Registration
Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
EAGLE BANCORP, INC.
(Exact Name of
Registrant as Specified in its Charter)
Maryland
(State or Other
Jurisdiction of
Incorporation or
Organization)
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52-1943477
(IRS Employer
I.D. Number)
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7815
Woodmont Avenue, Bethesda, Maryland
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20814
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(Address of
Principal Executive Offices)
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(Zip Code)
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EAGLE
BANCORP, INC. 2006 STOCK PLAN
(Full Title of
Plan)
Ronald D.
Paul, President
Eagle
Bancorp, Inc.
7815
Woodmont Avenue
Bethesda,
Maryland 20814
301.986.1800
(Name, Address,
and Telephone Number of Agent for Service)
Copies
to:
Noel M.
Gruber, Esquire
Kennedy &
Baris, L.L.P.
Suite 301
4330 East West
Highway
Bethesda,
Maryland 20814
301.229.3400
(voice) 301.229.2443 (fax)
CALCULATION OF
REGISTRATION FEE
Title of Securities
to be Registered
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Amount to be
Registered
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Proposed Maximum
Offering per Share
Price per Share(2)
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Proposed Maximum
Aggregate Offering Price(1)
Offering Price(2)
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Amount of
Registration Fee
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Common Stock, $.01 par
value
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500,000
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N/A
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$
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3,695,000
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$
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206.19
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(1)
Estimated in accordance with Rule 457(h)(1) under
the Securities Act of 1933 solely for purposes of calculating the registration
fee, based upon the average of the high and low sales prices of $7.39 for the
common stock on June 2, 2009.
PART I
Documents
containing the information specified in Part I of this Form S-8 have
been and/or will be sent or given to employees as specified by Rule 428(b)(1) of
the Securities Act of 1933 (the Securities Act). In accordance with the
instructions to Part I of Form S-8, such documents will not be filed
with the Securities and Exchange Commission (the Commission) either as part
of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. These documents and the
documents incorporated by reference pursuant to Item 3 of Part II of this
Registration Statement, taken together, constitute the prospectus as required
by Section 10(a) of the Securities Act.
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3.
Incorporation of Certain Documents by Reference.
The following documents filed with Securities and Exchange Commission
are hereby incorporated by reference herein:
(1)
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Eagle Bancorp, Inc.s Annual Report on Form 10-K for the
year ended December 31, 2008;
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(2)
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Eagle Bancorp, Inc.s Quarterly Report on Form 10-Q for the
quarters ended March 31, 2008;
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(3)
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Eagle Bancorps Current Reports on Form 8-K filed on
January 14, 2009, January 29, 2009, January 30, 2009,
February 4, 2009 and April 23, 2009;
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(4)
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The description of Eagle Bancorp, Inc.s Common Stock contained
in its Registration Statement on Form 8-A filed April 30, 1999; and
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(5)
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All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act by Eagle Bancorp, Inc. since the end of
the year covered in its Annual Report referred to in (1) above.
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All documents filed by Eagle Bancorp, Inc. pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
subsequent to the date hereof, and prior to the filing of a post-effective
amendment hereto which indicates that all securities offered hereby shall have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
ITEM 4.
Description of Securities
As the securities to be issued pursuant to this registration statement
are registered under Section 12 of the Securities Exchange Act of 1934,
this item is inapplicable.
ITEM 5.
Interest of Named Experts and Counsel.
Attorneys at Kennedy & Baris, L.L.P. own an
aggregate of approximately 9,500 shares of Eagle Bancorp, Inc. common
stock.
ITEM 6.
Indemnification of Directors and Officers
Article VI of the Companys Articles of Incorporation provides
that the Company shall, to the full extent permitted and in the manner
prescribed by the Maryland General Corporation Law and any other applicable
law, indemnify a director or officer of the Company who is or was a party to
any proceeding by reason of the fact that he is or was a director or officer,
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,
employee benefit plan or other enterprise.
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The Maryland General Corporation Law provides, in pertinent part, as
follows:
2-418
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS.
(a) In this section the
following words have the meanings indicated.
(1) Director means any
person who is or was a director of a corporation and any person who, while a
director of a corporation, is or was serving at the request of the corporation
as a director, officer, partner, trustee, employee, or agent of another foreign
or domestic corporation, partnership, joint venture, other enterprise, or
employee benefit plan.
(2) Corporation
includes any domestic or foreign predecessor entity of a corporation in a
merger, consolidation, or other transaction in which the predecessors
existence ceased upon consummation of the transaction.
(3) Expenses include
attorneys fees.
(4) Official capacity
means the following:
(i) When used with
respect to a director, the office of director in the corporation; and
(ii) When used with
respect to a person other than a director as contemplated in sub-section (j),
the elective or appointive office in the corporation held by the officer, or
the employment or agency relationship undertaken by the employee or agent in
behalf of the corporation.
(iii) Official capacity
does not include service for any other foreign or domestic corporation or any
partnership, joint venture, trust, other enterprise, or employee benefit plan.
(5) Party includes a
person who was, is, or is threatened to be made a named defendant or respondent
in a proceeding.
(6) Proceeding means
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, or investigative.
(b)(1) A corporation may
indemnify any director made a party to any proceeding by reason of service in
that capacity unless it is
established
that:
(i) The act or omission
of the director was material to the
matter giving rise to
the proceeding; and
1. Was committed in
bad faith; or
2. Was the result of
active and deliberate dishonesty; or
(ii) The director
actually received an improper personal benefit in money, property, or services;
or
(iii) In the case of any
criminal proceeding, the director had reasonable cause to believe that the act
or omission was unlawful.
(2)(i) Indemnification may
be against judgments, penalties, fines, settlements, and reasonable expenses
actually incurred by the director in connection with the proceeding.
(ii) However, if the
proceeding was one by or in the right of the corporation, indemnification may
not be made in respect of any proceeding in which the director shall have been
adjudged to be liable to the corporation.
(3)(i) The termination of
any proceeding by judgment, order, or settlement does not create a presumption
that the director did not meet the requisite standard of conduct set forth in
this subsection.
(ii) The termination of
any proceeding by conviction, or a plea of nolo contendere or its equivalent,
or an entry of an order of probation prior to judgment, creates a rebuttal
presumption that the director did not meet that standard of conduct.
(c) A director may not
be indemnified under subsection (B) of this section in respect of any
proceeding charging improper personal benefit to the director, whether or not
involving action in the directors official capacity, in which the director was
adjudged to be liable on the basis that personal benefit was improperly
received.
(d) Unless limited by
the charter:
(1) A director who has
been successful, on the merits or otherwise, in the defense of any proceeding
referred to in subsection (B) of this section shall be indemnified against
reasonable expenses incurred by the director in connection with the proceeding.
(2) A court of
appropriate jurisdiction upon application of a director and such notice as the
court shall require, may order indemnification in the following circumstances:
(i) If it determines a
director is entitled to reimbursement under paragraph (1) of this
subsection, the court shall order indemnification, in which case the director
shall be entitled to recover the expenses of securing such reimbursement; or
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(ii) If it determines
that the director is fairly and reasonably entitled to indemnification in view
of all the relevant circumstances, whether or not the director has met the
standards of conduct set forth in subsection (b) of this section or has
been adjudged liable under the circumstances described in subsection (c) of
this section, the court may order such indemnification as the court shall deem
proper. However, indemnification with
respect to any proceeding by or in the right of the corporation or in which
liability shall have been adjudged in the circumstances described in subsection
(c) shall be limited to expenses.
(3) A court of
appropriate jurisdiction may be the same court in which the proceeding
involving the directors liability took place.
(e)(1) Indemnification under
subsection (b) of this section may not be made by the corporation unless
authorized for a specific proceeding after a determination has been made that
indemnification of the director is permissible in the circumstances because the
director has met the standard of conduct set forth in subsection (b) of
this section.
(2) Such determination
shall be made:
(i) By the board of
directors by a majority vote of a quorum consisting of directors not, at the
time, parties to the proceeding, or, if such a quorum cannot be obtained, then
by a majority vote of a committee of the board consisting solely of two or more
directors not, at the time, parties to such proceeding and who were duly
designated to act in the matter by a majority vote of the full board in which
the designated directors who are parties may participate;
(ii) By special legal
counsel selected by the board of directors or a committee of the board by vote
as set forth in subparagraph (I) of this paragraph, or, if the requisite
quorum of the full board cannot be obtained therefor and the committee cannot
be established, by a majority vote of the full board in which directors who are
parties may participate; or
(iii) By the
stockholders.
(3) Authorization of
indemnification and determination as to reasonableness of expenses shall be
made in the same manner as the determination that indemnification is
permissible. However, if the
determination that indemnification is permissible is made by special legal
counsel, authorization of indemnification and determination as to
reasonableness of expenses shall be made in the manner specified in subparagraph
(ii) of paragraph (2) of this subsection for selection of such
counsel.
(4) Shares held by
directors who are parties to the proceeding may not be voted on the subject
matter under this subsection.
(f)(1) Reasonable expenses
incurred by a director who is a party to a proceeding may be paid or reimbursed
by the corporation in advance of the final disposition of the proceeding upon
receipt by the corporation of:
(i) A written
affirmation by the director of the directors good faith belief that the
standard of conduct necessary for indemnification by the corporation as
authorized in this section has been met; and
(ii) A written
undertaking by or on behalf of the director to repay the amount if it shall
ultimately be determined that the standard of conduct has not been met.
(2) The undertaking
required by subparagraph (ii) of paragraph (1) of this subsection
shall be an unlimited general obligation of the director but need not be
secured and may be accepted without reference to financial ability to make the
repayment.
(3) Payments under this
subsection shall be made as provided by the charter, bylaws or contract or as
specified in subsection (e) of this section.
(g) The indemnification
and advancement of expenses provided or authorized by this section may not be
deemed exclusive of any other rights, by indemnification or otherwise, to which
a director may be entitled under the charter, the bylaws, a resolution of
stockholders of directors, an agreement or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office.
(h) This section does
not limit the corporations power to pay or reimburse expenses incurred by a
director in connection with an appearance as a witness in a proceeding at a
time when the director has not been made a named defendant or respondent in the
proceeding.
(i) For purposes of
this section:
(1) The corporation
shall be deemed to have requested a director to serve an employee benefit plan where
the performance of the directors duties to the corporation also imposes duties
on, or otherwise involves services by, the director to the plan or participants
or beneficiaries of the plan:
(2) Excise taxes
assessed on a director with respect to an employee benefit plan pursuant to
applicable
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law shall be deemed fined; and
(3) Action taken or
omitted by the director with respect to an employee benefit plan in the
performance of the directors duties for a purpose reasonably believed by the
director to be in the interest of the participants and beneficiaries of the
plan shall be deemed to be for a purpose which is not opposed to the best
interests of the corporation.
(j) Unless limited by
the charter:
(1) An officer of the
corporation shall be indemnified as and to the extent provided in subsection (d) of
this section for a director and shall be entitled, to the same extent as a
director, to seek indemnification pursuant to the provisions of subsection (d);
(2) A corporation may
indemnify and advance expenses to an officer, employee, or agent of the
corporation to the same extent that it may indemnify directors under this
section; and
(3) A corporation, in
addition, may indemnify and advance expenses to an officer, employee, or agent
who is not a director to such further extent, consistent with law, as may be
provided by its charter, bylaws, general or specific action of its board of
directors or contract.
(k)(1) A corporation may
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee, or agent of the corporation, or who, while a
director, officer, employee, or agent of the corporation, is or was serving at
the request of the corporation as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, other enterprise, or employee benefit plan against any
liability asserted against and incurred by such person in any such capacity or
arising out of such persons position, whether or not the corporation would
have the power to indemnify against liability under the provisions of this
section.
(2) A corporation may
provide similar protection, including a trust fund, letter of credit, or surety
bond, not inconsistent with this section.
(3) The insurance or
similar protection may be provided by a subsidiary or an affiliate of the
corporation.
(l) Any indemnification
of, or advance of expenses to, a director in accordance with this section, if
arising out of a proceeding by or in the right of the corporation, shall be
reported in writing to the stockholders with the notice of the next
stockholders meeting or prior to the meeting.
ITEM
7. Exemption From Registration Claimed.
As no restricted
securities are to be reoffered or resold pursuant to this registration
statement, this item is inapplicable.
ITEM
8. Exhibits.
Exhibit Number
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Description
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4
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Eagle Bancorp, Inc. 2006 Stock Plan, as amended
and restated through May 21, 2009
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5
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Opinion of Kennedy & Baris, L.L.P.
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23(a)
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Consent of Kennedy & Baris, L.L.P.,
included in Exhibit 5
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23(b)
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Consent of Stegman and Company
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ITEM 9. Undertakings.
The Registrant hereby undertakes that:
(1)
it will file, during any period in which
it offers or sells securities, a post-effective amendment to this registration
statement to:
(i) include any
prospectus required by section 10(a)(3) of the Securities Act of 1933 (the
Act);
(ii) 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; and
(iii) 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 (1)(i) and (1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to the 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 liability under the Act, treat each
post-effective amendment as a new registration statement relating to the
securities offered, and the offering of the securities at that time to be the
initial bona fide offering.
(3) to
remove from registration by means of a post-effective amendment any of the
securities that remain unsold at the end of the offering.
The undersigned
Registrant hereby undertakes that, for purposes of determining any liability
under the Act, each filing of the Registrants annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of 1934
(the Exchange Act) (and, where applicable, each filing of an employee benefit
plans annual report pursuant to section 15(d) of the Exchange Act) 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.
Insofar as
indemnification for liabilities arising under the Act 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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, as amended, 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 City of Bethesda, State of
Maryland on this 3
rd
day of June 2009.
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EAGLE BANCORP, INC.
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By:
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/s/ Ronald D. Paul
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Ronald D. Paul
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President and Chief Executive Officer
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In accordance with the requirements of the Securities Act, this report
has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates
indicated.
Name
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Position
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Date
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/s/ Leslie L
Alperstein
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Director
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June 3, 2009
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Leslie M.
Alperstein
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/s/ Dudley C.
Dworken
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Director
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June 3, 2009
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Dudley C.
Dworken
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/s/ Harvey M.
Goodman
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Director
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June 3, 2009
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Harvey M.
Goodman
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/s/ Neal R.
Gross
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Director
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June 3, 2009
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Neal R. Gross
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/s/ Philip N.
Margolius
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Director
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June 3, 2009
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Philip N.
Margolius
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/s/ Ronald D.
Paul
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Chairman of the
Board of Directors,
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June 3, 2009
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Ronald D. Paul
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President and
Chief Executive Officer
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Principal Executive
Officer of the Company
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/s/ Robert P.
Pincus
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Director
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June 3, 2009
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Robert P. Pincus
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/s/ Norman R.
Pozez
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Director
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June 3, 2009
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Norman R. Pozez
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/s/ Donald R. Rogers
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Director
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June 3. 2009
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Donald R. Rogers
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/s/ Leland M.
Weinstein
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Director
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June 3, 2009
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Leland M.
Weinstein
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/s/ James H.
Langmead
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Executive Vice
President and
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June 3, 2009
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James H.
Langmead
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Chief Financial
Officer of the Company
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Principal
Financial and Accounting Officer
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