American Dental Partners Inc (Other) (S-8)
21 September 2007 - 8:48PM
Edgar (US Regulatory)
As filed with the United States Securities and Exchange Commission on September 21, 2007
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN DENTAL PARTNERS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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04-3297858
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(State or other jurisdiction or
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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401 Edgewater Place, Suite 430
Wakefield, Massachusetts 01880
(781) 224-0880 / (781) 224-4216 (fax)
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
American Dental
Partners, Inc.
1997 Employee Stock Purchase Plan, as amended
(Full title of the plans)
Gregory A. Serrao
Chairman,
President and Chief Executive Officer
401 Edgewater Place, Suite 430
Wakefield, Massachusetts 01880
(781) 224-0880 / (781) 224-4216 (fax)
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Amy M. Shepherd, Esq.
Baker & Hostetler, LLP
65 East State Street, Suite 2100
Columbus, Ohio 43215
(614) 462-4712
/ (614) 462-2616 (fax)
CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount to be
Registered (1)
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Proposed Maximum
Offering Price Per
Unit (2)
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Proposed Maximum
Aggregate Offering
Price(2)
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Amount of
Registration Fee
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Common Stock, $0.01 par value per share
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150,000
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$24.69
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$3,703,500
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$114
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(1)
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Pursuant to Rule 416 under the Securities Act, this registration statement also covers an indeterminate number of additional shares as may be issued as a result
of adjustments by reason of any stock split, stock dividend, or similar transaction.
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(2)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and (h), based on the average of the high and low prices of the
Registrants common stock as reported on the Nasdaq National Market on September 18, 2007.
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Statement Regarding Registration of Additional Securities
Pursuant to General Instruction E
This registration statement is being filed to register an additional 150,000 shares of common stock of the Company for issuance under the Companys 1997 Employee Stock Purchase Plan, as amended (the
Plan). The issuance of the additional shares under the Plan was approved by the Companys board of directors and by the Companys shareholders. This registration statement incorporates by reference the contents of the
Companys Form S-8 registration statement (Registration No. 333-34522) filed with the Securities and Exchange Commission (Commission) on April 11, 2000.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
I
TEM
3.
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I
NCORPORATION
OF
D
OCUMENTS
BY
R
EFERENCE
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The following documents are incorporated by reference in this registration statement on Form S-8:
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Our annual report on Form 10-K for the year ended December 31, 2006, filed with the Commission March 9, 2007.
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Our quarterly report on Form 10-Q for the quarter ended March 31, 2007, filed with the Commission May 9, 2007.
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Our quarterly report on Form 10-Q for the quarter ended June 30, 2007, filed with the Commission August 9, 2007.
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Our current report on Form 8-K, filed with the Commission March 12, 2007.
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Our current report on Form 8-K, filed with the Commission April 3, 2007.
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Our current report on Form 8-K, filed with the Commission May 1, 2007.
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Our current report on Form 8-K, filed with the Commission June 14, 2007.
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Our current report on Form 8-K, filed with the Commission July 10, 2007.
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Our current report on Form 8-K, filed with the Commission July 31, 2007.
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Our current report on Form 8-K, filed with the Commission August 28, 2007.
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Our current report on Form 8-K, filed with the Commission September 4, 2007.
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Our proxy statement on Schedule 14A, filed with the Commission March 20, 2007.
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The description of our common stock, included in our Form 8-A filed on November 12, 1997 (File No. 000-23363), including any amendment or report filed
for the purpose of updating such description.
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All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934 (the 1934 Act), prior to the filing of a post-effective amendment to this registration statement that indicates that all of the shares of Common
Stock offered have been sold or which deregisters all of such shares then remaining unsold, shall be deemed to be incorporated by reference into this registration statement and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute
a part of this registration statement.
II-1
I
TEM
4.
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D
ESCRIPTION
OF
S
ECURITIES
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Not applicable.
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TEM
5.
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I
NTERESTS
OF
N
AMED
E
XPERTS
AND
C
OUNSEL
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The validity of the shares of Common Stock offered hereby has been passed upon for the Company by
Baker & Hostetler LLP, Columbus, Ohio. Gary A. Wadman, a partner of Baker & Hostetler LLP, is the Secretary of the Company.
I
TEM
6.
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I
NDEMNIFICATION
OF
O
FFICERS
AND
D
IRECTORS
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Section 145 of the Delaware General Corporation Law, as amended (the DGCL), provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, or investigative (other than an action by or in the right of the corporation), by reason of
the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or
other enterprise, against expenses (including attorneys fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding if he acted in good faith and in a
manner he 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 his conduct was unlawful. Section 145 further provides
that a corporation similarly may indemnify any such person serving in any such capacity who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the corporation to
procure a judgment in its favor against expenses actually and reasonably incurred in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification shall be made in respect to any claim, issue, or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses that the Court of Chancery or such other court shall deem proper.
Article 6
of the Amended and Restated By-Laws of the Company contains certain indemnification provisions adopted pursuant to authority contained in Section 145 of the DGCL. The By-Laws provide for the indemnification of an officer, director, employee, or
agent who was or is a party or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding by reason of the fact that he is or was serving in such capacity, against expenses, including attorneys fees,
judgments, fines, and amounts paid in settlement, actually and reasonably incurred by him in connection with such action, suit, or proceeding, provided that it is determined, either by a majority vote of a quorum of disinterested directors of the
Company or by the stockholders of the Company or otherwise as provided in Section 6.4 of the By-Laws, that: (i) he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company;
(ii) in any action, suit, or proceeding by or in the right of the Company, he was not, and has not been adjudicated to have been, liable to the Company; and (iii) with respect to any criminal action or proceeding, he had no reasonable
cause to believe that his conduct was unlawful. Section 6.3 of the By-Laws provides that, to the extent a director, officer, employee, or agent has been successful on the merits or otherwise in defense of any such action, suit, or proceeding,
he shall be indemnified against expenses, including attorneys fees, actually and reasonably incurred in connection therewith.
Under Section 145 of the DGCL and Section 6.7 of the By-Laws, the Company may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the Company, or is or was serving at
the request of the Company as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against any liability asserted against or incurred by such person in any such capacity, or arising
out of his status as such, whether or not the Company would have the power to provide indemnity under Section 145 or the By-Laws. The Company has purchased a liability policy to indemnify its officers and directors against loss arising from
claims by reason of their legal liability for acts as officers and directors, subject to limitations and conditions set forth in the policy.
II-2
Section 102(b)(7) of the DGCL permits a corporation to include in its certificate of
incorporation a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit
the liability of a director (i) for any breach of the directors duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the DGCL (relating to unlawful payment of dividends and unlawful stock purchase and redemption), or (iv) for any transaction from which the director derived an improper personal benefit.
Article Ninth of the Second Amended and Restated Certificate of Incorporation of the Company eliminates personal liability of a director
to the Company and its stockholders for monetary damages for breach of fiduciary duty as a director to the maximum extent permitted by Section 102(b)(7) of the DGCL.
The above discussion of the Companys Certificate of Incorporation and By-Laws and the DGCL is not intended to be exhaustive and is respectively qualified in its entirety by such Certificate
of Incorporation, By-Laws, and statutes.
I
TEM
7.
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E
XEMPTION
FROM
R
EGISTRATION
C
LAIMED
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Not applicable.
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Exhibit
No.
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Description of Exhibit
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If Incorporated by Reference,
Document with which Exhibit was
Previously Filed with SEC
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4(a)
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Form of Stock Certificate
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Incorporated by reference to Amendment No. 1 to the
Companys Registration Statement on Form S-1
(Registration No. 333-39981) filed on December 31,
1997
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5
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Opinion of Baker & Hostetler LLP
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Contained herein
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23(a)
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Consent of Baker & Hostetler LLP
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Contained in Exhibit 5 hereto
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23(b)
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Consent of PricewaterhouseCoopers LLP
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Contained herein
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24
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Powers of Attorney
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See Page II-5 of this Registration Statement
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The undersigned registrant hereby undertakes:
(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change in the information in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
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II-3
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deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) (17 C.F.R. § 230.424(b)) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table
in the effective registration statement;
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to
such information in the registration statement;
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Provided, however
, that paragraphs (1)(i) and
(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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The undersigned registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrants annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans annual
report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned
registrant hereby undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
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(iii)
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The portion of any free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
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(iv)
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Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8
and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Wakefield, Commonwealth of Massachusetts, on September 21, 2007.
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AMERICAN DENTAL PARTNERS, INC.
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By:
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/s/ Gregory A. Serrao
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Gregory A. Serrao, Chairman,
President, and Chief Executive Officer
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gregory A. Serrao and Breht T. Feigh, or either of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all post-effective amendments to this Registration Statement, and to file the same with all exhibits hereto, and other documents in connection herewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the
capacities indicated below.
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Signature
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Title
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Date
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/s/ Gregory A. Serrao
Gregory A. Serrao
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Chairman, President, Chief Executive
Officer and Director (principal
executive officer)
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September 21, 2007
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/s/ Breht T. Feigh
Breht T. Feigh
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Executive Vice President Chief
Financial Officer and Treasurer
(principal financial officer)
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September 21, 2007
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/s/ Mark W. Vargo
Mark W. Vargo
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Vice President Chief Accounting
Officer (principal accounting officer)
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September 21, 2007
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/s/ Robert E. Hunter
Dr. Robert E. Hunter
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Director
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September 21, 2007
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II-5
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/s/ James T. Kelly
James T. Kelly
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Director
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September 21, 2007
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/s/ Martin J. Mannion
Martin J. Mannion
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Director
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September 21, 2007
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/s/ Gerard M. Mouflet
Gerard M. Moufflet
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Director
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September 21, 2007
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/s/ Derril W. Reeves
Derril W. Reeves
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Director
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September 21, 2007
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II-6
INDEX OF EXHIBITS
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Exhibit
No.
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Description of Exhibit
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If Incorporated by Reference,
Document with which Exhibit was
Previously Filed with SEC
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4(a)
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Form of Stock Certificate
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Incorporated by reference to Amendment No. 1 to the Companys Registration Statement on Form S-1 (Registration No. 333-39981) filed on December 31,
1997
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5
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Opinion of Baker & Hostetler LLP
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Contained herein
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23(a)
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Consent of Baker & Hostetler LLP
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Contained in Exhibit 5 hereto
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23(b)
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Consent of PricewaterhouseCoopers LLP
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Contained herein
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24
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Powers of Attorney
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See Page II-5 of this Registration Statement
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