Basin Water, Inc. - Securities Registration Statement (simplified form) (S-3/A)
December 19 2007 - 5:25PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on December 19, 2007
Registration No. 333-148138
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Basin Water, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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4941
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20-4736881
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(State or other jurisdiction
of incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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8731 Prestige Court
Rancho Cucamonga, California 91730
(909) 481-6800
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
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Agent for Service:
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Copies to:
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Copies to:
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Thomas C. Tekulve
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Scott B. Hamilton
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Faye H. Russell, Esq.
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Chief Financial Officer
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General Counsel
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Divakar Gupta, Esq.
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Basin Water, Inc.
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Basin Water, Inc.
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Latham & Watkins LLP
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8731 Prestige Court
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8731 Prestige Court
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12636 High Bluff Drive, Suite 400
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Rancho Cucamonga, California 91730
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Rancho Cucamonga, California 91730
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San Diego, California 92130
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(909) 481-6800
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(909) 481-6800
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(858) 523-5400
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Approximate date of commencement of proposed sale to the public:
From time to time after
the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box.
¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.
þ
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
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If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
¨
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities
or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until the Registration Statement shall become effective on such date as
the Securities and Exchange Commission, acting pursuant to Section 8(a), may determine.
CALCULATION OF REGISTRATION FEE
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Title of Securities
to be Registered
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Amount
to be
Registered
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Proposed
Maximum
Offering Price
Per Share (1)
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Proposed Maximum
Aggregate
Offering
Price (1)(2)
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Amount of
Registration
Fee (3)
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Common Stock, par value $0.001 per share
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462,746
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$7.51
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$3,475,222
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$107
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(1)
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Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) based on the average of the high and low reported sales prices on the Nasdaq
Global Market on December 17, 2007.
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(2)
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This Registration Statement shall also cover any additional shares of common stock which become issuable by reason of any stock dividend, stock split or other similar transaction
effected without receipt of consideration which results in an increase in the number of the outstanding shares of common stock of the registrant.
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(3)
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Registration fee previously paid.
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The Registrant
hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
Basin Water, Inc. has prepared this Amendment No. 1 to the Registration Statement on Form S-3 (File No. 333-148138) for the purpose of filing with the Securities and Exchange Commission an amended exhibit to the Registration Statement.
Amendment No. 1 to the Registration Statement does not modify any provision of the prospectus that forms a part of the Registration Statement and accordingly such prospectus has not been included herein.
PART II
INFORMATION NOT REQUIRED IN
PROSPECTUS
Item 14.
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Other Expenses of Issuance and Distribution
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Our estimated expenses in connection with the distribution of the securities being registered are as set forth in the table below. Basin Water will pay all expenses identified below.
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SEC Registration Fee
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$
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107
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Printing and Mailing Costs
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$
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1,000
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*
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Legal Fees and Expenses
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$
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20,000
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*
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Accounting Fees and Expenses
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$
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20,000
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*
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Miscellaneous
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$
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3,893
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Total
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$
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45,000
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*
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Item 15.
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Indemnification of Directors and Officers
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Our officers and directors are covered by certain provisions of the DGCL, our certificate of incorporation, our bylaws and insurance policies that serve to limit and, in certain instances, to indemnify them against
certain liabilities that they may incur in such capacities. These various provisions are described below.
In June 1986, Delaware enacted legislation
that authorizes corporations to limit or eliminate the personal liability of directors to corporations and their stockholders for monetary damages for breach of directors fiduciary duty of care. This duty of care requires that, when acting on
behalf of the corporation, directors must exercise an informed business judgment based on all significant information reasonably available to them. Absent the limitations now authorized by such legislation, directors are accountable to corporations
and their stockholders for monetary damages for conduct constituting negligence or gross negligence in the exercise of their duty of care. Although the statute does not change directors duty of care, it enables corporations to limit available
relief to equitable remedies such as injunction or rescission. Our certificate of incorporation limits the liability of our directors to Basin Water or its stockholders (in their capacity as directors but not in their capacity as officers) to the
fullest extent permitted by such legislation. Specifically, our directors will not be personally liable for monetary damages for breach of a directors fiduciary duty as director, except for liability: (1) for any breach of the
directors duty of loyalty to Basin Water or its stockholders, (2) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (3) for unlawful payments of dividends or unlawful share
repurchases or redemptions as provided in Section 174 of the DGCL, or (4) for any transaction from which the director derived an improper personal benefit.
As a Delaware corporation, Basin Water has the power, under specified circumstances generally requiring the director or officer to act in good faith and in a manner he reasonably believes to be in or not opposed to
Basin Waters best interests, to indemnify its directors and officers in connection with actions, suits or proceedings brought against them by a third party or in the name of Basin Water, by reason of the fact that they were or are such
directors or officers, against expenses, judgments, fines and amounts paid in settlement in connection with any such action, suit or proceeding. The bylaws generally provide for mandatory indemnification of Basin Waters directors and officers
to the full extent provided by Delaware corporate law. In addition, Basin Water has entered into indemnification agreements with its directors and officers that generally provide for mandatory indemnification under circumstances for which
indemnification would otherwise be discretionary under Delaware law.
Basin Water maintains insurance on behalf of any person who is or was
a director or officer of Basin Water, or is or was a director or officer of Basin Water serving at the request of Basin Water as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not Basin Water would have the power or obligation to indemnify him against such liability
under the provisions of the bylaws. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that in the
opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
II-1
A list of exhibits
filed with this Registration Statement is set forth on the Exhibit Index and is incorporated herein by reference.
(a) The
undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the 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
(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 this registration statement;
provided, however
, that subparagraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the registration statement is on Form S-3 or Form F-3 and 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 this registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of 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:
(i) 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
(ii) 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.
(b) The undersigned registrant hereby further undertakes that, for the purposes of determining any liability under the Securities Act of 1933, each
filing of the registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this registration statement 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.
(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 existing provisions or
otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Basin Water, Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing this Amendment No. 1 to Form S-3 and
has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rancho Cucamonga, State of California, on December 19, 2007.
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Basin Water, Inc.
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By:
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/s/ Thomas C. Tekulve
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Thomas C. Tekulve
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Chief Financial Officer, Treasurer, Chief Administrative Officer and Assistant Secretary
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POWER OF ATTORNEY
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/ Peter L. Jensen*
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Chief Executive Officer and Chairman of the Board
(Principal Executive Officer)
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December 19, 2007
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Peter L. Jensen
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/s/ Thomas C. Tekulve
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Chief Financial Officer, Treasurer, Chief Administrative Officer and Assistant Secretary
(Principal Financial and Accounting Officer)
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December 19, 2007
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Thomas C. Tekulve
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/s/ Russell C. Ball III*
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Director
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December 19, 2007
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Russell C. Ball III
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/s/ Roger S. Faubel*
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Director
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December 19, 2007
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Roger S. Faubel
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/s/ Victor J. Fryling*
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Director
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December 19, 2007
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Victor J. Fryling
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/s/ Scott A. Katzmann*
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Director
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December 19, 2007
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Scott A. Katzmann
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/s/ Stephen A. Sharpe*
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Director
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December 19, 2007
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Stephen A. Sharpe
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/s/ Keith R. Solar*
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Director
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December 19, 2007
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Keith R. Solar
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*By:
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/s/ Thomas C. Tekulve
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Thomas C. Tekulve
Attorney-in-Fact
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II-3
EXHIBIT INDEX
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Exhibit
Number
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Description
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2.1
(1)
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Agreement and Plan of Merger between the Registrant, certain subsidiaries of the Registrant, Mobile Process Technology, Co. and its stockholders, dated August 31, 2007.
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3.1
(2)
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Amended and Restated Certificate of Incorporation of the Registrant.
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3.2
(2)
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Amended and Restated Bylaws of the Registrant.
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4.1
(2)
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Form of Common Stock Certificate.
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4.2
(2)
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Registration Rights Agreement dated June 28, 2005 among the Registrant and holders of Preferred Stock.
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4.3
(2)
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Form of Common Stock Warrant.
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4.4
(2)
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Form of Preferred Stock Warrant.
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4.5
(2)
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Form of Note issued to BWCA I, LLC.
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4.6
(2)
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Form of Warrant issued to BWCA I, LLC.
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4.7
(2)
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Form of Senior Subordinated Note issued to The Co-Investment 2000 Fund, L.P. and other purchasers.
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4.8
(2)
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Form of Warrant issued to The Co-Investment 2000 Fund, L.P. and other purchasers.
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4.9
(2)
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Registration Rights Agreement, dated October 14, 2005, among The Co-Investment 2000 Fund, L.P. and other purchasers.
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4.10
(2)
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Senior Subordinated Note issued to Aqua America, Inc. dated February 10, 2006.
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4.11
(2)
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Form of Warrant issued to Aqua America, Inc.
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4.12
(2)
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Registration Rights Agreement, dated February 10, 2006, between the Registrant and Aqua America, Inc.
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5.1
(3)
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Opinion of Latham & Watkins LLP.
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23.1
(3)
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Consent of Latham & Watkins LLP. Reference is made to Exhibit 5.1.
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23.2
(4)
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Consent of Singer, Lewak, Greenbaum & Goldstein, LLP, independent registered public accounting firm.
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23.3
(3)
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Consent of Rhea & Ivy, PLC, independent accounting firm.
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24.1
(3)
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Powers of Attorney.
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(1)
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Filed with the Registrants Report on Form 8-K/A on September 6, 2007.
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(2)
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Filed with the Registrants Registration Statement on Form S-1 dated
February 13, 2006, as amended.
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(3)
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Filed with the Registrants Registration Statement on Form S-3 on December
18, 2007.
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