VULCAN MATERIALS COMPANY
As filed with the Securities and Exchange Commission on December 21, 2007.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VULCAN MATERIALS COMPANY
(Exact name of registrant as specified in its charter)
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New Jersey
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20-8579133 |
(State or other jurisdiction of
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(I.R.S. Employer |
incorporation or organization)
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Identification No.) |
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1200 Urban Center Drive |
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Birmingham, Alabama
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35242 |
(Address of Principal Executive Offices)
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(Zip Code) |
Vulcan Materials Company Deferred Stock Plan for Nonemployee Directors
(Full title of the plan)
William F. Denson, III, Esq.
Senior Vice President and General Counsel
Vulcan Materials Company
1200 Urban Center Drive
Birmingham, Alabama 35242
(Name and address of agent for service)
(205) 298-3000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed |
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Title of |
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Maximum Offering |
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Proposed Maximum |
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Securities to |
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Amount to be |
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Price per |
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Aggregate Offering |
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Amount of |
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be Registered |
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Registered(1)(2) |
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Share(1)(2) |
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Price |
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Registration Fee |
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Common Stock, $1.00 par value (1)(2) |
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10,804 shares |
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$80.81 (3) |
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$873,071.24 (3) |
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$26.80 |
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(1) |
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In addition to the shares set forth in the table, pursuant to Rule 416(a) under the
Securities Act of 1933, as amended (the Securities Act), this registration statement
shall be deemed to cover an indeterminable number of shares of common stock issuable under
the plan to prevent dilution resulting from stock splits, stock dividends or similar
transactions. |
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(2) |
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Includes corresponding rights to acquire shares of Vulcan Materials Company preferred
stock pursuant to the Rights Agreement, dated as of November 16, 2007, between Vulcan
Materials Company and The Bank of New York, or any successor rights agreement of Vulcan
Materials Company. |
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(3) |
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Estimated pursuant to Rule 457(c) and Rule 457(h) under the Securities Act solely for
the purpose of computing the registration fee and based upon the average of the high and
low prices per share of the common stock reported on the New York Stock Exchange composite
transaction tape on December 18, 2007. |
TABLE OF CONTENTS
EXPLANATORY NOTE
As a result of the consummation on November 16, 2007 of the transactions contemplated by the
Agreement and Plan of Merger, dated as of February 19, 2007, as amended April 9, 2007 (the Merger
Agreement), by and among Legacy Vulcan Corp., formerly known as Vulcan Materials Company
(Legacy Vulcan), Florida Rock Industries, Inc. (Florida Rock), Vulcan Materials Company,
formerly known as Virginia Holdco, Inc. (Registrant), Virginia Merger Sub, Inc. and Fresno
Merger Sub, Inc., each outstanding share of common stock of Legacy Vulcan was automatically
converted into one share of common stock of the Registrant, and the Registrant assumed the
obligations (including outstanding equity awards) under the plan set forth on the cover page
hereto.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information. *
Item 2. Registrant Information and Employee Plan Annual Information. *
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The information required by Items 1 and 2 of Part I of Form S-8 is omitted from this
Registration Statement in accordance with Rule 428 under the Securities Act of 1933 and the Note
to Part I of Form S-8. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant is subject to the informational and reporting requirements of Sections 13(a),
14, and 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), and in
accordance therewith files reports, proxy statements and other information with the Securities and
Exchange Commission (the Commission). The following documents, which are, or will be, on file
with the Commission, are incorporated in this registration statement by reference:
(1) Legacy Vulcans Annual Report on Form 10-K for the year ended December 31, 2006, filed by
Legacy Vulcan pursuant to Section 13 of the Exchange Act, and filed by the Registrant as Annex G to
the Registrants registration statement on Form S-4 (Reg. No. 333-142060), as amended, filed on
July 13, 2007.
(2) Legacy Vulcans Quarterly Report on Form 10-Q for the quarterly period ended March 31,
2007, filed by Legacy Vulcan pursuant to Section 13 of the Exchange Act, and filed by the
Registrant as Annex I to the Registrants registration statement on Form S-4 (Reg. No. 333-142060),
as amended, filed on July 13, 2007.
(3) Legacy Vulcans Quarterly Report on Form 10-Q for the quarterly period ended June 30,
2007, filed by Legacy Vulcan pursuant to Section 13 of the Exchange Act, filed on July 31, 2007.
(4) Legacy Vulcans Quarterly Report on Form 10-Q for the quarterly period ended September 30,
2007, filed by Legacy Vulcan pursuant to Section 13 of the Exchange Act, filed on October 31, 2007.
(5) Legacy Vulcans Definitive Proxy Statement on Schedule 14A, filed by Legacy Vulcan
pursuant to Section 14 of the Exchange Act on April 11, 2007, and filed by the Registrant as Annex
H to the Registrants registration statement on Form S-4 (Reg. No. 333-142060), as amended, filed
on July 13, 2007.
(6) Legacy Vulcans Current Reports on Form 8-K filed on July 12, 2007, July 17, 2007, October
15, 2007, November 16, 2007 and November 21, 2007 pursuant to Section 13 of the Exchange Act.
(7) The description of the capital stock of the Registrant included in the Registrants
registration statement on page 86 of Form S-4, as amended (Reg. No. 333-142060), filed with the
Commission on July 13, 2007, and the description of the Rights included in the Form 8-K of the
Registrant filed on November 16, 2007, including any amendments or reports filed for the purpose of
updating such description.
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All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this registration statement and to be
part hereof from the date of the filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for the purposes of this registration statement to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this registration
statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
William F. Denson, III is the Senior Vice President and General Counsel of the Registrant and,
as a result of such relationship, could be deemed to have a substantial interest in the Registrant.
In addition, Mr. Denson holds common stock of and employee stock options to purchase common stock
of the Registrant.
Item 6. Indemnification of Directors and Officers.
Article IX of the Registrants Certificate of Incorporation provides that, as to acts or
omissions occurring on or after May 6, 1988, no director or officer of the Registrant shall be
liable to the Registrant or any of its shareholders for monetary damages for breach of any duty
owed as director or officer to the Registrant or any of its shareholders, to the extent that such
exemption from liability is permitted under the New Jersey Business Corporation Act (the
Statute), as the same may be amended from time to time, or under any revision thereof or
successor statute thereto. Amendments to the Statute which were adopted in 1987 (the New Jersey
Amendments) permit such exemptions from liability as the foregoing for officers and directors,
except in the case of a breach of duty based on an act or omission (a) in breach of such persons
duty of loyalty to the Registrant or its shareholders, (b) not in good faith or involving a knowing
violation of law or (c) resulting in the receipt by such person of an improper personal benefit.
In addition, Article IV of the Registrants By-laws provides as follows:
(a) Subject to the provisions of this Article IV, the corporation shall indemnify the
following persons to the fullest extent permitted and in the manner provided by and
the circumstances described in the laws of the State of New Jersey, including Section
14A:3-5 of the New Jersey Business Corporation Act and any amendments thereof or
supplements thereto: (i) any person who is or was a director, officer, employee or
agent of the corporation; (ii) any person who is or was a director, officer, employee
or agent of any constituent corporation absorbed by the corporation in a consolidation
or merger, but only to the extent that (a) the constituent corporation was obligated
to indemnify such person at the effective date of the merger or consolidation or (b)
the claim or potential claim of such person for indemnification was disclosed to the
corporation and the operative merger or consolidation documents contain an express
agreement by the corporation to pay the same; (iii) any person who is or was serving
at the request of the corporation as a director, officer, trustee, fiduciary, employee
or agent of any other domestic or foreign corporation, or any partnership, joint
venture, sole proprietorship, trust, employee benefit plan or other enterprise,
whether or not for profit; and (iv) the legal representative of any of the foregoing
persons (collectively, a Corporate Agent).
(b) Anything herein to the contrary not withstanding, the corporation shall not be
obligated under this Article IV to provide indemnification (i) to any bank, trust
company, insurance company, partnership or other entity, or any director, officer,
employee or agent thereof or (ii) to any other person who is not a director, officer
or employee of the corporation, in respect of any service by such person or entity,
whether at the request of the corporation or by agreement therewith, as investment
advisor, actuary, custodian, trustee, fiduciary or consultant to any employee benefit
plan.
(c) To the extent that any right of indemnification granted hereunder requires any
determination that a Corporate Agent shall have been successful on the merits or
otherwise in any Proceeding (as hereinafter defined) or in defense of any claim, issue
or matter therein, the Corporate Agent shall be deemed to have been successful if,
without any settlement having been made by the Corporate Agent, (i) such Proceeding
shall have been dismissed or
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otherwise terminated or abandoned without any judgment or order having been entered
against the Corporate Agent, (ii) such claim, issue or other matter therein shall have
been dismissed or otherwise eliminated or abandoned as against the Corporate Agent, or
(iii) with respect to any threatened Proceeding, the Proceeding shall have been
abandoned or there shall have been a failure for any reason to institute the
Proceeding within a reasonable time after the same shall have been threatened or after
any inquiry or investigation that could have led to any such Proceeding shall have
been commenced. The Board of Directors or any authorized committee thereof shall have
the right to determine what constitutes a reasonable time or an abandonment for
purposes of this paragraph (c), and any such determination shall be conclusive and
final.
(d) To the extent that any right of indemnification granted hereunder shall require
any determination that the Corporate Agent has been involved in a Proceeding by reason
of his or her being or having been a Corporate Agent, the Corporate Agent shall be
deemed to have been so involved if the Proceeding involves action allegedly taken by
the Corporate Agent for the benefit of the corporation or in the performance of his or
her duties or the course of his or her employment for the corporation.
(e) If a Corporate Agent shall be a party defendant in the Proceeding, other than a
Proceeding by or in the right of the corporation, and the Board of Directors or a
duly authorized committee of disinterested directors shall determine that it is in the
best interests of the corporation for the corporation to assume the defense of any
such Proceeding, the Board of Directors or such committee may authorize and direct
that the corporation assume the defense of the Proceeding and pay all expenses in
connection therewith without requiring such Corporate Agent to undertake to pay or
repay any part thereof. Such assumption shall not affect the right of any such
Corporate Agent to employ his or her own counsel or to recover indemnification under
this By-law to the extent that he may be entitled thereto.
(f) As used herein, the term Proceeding shall mean and include 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.
(g) The right to indemnification granted under this Article IV shall not be exclusive
of any other rights to which any Corporate Agent seeking indemnification hereunder may
be entitled.
Pursuant to the authority granted in the Statute, the Registrant has procured insurance for
the purpose of substantially covering its future potential liability for indemnification under the
provisions discussed above and certain future potential liability of individual directors and
officers incurred in their capacity as such which is not subject to indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following Exhibits are filed as a part of the Registration Statement:
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Certificate of Incorporation (Restated 2007) of the Registrant, filed as Exhibit 3.1 to the
Registrants Current Report on Form 8-K filed on November 16, 2007. |
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*4(b)
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Amended and Restated By-laws of the Registrant, filed as Exhibit 3.2 to the Registrants Current Report on Form 8-K filed
on November 16, 2007. |
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*4(c)
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Rights Agreement between the Registrant and The Bank of New York, dated November 16, 2007, filed as Exhibit 10.1 to the
Registrants Current Report on Form 8-K filed on November 16, 2007. |
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5(a)
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Opinion of William F. Denson, III as to the legality of the securities being registered. |
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23(a)
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Consent of Deloitte & Touche LLP. |
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23(b)
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Consent of William F. Denson, III (contained in Exhibit 5(a)). |
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Powers of Attorney of certain directors. |
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Incorporated by reference. |
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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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To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; |
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(ii) |
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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; |
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(iii) |
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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 periodic reports filed with or furnished to the Commission by
the registrant pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement; and
(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.
(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 Section 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 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
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission, such indemnification is against public policy as expressed in
the 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
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Birmingham, State of Alabama, on December 21, 2007.
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VULCAN MATERIALS COMPANY
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By: |
/s/ Donald M. James
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Donald M. James |
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Chairman and Chief Executive Officer |
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Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed below 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/ Donald M. James
Donald M. James |
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Chairman, Chief Executive
Officer and Director
(Principal Executive Officer)
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December 21, 2007 |
/s/ Daniel F. Sansone
Daniel F. Sansone |
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Senior Vice President
and
Chief Financial Officer
(Principal Financial Officer)
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December 21, 2007 |
/s/ Ejaz A. Khan
Ejaz A. Khan |
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Vice President, Controller
and Chief Information Officer
(Principal Accounting Officer)
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December 21, 2007 |
Philip J. Carroll, Jr. |
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Director |
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Phillip W. Farmer |
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Director |
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H. Allen Franklin |
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Director |
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Ann McLaughlin Korologos |
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Director |
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Douglas J. McGregor |
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Director |
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James V. Napier |
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Director |
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Donald B. Rice |
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Director |
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Orin R. Smith |
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Director |
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Vincent J. Trosino |
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Director |
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John D. Baker II |
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Director |
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/s/ William F. Denson, III
William F. Denson, III
Attorney-in-Fact
For each of the Directors
Listed Above |
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December 21, 2007 |
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INDEX TO EXHIBITS
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Exhibit Number |
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Description |
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5(a)
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Opinion of William F. Denson, III as to the legality of the securities being registered. |
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23(a)
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Consent of Deloitte & Touche LLP. |
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23(b)
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Consent of William F. Denson, III (contained in Exhibit 5(a)). |
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Powers of Attorney of certain Directors. |
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