sv8
As filed with the Securities and Exchange Commission
on April 26, 2007
Registration No. 333-_____
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Akamai Technologies, Inc.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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04-3432319 |
(State or Other Jurisdiction of Incorporation
or Organization)
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(I.R.S. Employer
Identification No.) |
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8 Cambridge Center
Cambridge, MA
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02142 |
(Address of Principal Executive Offices)
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(Zip Code) |
Red Swoosh, Inc. 2001 Advisor Stock Option Plan
(Full Title of the Plan)
Melanie Haratunian, Esq.
Vice President and General Counsel
Akamai Technologies, Inc.
8 Cambridge Center
Cambridge, Massachusetts 02142
(Name and Address of Agent For Service)
617-444-3000
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Maximum |
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Maximum |
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Title of Securities |
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Amount to be |
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Offering Price Per |
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Aggregate Offering |
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Amount of |
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to be Registered |
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Registered(1) |
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Share |
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Price |
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Registration Fee |
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Common Stock, $0.01
par value per share
(including
associated
preferred stock
purchase rights) |
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65 shares |
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$0.49(2) |
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$31.85(2) |
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$1.00 |
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(1) |
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In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration
statement shall be deemed to cover any additional securities that may from time to time be
offered or issued to prevent dilution resulting from stock splits, stock dividends or similar
transactions. |
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(2) |
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Estimated solely for the purpose of calculating the registration fee in accordance with Rule
457(h) of the Securities Act of 1933, as amended. The price per share and aggregate offering
price are calculated on the basis of $0.49, the exercise price per share of the shares
subject to outstanding stock option grant under the Red Swoosh, Inc. 2001 Advisor Stock Option
Plan. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The information required by Item 1 is included in documents sent or given to participants in
the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act
of 1933, as amended (the Securities Act).
Item 2. Registrant Information and Employee Plan Annual Information.
The written statement required by Item 2 is included in documents sent or given to
participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
We are subject to the informational and reporting requirements of Sections 13(a), 14 and
15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), and in accordance
therewith file reports, proxy statements and other information with the Securities and Exchange
Commission (the Commission). The following documents, which are on file with the Commission, are
incorporated in this registration statement by reference:
(a) Our latest annual report filed pursuant to Section 13(a) or 15(d) of the Exchange Act or
the latest prospectus filed pursuant to Rule 424(b) under the Securities Act that contains audited
financial statements for our latest fiscal year for which such statements have been filed.
(b) 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 (a) above.
(c) The description of the securities contained in our registration statements on Form 8-A
filed under the Exchange Act, including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by us 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 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 part hereof from
the date of the 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 the
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.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 102 of the Delaware General Corporation Law allows a corporation to eliminate the
personal liability of directors of a corporation to the corporation or its stockholders for
monetary damages for a breach of fiduciary duty as a director, except where the director breached
his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly
violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of
Delaware corporate law or obtained an improper personal benefit. We have included such a provision
in our Amended and Restated Certificate of Incorporation, which we refer to as the Amended and Restated
Certificate of Incorporation.
Section 145 of the Delaware General Corporation Law, as amended, provides that a corporation
may indemnify any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful.
Section 145 further provides that a corporation similarly may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses (including attorneys fees)
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 shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Delaware Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite an adjudication of
liability but in view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem
proper.
Article SEVENTH
of our Amended and Restated Certificate of Incorporation provides that no director of Akamai shall be personally liable for
any monetary damages for any breach of fiduciary duty as a director, except to the extent that the
Delaware General Corporation Law prohibits the elimination or limitation of liability of directors
for breach of fiduciary duty.
Article EIGHTH of
our Amended and Restated Certificate of Incorporation provides that a director or
officer of Akamai: (a) shall be indemnified by Akamai against all expenses (including attorneys
fees), judgments, fines and amounts paid in settlement incurred in connection with any litigation
or other legal proceeding (other than an action by or in the right of Akamai) brought against him
by virtue of his position as a
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director or officer of Akamai if he acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of Akamai, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful and (b) shall be
indemnified by Akamai against all expenses (including attorneys fees) and amounts paid in
settlement incurred in connection with any action by or in the right of Akamai brought against him
by virtue of his position as a director or officer of Akamai if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of Akamai, except
that no indemnification shall be made with respect to any matter as to which such person shall have
been adjudged to be liable to Akamai, unless a court determines that, despite such adjudication but
in view of all of the circumstances, he is entitled to indemnification of such expenses.
Notwithstanding the foregoing, to the extent that a director or officer has been successful, on the
merits or otherwise, including, without limitation, the dismissal of an action without prejudice,
he is required to be indemnified by Akamai against all expenses (including attorneys fees)
incurred in connection therewith. Expenses shall be advanced to a director or officer at his
request, provided that he undertakes to repay the amount advanced if it is ultimately determined
that he is not entitled to indemnification for such expenses.
Indemnification is required to be made unless Akamai determines that the applicable standard
of conduct required for indemnification has not been met. In the event of a determination by
Akamai that the director or officer did not meet the applicable standard of conduct required for
indemnification, or if Akamai fails to make an indemnification payment within 60 days after such
payment is claimed by such person, such person is permitted to petition the court to make an
independent determination as to whether such person is entitled to indemnification. As a condition
precedent to the right of indemnification, the director or officer must give Akamai notice of the
action for which indemnity is sought and Akamai has the right to participate in such action or
assume the defense thereof.
Article EIGHTH of
our Amended and Restated Certificate of Incorporation further provides that the
indemnification provided therein is not exclusive, and provides that in the event that the Delaware
General Corporation Law is amended to expand the indemnification permitted to directors or
officers, then Akamai must indemnify those persons to the fullest extent permitted by such law as
so amended.
We have purchased directors and officers liability insurance which would indemnify our
directors and officers against damages arising out of certain kinds of claims which might be made
against them based on their negligent acts or omissions while acting in their capacity as such.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated herein by reference.
Item 9. Undertakings.
1. Item 512(a) of Regulation S-K. 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;
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(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; and
(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) 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.
2. Item 512(b) of Regulation S-K. 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 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.
3. Item 512(h) of Regulation S-K. 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 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 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 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, 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 Cambridge, Massachusetts, on this 26th day of April, 2007.
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AKAMAI TECHNOLOGIES, INC.
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By: |
/s/ Melanie Haratunian
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Melanie Haratunian |
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Vice President and General Counsel |
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POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Akamai Technologies, Inc., hereby severally
constitute and appoint Paul Sagan, J. Donald Sherman and Melanie Haratunian, and each of them
singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for
us and in our names in the capacities indicated below, the registration statement on Form S-8 filed
herewith and any and all subsequent amendments to said registration statement, and generally to do
all such things in our names and on our behalf in our capacities as officers and directors to
enable Akamai Technologies, Inc. to comply with the provisions of the Securities Act of 1933, as
amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of them, to said
registration statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, 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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Title |
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Date |
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/s/ Paul Sagan
Paul Sagan
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President, Chief
Executive Officer and
Director (Principal
executive officer)
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April 26, 2007 |
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/s/ J. Donald Sherman
J.
Donald Sherman
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Chief Financial
Officer (Principal
financial and
accounting officer)
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April 26, 2007 |
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/s/ George H. Conrades
George
H. Conrades
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Director
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April 26, 2007 |
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/s/ Martin M. Coyne II
Martin
M. Coyne II
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Director
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April 26, 2007 |
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/s/ Ronald L. Graham
Ronald
L. Graham
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Director
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April 26, 2007 |
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Signature |
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/s/ Peter J. Kight
Peter
J. Kight
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Director
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April 26, 2007 |
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/s/ F. Thomson Leighton
F.
Thomson Leighton
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Director
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April 26, 2007 |
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Director
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Director
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/s/ Naomi O. Seligman
Naomi
O. Seligman
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Director
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April 26, 2007 |
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INDEX TO EXHIBITS
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Number |
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Description |
4.1(1)
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Amended and Restated Certificate of Incorporation of the Registrant |
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4.2(2)
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Amended and Restated By-Laws of the Registrant |
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4.3(3)
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Certificate of Designations of Series A Junior Participating
Preferred Stock of the Registrant |
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4.4(4)
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Rights Agreement, dated September 10, 2002, by and between the
Registrant and Equiserve Trust Company, N.A., as Rights Agent. |
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4.5(5)
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Amendment No. 1, dated as of January 29, 2004, to the Rights
Agreement, dated as of September 10, 2002, between the Registrant
and EquiServe Trust Company, N.A., as Rights Agent. |
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5
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Opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to
the Registrant |
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23.1
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Consent of Wilmer Cutler Pickering Hale and Dorr LLP
(included in Exhibit 5) |
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23.2
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Consent of PricewaterhouseCoopers LLP |
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24
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Power of attorney (included on the signature pages of this
registration statement) |
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99.1
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Red Swoosh, Inc. 2001 Advisor Stock Option Plan |
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(1) |
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Incorporated by reference to the Registrants Quarterly Report on Form 10-Q filed with the
Commission on August 14, 2000. |
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(2) |
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Incorporated by reference to the Registrants Form S-1 (File No. 333-85679), as amended,
filed with the Securities and Exchange Commission on August 21, 1999. |
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(3) |
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Incorporated by reference to the Registrants Quarterly Report on Form 10-Q filed with the
Commission on November 14, 2002. |
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(4) |
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Incorporated by reference to the Registrants Current Report on Form 8-K filed with the
Commission on September 11, 2002. |
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(5) |
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Incorporated by reference to the Registrants Current Report on Form 8-K filed with the
Commission on February 2, 2004. |