Contribution Agreement - Investissement-Quebec and ACI Telecentrics Inc.
INVEStissement
QUEBEC
BETWEEN: INVESTISSEMENT-QUEBEC, an entity legally incorporated under Section 1
of the Loi sur Investissement-Quebec et sur Garantie-Quebec (L.Q. 1998,
Chapter 17), having its head office at 1200 de l'Eglise Road, suite
500, Sainte-Foy, province of Quebec, G1V 5A3 and an office at 393 St.
James Street, Suite 500, Montreal, province of Quebec, H2Y 1N9, herein
represented and acting through Mr. Guy Leblanc, director, financial
incentives,
(hereafter designated as "the Society"),
AND: ACI TELECENTRICS INC., an entity incorporated under the laws of the
State of Minnesota, U.S.A., having its head office at 3100 West Lake
St., Suite 300, Minneapolis 55416, herein represented and acting
through Mr. Dana Olson, its Chief operating officer, pursuant to a
resolution adopted by its board of directors' meeting dated
________________________ a copy of which is herein enclosed.
(hereafter designated as "the Applicant").
WHEREAS the Applicant intends to realize a project of creation of a Call Centre
in Vaudreuil, province of Quebec, as described In section 2.1 (hereafter
referred as the "Project");
WHEREAS the Applicant has filed with the Society an application in order to
obtain a financial contribution to help the realisation of the Project;
WHEREAS the Society may grant a financial contribution pursuant to the Program
governing the Private Investment and Job Creation Fund (adopted by the
order-in-Council number 5722000 of May 9, 2000) (hereafter referred to as the
"Fund"), as amended from time to time;
WHEREAS the Society was authorised on November 6th , 2000 by the Vice Prime
Minister and Minister of Economy and Finance to grant a financial contribution
to the Applicant for the purposes of the Project in accordance with the terms
and conditions of the Fund and those described herein;
WHEREAS the Society is willing to grant the Applicant a financial contribution
and the Applicant is willing to accept it, under the terms and conditions of the
Fund and those described herein;
THEREFORE, the parties agree as follows:
1. The Agreement
1.1 This financial contribution agreement, constitutes the entire
agreement entered into between the parties (the "Agreement") when
the Applicant has met the condition set out in section 12.
1.2 The Agreement cancels and replaces any verbal or written
agreement, principal or accessory which may have been entered
into at any time concerning the Project.
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1.3 The terms and expressions used herein have the meaning that may
be attributed to them pursuant to the Fund unless a particular
meaning is given to them in this agreement.
2. THE PROJECT
2.1 The Project consists in the implementation of a Contact Centre in
Vaudreuil, province of Quebec, to service the direct marketing
needs of the insurance, financial, publishing and
telecommunications industries. It will involve the creation of up
to 626 new permanent jobs and an investment of CAN $1,800,000 in
capital expenditures (the "capital expenditures").
2.2 The Applicant declares that it has started the Project on October
15th, 2000 and undertakes to complete it no later than October
14th, 2002. The parties to this Agreement agree that the Project
for which the Financial Contribution (as defined hereafter) is
granted will cover the capital expenditures and the financing as
below:
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Project (In 000 $) Financing (In 000 $)
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Item Total Eligible
costs costs
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Equipment 1,800 118-0-0- Long term Debt 1,800
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11,800 1,800
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3. DISBURSEMENT OF THE FINANCIAL CONTRIBUTION
3.1 Subject to the Applicant not being in default under the terms
hereof and subject to the other provisions of the Agreement, the
Society hereby agrees to pay the Applicant a total amount not
exceeding $4,382,000 (the "Financial Contribution") consisting of
$7,000 for each Job created by the Applicant, as defined in
section 5.2, during the Project implementation period, for a
maximum of 626 Jobs.
Should the Applicant begin a new Contact Centre project in the province of
Quebec within 6 months following October 14th , 2000, and subject to the
Applicant not being in default under the terms hereof and subject to the other
provisions of the Agreement, the Corporation hereby agrees to pay the Applicant
an additional amount of $200 for all Jobs to be created for the Project, the
total additional amount to be paid to the Applicant shall not exceed the amount
of $125,200.
4. APPLICANT'S REPRESENTATIONS
4.1 ACI TELECENTRICS INC. is an entity incorporated under the laws
of the State of Minnesota, U.S.A.; it declares to be in good
standing under all applicable laws and not subject to any
covenant or prohibition that would be violated by the
implementation of this Project.
5. TERMS OF PAYMENT
5.1 The Society agrees to pay the Applicant the Financial
Contribution for the Jobs that will be created by the Applicant
during the Project implementation period, according to the
following terms and conditions:
5.1.1 The request for the first payment of the Financial
Contribution shall be submitted to the Corporation after
the end of a three-month period (the "QUARTER") following
the Project commencement date. This request shall cover
permanent Jobs created by the Applicant from the beginning
of the Project to the end of the Quarter and shall be
submitted along with a certificate issued by external
auditors of the Applicant
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containing the names, social insurance numbers, hiring
and termination dates, annual wages and nature of the
new Jobs created by the Applicant under the Project
during that Quarter.
5.1.2 This first payment to which the Applicant may be entitled.
shall be made thirty (30) days after the end of the first
Quarter, provided the Applicant has submitted a request
that meets all the conditions stipulated herein.
5.1.3 The second payment to which the Applicant may be entitled
shall be made sixty (60) days after the end of the second
Quarter, provided the Applicant has submitted a request
that meets all the conditions stipulated herein.
5.1.4 For any subsequent Quarter in which the Applicant creates
Jobs, the Applicant shall be entitled to receive an
additional portion of the Financial Contribution upon
submission of a request consistent with subsection 5.1.1.
The payment for any such request shall be made nine (9)
months after the end of each subsequent Quarter.
5.1.5 Any request concerning Jobs created during a given Quarter
received more than nine months after the end of the
Quarter in question shall be deemed inadmissible and shall
nullify the Applicant's right to receive the Financial
Contribution for Jobs created during that Quarter.
5.1.6 Apart from the certificate required from the Applicant
under subsection 5.1.1, any request for payment of the
Financial Contribution shall be submitted along with a
progress report on the Project.
5.1.7 The final request for payment of the Financial
Contribution shall be submitted along with a certificate
from the Applicant's external auditors attesting that the
up to 626 Jobs have been created and maintained.
5.2 For the purposes of the Project, a Job means any permanent Job
worked for a minimum 27 hours a week, 45 weeks a year.
5.3 No Job of the Applicant existing in Quebec before October 15th,
2000 that is eliminated by the Applicant shall be considered a
Job by the Corporation for the purposes of this Contract.
5.4 Any Job for which the Applicant requests payment of a Financial
Contribution and which is transferred from an affiliated Society
located outside Canada may be considered a Job eligible for a
Financial Contribution by the Corporation, provided the said Job
was held at the outset by a non-resident of Canada and the
Applicant attests in writing that the latter had become a
resident of Canada under applicable Canadian tax laws by the date
he started working in the Applicant's company.
5.5 If, before the Society pays the Financial Contribution to the
Applicant in accordance with subsection 5.1 for a Job
contemplated in subsection 5.4, this Job is no longer held by a
Canadian resident at any time whatsoever for a period of at least
three consecutive months, the Applicant agrees to immediately
notify the Corporation thereof in writing, and the latter shall
reduce the amount of the Financial Contribution it has to pay to
the Applicant for the Jobs for which it has received a request
for payment of the Financial Contribution by the specific amount
for this disallowed Job.
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5.6 Prior to any payment of a Financial Contribution, the Applicant
shall submit to the Society a written request along with all
vouchers reasonably required by the Society, proving to the
satisfaction of the Society that the Applicant has met all the
conditions to be entitled to receive this payment.
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6. OTHER CONDITIONS PERTAINING TO THE FINANCIAL CONTRIBUTION
6.1 For the purposes of this section, "PAYROLL" means the amount of
gross wages, excluding fringe benefits, paid for all Jobs for
which the Applicant has received a Financial Contribution.
6.2 The Society will pay $7,000 per Job (or if the implementation of
a new call center project in the province of Quebec begins by
April 14, 2001 then $7,200 per Job) created in the first 12
months of the Project. At the end of this 12-month period the
Society will have the right to review the Applicant's average
annual Payroll paid per Job created in year 1. If this amount is
less than $24,456, then the Society will divide the actual salary
amount generated into $24,456 to determine a percentage of
Payroll per Job. If less than 100% of the $24,456, the Society
has the right to apply this difference in percentage (the ((
Difference ))) (i.e. $24,000 average salary divided by $24,456 =
98.1 %) against the $7,000 (or $7,200) grant amount and pay this
revised grant amount for Jobs created in year two. (98.1% x
$7,000 = $6,867 or 98.1% x $7,200 = $7,063). If the Applicant
receives a reduced grant amount for Jobs created in year two and
is able to increase salaries and achieve an average annual
Payroll paid per Job of $24,456 at the earliest of the end of the
Project or October 14, 2002, then the Society agrees to pay the
Difference held back in year two to the Applicant by December 14,
2002. It is also understood that if the Applicant receives the
additional $200 per Job, but fails to realize and complete in the
agreed terms to be defined the new Contact Center project in
Quebec by April 15th, 2001, the Applicant shall reimburse the
Society the additional $200 per Job in 10 days following the
receipt of a written request to that effect.
6.3 The Applicant agrees to maintain in the province of Quebec every
new Job created for which the Applicant receives a Financial
Contribution under this Agreement, for a minimum period of three
years, from the date of its creation
6.4 If, during this two-year period, a Job for which the Applicant
receives a Financial Contribution is abolished permanently or
temporarily for a period of at least three consecutive months,
the Society reserves the right to apply a proportionate amount of
the Financial Contribution already paid for any such Job
abolished for the stated period toward the replacement of another
equivalent position. The proportionate amount is defined as the
number of months remaining in the 24-month Job existence
requirement at the time of a Job abolishment, divided by 24
months.
6.5 The Applicant shall submit to the Society, within 120 days of the
end of any fiscal period during the entire term of the Agreement,
a certificate from its external auditors attesting to the number
of Jobs created by the Applicant over the preceding fiscal year,
the number of Jobs created and maintained on a cumulative basis
since the Project start-up date and the amount of total Payroll
for the preceding fiscal year for the Jobs for which the
Applicant has received a Financial Contribution from the Society,
7. OTHER GOVERNMENT ASSISTANCE
7.1 The Applicant declares that it has neither requested nor received
from the Government of Quebec or any of its departments or
agencies, any contribution whatsoever for the purposes of this
Project, other than the Financial Contribution, and other than
any contribution from the Canadian Federal government.
7.2 As soon as the Applicant is aware of the amount of any
contribution receivable contemplated in subsection 7.1, the
Applicant agrees to notify the Society forthwith in writing, if
it has not done so already, and the Society may then decrease the
amount of the
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Financial Contribution by the amount of the additional
contribution to be received by the Applicant.
7.3 If, following the full payment of the Financial Contribution, the
Applicant receives the unpaid balance of a financial contribution
contemplated in SUBSECTIONS 7.1 OR 7.2 or any other Financial
Contribution whatsoever from the Government of Quebec or one of
its departments or agencies for the purposes of this Project, the
Applicant shall notify the Society forthwith in writing; the
Society may then demand that the Applicant refund part of the
Financial Contribution equal to the amount of the additional
financial contribution received, not exceeding the amount of the
Financial Contribution received.
8. THE APPLICANT'S OBLIGATIONS
8.1 For the entire duration of the Agreement, the Applicant
undertakes to each of the following:
8.1.1. to provide promptly and at its own expenses all reports
related to the progress and the results of the Project and
the Applicant's business as reasonably required by the
Society;
8.1.2. to grant to any authorised representative of the Society
on a prior and reasonable notice and during normal
business hours, a reasonable access to its premises,
accounting record and other document related to the
Project, in order to inspect and evaluate the progress and
the results of the Project;
8.1.3. to provide the Society, within 120 days of each fiscal
year-end as long as the contract is applicable, a copy of
Its audited annual financial statements. The Applicant
will also provide, as soon as possible, the non-audited
Interim quarterly financial statements. The Society
undertakes not to disclose the information contained in
the mentioned annual and quarterly financial statements,
except in the case of regular administration of the
Agreement or in the event the Society may be required to
act otherwise by a law or a ruling by a competent
tribunal;
8.1.4. to take all the required measures to its status and
legal capacity in good order and to advise the Society
of any deficiency;
8.1.5. to take all the required measures in order to complete the
Project within the deadline provided in section 2.2;
8.1.6. to advise the Society without delay of any fact or any
event that may compromise the complete achievement of
the Project before the Agreement expires;
8.1.7. not to modify, without the prior written consent of the
Society which will not be refused without valid reason,
the Project with regard to its control, its costs, its
financing, its fullness, its completion date, its location
or any of its components;
8.1.8. not to take significant material decisions which may
compromise the total or partial completion of the
Project or the Applicant's capacity to complete it;
8.1.9. to make available at all times to the persons who will
fill the Jobs all the necessary equipment with up-to-date
technology;
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8.1.10.to comply with all the laws and regulations applicable to
the Applicant and to advise the Society of any deficiency
that may affect the completion of the Project or its
undertakings described in this agreement.
8.2. Each time that the prior written consent of the Society is
required, the Applicant accepts that the consent may be subject
to any reasonable condition that the Society may require from the
Applicant in order to protect its rights in accordance with this
Agreement and to ensure the completion of the Project.
9. SUPERIOR FORCE
9.1 In the event the Applicant cannot, before the end of the
Agreement comply with the obligation set out in this Agreement
due to superior force, the Applicant should advise the Society in
writing within 10 business days of the date the Applicant is
aware of the circumstances directly related to the superior force
("Notice of superior force"). The Society shall inform the
Applicant of its agreement or non-agreement in writing within 30
business days of receipt of the written Notice of superior force.
If the Society does not respond in writing back to the Applicant
within 60 business days, then the Notice of superior force is
agreed by the Society.
9.2 The Applicant will, in the Notice of superior force, advise the
Society of the nature of the circumstances, its presumed duration
and the measures that it intends to take in order to minimise the
consequences of the circumstances outside one's control over its
obligation with regard to the Society pursuant to this Agreement.
9.3 The Applicant will, from the receipt of the notice of acceptance
or from the expiry of the 60-day period set out in the previous
section, be free of its obligations to the Society for the period
during which the Applicant is unable to meet its obligations.
9.4 If the Society advises the Applicant that it does not agree with
the Notice of superior force, the parties will meet within 10
business days to negotiate in good faith in order to conclude a
reasonable agreement concerning the Applicant's obligations to
the Society pursuant to this Agreement.
10. DEFAULTS
10.1 For the entire term of this Agreement, the following situations,
without limitation, shall constitute one or several defaults of
the Applicant:
10.1.1 The Applicant declares bankruptcy or becomes insolvent, is
put into receivership or relies on any law in effect with
respect of bankrupt or insolvent debtors;
10.1.2 an order is issued or a resolution adopted regarding
liquidation of the Applicant, or the Applicant is
dissolved;
10.1.3 the Applicant ceased to do business in Quebec, Interrupted
its complete operations in Quebec;
10.1.4 Society's decision to grand the Financial Contribution was
based on false or misleading information provided by the
Applicant which has a significant impact on the Project;
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10.1.5 according to the Society, one or several important
change(s) was (were) made to the Project before the date
the authorization of such change(s) was (were) received by
the Applicant;
10.1.6 the Society, acting reasonably, is of the opinion that the
Applicant has not carried out the Project promptly and,
among other things, has failed to respect the time limits
stipulated in the Agreement, unless, the circumstances of
such a situation belongs to a superior force;
10.1.7 the Applicant is in default to fulfil its obligations
under the terms and conditions of the Agreement;
10.1.8 there has been a significant deterioration In the
financial or economic risks of the business of the
Applicant so that the completion and the operation of the
Project may be jeopardised during the entire term of the
Agreement;
10.1.9 the Applicant does not create a minimum of 50 Jobs by
October 15, 2002.
10.2 In case of default of the Applicant, the Society must first
notify the Applicant it Is in default and allows the Applicant a
thirty (30) business day remedy period. If the Applicant remedies
the situation in a reasonable manner within this remedy period,
then the default modification will become null and void. If the
Applicant does not remedy the situation in a reasonable manner
within this remedy period, then lnvestissement-Quebec may pursue
the following remedies, separately or concurrently
10.2.1 suspend the disbursement of the Financial Contribution for
an indeterminate duration; and/or
10.2.2 ask for the immediate reimbursement of the Financial
Contribution received in whole or in part only if the
Applicant is in default according to paragraph 110.1.3,
10.1.4 or 10.1.9;
10.2.3 cancel the undisbursed portion of the Financial
Contribution in whole or in part;
10.3 If, at the end of the Contract established in accordance with
section 12, the total number of Jobs created during the term of
the Contract is less than 400, the Society may request that the
Applicant not be paid more than $6,300 per Job (or more than
$6,500 per Job if a new call centre project in the province of
Quebec begins by April 14, 2001) for Jobs created in the second
year of the Contract.
11. COMMITMENT FEE
11.1 The present offer is subject to the payment, as at the date of
the first disbursement of the Financial Contribution of a
management fee (referred herein as the ("COMMITMENT FEE") of
0,5.% of the Financial Contribution representing $ 22,536 plus
applicable federal tax on goods and services and the Quebec sales
tax, herein referred respectively as GST and PST.
11.2 The commitment fee to be paid to Investissement-Quebec is not
refundable totally or partially in any circumstances.
11.3 The deposit of the commitment fee does not create any right in
favour of the Applicant and does not oblige the Society in any
way to disburse any portion of the Financial Contribution;
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these rights and obligations will only be created In the event
that all the terms and conditions mentioned in this Agreement be
met.
11.4 For information purposes, the -Society has the registration
number GST 128621661 RT with the federal government and the
registration number TVQ 1013387857 TO 0001 with the government of
Quebec.
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12. TERM OF THE AGREEMENT
12.1 The effective date of this Agreement concerning the obligations
of the Society is the date on which the Society receives a duly
executed copy of the Agreement. The agreement will expire three
full years after the date of hiring of the last of the up to 626
Jobs covered by this Agreement.
13. GENERAL CONDITIONS
13.1 By accepting the terms and conditions of the Agreement, the
Applicant declares that it has not entered into any major
contractual covenant with respect to this Project prior to filing
the application for financial assistance, except for the
covenants already declared to the Society.
13.2 An original of this duly executed Agreement, shall be returned
by the Applicant to the Society within 30 days of the date that
it Is issued to the address below, failing which it shall become
null and void.
13.3 None of the Members of the Quebec National Assembly or the
Parliament of Canada shall be allowed to participate in this
Agreement nor to gain an advantage therefrom.
13.4 This Agreement may not be transferred or assigned to a third
party, except with the Society's prior written consent which
shall not be unreasonably withheld.
13.5 The Project submitted must comply with all requirements
stipulated in the applicable provincial and federal laws and
regulations, including, without limitation, those regarding the
environment.
13.6 The Applicant agrees to indemnify and save harmless the parties,
their trustees and their employees from any claim by a third
party with respect to or as a result of the implementation of the
Project.
13.7 The Applicant further acknowledges that the Financial
Contribution does not constitute an association for the purpose
of establishing a partnership or a joint venture nor create any
trustee relationship between the Society and The Applicant.
13.8 Should any modification whatsoever be necessary during the term
of this Agreement, the Applicant shall submit a written request
to that effect to the Society. The latter shall inform the
Applicant of its decision in writing within 30 business days of
receipt of the written request. If the Society does not respond
in writing back to the Applicant within said 60 business days,
then the modification is accepted.
13.9 The Applicant agrees to inform the Society without delay of any
material changes or any event likely to have a major impact on
the costs, realization or nature of the Project.
13.10 The Applicant has the legal capacity and the power necessary to
operate its business and execute the Agreement.
13.11 This Agreement shall be governed by and construed according to the
applicable laws of the Province of Quebec and in particular
according to the provisions of the Fund; the parties agree that
the Superior Court of the Province of Quebec and its courts of
appeal shall have the sole jurisdiction to hear any litigation
resulting from the Agreement.
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13.12 All amounts expressed in dollars in the Agreement are quoted In
the legal currency of Canada.
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13.13 For the purposes of the Agreement, the expression "BUSINESS DAY"
MEANS any day during which the offices of the Society are' open
for business in Montreal and in Quebec City.
14. ANNOUNCEMENTS AND CEREMONIES
14.1 Unless it advises otherwise, the Applicant hereby agrees to make
a public announcement by way of a press release describing the
name, the address, the type of business, the estimated cost of
the Project, the amount and the type of the loan as well as a
brief description of the Project.
14.2 The Applicant will advise the Society in writing of the date on
which the public announcement shall be made and the Applicant
shall keep the Agreement confidential until such date.
14.3 In the event that the Applicant does not make any official
announcement concerning the Project, the Society may by itself,
following a written five-day advice to the Applicant, make such
official announcement by way of a press release containing the
information mentioned in section 14.1.
14.4 The Applicant shall inform the Society in writing, at least 14
days in advance, of any official ceremony to be held with
respect to the Project.
14.5 The Applicant hereby agrees that representatives of the
government of Quebec and of the Society may participate in any
official ceremony related to the Project.
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AND THE PARTIES IN THIS AGREEMENT HAVE SIGNED ON THE DATE AND AT THE PLACE
MENTIONED OPPOSITE THEIR RESPECTIVE SIGNATURE.
Sign in Montreal, December 7, 2000
INVESTISSEMENT-QUEBEC
By:
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Signature
Guy Leblanc
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Name in capital letters
Director - Financial Incentives
Title
Signed in _________________________, the _______________________.
ACI TELECENTRICS INC.
By:
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Signature
Dana Olson
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Name in capital letters
COO
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Title
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EXTRACT FROM THE MINUTES OF
A BOARD OF DIRECTORS' MEETING OF
ACI TELECENTRICS INC.
ACI TELECENTRICS INC., hereafter referred to as "the Company", held at its head
office, on _________________.
It is unanimously resolved that the Company:
1) accepts the offer of financial contribution that Investissement-Quebec
has granted as at by way of a financial contribution of up to $4,507,200
in accordance with the terms and conditions described in the said offer;
2) authorizes Mister Dana Olson, chief operating officer, and the latter is
herein authorized to accept on behalf of the Company the said offer of
financial contribution in accordance with the terms and conditions herein
described and to sign all documents necessary or relevant in order to
apply the current resolution;
This copy constitutes a true copy of the resolution adopted by the directors of
ACI TELECENTRICS INC. at its meeting held on __________________________________
Signed on 12/18/00 .
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Signature
Rick Diamond
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Name of secretary