Unassociated Document
As filed
with the Securities and Exchange Commission on September 14, 2010
Registration
No.
333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
U.S.
CONCRETE, INC.
(Exact
name of registrant as specified in its charter)
Delaware
(State
or other jurisdiction of
incorporation
or organization)
2925
Briarpark, Suite 1050
Houston,
Texas
(Address
of Principal Executive Offices)
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76-0586680
(I.R.S. Employer
Identification
No.)
77042
(Zip
Code)
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U.S.
Concrete, Inc., Management Equity Incentive Plan
(Full
title of the plan)
Michael
W. Harlan
U.S.
Concrete, Inc.
President
and Chief Executive Officer
2925
Briarpark, Suite 1050
Houston,
Texas 77042
Telephone:
(713) 499-6200
(Name,
address and telephone number, including area code, of agent for
service)
Indicate
by check mark whether the registrant is a large accelerated filer, and
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act (Check one):
Large
accelerated filer ¨
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Accelerated
filer x
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Non-accelerated
filer ¨
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Smaller
reporting company x
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(Do
not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
Title
of securities to be
registered
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Amount
to be
registered
(1)
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Proposed
maximum
offering
price per
share
(2)
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Proposed
maximum
aggregate
offering
price
(2)
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Amount
of
registration
fee
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Common
Stock, par value $0.001 per share
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2,243,933 shares
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$ |
10.00 |
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$ |
22,439,330 |
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$ |
1,599.93 |
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Total
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2,243,933 shares
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$ |
10.00 |
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$ |
22,439,330 |
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$ |
1,599.93 |
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(1)
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Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the “Securities
Act”) this Registration Statement shall also cover any additional shares
of common stock which become issuable under the above-named plan by reason
of any stock dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which results in
an increase in the number of our outstanding shares of common
stock.
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(2)
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Estimated
solely for the purpose of calculating the registration fee in accordance
with Rule 457(h)(1) under the Securities Act of 1933 and based on the
value attributed to the common stock on the date of the Company’s
emergence from bankruptcy pursuant to the Joint Plan of Reorganization of
U.S. Concrete, Inc., et al., as confirmed by the Bankruptcy Court for the
District of Delaware on July 29,
2010.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1.
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Plan
Information.*
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Item
2.
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Registrant
Information and Employee Plan Annual
Information.*
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* The
documents containing the information specified in Part I will be delivered in
accordance with Rule 428(b)(1) under the Securities Act of 1933, as
amended. Such documents are not required to be, and are not, filed
with the Securities and Exchange Commission (the “Commission”), either as part
of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. These documents, and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
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Incorporation of
Documents by Reference.
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The
following documents, which have been filed by U.S. Concrete, Inc. (the
“Company”) with the Commission, are incorporated in this Registration Statement
by reference:
(a) Its
annual report on Form 10-K for the fiscal year ended December 31, 2009, filed on
March 16, 2010;
(b) The
Company’s Quarterly Reports on Form 10-Q for the quarterly period ended March
31, 2010, filed on May 10, 2010, and for the quarterly period ended June 30,
2010, filed on August 9, 2010;
(c) The
Company’s Current Reports on Form 8-K filed on February 22, 2010, March 9, 2010,
March 25, 2010, April 12, 2010, April 29, 2010, May 6, 2010, May 12, 2010, July
2, 2010, July 22, 2010, July 28, 2010, July 29, 2010, July 30, 2010, August 6,
2010, August 18, 2010, August 27, 2010, September 2, 2010; and
(d) The
description of the Company’s Common Stock, par value $0.001 per share, set forth
in its Amendment No. 1 to Registration Statement on Form 8-A (File No.
000-26025) filed on August 31, 2010.
All
reports and other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than portions of
these documents that are either (1) described in paragraphs (d)(1), (d)(2),
(d)(3) or (e)(5) of Item 407 of Regulation S-K promulgated by the SEC or (2)
furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K, unless
otherwise indicated therein) after the date of this Registration Statement, but
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 herein
and to be a part hereof from the date of filing of such documents.
Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
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.
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Description of
Securities. Not
applicable.
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Item 5.
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Interests of Named Experts and
Counsel. The validity of the common stock offered hereby
will be passed upon for the Company by Kirkland & Ellis LLP (a
partnership that includes professional corporations), Chicago,
Illinois.
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Item
6.
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Indemnification
of Directors and Officers.
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The
Company is incorporated under the laws of the State of Delaware. Section 145 of
the Delaware General Corporation Law, or the DGCL, provides that a corporation
may indemnify any person, including an officer or director, who was or is, or is
threatened to be made, a party 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 is or 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, partnership, joint
venture, trust or other 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 such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interests of
such corporation, and, with respect to any criminal actions and proceedings, had
no reasonable cause to believe that his conduct was unlawful. A Delaware
corporation may indemnify any person, including an officer or director, who was
or is, or is threatened to be made, a party to any threatened, pending or
contemplated action or suit by or in the right of such corporation, under the
same conditions, except that such indemnification is limited to expenses
(including attorneys’ fees) actually and reasonably incurred by such person, and
except that no indemnification is permitted without judicial approval if such
person is adjudged to be liable to such corporation. Where an officer or
director of a corporation is successful, on the merits or otherwise, in the
defense of any action, suit or proceeding referred to above, or any claim, issue
or matter therein, the corporation must indemnify that person against the
expenses (including attorneys’ fees) which such officer or director actually and
reasonably incurred in connection therewith.
The third
amended and restated bylaws of the Company (the “Bylaws”) provide that each
person who was or is made or is threatened to be made a party or is otherwise
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he, or a person for
whom he is the legal representative, is or was a director or officer of the
Company or, while a director or officer of the Company, is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit plans, is indemnified
and held harmless, to the fullest extent permitted by applicable law, against
all liability and loss suffered and expenses (including attorneys’ fees)
reasonably incurred by such person.
The
rights conferred in the Bylaws includes the right to have the Company pay the
expenses (including attorneys’ fees) incurred in defending any such proceeding
in advance of its final disposition, provided, however, that, to the extent
required by law, such payment of expenses in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by the
indemnitee to repay all amounts advanced if it should be ultimately determined
that such indemnitee is not entitled to be indemnified under the Bylaws or
otherwise.
The
Company’s amended and restated certificate of incorporation provides that no
director of the Company shall be personally liable to the Company or its
stockholders for monetary damages for a breach of fiduciary duty as a director,
subject to certain exceptions.
The
foregoing is only a general summary of certain aspects of Delaware law and the
registrant’s organizational documents dealing with indemnification of directors
and officers and does not purport to be complete. It is qualified in its
entirety by reference to the applicable provisions of the DGCL and of the
registrant’s amended and restated certificate of incorporation and
bylaws.
The
Company has entered or will enter into indemnification agreements with each of
its directors and executive officers. The indemnification agreements do or shall
provide for the indemnification of and the advancement of expenses to such
director or officer to the fullest extent permitted by Delaware law. The rights
of the directors and executive officers under the indemnification agreements are
not exclusive of any other rights they may have under Delaware law, directors’
and officers’ liability insurance, the Company’s bylaws or
otherwise. However, the indemnification agreements do prevent double
payment. The indemnification agreements require that the Company
maintain an insurance policy providing liability insurance for director and
officers in effect during the entire period for which the Company is obligated
to indemnify applicable directors or officers under the indemnification
agreements.
Item 7.
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Exemption from Registration
Claimed. Not
applicable.
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Item 8.
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Exhibits. Reference
is made to the attached Exhibit Index, which is incorporated by reference
herein.
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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 the 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. Notwithstanding the
foregoing, any 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
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 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;
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 Section 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;
and
(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 Company’s annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an 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 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 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 Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on September 14, 2010.
U.S.
CONCRETE, INC.
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By:
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/s/
Michael W. Harlan
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Michael
W. Harlan
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President
and Chief Executive
Officer
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POWER OF
ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Michael W. Harlan and Curt M. Lindeman and each of them
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 (including his or her capacity as a
director and/or officer) to sign any or all amendments (including post-effective
amendments) to this registration statement and any subsequent 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 attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and indicated on the
14th day of September, 2010.
Signature
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Title
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/s/
Michael W. Harlan
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President
and Chief Executive Officer and Director
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Michael
W. Harlan
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(Principal
Executive, Financial and Accounting
Officer)
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/s/
Kurt M. Cellar
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Director
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Kurt
M. Cellar
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/s/
Eugene I. Davis
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Director
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Eugene
I. Davis
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/s/
Michael D. Lundin
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Director |
Michael
D. Lundin
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/s/
Robert M. Rayner
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Director
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Robert
M. Rayner
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/s/
Colin M. Sutherland
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Director
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Colin
M. Sutherland
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EXHIBIT
INDEX
Exhibit
Number
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Description
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3.1
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Amended
and Restated Certificate of Incorporation of U.S. Concrete, Inc.
(incorporated by reference to Exhibit 1 to U.S. Concrete’s Amendment No. 1
to Form 8-A, filed August 31, 2010).
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3.2
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Third
Amended and Restated Bylaws of U.S. Concrete, Inc. (incorporated by
reference to Exhibit 2 to U.S. Concrete’s Amendment No. 1 to Form 8-A,
filed August 31, 2010).
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4.1
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U.S.
Concrete, Inc., Management Equity Incentive Plan (incorporated by
reference to Exhibit 10.4 to U.S. Concrete’s Form 8-K, filed September 2,
2010).
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4.2
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U.S.
Concrete, Inc. Non-Qualified Stock Option Award Agreement (incorporated by
reference to Exhibit 10.5 to U.S. Concrete’s Form 8-K, filed September 2,
2010).
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4.3
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U.S.
Concrete, Inc. Restricted Stock Unit Award Agreement (incorporated by
reference to Exhibit 10.6 to U.S. Concrete’s Form 8-K, filed September 2,
2010).
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5.1
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Opinion
of Kirkland & Ellis LLP with respect to the legality of the shares of
common stock being registered hereby.*
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23.1
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Consent
of PricewaterhouseCoopers LLP.*
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23.2
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Consent
of Kirkland & Ellis LLP (included in Exhibit 5.1).*
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24.1
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Power
of Attorney (contained on the signature page to this Registration
Statement).
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* Filed
herewith.