As filed
with the U.S. Securities and Exchange Commission on May 29, 2009
Registration
Statement No. _____________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
CRYOLIFE,
INC.
(Exact
name of registrant as specified in its charter)
Florida
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59-2417093
|
(State
or Other Jurisdiction of
|
(I.R.S.
Employer
|
Incorporation
or Organization)
|
Identification
No.)
|
1655
Roberts Boulevard, NW, Kennesaw, Georgia 30144
(Address,
including zip code, of registrant's principal executive offices)
CryoLife,
Inc. 2009 Employee Stock Incentive Plan
(Full
Title of Plan)
Steven
G. Anderson, President, Chief Executive Officer
and
Chairman of the Board of Directors
CryoLife,
Inc.
1655
Roberts Boulevard, NW
Kennesaw,
Georgia 30144
(770)
419-3355
(Name and
address, including zip code, and telephone number, including area
code,
of agent
for service)
Copy
to:
B.
Joseph Alley, Jr., Esq.
|
Jeffrey
W. Burris, Esq., General Counsel
|
Arnall
Golden Gregory LLP
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CryoLife,
Inc.
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Suite
2100
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1655
Roberts Boulevard, NW
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171
17
th
Street, NW
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Kennesaw,
Georgia 30144
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Atlanta,
Georgia 30363-1031
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(770)
419-3355
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(404)
873-8500
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Indicate
by a check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer”,
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
Large accelerated filer
¨
|
Accelerated
filer
ý
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Non-accelerated filer
¨
(Do not check if
a smaller reporting company)
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Smaller
reporting company
¨
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Calculation
of Registration Fee
Title
of securities
to
be registered
|
Amount
to be
Registered(1)
|
Proposed
maximum
offering
price
per share
|
Proposed
maximum
aggregate
offering
price
|
Amount
of
registration
fee(1)
|
Common
Stock,
$.01
par value
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2,000,000
Shares
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$4.855
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$9,710,000
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$541.82
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(1)
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Calculated
pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as
amended, as follows: with respect to 2,000,000 shares, based upon the
average of the high and low price of the Registrant's Common Stock on May
26, 2009 as reported on the New York Stock
Exchange.
|
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of
Certain Documents by Reference
.
The following documents are
incorporated by reference in the Registration Statement:
(a) The
Registrant's Annual Report on Form 10-K filed with respect to the Registrant's
fiscal year ended December 31, 2008.
(b) The
Registrant’s Quarterly Report on Form 10-Q filed with respect to the
Registrant’s quarter ended March 31, 2009.
(c) The
Registrant’s Amended Current Report on Form 8-K/A filed on March 5, 2009 and the
Registrant’s Current Reports on Form 8-K filed on May 8, 2009 and May 22,
2009.
(d) The
description of the Registrant's Common Stock contained in the Registrant's
Registration Statement on Form 8-A filed on July 2, 1997, and any amendment or
report filed for the purpose of updating such description, including without
limitation the description of the Registrant’s Common Stock contained in the
Registrant’s Registration Statement on Form S-3/A filed on May 17, 2004 and the
Registrant’s Amendment No. 1 to Form 8-A/A filed on November 3,
2005.
All documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered 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
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item
4. Description of Securities
Not applicable.
Item
5. Interests of Named Experts and Counsel.
Not applicable.
Item
6. Indemnification of Directors and Officers.
The Registrant is a Florida
corporation. The following summary is qualified in its entirety by
reference to the complete text of the Florida Business Corporation Act (the
"FBCA"), the Registrant's Amended and Restated Articles of Incorporation, and
the Registrant's Amended and Restated Bylaws.
Under Section 607.0850(1) of the FBCA,
a corporation may indemnify any of its directors and officers against expenses
(including attorneys' fees), judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding (including any appeal thereof) (i) if such
person acted in good faith and in a manner he or she reasonably believed to be
in, or not opposed to, the best interests of the corporation, and (ii) with
respect to any criminal action or proceeding, he or she had no reasonable cause
to believe his or her conduct was unlawful. In actions brought by or
in the right of the corporation, however, Section 607.0850(2) provides that no
indemnification shall be made in respect of any claim, issue or matter as to
which the director or officer shall have been adjudged to be liable unless, and
only to the extent that, the court in which such proceeding was brought, or any
other court of competent jurisdiction, shall determine upon application that,
despite the adjudication of liability but in view of all circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper. Section 607.0850(6)
provides that expenses incurred by an officer or director in defending a civil
or criminal proceeding may be paid by the corporation in advance of the final
disposition of the proceeding upon receipt of an undertaking by the officer or
director to repay such amount if he or she is ultimately found not to be
entitled to indemnification. Article X of the Registrant’s Amended
and Restated Articles of Incorporation requires that, if in the judgment of the
majority of the Board of Directors (excluding from such majority any director
under consideration for indemnification) the criteria set forth under Section
607.0850 have been met, then the Registrant shall indemnify any officer or
director, or former officer or director, his personal representatives, devisees
or heirs, in the manner and to the extent contemplated by Section 607.0850 of
the FBCA (formerly Section 607.014 of the Florida General Corporation
Act). Article VI of the Registrant’s Amended and Restated
Bylaws provides that indemnification is available to directors and officers only
if the person to be indemnified acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interest of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his or her conduct was unlawful. The
Registrant will have no obligation to provide indemnification until a
determination has been made that the appropriate standard of conduct has been
met and that indemnification is not prohibited by relevant law. With
respect to proceedings brought by or in the right of the Registrant, no
indemnification shall be made if the officer or director is adjudged to be
liable unless a court of competent jurisdiction shall determine that, despite
the adjudication of liability but in view of all of the circumstances of the
case, such person is fairly and reasonably entitled to
indemnification. The Registrant’s Amended and Restated Bylaws also
state that the rights to indemnification are binding contract rights which are
binding on the Registrant with respect to any conduct that takes place while the
provision remains in place, even if the provision is later amended, and that the
rights continue as to a person who has ceased to be an officer or
director. Expenses, including reasonable attorneys’ fees and court
costs, incurred by a director or officer in defending a proceeding for which
indemnification is provided will be paid by the Registrant in advance of the
final disposition of such proceeding provided that the director or officer
represents that he or she has met the applicable standard of conduct in relation
to the proceeding and will repay such amount if he or she is ultimately found
not to be entitled to indemnification.
The Registrant has purchased insurance
to insure (i) the Registrant's directors and officers against damages from
actions and claims incurred in the course of their duties, and (ii) the
Registrant against expenses incurred in defending lawsuits arising from certain
alleged acts of its directors and officers.
The Registrant has entered into
indemnification agreements with each of its directors and its Executive Vice
President, Chief Operating Officer and Chief Financial Officer
("Indemnitees"). Pursuant to such agreements, the
Registrant shall indemnify each Indemnitee whenever he or she is or
was a party or is threatened to be made a party to
any proceeding, including without limitation
any such proceeding brought by or in the right of the Registrant, because he or
she is or was a director or officer of the Registrant or is or was serving at
the request of the Registrant as a director or officer of another
corporation, partnership, joint venture, trust or other
enterprise, or because of anything done or not done by the Indemnitee
in such capacity, against expenses
and liabilities (including the costs of any investigation,
defense, settlement or appeal) actually and reasonably incurred by the
Indemnitee or on his or her behalf in connection with such proceeding, if he or
she acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Registrant, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that an
Indemnitee did not act in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the Registrant, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful. Unless a determination
has been made that the Indemnitee is not entitled to indemnification pursuant to
the agreement, all reasonable expenses incurred by or on behalf of such
Indemnitee shall be advanced from time to time by the Registrant to the
Indemnitee within thirty (30) days after the Registrant's receipt of a written
request for an advance of expenses by such Indemnitee, whether prior to or after
final disposition of a proceeding. If required by law, Indemnitee
shall agree, at the time of such advance, to repay the amounts advanced if it is
ultimately determined that Indemnitee is not entitled to be indemnified under
the terms of the agreement. Any advances made shall be unsecured and no interest
shall be charged thereon.
Item
7. Exemption from Registration Claimed.
Not applicable.
Item
8. Exhibits.
Exhibit No.
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Exhibit
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4.1
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Amended
and Restated Articles of Incorporation of the Company. (Incorporated by
reference to Exhibit 3.1 to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 2007).
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4.2
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Amended
and Restated ByLaws of the Company. (Incorporated by reference
to Exhibit 3.1 to the Registrant's Amended Current Report on Form 8-K/A
filed March 5, 2009).
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|
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4.3
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Form
of Certificate for the Company's Common Stock (Incorporated by reference
to Exhibit 4.2 to the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1997).
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|
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4.4
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First
Amended and Restated Rights Agreement, dated as of November 2, 2005,
between CryoLife, Inc. and American Stock Transfer & Trust Company.
(Incorporated herein by reference to Exhibit 4.1 to Registrant’s Current
Report on Form 8-K filed November 3, 2005.)
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|
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5*
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Opinion
of Arnall Golden Gregory LLP regarding legality
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|
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23.1*
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Consent
of Arnall Golden Gregory LLP (included as part of Exhibit 5
hereto).
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23.2*
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Consent
of Deloitte & Touche LLP
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99.1*
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CryoLife,
Inc. 2009 Employee Stock Incentive
Plan
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_______________________
* Filed
herewith.
Item
9. Undertakings.
(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
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(i)
To include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
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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;
|
|
(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;
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provided, however
,
that paragraph (a)(1)(i) and (a)(1)(ii) shall 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 Securities and Exchange
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered 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.
(4) That,
for the purpose of determining liability of the Registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities: The
undersigned Registrant undertakes that in a primary offering of securities of
the undersigned Registrant pursuant to this Registration Statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
i.
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Any preliminary prospectus or prospectus of the undersigned
Registrant relating to the offering required to be filed pursuant to Rule
424;
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ii.
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Any free writing prospectus relating to the offering prepared
by or on behalf of the undersigned Registrant or used or referred to by
the undersigned Registrant;
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iii.
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The portion of any other free writing prospectus relating to
the offering containing material information about the undersigned
Registrant or its securities provided by or on behalf of the undersigned
Registrant; and
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iv.
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Any other communication that is an offer in the offering made
by the undersigned Registrant to the
purchaser.
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(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's 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 provisions described in Item 6, 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.
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 the City of
Kennesaw, State of Georgia on May 29, 2009.
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CRYOLIFE,
INC.
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By:
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/s/ Steven
G. Anderson
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Steven
G. Anderson
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President,
Chief Executive Officer and Chairman of the Board of
Directors
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KNOW ALL MEN BY THESE PRESENTS, that
each person whose signature appears below constitutes and appoints Steven G.
Anderson and Jeffrey W. Burris and each of them, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place, and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his or her substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
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.
PRINCIPAL EXECUTIVE,
FINANCIAL & ACCOUNTING OFFICERS AND DIRECTORS
:
Name
|
Title
|
Date
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/s/
Steven G. Anderson
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President,
Chief Executive Officer
and
Chairman of the Board of Directors
(Principal
Executive Officer)
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May
29, 2009
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Steven
G. Anderson
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/s/
D. Ashley Lee
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Executive
Vice President, Chief
Operating
Officer and Chief
Financial
Officer (Principal
Financial
Officer)
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May
29, 2009
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D. Ashley Lee
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/s/
Amy D. Horton
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Chief
Accounting Officer (Principal
Accounting
Officer)
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May
29, 2009
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Amy
D. Horton
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/s/
Thomas F. Ackerman
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Director
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May
29, 2009
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Thomas
F. Ackerman
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/s/
James S. Benson
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Director
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May
29, 2009
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James
S. Benson
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/s/
Daniel J. Bevevino
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Director
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May
29, 2009
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Daniel
J. Bevevino
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/s/
John M. Cook
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Director
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May
29, 2009
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John
M. Cook
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/s/
Ronald C. Elkins, M.D.
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Director
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May
29, 2009
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Ronald
C. Elkins, M.D.
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/s/
Ronald D. McCall
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Director
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May
29, 2009
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Ronald
D. McCall, Esq.
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/s/
Harvey Morgan
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Director
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May
29, 2009
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Harvey
Morgan
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