As
filed
with the Securities and Exchange Commission on August 17, 2007
Registration
No. 333-
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
MDC
PARTNERS INC.
(Exact
Name
of Registrant as Specified in its Charter)
Canada
(State
or Other Jurisdiction of
Incorporation
or Organization)
|
7311
(Primary
Standard Industrial
Classification
Code Number)
|
98-0364441
(I.R.S.
Employer Identification Number)
|
45
Hazelton Avenue, Toronto, Ontario M5R 2E3 Canada
(416)
960-9000
(Address
of Registrant’s Principal Executive Offices)
2005
STOCK INCENTIVE PLAN (AS
AMENDED ON JUNE 1, 2007);
RESTRICTED
STOCK GRANTED PURSUANT TO AN EMPLOYMENT AGREEMENT
(DATED JULY 19,
2007)
(Full
Title of the Plans)
Mitchell
Gendel, Esq.
General
Counsel
950
Third Avenue, New York, New York 10022
(646)
429-1803
(Name,
Address, and Telephone Number, Including Area Code, of Agent for
Service)
with
copies to:
Arthur
H.
Kohn, Esq.
Cleary,
Gottlieb, Steen & Hamilton LLP
One
Liberty Plaza
New
York,
NY 10006
(212)
225-2000
CALCULATION
OF REGISTRATION FEE
|
Name
of
Plan
|
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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
|
|
|
|
|
|
|
|
|
|
|
|
2005
Stock Incentive Plan (As amended on June 1, 2007)
|
|
Class
A subordinate voting shares
|
|
1,000,000
|
|
$9.69(2)
|
|
$9,690,000
|
|
$
297.48(2)
|
|
|
|
|
|
|
|
|
|
|
|
Restricted
Stock Granted Pursuant to an Employment Agreement dated July 19,
2007
|
|
Class
A subordinate voting shares
|
|
35,000
|
|
$9.69(2)
|
|
$339,150
|
|
$
10.41(2)
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL
|
|
Class
A subordinate voting shares
|
|
1,035,000
|
|
--
|
|
$10,029,150
|
|
$307.89
|
(1) |
Together
with an indeterminate number of ordinary shares that may be necessary
to
adjust the number of shares reserved for issuance pursuant to the
Registrant’s 2005 Stock Incentive Plan (as amended on June 1, 2007) (the
“2005 Plan”) and the Restricted Stock Grant Agreement dated August 10,
2007 with respect to the 35,000 shares of restricted stock granted
pursuant to Employment Agreement dated July 19, 2007 (collectively,
the
“Restricted Stock Grant Agreement”) as a result of stock splits, stock
dividends or similar adjustments of the outstanding Class A subordinate
voting shares of MDC Partners Inc. (the “Registrant”).
|
(2) |
Estimated
solely for the purpose of determining the amount of the registration
fee
in accordance with Rule 457(h) under the Securities Act of 1933, as
amended (the “Securities Act”) and based upon the average of the high and
low prices of the Class
A subordinate voting shares of
the Registrant as reported on the NASDAQ
on
August 13, 2007.
|
PART
I
INFORMATION
REQUIRED IN SECTION 10(a) PROSPECTUS
Item
1. |
Plan
Information.
|
Not
filed
as part of this Registration Statement pursuant to Note to Part 1 of Form
S-8.
Item
2. |
Registrant
Information and Employee Plan Annual Information.
|
Not
filed
as part of this Registration Statement pursuant to Note to Part 1 of Form
S-8.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. |
Incorporation
of Documents by Reference.
|
The
following documents, which previously have been filed by the Registrant with
the
Securities and Exchange Commission (the “Commission”), are incorporated herein
by reference and made a part hereof:
(i) The
Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31,
2006, filed with the Commission on March
15,
2007 (the “Annual Report”);
(ii) All
other
reports filed by the Registrant pursuant to Section 13(a) or Section 15(d)
of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”) since the
end of the fiscal year covered by the Annual Report; and
(iii) The
description of the Registrant’s Class A subordinate voting shares (the “Shares”)
contained in the Registrant’s registration statement on Form
S-1,
filed
with the Commission on March
28,
2006.
All
reports and other documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
hereto, which indicates that all securities offered hereunder have been sold
or
which deregisters all securities 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.
For
purposes of this Registration Statement, 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 contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated herein by reference
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.
Nothing
in this Registration Statement shall be deemed to incorporate information
furnished but not filed with the Commission pursuant to Item 2.01 or Item 7.01
of Form 8-K.
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
Canada Business Corporations Act (the “Act”) provides generally that a
corporation may indemnify a director or officer against all costs, charges
and
expenses reasonably incurred by the director or officer in respect of any civil,
criminal, administrative, investigative or other proceeding to which he or
she
is made a party by reason of being a director or officer, where the director
or
officer acted honestly and in good faith with a view to the best interests
of
the corporation and, in the case of a criminal or administrative action or
proceeding enforced by a monetary penalty, the director or officer had
reasonable grounds for believing that his or her conduct was lawful. Where
such
an officer or director was not judged by the court or other competent authority
to have committed any fault or omitted to do anything he or she ought to have
done, such officer or director is entitled to indemnification from the
corporation for such costs, charges and expenses which were reasonably incurred
by the officer or director in connection with the defense of any civil,
criminal, investigative or other proceeding to which he or she was subject
by
reason of being a director or officer.
The
Registrant’s bylaws provide that, except as otherwise provided for in the Act,
as amended, no director or officer shall be liable for the acts, receipts,
neglects or defaults of any other director, officer, employee, or agent, or
for
joining in any receipt or other act for conformity, or for any loss, damage
or
expense happening to the Registrant through the insufficiency or deficiency
of
title to any property acquired for or on behalf of the Registrant, or for the
insufficiency or deficiency of any security in or upon which any of the moneys
of or belonging to the Registrant shall be invested, or for any loss or damage
arising from the bankruptcy, insolvency or tortious acts of any person firm
or
corporation with whom or which any of the moneys, securities or effects of
the
Registrant shall be lodged or deposited, or for any loss, conversion,
misapplication or misappropriation of or any damage resulting from any dealings
with any moneys, securities or other assets belonging to the Registrant, or
for
any other loss, damage or misfortune whatsoever which shall happen in the
execution of the duties of his or her respective office or trust or in relation
thereto, unless the same happen by or through his or her failure to exercise
the
powers and to discharge the duties of his or her office honestly and in good
faith with a view to the best interests of the Registrant and in connection
therewith to exercise the care, diligence and skill that a reasonably prudent
person would exercise in comparable circumstances. The directors for the time
being of the Registrant shall not be under any duty or responsibility in respect
of any contract, act or transaction whether or not made, done or entered into
in
the name or on behalf of the Registrant, except such as shall have been
submitted to and authorized or approved by the board of directors. If any
director or officer of the Registrant shall be employed by or shall perform
services for the Registrant otherwise than as a director or officer or shall
be
a member of a firm or a shareholder, director or officer of a company which
is
employed by or performs services for the Registrant, the fact of his or her
being a director or officer of the Registrant shall not disentitle such director
or officer or such firm or company, as the case may be, from receiving proper
remuneration for such services.
In
addition, under the Registrant’s bylaws, subject to Section 124 of the Act,
every director and officer of the Registrant and his or her heirs, executors,
administrators and other legal personal representatives shall from time be
indemnified and save harmless by the Registrant from and against (a) any
liability and all costs, charges and expenses that he or she sustains or incurs
in respect of any action, suit or proceeding that is proposed or commenced
against him or her for or in respect of anything done or permitted by him or
her
in respect of the execution of the duties of his or her office; and (b) all
other costs, charges and expenses that he or she sustains or incurs in respect
of the affairs of the Registrant. The Registrant shall also indemnify any such
person in other circumstances as the Act permits or requires.
The
Registrant’s 2005 Stock Incentive Plan (the “2005 Plan”) provides that no member
of the committee of the Board of Directors of the Registrant responsible for
administration of the 2005 Plan shall be liable for any action, omission, or
determination relating to the 2005 Plan and the Registrant shall indemnify
and
hold harmless each member of such committee and each other director or employee
of the Registrant to whom any duty or power relating to the administration
or
interpretation of the 2005 Plan has been delegated against any cost or expense
(including counsel fees) or liability (including any sum paid in settlement
of a
claim with the approval of the committee) arising out of any action, omission
or
determination relating to the 2005 Plan, unless, in either case, such action,
omission or determination was taken or made by such member, director or employee
in bad faith and without reasonable belief that it was in the best interests
of
the Registrant.
The
Registrant also carries liability insurance covering officers and
directors.
Item
7. |
Exemption
From Registration Claimed.
|
Not
applicable.
The
following exhibits are filed with or incorporated by reference into this
Registration Statement (numbering corresponds to Exhibit Table in Item 601
of
Regulation S-K):
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4.1
|
Articles
of Amalgamation, dated January 1, 2004 (incorporated by reference
to
Exhibit 3.1 to the Registrant’s Form 10-Q filed on May 10,
2004);
|
|
4.2
|
Articles
of Continuance, dated June 28, 2004 (incorporated by reference to
Exhibit
3.3 to the Registrant’s Form 10-Q filed on August 4,
2004);
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|
4.3
|
General
By-law No. 1, as amended on April 29, 2005 (incorporated by reference
to
Exhibit 3.2 to the Registrant’s Form 10-K filed on March 15, 2007);
|
|
4.4
|
2005
Stock Incentive Plan (as amended on June 1, 2007) of the Registrant,
adopted by the shareholders of the Registrant on May 26, 2005
(incorporated by reference to Exhibit C to the Registrant’s Form DEF filed
on April 27, 2007);
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|
4.5.1
|
Employment
Agreement of David Doft dated July 19, 2007 (incorporated by referenced
to
Exhibit 10.7 of the Registrant’s Form 10-Q filed on August 7,
2007).
|
|
4.5.2
|
Restricted
Stock Grant Agreement dated August 10, 2007 (filed herewith);
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5.1
|
Opinion
of Stikeman Elliott LLP, as to the legality of the issuance of the
ordinary shares offered hereby.
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23.1 |
Consent
of KPMG LLP, Independent Auditors.
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23.2 |
Consent
of BDO Seidman LLP, Independent Auditors.
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23.3
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Consent
of Stikeman Elliott LLP (included in Exhibit
5.1).
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(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;
(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; 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;
provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if 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 Exchange
Act
that are incorporated by reference in the Registration Statement.
(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.
(b)
The
undersigned Registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act, each filing of the Registrant’s annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of the employee benefit plan’s 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 Commission 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act, 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 Form S-8 Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
City
of New York, State of New York, on the 17th
day of
August, 2007.
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MDC
PARTNERS INC. |
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By: |
/s/ Mitchell
Gendel |
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Name:
Mitchell Gendel |
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Title:
General Counsel & Corporate Secretary |
POWER
OF ATTORNEY
Each
person whose signature appears below on this Registration Statement hereby
constitutes and appoints Miles Nadal and Mitchell Gendel with full power to
act
as his or her true and lawful attorney-in-fact and agent, 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 (unless revoked in writing) to sign any
and
all amendments (including post-effective amendments thereto) to this
Registration Statement to which this power of attorney is attached, and to
file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting to such
attorney-in-fact and agents full power and authority to do and perform each
and
every act and thing requisite and necessary to be done in connection therewith,
as full to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that such attorney-in-fact and agents,
or
their or his or her substitute or substitutes, may lawfully do or cause to
be
done by virtue hereof.
This
Power of Attorney may be executed in multiple counterparts, each of which shall
be deemed an original, but which taken together shall constitute one
instrument.
Pursuant
to the requirements of the Securities Act, this Form S-8 Registration Statement
has been signed below by the following persons in the capacities indicated
on
the 17th
day of
August, 2007.
Signature
|
Title
|
Date
|
|
|
|
/s/
|
Chairman,
President and
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August
17, 2007
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(Miles
S. Nadal)
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Chief
Executive Officer
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/s/
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Presiding
Director
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August
17, 2007
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/s/
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Chief
Financial Officer
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August
17, 2007
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/s/
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Senior
Vice President and
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August
17, 2007
|
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Chief
Accounting Officer
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/s/
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Director
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August
17, 2007
|
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/s/
|
Director
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August
17, 2007
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/s/
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Director
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August
17, 2007
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/s/
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Director
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August
17, 2007
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/s/
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Director
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August
17, 2007
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/s/
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Director
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August
17, 2007
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/s/
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Authorized
U.S. Representative
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August
17, 2007
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(Mitchell
Gendel, Esq.)
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EXHIBIT
INDEX
Exhibit
No.
|
|
Description
|
|
Method
of Filing
|
|
|
|
|
|
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4.1
|
|
Articles
of Amalgamation, dated January 1, 2004
|
|
Incorporated
by reference to Exhibit 3.1 to the Registrant’s Form 10-Q dated May 10,
2004
|
|
|
|
|
|
|
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4.2
|
|
Articles
of Continuance, dated June 28, 2004
|
|
Incorporated
by reference to Exhibit 3.3 to the Registrant’s Form 10-Q dated August 4,
2004
|
|
|
|
|
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4.3
|
|
General
By-law No. 1, as amended on April 29, 2005
|
|
Incorporated
by reference to Exhibit 3.2 to the Registrant’s Form 10-K dated March 15,
2007
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|
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4.4
|
|
2005
Stock Incentive Plan (as amended on June 1, 2007)
|
|
Incorporated
by reference to Exhibit C of the Registrant’s Proxy Statement on Form DEF
dated April 27, 2007
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|
|
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4.5
|
|
Stock
Appreciation Rights Plan, dated as of April 22, 2004, as
amended
|
|
Incorporated
by reference to Exhibit 10.1 to the Company’s Form 10-Q filed on May 5,
2006
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|
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4.5.1
|
|
Employment
Agreement between the Company and David Doft, as Chief Financial
Officer
(effective August 10, 2007) dated July 19, 2007
|
|
Incorporated
by reference to Exhibit 10.7 to the Company’s Form 10-Q filed on August 8,
2007
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4.5.2
|
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Restricted
Stock Grant Agreement dated August 10, 2007
|
|
Filed
herewith
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5.1
|
|
Opinion
of Stikeman Elliott LLP, as to the legality of the issuance of the
ordinary shares offered hereby
|
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Filed
herewith
|
|
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23.1
|
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Consent
of KPMG LLP, Independent Auditors
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Filed
herewith
|
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23.2
|
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Consent
of BDO Seidman LLP, Independent Auditors
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Filed
herewith
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23.3
|
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Consent
of Stikeman Elliott LLP
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Included
in Exhibit 5.1
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24.1
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Power
of Attorney
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Included
on signature pages
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