Cardionet Inc - Securities Registration: Employee Benefit Plan (S-8)
March 19 2008 - 11:45AM
Edgar (US Regulatory)
As filed
with the Securities and Exchange Commission on March 19, 2008
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CardioNet, Inc.
(Exact name of
registrant as specified in its charter)
Delaware
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33-0604557
|
(State or other
jurisdiction of incorporation or
organization)
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|
(I.R.S. Employer
Identification No.)
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1010 Second Avenue
San Diego, California 92101
Tel: (619) 243-7500
(Address of Principal Executive Offices)
2003 Equity Incentive Plan
2008 Equity Incentive Plan
2008 Employee Stock Purchase Plan
2008 Non-Employee Directors Stock
Option Plan
(Full titles of the plans)
Arie Cohen
President and Chief Executive Officer
CardioNet, Inc.
1010 Second Avenue
San Diego, California 92101
Tel: (619) 243-7500
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Frederick
T. Muto, Esq.
Ethan E. Christensen, Esq.
COOLEY GODWARD KRONISH
4401 Eastgate Mall
San Diego, California 92121
Tel: (858) 550-6000
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
|
|
2003 Equity Incentive Plan
Common Stock (par value $0.001)
|
|
1,721,114 shares
|
(2)
|
$
|
7.56
|
(3)
|
$
|
13,011,622
|
(3)
|
$
|
512
|
|
2008 Equity Incentive Plan
Common Stock (par value $0.001)
|
|
516,753 shares
|
(4)
|
$
|
18.00
|
(5)
|
$
|
9,301,554
|
(5)
|
$
|
366
|
|
2008 Employee Stock Purchase Plan
Common Stock (par value $0.001)
|
|
238,000 shares
|
(6)
|
$
|
18.00
|
(5)
|
$
|
4,284,000
|
(5)
|
$
|
169
|
|
2008 Non-Employee Directors Stock Option Plan
Common Stock (par value $0.001)
|
|
142,500 shares
|
(7)
|
$
|
18.00
|
(5)
|
$
|
2,565,000
|
(5)
|
$
|
101
|
|
(1)
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|
Pursuant to
Rule 416(a) under the Securities Act of 1933, as amended (the
Securities Act
), this
Registration Statement shall also cover any additional shares of Registrants
Common Stock (the
Common Stock
) that become
issuable under the plans by reason of any stock dividend, stock split,
recapitalization or other similar transaction.
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|
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(2)
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|
Represents
shares of Common Stock reserved for issuance
upon the exercise of outstanding options granted under the
CardioNet, Inc. 2003 Equity Incentive Plan (the
2003
EIP
). The 2003 EIP has been terminated and no further option
grants will be made under the 2003 EIP and any shares remaining available for
future grant, plus any shares underlying outstanding options that expire or
are forfeited, have been allocated to our CardioNet, Inc. 2008 Equity
Incentive Plan (the
2008 EIP
).
|
|
|
|
(3)
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|
Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) and
Rule 457(c) of the Securities Act. The proposed maximum aggregate
offering price per share and proposed maximum aggregate offering price for
the 1,721,114 shares of Common Stock reserved for future issuance upon the
exercise of options outstanding under the 2003 EIP are calculated using a weighted
average exercise price for such shares of $7.56 per share based on exercise
prices for such shares ranging from $1.50 to $18.30 per share.
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|
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(4)
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|
Represents 516,753 shares of the Registrants common stock reserved
for future grant under the 2008 EIP. The 2008 EIP provides that an additional
number of shares will automatically be added annually to the shares
authorized for issuance under the 2008 EIP on January 1, from 2009 until
2018. The number of shares added each year will be equal to the least of:
four percent of the aggregate number of shares of the Registrants common
stock outstanding on December 31 of the preceding calendar year;
1,500,000 shares of the Registrants common stock; or a lesser number of
shares of the Registrants common stock that may be determined each year by
the Registrants board of directors.
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(5)
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This estimate is made pursuant to Rule 457(h) of the
Securities Act solely for purposes of calculating the registration fee, and
is based on the price per share of the Registrants common stock in the
initial public offering of the Registrants common stock as set forth in the
Registrants Prospectus filed with the Securities and Exchange Commission on
March 19, 2008 pursuant to Rule 424(b) under the Securities
Act.
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|
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(6)
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|
Represents 238,000 shares of the Registrants common stock reserved
for future grant under the CardioNet, Inc. 2008 Employee Stock Purchase
Plan (the
2008 ESPP
). The 2008 ESPP
provides that an additional number of shares will automatically be added annually
to the shares authorized for issuance under the 2008 ESPP on January 1,
from 2009 until 2018. The number of shares added each year will be equal to
the least of: one percent of the aggregate number of shares of the
Registrants common stock outstanding on December 31 of the preceding
calendar year; 300,000 shares of the Registrants common stock; or a lesser
number of shares of the Registrants common stock that may be determined each
year by the Registrants board of directors.
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(7)
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Represents 142,500 shares of the Registrants common stock reserved
for future grant under the CardioNet, Inc. 2008 Non-Employee Directors
Stock Option Plan (the
2008 NEDSOP
).
The 2008 NEDSOP provides that an additional number of shares will
automatically be added annually to the shares authorized for issuance under
the 2008 NEDSOP on January 1, from 2009 until 2018. The number of shares
added each year will be equal to aggregate number of shares of the
Registrants common stock subject to options granted under the 2008 NEDSOP
during the immediately preceding year or a lesser number of shares of the
Registrants common stock that may be determined each year by the
Registrants board of directors.
|
PART I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM
1. PLAN INFORMATION.
Not required to be filed with this
Registration Statement.
ITEM
2. REGISTRANT INFORMATION AND EMPLOYEE
PLAN ANNUAL INFORMATION.
Not required to be filed with this
Registration Statement.
2
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. INCORPORATION OF DOCUMENTS BY
REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents previously filed by the Registrant with the
Commission:
(a)
The
Registrants prospectus filed on March 19, 2008 pursuant to Rule 424(b) under
the Securities Act, relating to the registration statement on Form S-1
(File No. 333-145547), which contains audited financial statements for the
Registrants latest fiscal year for which such statements have been filed.
(b)
The
description of the Registrants Common Stock contained in the Registrants
registration statement on Form 8-A filed on March 13, 2008 (File No. 001-33993)
under the Securities Exchange Act of 1934, as amended (the Exchange Act),
including any amendment or report filed for the purpose of updating such
description.
All
documents, reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this Registration Statement and 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 into 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 herein by reference shall be deemed
to be modified or superseded for purposes of this Registration Statement to the
extent that a statement herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes that statement. Any such
statement so modified or superseded shall not constitute a part of this
Registration Statement, except as so modified or superseded.
ITEM
4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM
5. INTERESTS OF NAMED EXPERTS AND
COUNSEL.
The validity of the issuance of the Common Stock being offered by this
prospectus and certain other legal matters are being passed upon for the
Registrant by its counsel, Cooley Godward Kronish LLP, San Diego, California.
ITEM
6. INDEMNIFICATION OF DIRECTORS AND
OFFICERS.
The Registrant is incorporated under the laws of the State of Delaware.
Section 145 of the Delaware General Corporation Law provides that a
Delaware corporation may indemnify any persons who are, or are threatened to be
made, parties 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 such corporation), by reason of the fact
that such person was an officer, director, employee or agent of such
corporation, or is or was serving at the request of such person as an officer,
director, employee or agent of another corporation or enterprise. The indemnity
may include expenses (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such person
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the corporations best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his or
her conduct was illegal. A Delaware corporation may indemnify any persons who
are, or are threatened to be made, a party to any threatened, pending or
completed action or suit by or in the right of the corporation by reason of the
fact that such person was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may
3
include expenses
(including attorneys fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit provided such
person acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the corporations best interests except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him or her against the
expenses which such officer or director has actually and reasonably incurred.
The Registrants amended and restated certificate of incorporation and amended
and restated bylaws provide for the indemnification of the Registrants
directors and officers to the fullest extent permitted under the Delaware
General Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law
permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the corporation
or its stockholders for monetary damages for breach of fiduciary duties as a
director, except for liability for any:
·
transaction from which the director derives an
improper personal benefit;
·
act or
omission not in good faith or that involves intentional misconduct or a knowing
violation of law;
·
unlawful
payment of dividends or redemption of shares; or
·
breach of a
directors duty of loyalty to the corporation or its stockholders.
The Registrants amended and restated certificate of incorporation and
amended and restated bylaws include such a provision. Expenses incurred by any
officer or director in defending any such action, suit or proceeding in advance
of its final disposition shall be paid by the Registrant upon delivery to the
Registrant of an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified by the Registrant.
Section 174 of the Delaware General Corporation Law provides,
among other things, that a director who willfully or negligently approves of an
unlawful payment of dividends or an unlawful stock purchase or redemption may
be held liable for such actions. A director who was either absent when the
unlawful actions were approved, or dissented at the time, may avoid liability
by causing his or her dissent to such actions to be entered in the books
containing minutes of the meetings of the board of directors at the time such
action occurred or immediately after such absent director receives notice of
the unlawful acts.
As permitted by the Delaware General Corporation Law, the Registrant
has entered into indemnity agreements with each of its directors and executive
officers, that require the Registrant to indemnify such persons against any and
all expenses (including attorneys fees), witness fees, damages, judgments,
fines, settlements and other amounts incurred (including expenses of a
derivative action) in connection with any action, suit or proceeding, whether
actual or threatened, to which any such person may be made a party by reason of
the fact that such person is or was a director, an officer or an employee of
the Registrant or any of its affiliated enterprises, provided that such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the Registrants best interests and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
At present, there is no pending litigation or proceeding involving any
of the Registrants directors or executive officers as to which indemnification
is required or permitted, and the Registrant is not aware of any threatened
litigation or proceeding that may result in a claim for indemnification.
The Registrant has an insurance policy covering its officers and directors
with respect to certain liabilities, including liabilities arising under the
Securities Act or otherwise.
4
ITEM
7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM
8. EXHIBITS.
Exhibit
Number
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3.1(1)
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Form of
Registrants Amended and Restated Certificate of Incorporation.
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3.2(1)
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Form of
Registrants Amended and Restated Bylaws.
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4.1(2)
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Form of
Common Stock Certificate of the Registrant.
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4.2(1)
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Warrant issued
by Registrant on August 9, 2000 to Silicon Valley Bank.
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5.1
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Opinion of
Cooley Godward Kronish LLP.
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23.1
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Consent of
Ernst & Young LLP, independent registered public accounting firm.
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23.2
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Consent of
Ernst & Young LLP, independent certified public accountants.
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23.3
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Consent of
Cooley Godward Kronish LLP. Reference is made to Exhibit 5.1.
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24.1
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Power of
Attorney. Reference is made to the signature page hereto.
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99.1(2)
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2003 Equity
Incentive Plan and Form of Stock Option Agreement thereunder.
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99.2(2)
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|
2008 Equity
Incentive Plan and Form of Stock Option Agreement thereunder.
|
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99.3(2)
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|
2008 Employee
Stock Purchase Plan and Form of Offering Document thereunder.
|
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99.4(2)
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|
2008 Non-
Employee Directors Stock Option Plan and Form of Stock Option Agreement
thereunder.
|
(1)
|
Filed as an exhibit to
the Registrants Registration Statement on Form S-1 (File
No. 333-145547), filed with the Commission on August 17, 2007, and
incorporated herein by reference.
|
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(2)
|
Filed as an exhibit to
Amendment No. 5 to the Registrants Registration Statement on
Form S-1 (File No. 333-145547), filed with the Commission on
February 28, 2008, and incorporated herein by reference.
|
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:
(i)
To
include any prospectus required by section 10(a)(3) of the Securities Act
of 1933, as amended (the
Securities Act
);
(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
5
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% change in the maximum aggregate offering
price set forth in the Calculation of Registration Fee table in the effective
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;
Provided, however,
that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the Registration Statement is on Form S-8, 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, as amended
(the
Exchange Act
) that are
incorporated by reference in the Registration Statement; and
(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.
(4)
That, for the purpose of
determining liability of the Registrant under the Securities Act 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)
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 the
purchaser.
(b)
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 (and, where applicable, each filing of an employee benefit plans
annual report pursuant to 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.
(c)
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 SEC 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.
6
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 the City of San Diego, State of California, on March 19,
2008.
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CardioNet, Inc.
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By:
|
/s/ ARIE COHEN
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Arie Cohen
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President, CEO and
Director
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POWER OF
ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
,
that each person whose signature appears below constitutes and appoints Arie
Cohen and Martin P. Galvan, and each of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to 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 connection therewith, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or either of them, or their or his
substitutes or substitute, 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.
Signature
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Title
|
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Date
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/s/ ARIE
COHEN
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President, CEO
and Director
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Arie Cohen
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(Principal
Executive Officer)
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March 19,
2008
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/s/ MARTIN
P. GALVAN
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CFO
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Martin P. Galvan
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(Principal
Financial and Accounting Officer)
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March 19,
2008
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/s/ JAMES
M. SWEENEY
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Executive
Chairman and Director
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March 19,
2008
|
James M. Sweeney
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/s/ FRED
MIDDLETON
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Director
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March 19,
2008
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Fred Middleton
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/s/ WOODROW
MYERS, JR.
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Director
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March 19,
2008
|
Woodrow Myers
Jr., M.D.
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/s/ ERIC
N. PRYSTOWSKY
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Director
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March 19,
2008
|
Eric N.
Prystowsky, M.D.
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/s/ HARRY
T. REIN
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Director
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March 19,
2008
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Harry T. Rein
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/s/ ROBERT
J. RUBIN
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Director
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March 19,
2008
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Robert J. Rubin,
M.D.
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7
EXHIBIT
INDEX
Exhibit
Number
|
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|
3.1(1)
|
|
Form of
Registrants Amended and Restated Certificate of Incorporation.
|
|
|
|
3.2(1)
|
|
Form of
Registrants Amended and Restated Bylaws.
|
|
|
|
4.1(2)
|
|
Form of
Common Stock Certificate of the Registrant.
|
|
|
|
4.2(1)
|
|
Warrant issued
by Registrant on August 9, 2000 to Silicon Valley Bank.
|
|
|
|
5.1
|
|
Opinion of
Cooley Godward Kronish LLP.
|
|
|
|
23.1
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|
Consent of
Ernst & Young LLP, independent registered public accounting firm.
|
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23.2
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Consent of
Ernst & Young LLP, independent certified public accountants.
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23.3
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Consent of
Cooley Godward Kronish LLP. Reference is made to Exhibit 5.1.
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24.1
|
|
Power of
Attorney. Reference is made to the signature page hereto.
|
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|
|
99.1(2)
|
|
2003 Equity
Incentive Plan and Form of Stock Option Agreement thereunder.
|
|
|
|
99.2(2)
|
|
2008 Equity
Incentive Plan and Form of Stock Option Agreement thereunder.
|
|
|
|
99.3(2)
|
|
2008 Employee
Stock Purchase Plan and Form of Offering Document thereunder.
|
|
|
|
99.4(2)
|
|
2008 Non- Employee
Directors Stock Option Plan and Form of Stock Option Agreement
thereunder.
|
(1)
|
Filed as an exhibit to
the Registrants Registration Statement on Form S-1 (File
No. 333-145547), filed with the Commission on August 17, 2007, and
incorporated herein by reference.
|
|
|
(2)
|
Filed as an exhibit to
Amendment No. 5 to the Registrants Registration Statement on
Form S-1 (File No. 333-145547), filed with the Commission on
February 28, 2008, and incorporated herein by reference.
|
8
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