section 4.08 -- Adjournment.
A quorum of the directors may adjourn any directors' meeting to meet again at a
stated day and hour; provided however, that in the absence of a quorum, a
majority of the directors present at any directors' meeting, either regular or
special, may adjourn such meeting only until the time fixed for the next regular
meeting of the Board.
Section 4.09 -- Fees And Compensation.
Directors shall not receive any stated salary for their services as directors,
but by resolution of the Board, a fixed fee, with or without expenses of
attendance, may be allowed for attendance at each meeting. Nothing stated herein
shall be construed to preclude any director from serving the Corporation in any
other capacity as an officer, agent, employee, or otherwise, and receiving
compensation therefore.
Section 4.10 -- Action Without A Meeting.
Any action required or permitted to be taken at a meeting of the Board, or a
committee thereof, may be taken without a meeting if, before or after the
action, a written consent thereto is signed by all the members of the Board or
of the committee. The written consent must be filed with the proceedings of the
Board or committee.
ARTICLE 5
Officers
Section 5.01 -- Executive Officers.
The executive officers of the Corporation shall be a president, a secretary, and
a treasurer/chief financial officer. The corporation may also have, at the
direction of the Board, a chairman of the Board,one or more vice presidents, one
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or more assistant secretaries, one or more assistant treasurers, and such other
officers as may be appointed in accordance with the provisions of Section 5.03
of this Article. Officers other than the president and the chairman of the board
need not be directors. Any one person may hold two or more offices, unless
otherwise prohibited by the Articles or by law.
Section 5.02 -- Appointment.
The officers of the corporation, except such officers as may be appointed in
accordance with the provisions of Sections 5.03 and 5.05 of this Article, shall
be appointed by the Board, and each shall hold his office until he resigns or is
removed or otherwise disqualified to serve, or his successor is appointed and
qualified.
Section 5.03 -- Subordinate Officers.
The Board may appoint such other officers as the business of the Corporation may
require, each of whom shall hold office for such period, have such authority,
and perform such duties as are provided in these bylaws or as the Board may from
time to time determine.
Section 5.04 -- Removal And Resignation.
A. Any officer may be removed, either with or without cause, by a majority of
the directors at the time in office, at any regular or special meeting of the
Board.
B. Any officer may resign at any time by giving written notice to the Board or
to the president or secretary. Any such resignation shall take effect on the
date such notice is received or at any later time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 5.05 -- Vacancies.
A vacancy in any office because of death, resignation, removal, disqualification
or any other cause shall be filled in the manner prescribed in these bylaws for
regular appointments to such office.
Section 5.06 -- Chairman Of The Board.
The Chairman of the Board, if there be such an officer, shall, if present,
preside at all meetings of the Board, and exercise and perform such other powers
and duties as may be from time to time assigned to him by the Board or
prescribed by these bylaws.
Section 5.07 -- President.
Subject to such supervisory powers, if any, as may be given by the Board to the
Chairman of the Board (if there be such an officer), the president shall be the
chief executive officer of the Corporation and shall, subject to the control of
the Board, have general supervision, direction and control of the business and
officers of the Corporation. He shall preside at all meetings of the
shareholders and, in the absence of the Chairman of the Board, or if there be
none, at all meetings of the Board. He shall be an ex-officio member of all the
standing committees, including the executive committee, if any, and shall have
the general powers and duties of management usually vested in the office of
president of a corporation, and shall have such other powers and duties as may
be prescribed by the Board or these bylaws.
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Section 5.08 -- Vice President.
In the absence or disability of the president, the vice presidents, in order of
their rank as fixed by the Board, or if not ranked, the vice president
designated by the Board, shall perform all the duties of the president and when
so acting shall have all the powers of, and be subject to all the restrictions
upon, the president. The vice presidents shall have such other powers and
perform such other duties as from time to time may be prescribed for them
respectively by the Board or these bylaws.
Section 5.09 -- Secretary.
A. The secretary shall keep, or cause to be kept, at the principal office or
such other place as the Board may direct, a book of (i) minutes of all meetings
of directors and shareholders, with the time and place of holding, whether
regular or special, and if special, how authorized, the notice thereof given,
the names of those present and absent at directors' meetings, the number of
shares present or represented at shareholders' meetings, and the proceedings
thereof, and (ii) any waivers, consents, or approvals authorized to be given by
law or these bylaws.
B. The secretary shall keep, or cause to be kept, at the principal office, a
share register, or a duplicate share register, showing (i) the name of each
shareholder and his or her address; (ii) the number and class or classes of
shares held by each, and the number and date of certificates issued for the
same; and (iii) the number and date of cancellation of every certificate
surrendered for cancellation.
C. The secretary shall give, or cause to be given, notice of all the meetings of
the shareholders and of the Board required by these bylaws or by law to be
given, and he shall keep the seal of the Corporation, if any, in safe custody,
and shall have such other powers and perform such other duties as may be
prescribed by the Board or these bylaws.
Section 5.10 -- Treasurer/Chief Financial Officer.
A. The treasurer/chief financial officer shall keep and maintain, or cause to be
kept and maintained, adequate and correct accounts of the properties and
business transactions of the Corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, surplus and
shares. Any surplus, including earned surplus, paid-in surplus and surplus
arising from a reduction of stated capital, shall be classified according to
source and shown in a separate account. The books of account shall at all times
be open to inspection by any director.
B. The treasurer/chief financial officer shall deposit all monies and other
valuables in the name and to the credit of the Corporation with such
depositories as may be designated by the Board. He shall disburse the funds of
the Corporation as may be ordered by the Board, shall render to the president
and directors, whenever they request it, an account of all of his transactions
as treasurer and of the financial condition of the Corporation, and shall have
such other powers and perform such other duties as may be prescribed by the
Board or these bylaws.
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ARTICLE 6
Miscellaneous
Section 6.01 -- Record Date And Closing Stock Books.
The Board may fix a time in the future, for the payment of any dividend or
distribution, or for the allotment of rights, or when any change or conversion
or exchange of shares shall go into effect, as a record date for the
determination of the shareholders entitled to notice of and to vote at any such
meeting, or entitled to receive any such dividend or distribution, or any such
allotment of rights, or to exercise the rights in respect to any such change,
conversion or exchange of shares, and in such case only shareholders of record
on the date so fixed shall be entitled to notice of and to vote at such
meetings, or to receive such dividend, distribution or allotment of rights, or
to exercise such rights, as the case may be, notwithstanding any transfer of any
shares on the books of the Corporation after any record date fixed as herein set
forth. The Board may close the books of the Corporation against transfers of
shares during the whole, or any part, of any such period.
Section 6.02 -- Inspection Of Corporate Records.
The share register or duplicate share register, the books of account, and
records of proceedings of the shareholders and directors shall be open to
inspection upon the written demand of any shareholder or the holder of a voting
trust certificate, at any reasonable time, and for a purpose reasonably related
to his interests as a shareholder or as the holder of a voting trust
certificate, and shall be exhibited at any time when required by the demand of
ten percent (10%) of the shares represented at any shareholders' meeting. Such
inspection may be made in person or by an agent or attorney, and shall include
the right to make extracts. Demand of inspection other than at a shareholders'
meeting shall be made in writing upon the president, secretary, or assistant
secretary, and shall state the reason for which inspection is requested.
Section 6.03 -- Checks, Drafts, Etc.
All checks, drafts or other orders for payment of money, notes or other
evidences of indebtedness, issued in the name of or payable to the Corporation,
shall be signed or endorsed by such person or persons and in such manner as,
from time to time, shall be determined by resolution of the Board.
Section 6.04 -- Annual Report.
The Board shall cause to be sent to the shareholders not later than one hundred
twenty (120) days after the close of the fiscal or calendar year an annual
report.
Section 6.05 -- Contracts: How Executed.
The Board, except as otherwise provided in these bylaws, may authorize any
officer, officers, agent, or agents, to enter into any contract, deed or lease,
or execute any instrument in the name of and on behalf of the Corporation, and
such authority may be general or confined to specific instances; and unless so
authorized by the Board, no officer, agent, or employee shall have any power or
authority to bind the Corporation by any contract or engagement or to pledge its
credit or render it liable for any purpose or for any amount.
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Section 6.06 -- Certificates Of Stock.
A certificate or certificates for shares of the capital stock of the Corporation
shall be issued to each shareholder when any such shares are fully paid up. All
such certificates shall be signed by the president or a vice president and the
secretary or an assistant secretary, or be authenticated by facsimiles of the
signature of the president and secretary or by a facsimile of the signatures of
the president and the written signature of the secretary or an assistant
secretary. Every certificate authenticated by a facsimile of a signature must be
countersigned by a transfer agent or transfer clerk.
Section 6.07 -- Representations Of Shares Of Other Corporations.
The president or any vice president and the secretary or assistant secretary of
this Corporation are authorized to vote, represent, and exercise on behalf of
this Corporation, all rights incident to any and all shares of any other
corporation or corporations standing in the name of this Corporation. The
authority herein granted to said officers to vote or represent on behalf of this
Corporation or corporations may be exercised either by such officers in person
or by any person authorized so to do by proxy or power of attorney duly executed
by said officers.
Section 6.08 -- Inspection Of Bylaws.
The Corporation shall keep in its principal office for the transaction of
business the original or a copy of these bylaws, as amended or otherwise altered
to date, certified by the secretary, which shall be open to inspection by the
shareholders at all reasonable times during office hours.
Section 6.09 -- Indemnification.
A. The Corporation shall indemnify its officers and directors for any liability
including reasonable costs of defense arising out of any act or omission of any
officer or director on behalf of the Corporation to the full extent allowed by
the laws of the State of Nevada, if the officer or director acted in good faith
and in a manner the officer or director reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe the conduct
was unlawful.
B. Any indemnification under this section (unless ordered by a court) shall be
make by the corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the
circumstances because the officer or director has met the applicable standard of
conduct. Such determination shall be made by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or, regardless of whether or not such a quorum is
obtainable and a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or by the stockholders.
ARTICLE 7
Amendments
Section 7.01 -- Power Of Shareholders.
New bylaws may be adopted, or these bylaws may be amended or repealed, by the
affirmative vote of the shareholders collectively having a majority of the
voting power or by the written assent of such shareholders.
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Section 7.02 -- Power Of Directors.
Subject to the rights of the shareholders as provided in Section 7.01 of this
Article, bylaws other than a bylaw, or amendment thereof, changing the
authorized number of directors, may also be adopted, amended, or repealed by the
Board.
Certificate
The undersigned does hereby certify that the undersigned is the President of the
Corporation as named at the outset in these bylaws, a corporation duly organized
and existing under and by virtue of the laws of the State of Nevada; that the
above and foregoing bylaws of said corporation were duly and regularly adopted
as such by the board of directors of the Corporation at a meeting of said Board,
which was duly held on the 7th day of December, 1999, that the above and
foregoing bylaws are now in full force and effect.
DATED this 7th day of December, 1999.
/s/ Richard D. Surber
-----------------------
Richard D. Surber
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