By-Laws
Article II, Section 8 of the By-Laws of National provides as follows:
A. The Corporation shall indemnify any person who is or was a Director or officer of the Corporation, to the fullest extent permitted and in the manner provided by the laws of the State
of New Jersey, including, without limitation, the indemnification permitted by N.J.S. 14A:3-5(8), against all liabilities (including amounts paid or incurred in satisfaction of settlements, judgments, fines and penalties) and expenses (including,
without limitation, attorneys fees and disbursements) imposed upon or incurred by such person in connection with any pending, threatened or completed civil, criminal, administrative or arbitrative action, suit or proceeding, and any appeal
therein and any inquiry or investigation which could lead to such action, suit or proceeding (Proceeding) in which such person may be made, or threatened to be made, a party, or in which such person may become involved by reason of such
person being or having been a Director or officer of the Corporation, or of serving or having served at the request of the Corporation as a director, officer, trustee, employee or agent of, or in any other capacity with, another foreign or domestic
corporation, or any partnership, joint venture, sole proprietorship, employee benefit plan, trust or other enterprise, whether or not for profit.
B. The right to indemnification conferred by this Section 8 shall include the right to be paid by the Corporation the expenses incurred in defending or otherwise participating in any proceeding
in advance of its final disposition, and the Corporation shall, to the fullest extent permitted by law, promptly advance expenses (including, without limitation, attorneys fees and disbursements) that are incurred, from time to time, in
connection therewith by any such current or former Director or officer of the Corporation, subject to the receipt by the Corporation of an undertaking of such person as required by law.
C. Nothing in this Section 8 shall restrict or limit the power of the Corporation to indemnify its employees, agents and other persons, to advance expenses (including attorneys fees) on
their behalf and to purchase and maintain insurance on behalf of any person who is or was a Director, officer, employee or agent of the Corporation in connection with any Proceeding.
D. The indemnification provided by this Section 8 shall not exclude any other rights to which a person seeking indemnification may be entitled under the Certificate of Incorporation, By-Laws,
agreement, vote of shareholders or otherwise. The indemnification provided by this Section 8 shall continue as to a person who has ceased to be a Director or officer, and shall extend to the estate or personal representative of any deceased Director
or officer.
E. Any repeal or modification of this Section 8 shall not adversely affect any rights to indemnification and to the advancement of expenses of a Director or officer of the Corporation existing
at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.
Indemnification Agreements
The Company has entered into an Indemnification Agreement with each of its directors (each, a Director). The Indemnification Agreement provides that the Company will indemnify
Director against any and all expenses, judgments, costs, fines and amounts paid in settlement (collectively, Losses), to the fullest extent permitted by law, in connection with any present or future threatened, pending or completed
proceeding based upon, arising from, relating to, or by reason of Directors status as a director, officer, employee, agent or fiduciary of the Company or any other entity the Director serves at the request of the Company. In addition, the
Company will advance, to the extent not prohibited by law, the expenses incurred by Director in connection with any proceeding.
No indemnification may be made to Director with respect to any proceeding if a final judgment adverse to Director establishes that Director engaged in disqualifying conduct. Disqualifying
conduct means that Directors actions or omissions (i) were in breach of Directors duty of loyalty to the Company and its shareholders, (ii) were
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not in good faith or involved a knowing violation of law, or (iii) resulted in the receipt by Director of an improper personal benefit.
Notwithstanding any other provision in the Indemnification Agreement, the Company will not be obligated to make any indemnity or advance in connection with any claim made against Director:
(a) for which
payment has actually been made to Director under any insurance policy, other
indemnity provision, contract or agreement;
(b)
for (i) an accounting of profits made from the purchase and sale (or sale
and purchase) by Director of securities of the Company that did, in fact,
violate Section 16(b) of the Securities Exchange Act of 1934 (the Exchange
Act) or (ii) any reimbursement of the Company by Director of any bonus
or other incentive-based or equity-based compensation or of any profits realized
by Director from the sale of securities of the Company, as required in each
case under the Exchange Act;
(c)
except as otherwise provided in the Indemnification Agreement, in connection
with any proceeding initiated by Director alone or in concert with others,
including any proceeding initiated by Director against the Company or its
directors, officers, employees or other Directors, unless (i) the Board of
Directors authorized the proceeding prior to its initiation, or (ii) the
Company provides the indemnification, in its sole discretion, pursuant to
the powers vested in the Company under applicable law; or
(d)
in the event that the Company is advised, in a written opinion of its regular
outside legal counsel, that the Companys performance of any provision
of the Indemnification Agreement would violate Section 13(k) of the Exchange
Act.
To
the fullest extent permitted by applicable law, if the indemnification provided
for in the Indemnification Agreement is unavailable to Director for any reason,
then the Company will contribute to Losses incurred by Director in such
proportion as reflects (a) the relative benefits received by the Company,
on the one hand, and Director, on the other hand, as a result of the events
or transactions giving rise to the proceeding, or (b) if the allocation
described in clause (a) above is not permitted by applicable law, the relative
fault of the Company, on the one hand, and Director, on the other hand, in
connection with such events or transactions.
The
Indemnification Agreement provides that, to the extent a change in New Jersey
law permits greater indemnification or advancement of expenses than would
be afforded under the Companys
Certificate of Incorporation, By-laws and the Indemnification Agreement, it is
the intent of the parties that Director will enjoy the greater benefits afforded
by the change.
The
Company also maintains directors and officers liability insurance
coverage with respect to acts or omissions by such directors and officers
in their capacity as such.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
See Index to Exhibits preceding the Exhibits included as part of this Registration Statement.
Item 22. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(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 acts 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
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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 twenty percent (20%) 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 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) If the registrant is relying on Rule 430B:
(A) 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
(B) 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 a 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; or
(ii) If the registration is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements
relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness.
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 first use, 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 date of first use.
(5) 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,
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the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) 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;
(iii) 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
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to he
purchaser.
(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
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 the foregoing 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.
(d)
The undersigned registrant hereby undertakes to respond to requests for information
that is incorporated by reference into the prospectus pursuant to Items 4,
10(b), 11, or 13 of this Form S-4, within one business day of receipt of
such request, and to send the incorporated documents by first class mail
or other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through
the date of responding to the request.
(e)
The undersigned registrant hereby undertakes to supply by means of a post-effective
amendment all information concerning a transaction, and the company being
acquired, involved therein, that was not the subject of and included in
the registration statement when it became effective.
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SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, the Registrant has duly caused Amendment No. 2 to this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the Town of Amherst, State of New York, on the 6th day of January, 2009.
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NATIONAL FUEL GAS COMPANY
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By:
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/s/ D. F. Smith
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D. F. Smith
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President and Chief Executive Officer
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Pursuant to the requirements of the Securities Act
of 1933, Amendment No. 2 to this Registration Statement has been signed by the
following persons on behalf of the Registrant 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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*
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Chairman of the Board of Directors
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January 6, 2009
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P. C. Ackerman
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/s/
D. F. Smith
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President, Chief Executive Officer and Director
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January 6, 2009
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D. F. Smith
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Treasurer and Principal Financial Officer
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January 6, 2009
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R. J. Tanski
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*
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Controller and Principal Accounting Officer
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January 6, 2009
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K. M. Camiolo
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*
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Director
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January 6, 2009
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R. T. Brady
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*
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Director
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January 6, 2009
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R. D. Cash
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Director
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January 6, 2009
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S. E. Ewing
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Director
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January 6, 2009
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R. E. Kidder
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Director
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January 6, 2009
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C. G. Matthews
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II-8
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Director
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January 6, 2009
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G. L. Mazanec
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Director
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R. G. Reiten
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Director
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January 6, 2009
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F. V. Salerno
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*By: /s/ D. F. Smith
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Attorney-in-fact
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January 6, 2009
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D. F. Smith
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II-9
EXHIBIT INDEX
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Exhibit
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Number
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Description of Document
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1.1
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Registration Rights Agreement, dated April 11, 2008 among National Fuel Gas Company and Banc
of America Securities LLC, BNY Mellon Capital Markets, Inc. and J.P. Morgan Securities Inc., as
representatives of several initial purchasers
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3.1
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Restated Certificate of Incorporation of National Fuel Gas Company dated September 21, 1998
(Exhibit 3.1, Form 10-K for fiscal year ended
September 30, 1998 in File No. 1-3880)
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3.2
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Certificate of Amendment of Restated Certificate of Incorporation (Exhibit 3(ii), Form 8-K dated
March 14, 2005 in File No. 1-3880)
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3.3
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National Fuel Gas Company By-Laws as amended June 11, 2008 (Exhibit 3.1, Form 8-K dated
June 11, 2008 in File No. 1-3880)
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4.1
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Indenture dated as of October 1, 1999, between the Company and The Bank of New York Mellon
(Exhibit 4.1, Form 10-K for fiscal year ended
September 30, 1999 in File No. 1-3880)
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4.2
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Officers Certificate establishing the terms of 6.50% Notes due 2018, dated April 11, 2008 (Exhibit
4.1, Form 10-Q for the quarterly period ended June 30, 2008 in File No. 1-3880)
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4.3
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Form of 6.50% Notes due 2018 (included as Exhibit A to Exhibit 4.2 above)
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5.1**
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Opinion of Dewey & LeBoeuf LLP
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5.2
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Opinion of Lowenstein Sandler PC
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8.1**
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Tax Opinion of Dewey & LeBoeuf LLP (included in Exhibit 5.1)
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12.1**
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Statement regarding computation of Ratio of Earnings to Fixed Charges
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21.1
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Subsidiaries of the Registrant (Exhibit 21, Form 10-K for fiscal year ended September 30, 2008 in
File No. 1-3880)
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23.1**
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Consent of Independent Registered Public Accounting Firm
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23.2**
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Consent of Netherland, Sewell & Associates, Inc. regarding Seneca Resources Corporation
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23.3**
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Consent of Dewey & LeBoeuf LLP (included in Exhibit 5.1)
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23.4
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Consent of Lowenstein Sandler PC
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24.1
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Powers of Attorney
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25.1
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Statement of Eligibility of Trustee on Form T-1 of The Bank of New York Mellon
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99.1
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Form of Letter of Transmittal
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99.2
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Form of Notice of Guaranteed Delivery
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99.3
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Form of Letter to Registered Holders and DTC Participants
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99.4
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Form of Instructions to Registered
Holder or DTC Participant
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II-10
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99.5
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Form of Letter to Clients
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99.6
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Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9
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________________________________________
*
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Incorporated by reference.
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**
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Previously filed.
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