UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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(Exact name of registrant as specified in its charter)
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Nevada
(State or other jurisdiction of incorporation or organization)
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20-2559624
(I.R.S. Employer Identification No.)
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3855 South 500 West, Suite J
Salt Lake City, Utah
(Address of Principal Executive Offices)
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84115
(Zip Code)
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ZAGG Inc 2007 Stock Incentive Plan
(Full title of the plan)
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DJP Corporate Services
10785 W. Twain Ave Suite 200
Las Vegas NV 89135
(Name and address of agent for service)
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(888) 705-7274
(Telephone number, including area code, of agent for service)
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company.
| Large accelerated filer o |
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Accelerated Filer x |
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| Non-accelerated filer o |
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Smaller reporting company o |
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CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered (1)
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Amount to be Registered
(2)
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Proposed Maximum Offering Price Per Share (3)
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Proposed Maximum Aggregate Offering Price (3)
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Amount of Registration Fee
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Common Stock
$0.001 par value
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8,000,000
Shares
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$8.15
Per Share
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$ |
65,200,000 |
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$ |
7,472 |
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(1) This Registration Statement covers the common stock issuable upon the exercise of options or release of restricted stock issued under our plan titled “ZAGG Inc 2007 Stock Incentive Plan” as amended through the date of this Registration Statement.
(2) This Registration Statement shall also cover an indeterminable number of additional shares of common stock which may become issuable under the ZAGG Inc 2007 Stock Incentive Plan (as amended to date) by reason of any stock dividend, stock split, re-capitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the registrant’s outstanding shares of common stock.
(3) Estimated solely for the purpose of calculating the registration fee. Pursuant to Rule 457(c) under the Securities Act, the proposed maximum offering price per share and the proposed maximum aggregate offering price have been determined on the basis of the average of the bid and asked price as of a specified date within five business days prior to the date of filing the registration statement.
Copies to:
C. Parkinson Lloyd
Durham Jones & Pinegar, P.C.
111 East Broadway, Suite 900
Salt Lake City, UT 84111
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
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Item 1. Plan Information.*
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Item 2. Registrant Information and Employee Plan Annual Information.*
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* The documents containing the information concerning the Plan specified in Part I of the instructions to Registration Statement on Form S-8 have been or will be sent or given to the participants in the Plan, as specified by Rule 428(b)(1) under the Securities Act of 1933 (the “Securities Act”). In accordance with the Note to Part I of the instructions to Registration Statement on Form S-8, such documents are not filed with the Securities and Exchange Commission either as part of this Registration Statement or as a prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
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Item 3. Incorporation of Documents by Reference.
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The following documents filed by the Company with the Securities and Exchange Commission are incorporated by reference into this Registration Statement:
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(1)
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Annual Report on Form 10-K for the year ended December 31, 2010, filed with the Commission on March 25, 2011;
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(2)
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Amendment No. 1 to Annual Report on Form 10-K/A for the year ended December 31, 2010, filed with the Commission on January 27, 2012;
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(3)
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Quarterly Reports on Form 10-Q for the periods ended March 31, 2011, June 30, 2011, and September 30, 2011 filed with the Commission on May 10, 2011, August 15, 2011 (as amended on September 6, 2011, to provide XBRL information), and November 18, 2011, respectively;
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(4)
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Amended Quarterly Reports on Form 10-Q/A for the periods ended March 31, 2011, June 30, 2011, and September 30, 2011, filed with the Commission on January 27, 2012; and
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(5)
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Current Reports on Form 8-K, filed with the Commission on June 21, 2011; June 22, 2011 (as amended September 6, 2011); June 29, 2011 (as amended August 22, 2011); August 18, 2011; September 22, 2011; December 16, 2011; December 21, 2011; and January 19, 2012.
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All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which de-registers all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such reports and documents.
Any statement contained in an Incorporated Document 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 Incorporated Document 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.
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Item 4. Description of Securities.
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Not Applicable
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Item 5. Interests of Named Experts and Counsel.
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No expert or counsel named in this prospectus as having prepared or certified any part of it or as having given an opinion upon the validity of the securities being registered or upon other legal matters in connection with the registration or offering of the common stock was employed on a contingency basis, or had, or is to receive, in connection with the offering, a substantial interest, direct or indirect, in the Company or any of its parents or subsidiaries. Nor was any such person connected with the Company or any of its parents or subsidiaries as a promoter, managing or principal underwriter, voting trustee, director, officer, or employee.
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Item 6. Indemnification of Directors and Officers.
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The officers and directors of the Company are indemnified as provided by the Nevada Revised Statutes (the "NRS") and the Bylaws of the Company.
Unless specifically limited by a corporation's articles of incorporation, the NRS automatically provides directors with immunity from monetary liabilities. The Company's Articles of Incorporation do not contain any such limiting language. Excepted from that immunity are:
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(a)
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a willful failure to deal fairly with the corporation or its shareholders in connection with a matter in which the director has a material conflict of interest;
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(b)
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a violation of criminal law unless the director had reasonable cause to believe that his or her conduct was lawful or no reasonable cause to believe that his or her conduct was unlawful;
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(c)
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a transaction from which the director derived an improper personal profit; and
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Our bylaws provide that we will indemnify our directors and officers to the fullest extent not prohibited by Nevada law; provided, however, that we may modify the extent of such indemnification by individual contracts with our directors and officers; and, provided, further, that we shall not be required to indemnify any director or officer in connection with any proceeding (or part thereof) initiated by such person unless:
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(a)
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such indemnification is expressly required to be made by law;
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(b)
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the proceeding was authorized by our Board of Directors;
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(c)
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such indemnification is provided by us, in our sole discretion, pursuant to the powers vested us under Nevada law; or;
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(d)
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such indemnification is required to be made pursuant to the bylaws.
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Our bylaws provide that we will advance to 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, administrative or investigative, by reason of the fact that he is or was a director or officer, of the company, or is or was serving at the request of the company as a director or executive officer of another company, partnership, joint venture, trust or other enterprise, prior to the final disposition of the proceeding, promptly following request therefore, all expenses incurred by any director or officer in connection with such proceeding upon receipt of an undertaking by or on behalf of such person to repay said amounts if it should be determined ultimately that such person is not entitled to be indemnified under our bylaws or otherwise.
Our bylaws provide that no advance shall be made by us to an officer of the company, except by reason of the fact that such officer is or was a director of the company in which event this paragraph shall not apply, in any action, suit or proceeding, whether civil, criminal, administrative or investigative, if a determination is reasonably and promptly made: (a) by the board of directors by a majority vote of a quorum consisting of directors who were not parties to the proceeding, or (b) if such quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, that the facts known to the decision-making party at the time such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the company.
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Item 7. Exemption from Registration Claimed.
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Exhibit
Number
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Description
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4.1
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ZAGG Inc 2007 Stock Incentive Plan(1)
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5.1
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Opinion
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23.1
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Consent of KPMG LLP
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| 23.2 |
Consent of Hansen, Barnett & Maxwell, P.C.
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24
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Power of Attorney (included on the signature page hereof)
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(1) The 2007 Stock Incentive Plan (as amended to date) was included as an exhibit to the Company’s Definitive Proxy Statement filed May 2, 2011, with the Securities and Exchange Commission, and is incorporated herein by this reference. At the Company's Annual Shareholder Meeting on June 23, 2011, the 2007 Stock Incentive Plan was amended to increase the number of shares available under the Plan to 10,000,000 shares. This registration statement is filed to register the additional shares under the Plan.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) 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 set forth 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 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) of the Securities Act if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; or
(iii) 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;
provided, however, that paragraphs (i) and (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 reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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.
(3) 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.
(4) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant 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:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) 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;
(iii) The portion of any other 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
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
B. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s 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 plan’s 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.
C. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the Nevada General Corporation Law, the Articles of Incorporation of the registrant, the Bylaws of the registrant, indemnification agreements entered into between the registrant and its officers and directors 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 Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant in successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, 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 of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
In accordance with 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 authorized this registration statement to be signed on its behalf by the undersigned, in Salt Lake City, Utah, on January 27, 2012.
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ZAGG Inc
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By:
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/s/ ROBERT G. PEDERSEN II |
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Name Robert G. Pedersen II |
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Chief Executive Officer, |
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Principal Executive Officer, and Director |
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By:
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/s/ BRANDON T. O’BRIEN |
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Brandon T. O’Brien |
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Chief Financial Officer |
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Principal Accounting Officer |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Robert G. Pedersen II as his true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the U.S. Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or any of them, or of their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates stated.
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By:
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/s/ ROBERT G. PEDERSEN II
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January 27, 2012
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Robert G. Pedersen II
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Chief Executive Officer,
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Principal Executive Officer, and Director
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By:
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/s/ BRANDON T. O’BRIEN
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January 27, 2012
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Brandon T. O’Brien
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Chief Financial Officer
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(Principal Accounting Officer)
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By:
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/s/ Edward D. Ekstrom
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January 27, 2012
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Edward D. Ekstrom
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Director
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By:
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/s/ Shuichiro Ueyama
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January 27, 2012
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Shuichiro Ueyama
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Director
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By:
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/s/ Randall L. Hales
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January 27, 2012
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Randall L. Hales
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President, Chief Operating Officer, and Director
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By:
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/s/ Cheryl Larabee
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January 27, 2012
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Cheryl Larabee
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Director
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