ON Track Innovations Ltd - Securities Registration: Employee Benefit Plan (S-8)
05 February 2008 - 4:08AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ON TRACK INNOVATIONS
LTD.
(Exact Name of
Registrant as Specified in its Charter)
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Israel
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N/A
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(State or Other Jurisdiction of
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(I.R.S. Employer Identification No.)
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Incorporation or Organization)
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Z.H.R. Industrial Zone
P.O. Box 32, Rosh Pina, Israel 12000
(Address, Including Zip Code, of Registrant's Principal Executive Offices)
2001 SHARE OPTION PLAN
(Full Title of the Plan)
Ohad Bashan
Chief Executive Officer
OTI America, Inc.
2 Executive Drive, Suite 740
Fort Lee, New Jersey 07024
(201) 944-3233
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent for Service)
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With copies to:
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Edwin L. Miller Jr., Esq.
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Shmuel Zysman, Adv.
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Zysman, Aharoni, Gayer & Co. & Sullivan &
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Zysman, Aharoni, Gayer & Ady Kaplan & Co.
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Worcester & Co. LLP
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Law Offices
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One Post Office Sq.
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41-45 Rothschild Bl., "Beit-Zion"
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Boston, Massachusetts 02109
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Tel Aviv 65748, Israel
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(617) 338-2800
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(011) 972-3-795-5555
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CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered
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Amount to Be
Registered
(1)
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Proposed
Maximum
Offering
Price Per
Share
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Proposed
Maximum
Aggregate
Offering
Price
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Amount of
Registration
Fee
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Ordinary shares, par value NIS 0.1 per share
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1,500,000
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(2)
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$
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2.99
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(3)
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$
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4,485,000
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(3)
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$
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176.26
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(1)
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Plus
such indeterminate number of ordinary shares as may be issued to prevent
dilution resulting from stock dividends, stock splits or similar
transactions in accordance with Rule 416 under the Securities Act of 1933,
as amended.
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(2)
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Represents
the registration of 1,500,000 ordinary shares of On Track Innovations Ltd.
issuable upon exercise of options reserved for grant under the 2001 Share
Option Plan.
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(3)
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Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(h) and Rule 457(c) under the Securities Act of 1933, as amended,
based upon $2.99, the average of the high and low sales prices of the
registrants ordinary shares on the Nasdaq Global Market on January
30, 2008.
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Registration of
Additional Securities Explanatory Note
We
are filing this Registration Statement on Form S-8 in connection with 1,500,000 ordinary
shares issuable to eligible employees, consultants and non-employee directors of the
company under the 2001 Share Option Plan (the Plan) which is in addition to
the 2,000,000 ordinary shares registered on the Companys Form S-8 filed on February
20, 2007 (Commission File No. 333-140786) (the Prior Registration Statement).
This
Registration Statement relates to securities of the same class as those to which the Prior
Registration Statement relates, and is submitted in accordance with General Instruction E
to Form S-8 regarding Registration of Additional Securities. Pursuant to Instruction E of
Form S-8, the contents of the Prior Registration Statement are incorporated herein by
reference and made part of this Registration Statement, except as amended hereby.
The
increase in the number of shares authorized for issuance under the Plan was approved by
the compensation committee and the board of directors of On Track Innovations Ltd. at a
meeting held on December 3, 2007
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PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
Item 3.
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Incorporation of Documents by Reference.
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The
following documents filed with or furnished to the Securities and Exchange Commission
(the SEC) by the Company are incorporated herein by reference and made a part
hereof:
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the
Companys Annual Report on Form 20-F for the fiscal year ended December 31, 2006,
filed with the SEC on June 25, 2007 (SEC File No. 0-49877);
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the
Companys Reports on Form 6-K furnished to the SEC on March 6, 2007, on March 29,
2007, on May 31, 2007, on August 28, 2007 and on November 27, 2007 (excluding all
financial information not prepared in accordance with US generally accepted accounting
principles (GAAP), identified as Non-GAAP numbers); and
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the
description of the Companys ordinary shares contained in its Registration Statement
on Form 8-A filed with the SEC on June 19, 2002 (SEC File No. 0-49877).
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In
addition, unless otherwise stated herein, all documents subsequently filed with the SEC
by the Company pursuant to Sections 13(a), 13(c) and 15(d) of the Securities Exchange Act
of 1934, as amended (the Exchange Act), and to the extent, if at all, stated
therein, certain reports on Form 6-K furnished by the Company prior to the filing of a
post-effective amendment to this Registration Statemen
t
which indicates that all
securities offered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in 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
in this Registration Statement will be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained in this
Registration Statement or in any other subsequently filed document which also is or is
deemed to be incorporated by reference in this Registration Statement modifies or
supersedes such statement. Any such statement so modified or superseded will not be
deemed, except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 6.
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Indemnification of Directors and Officers.
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Under
the Companies Law, an Israeli company may only exculpate an office holder in advance, in
whole or in part, for breach of duty of care and only if a provision authorizing such
exculpation is included in its articles of association. The Companys articles of
association include such a provision. An Israeli company may not exculpate an office
holder in advance from his or her liability towards the company which is caused by a
breach of duty of care in case of Distribution (as such term is defined in the Companies
Law). An Israeli company may not exculpate an office holder for breach of duty of
loyalty. However, the company may approve an act performed in breach of the duty of
loyalty of an office holder provided that the office holder acted in good faith, the act
or its approval does not harm the company, and the office holder discloses the nature of
his or her personal interest in the act and all material facts and documents a reasonable
time before discussion of the approval.
Under
the Companies Law, an Israeli company may indemnify an office holder in respect of
certain liabilities either in advance of an event or following an event provided a
provision authorizing such indemnification is inserted in its articles of association.
Advance indemnification of an office holder must be limited to the following:
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a
financial liability imposed on him in favor of another person pursuant to a judgment,
settlement or arbitrators award approved by court, provided that the
indemnification shall be limited to events which are determined by the board of
directors, are foreseeable in light of the companys activities at the time when the
obligation for indemnification is granted, and to amounts and standards which are
determined by the board of directors as reasonable in such event, and provided that the
obligation for indemnification will specify the said events and amounts or standards;
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reasonable
litigation expenses, including attorneys fees, incurred by the office holder or
imposed by a court in proceedings instituted against him by the company, on its behalf or
by a third party, in connection with criminal proceedings in which the office holder was
acquitted or as a result of conviction for a crime that does not require proof of
criminal intent; and
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reasonable
litigation expenses, including attorneys fees, incurred by the office holder due to
investigation or proceedings instituted against the office holder by an authority
authorized to conduct such investigation or proceedings and ended without filing an
indictment against him and without imposing monetary liability as an alternative to
criminal proceedings or ended without filing an indictment against him but in imposing
monetary liability as an alternative to criminal proceedings for a crime that does not
require proof of criminal intent.
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An
Israeli company may insure an office holder against the following liabilities incurred
for acts performed as an office holder if a provision authorizing such insurance is
included in its articles of association:
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a
breach of duty of loyalty to the company, to the extent that the office holder acted in
good faith and had a reasonable basis to believe that the act would not prejudice the
company;
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a
breach of duty of care to the company or to a third party; and
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a
financial liability imposed on the office holder in favor of a third party.
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An
Israeli company may not indemnify, exculpate or insure an office holder against any of
the following:
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a
breach of duty of loyalty, except to the extent that the office holder acted in good
faith and had a reasonable basis to believe that the act would not prejudice the company;
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a
breach of duty of care committed intentionally or recklessly except if such recklessness
is made solely negligently;
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an
act or omission committed with intent to derive illegal personal benefit; or
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a
fine levied against the office holder.
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The
Companys articles of association provide that the Company may indemnify and insure
its office holders to the fullest extent permitted by the Companies Law. The Companys
office holders are currently covered by a directors and officersliability insurance
policy with an aggregate claim limit of $5 million.
See
the Exhibit Index attached hereto for a list of the exhibits being filed with this
Registration Statement.
(a) The
undersigned registrant hereby undertakes to file, during any period in which offers or
sales are being made, a post-effective amendment to this registration statement 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.
(b) 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 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.
(c) 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.
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 this
Registration Statement 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 Rosh
Pina, State of Israel, on this 4th day of February, 2008.
Date: February 4, 2008
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ON TRACK INNOVATIONS LTD.
By: /s/ ODED BASHAN
Oded Bashan
Chairman of the Board of Directors
Chief Executive Officer
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POWER OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes
and appoints Oded Bashan, his true and lawful attorney-in-fact and agent with full power
of substitution and resubstitution, for him and in his name, place and stead, in any and
all capacities, to (i) act on, sign and file with the Securities and Exchange Commission
any and all amendments (including post-effective amendments) to this Registration
Statement together with all schedules and exhibits thereto and any subsequent
registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, together with all schedules and exhibits thereto, (ii) act on, sign and file
such certificates, instruments, agreements and other documents as may be necessary or
appropriate in connection therewith, (iii) act on and file any supplement to any
prospectus included in this Registration Statement or any such amendment or any
subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, as amended, and (iv) take any and all actions which may be necessary or
appropriate to be done, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming that all said attorneys-in-fact and agents or any
of them, or their or his 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 date indicated.
/S/ ODED BASHAN
Oded Bashan
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Chairman of the Board of Directors
and Chief Executive Officer
(Principal Executive Officer)
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February 4, 2008
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/S/ GUY SHAFRAN
Guy Shafran
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Chief Financial Officer (Principal
Financial and Accounting Officer)
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February 4, 2008
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/S/ RONNIE GILBOA
Ronnie Gilboa
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Vice President - Projects and
Director
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February 4, 2008
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/S/ SHLOMI TUSSIA-COHEN
Shlomi Tussia-Cohen
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Director
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February 4, 2008
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/S/ OHAD BASHAN
Ohad Bashan
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President
Director
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February 4, 2008
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/S/ ELIEZER MANOR
Eliezer Manor
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Director
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February 4, 2008
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/S/ ORA SETTER
Ora Setter
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Director
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February 4, 2008
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/S/ ELI AKAVIA
Eli Akavia
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Director
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February 4, 2008
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/S/ RA'ANAN ELLRAN
Ra'anan Ellran
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Director
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February 4, 2008
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Authorized Representative in the
United States:
OTI AMERICA, INC.
/S/ OHAD BASHAN
Ohad Bashan
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February 4, 2008
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EXHIBIT INDEX
Exhibit
Number
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Exhibit Description
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4.1
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Specimen
share certificate*
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4.2
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Memorandum
of Association, dated as of February 14, 1990, and Certificate of Change of
Name, dated as of July 22, 1998*
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4.3
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Amended
Articles of Association dated as of June 14, 2002*
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5.1
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Opinion
of Zysman, Aharoni, Gayer & Ady Kaplan & Co., Law Offices, Israeli counsel to the
Registrant, as to the validity of the ordinary shares (including consent)
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23.1
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Consent
of Somekh, Chaikin, a member firm of KPMG international, independent registered
Public Accounting Firm
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23.2
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Consent
of Zysman, Aharoni, Gayer & Ady Kaplan & Co., Law Offices, Israeli counsel to the
Registrant (included in Exhibit 5.1)
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24.1
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Powers
of attorney (included on the signature page to the Registration Statement)
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*
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Incorporated
herein by reference from the Registrants Registration Statement on Form F-1
(Registration No. 333-90496), filed with the SEC on June 14, 2002.
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