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As filed with the Securities and Exchange Commission on June 8, 2006
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ENDOCARE, INC.
(Exact Name of Registrant as Specified in its Charter)
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Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
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33-0618093
(I.R.S. Employer
Identification Number) |
201 Technology Drive
Irvine, California 92618
(949) 450-5400
(Address, including zip code, and telephone number, including area code, of Registrants principal executive offices)
Employee Deferred Stock Unit Program
Non-Employee Director Deferred Stock Unit Program
(Full title of the Plan(s))
Michael R. Rodriguez
Senior Vice President, Finance and Chief Financial Officer
Endocare, Inc.
201 Technology Drive
Irvine, California 92618
(949) 450-5400
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Clint B. Davis
Senior Vice President, Legal Affairs,
General Counsel and Secretary
Endocare, Inc.
201 Technology Drive
Irvine, California 92618
(949) 450-5400
CALCULATION OF REGISTRATION FEE
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Proposed maximum |
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Proposed maximum |
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Amount to |
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offering price |
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aggregate offering |
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Amount of |
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Title of Securities to be Registered |
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be registered (2) |
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per share |
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price |
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registration fee |
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Employee Deferred Stock Unit Program
Common Stock, par value $0.001 per share (1) |
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2,000,000 |
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$2.75(3) |
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$5,500,000 |
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$588.50 |
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Non-Employee Director Deferred Stock Unit Program
Common Stock, par value $0.001 per share (1) |
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2,000,000 |
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$2.75(3) |
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$5,500,000 |
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$588.50 |
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Total |
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4,000,000 |
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$11,000,000 |
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$1,177.00 |
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(1) |
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Each share of Common Stock is paired with a stock purchase right under the Registrants
Stockholder Rights Plan. |
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(2) |
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Pursuant to Rule 416(a), this Registration Statement shall also cover any additional
securities that may be offered or issued in connection with any stock dividend, stock split,
recapitalization or other similar transaction effected without receipt of consideration that
increases the number of outstanding shares of Common Stock. |
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(3) |
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This estimate is made pursuant to Rule 457(h) solely for purposes of calculating the
registration fee, based on the average of the high and low price per share of the Registrants
Common Stock on June 7, 2006, as reported on the Over-the-Counter Bulletin Board, which was
$2.75. |
TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission (the SEC) by
Endocare, Inc. (the Company) are incorporated by reference in this Registration Statement:
(1) The Companys latest annual report on Form 10-K filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the Exchange Act), containing audited
financial statements for the Companys latest fiscal year ended December 31, 2005, as filed with
the SEC on March 16, 2006;
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the
end of the fiscal year covered by the document referred to in (1) above;
(3) The description of the Companys Common Stock contained in the Companys Registration
Statement on Form 10-SB filed under Section 12(g) of the Exchange Act on November 14, 1995,
including any amendment or report filed for the purpose of updating such description; and
(4) The description of the stock purchase rights under the Companys Stockholder Rights Plan
contained in the Companys Registration Statement on Form 8-A filed under Section 12(g) of the
Exchange Act filed with the SEC on June 28, 2005, including any amendment or report filed for the
purpose of updating such description.
In addition, all documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this Registration Statement and 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, are incorporated by reference in this
Registration Statement and are 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
statement so modified or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Clint B. Davis, an attorney licensed to practice in the State of California and the
Commonwealth of Massachusetts, has rendered an opinion of counsel as to the legality of the
securities being registered. The opinion is attached hereto as Exhibit 5.1. Mr. Davis, a
full-time employee of the Company, holds options to purchase
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250,000 shares of the Companys Common Stock, none of which are exercisable within 60 days of
the date of this Registration Statement.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware Corporation Law provides that a Delaware corporation may indemnify
any person against expenses, judgments, fines and settlements actually and reasonably incurred by
any such person in connection with a threatened, pending or completed action, suit or proceeding in
which he is involved by reason of the fact that he is or was a director, officer, employee or agent
of such corporation, provided that (i) he acted in good faith and in a manner reasonably believed
to be in or not opposed to the best interests of the corporation, and (ii) with respect to any
criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. If
the action or suit is by or in the name of the corporation, the corporation may indemnify such
person against expenses actually and reasonably incurred by him 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
may 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 for negligence or misconduct in the performance of his
duty to the corporation, unless and only to the extent that the Delaware Court of Chancery or the
court in which the action or suit is brought determines upon application that, despite the
adjudication of liability but in view of all of the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
As permitted by Section 102 of the Delaware General Corporation Law, the Company has adopted
provisions in its restated certificate of incorporation and amended and restated bylaws that limit
or eliminate the personal liability of its directors for a breach of their fiduciary duty of care
as a director. The duty of care generally requires that, when acting on behalf of the Company,
directors exercise an informed business judgment based on all material information reasonably
available to them. Consequently, a director will not be personally liable to the Company or its
stockholders for monetary damages or breach of fiduciary duty as a director, except for liability
for:
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any breach of the directors duty of loyalty to the Company or its stockholders; |
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any act or omission not in good faith or that involves intentional misconduct or a
knowing violation of law; |
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any act related to unlawful stock repurchases, redemptions or other distributions or
payment of dividends; or |
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any transaction from which the director derived an improper personal benefit. |
These limitations of liability do not affect the availability of equitable remedies such as
injunctive relief or rescission.
As permitted by Section 145 of the Delaware General Corporation Law, the Companys amended and
restated bylaws provide that:
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the Company may indemnify its directors, officers and employees to the fullest
extent permitted by the Delaware General Corporation Law, subject to limited
exceptions; |
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the Company may advance expenses to its directors, officers and employees in
connection with a legal proceeding to the fullest extent permitted by the Delaware
General Corporation Law, subject to limited exceptions; and |
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the rights provided in its amended and restated bylaws are not exclusive. |
We have entered into indemnification agreements with each of our directors, as well as with
certain officers, employees and consultants. These indemnification agreements provide that we hold
harmless and indemnify each such director, officer, employee and consultant to the fullest extent
authorized or permitted by law. In addition, subject to certain conditions, these indemnification
agreements provide for payment of expenses (including attorneys fees) actually and reasonably
incurred in connection with any threatened, pending or completed
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proceeding to which the indemnified director, officer or employee is, was or at any time
becomes a party, or is threatened to be made a party, by reason of the fact that he or she is, was
or at any time becomes a director, officer, employee or agent of us, or is or was serving or at any
time serves at the request of us as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise. In addition, we have
purchased policies of directors and officers liability insurance, which insure our directors and
officers against the cost of defense, settlement or payment of a judgment in some circumstances.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the exhibit index following the signature page below.
Item 9. Undertakings.
(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:
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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 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 SEC pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the Calculation of Registration Fee table in
the effective Registration Statement; and |
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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 this Registration Statement; |
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 SEC 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) 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 herein, 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 under the Securities Act of 1933 to any
purchaser:
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(i) |
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If the registrant is relying on Rule 430B: |
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(A) |
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the Registration Statement as of the
date the filed prospectus was deemed part of and included in the
Registration Statement; and |
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Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i),
(vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be deemed to be
part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part
of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior
to such effective date; or |
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If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A,
shall be deemed to be part of and included in the registration statement as of the date it
is first used after effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration statement or made
in any such document immediately prior to such date of first use. |
(5) 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:
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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 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 |
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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. |
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrants annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in this 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
foregoing provisions, or otherwise, the Registrant
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has been advised that in the opinion of the 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 of the
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 Securities Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Company 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 City of Irvine, State of California, on June 5, 2006.
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ENDOCARE, INC.
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By: |
/s/ Craig T. Davenport
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Craig T. Davenport |
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Chairman and Chief Executive Officer |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes
and appoints, jointly and severally, Craig T. Davenport and Michael R. Rodriguez his
attorneys-in-fact, each with the power of substitution, for him in any and all capacities, to sign
any amendments to this Registration Statement on Form S-8 (including post-effective amendments),
and to file the same, with all exhibits thereto, and other documents in connection therewith, with
the SEC, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute
or substitutes, may 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 indicated.
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Signature |
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Date |
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/s/ Craig T. Davenport
Craig T. Davenport
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Chairman and Chief Executive Officer
(Principal Executive Officer)
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June 5, 2006 |
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/s/ Michael R. Rodriguez
Michael R. Rodriguez
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Senior Vice President, Finance and
Chief Financial Officer
(Principal Financial and Accounting Officer)
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June 6, 2006 |
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/s/ John R. Daniels, M.D.
John R. Daniels, M.D.
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Director
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June 6, 2006 |
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/s/ David L. Goldsmith
David L. Goldsmith
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Director
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June 6, 2006 |
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/s/ Eric S. Kentor
Eric S. Kentor
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Director
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June 6, 2006 |
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/s/ Terrence A. Noonan
Terrence A. Noonan
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Lead Independent Director
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June 5, 2006 |
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/s/ Thomas R. Testman
Thomas R. Testman
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Director
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June 5, 2006 |
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EXHIBIT INDEX
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Exhibit |
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Exhibit Description |
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4.1
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Employee Deferred Stock Unit Program (1) |
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4.2
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Non-Employee Director Deferred Stock Unit Program (2) |
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5.1
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Opinion of Counsel regarding Legality (3) |
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23.1
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Consent of Independent Registered Public Accounting Firm (3) |
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23.2
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Consent of Counsel (contained in Exhibit 5.1) |
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24.1
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Power of Attorney (included in the signature page of this Registration Statement) |
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(1) |
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Incorporated by reference to Exhibit 10.1 of the Companys Form 8-K filed with the SEC on May 22, 2006. |
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(2) |
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Incorporated by reference to Exhibit 10.2 of the Companys Form 8-K filed with the SEC on May 22, 2006. |
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(3) |
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Filed herewith. |
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