forms8june222009.htm
As filed
with the Securities and Exchange Commission on June 22, 2009
Registration
No.
333-
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
S-8
REGISTRATION
STATEMENT
Under
THE
SECURITIES ACT OF 1933
CHARMING
SHOPPES, INC.
(Exact
name of registrant as specified in its charter)
Pennsylvania
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23-1721355
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(State
or other jurisdiction of
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(I.R.S.
Employer Identification No.)
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incorporation
or organization)
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450 Winks
Lane
Bensalem, Pennsylvania
19020
(Address
of principal executive offices) (Zip Code)
CHARMING
SHOPPES, INC.
2003
Non-Employee Directors Compensation Plan
Inducement
Grant Program
(Full
title of the plans)
COLIN D.
STERN, ESQ.
Charming
Shoppes, Inc.
450 Winks
Lane
Bensalem, Pennsylvania
19020
(Name and
address of agent for service)
(215)
245-9100
(Telephone
number, including area code, of agent for service)
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company (as
defined in Rule 12b-2 of the Exchange Act):
Large
Accelerated Filer x
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Accelerated
Filer o
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Non-accelerated
Filer o
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Smaller
Reporting Company o
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CALCULATION
OF REGISTRATION FEE
Title
of Securities to be Registered (1)
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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
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Amount
of
Registration
Fee (3)
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Common
Stock, $.10 par value
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3,500,000
shares
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$
3.58
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$
12,530,000
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$893.39
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(1)
Pursuant to Rule 416(a), the number of shares the offer and sale of which is
registered hereby shall be adjusted to include any additional shares which may
become issuable as a result of stock splits, stock dividends or similar
transactions in accordance with the anti-dilution provisions of the 2003
Non-Employee Directors Compensation Plan and the Inducement Grant Program
(together, the “Plans”) and outstanding awards thereunder.
(2)
Determined solely for the purpose of computing the registration fee pursuant to
Rules 457(c) and (h)(1) based on the average of the high and low prices of the
Registrant's common stock reported in the NASDAQ National Market on June 18,
2009.
(3)
Calculated pursuant to Section 6(b) of the Securities Act of 1933, as amended,
as follows: $71.30 per $1 million of proposed maximum aggregate offering
price.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Omitted
as permitted by Form S-8 and Rule 428.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The
following documents filed by Charming Shoppes, Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission"), are incorporated by
reference in this Registration Statement:
1.
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Annual
Report on Form 10-K, for the Fiscal Year Ended January 31, 2009, except
Part II, Items 6, 7, and 8, and Part IV, Items 15(a)(1) and 15(a)(2),
which were replaced and superseded by the Company's Current Report on Form
8-K filed on June 19, 2009, are incorporated by reference from the
Form 8-K filed June 19, 2009 and Exhibit 99.1 thereto;
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2.
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Quarterly
Report on Form 10-Q, for the Quarter Ended May 2, 2009;
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3.
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Each
of the Company's Current Reports on Form 8-K filed with the Commission
since January 31, 2009 pursuant to Section 13(a) of the Exchange Act, but
excluding any Form 8-K that was “furnished to” but not “filed” with the
Commission; and
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4.
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The
description of the Company's Common Stock contained in the Registration
Statement on Form S-3 filed by the Company with the Commission on July 1,
1996 (File No. 333-04137) and any description of the Common Stock
contained in any other of the Registrant's registration statements
relating to the Common Stock filed with the Commission under the
Securities Exchange Act of 1934, including any amendment or report filed
for the purpose of updating the
description.
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All
reports and other documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
after the date of this Registration Statement, but prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered by this Registration Statement have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement. Each
document incorporated by reference into this Registration Statement shall be
deemed to be a part of this Registration Statement, from the date of the filing
of such document with the Commission until the information contained therein is
superseded or updated by any subsequently filed document which is incorporated
by reference into the Registration Statement.
Any
statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes hereof to the extent that a
statement contained herein (or in any other subsequently filed document that is
also incorporated by reference herein) modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
hereof.
ITEM
4. DESCRIPTION OF SECURITIES.
The class
of securities to be offered under this Registration Statement is registered
under Section 12(g) of the Exchange Act.
ITEM
5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The
legality of the shares of Common Stock offered hereby has been passed upon for
the Registrant by Colin D. Stern, Esq., Executive Vice President, General
Counsel and Secretary of the Registrant. As of June 22, 2009, Mr.
Stern owned 68,508 shares of the Company's Common Stock directly, held equity
awards providing contractual rights to receive 77,573 shares of Common Stock in
the future assuming attainment of performance targets and/or satisfaction of
other vesting conditions (additional shares could be earned for above-target
performance), and 242,412 stock appreciation rights relating to Common
Stock.
ITEM
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections
1741 and 1742 of the Pennsylvania Business Corporation Law of 1988, as amended
(the "PBCL"), provide that a business corporation may indemnify directors and
officers against liabilities and expenses they may incur as such provided that
the particular person acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the corporation,
and, with respect to any criminal proceeding, had no reasonable cause to believe
his or her conduct was unlawful. In general, the power to indemnify under these
sections does not exist in the case of actions against a director or officer by
or in the right of the corporation if the person otherwise entitled to
indemnification shall have been adjudged to be liable to the corporation unless
it is judicially determined that, despite the adjudication of liability but in
view of all the circumstances of the case, the person is fairly and reasonably
entitled to indemnification for specified expenses. Section 1743 of the PBCL
provides that the corporation is required to indemnify directors and officers
against expenses they may incur in defending actions against them in such
capacities if they are successful on the merits or otherwise in the defense of
such actions.
Section
1713 of the PBCL permits the shareholders to adopt a bylaw provision relieving a
director (but not an officer) of personal liability for monetary damages except
where (i) the director has breached the duties of his or her office under
Chapter 17, Subchapter B of the PBCL ("Subchapter B"), and (ii) such conduct
constitutes self-dealing, willful misconduct or recklessness. The statute
provides that a director may not be relieved of responsibility under a criminal
statute or of liability for the payment of taxes pursuant to any federal, state
or local law.
Section
1746 of the PBCL grants a corporation broad authority to indemnify its directors
and officers for liabilities and expenses incurred in such capacity, except in
circumstances where the act or failure to act giving rise to the claim for
indemnification is determined by a court to have constituted willful misconduct
or recklessness.
Section
1747 of the PBCL permits a corporation to purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation, or
is or was serving at the request of the corporation as a representative of
another corporation or other enterprise, against any liability asserted against
such person and incurred by him or her in any such capacity, or arising out of
his or her status as such, whether or not the corporation would have the power
to indemnify the person against such liability under Subchapter B.
Section
7.01 of the Bylaws provides that the Company will indemnify any person who is a
party to or is threatened to be made a party to any threatened, pending or
completed proceeding (including a proceeding by or in the right of the
Registrant) by reason of the fact that such person is or was a director, officer
or employee of the Registrant or, at the request of the Registrant was serving
as a director, officer, partner, fiduciary or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, to
the fullest extent permitted by law, including expenses (including attorneys'
fees), damages, punitive damages, judgments, penalties, fines and amounts paid
in settlement actually and reasonably incurred by such person unless such act or
failure to act is finally determined by a court to have constituted willful
misconduct or recklessness. Section 7.02 of the Bylaws provides for the
advancement of expenses to an indemnified party upon receipt of an undertaking
by the party to repay those amounts if it is ultimately determined that the
indemnified party is not entitled to indemnification.
Section
7.04 of the Bylaws authorizes the Registrant to use any mechanism or
arrangement, as determined by the Board of Directors, to further effect, satisfy
or secure its indemnification obligations, including purchasing and maintaining
insurance, obtaining a letter of credit, creating a reserve, trust, escrow or
other fund or account, entering into indemnification agreements or granting
security interests.
Section
7.05 of the Bylaws provides that the rights of indemnification under the Bylaws
will be deemed a contract between the Company and each person entitled to
indemnification. Section 7.06 of the Bylaws states that the indemnification
authorized by the Bylaws will not be exclusive of any other rights to which
persons seeking indemnification or advancement of expenses may be
entitled.
ITEM
7. EXEMPTION FROM REGISTRATION CLAIMED.
Not
applicable.
ITEM
8. EXHIBITS.
The
following exhibits are filed herewith or incorporated by reference as part of
this Registration Statement:
Exhibit
Number
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Description
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5
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Opinion
of Colin D. Stern, Esq. as to the legality of the shares being
registered.
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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 Colin D. Stern, Esq. (included in Exhibit 5).
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24
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Power
of Attorney (set forth on the signature page of this Registration
Statement).
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ITEM
9. UNDERTAKINGS.
(a) The
undersigned registrant hereby undertakes:
(1)
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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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(i)
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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. 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 a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective 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;
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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 Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration
statement.
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(2)
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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.
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(3)
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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.
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(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
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
plan's 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 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 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 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 Act and
will be governed by the final adjudication of such issue.
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 Township of
Bensalem, Commonwealth of Pennsylvania, this 22nd day of June,
2009.
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CHARMING
SHOPPES, INC.
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By: /S/ James P.
Fogarty
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James
P. Fogarty
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President
and Chief Executive
Officer
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KNOW ALL
MEN BY THESE PRESENTS, that each of the undersigned directors and officers of
Charming Shoppes, Inc. hereby constitutes and appoints James P. Fogarty, Eric
Specter and Colin D. Stern, and each of them, his or her true and lawful
attorney-in-fact and agent, for and in his or her name, place and stead, in any
and all capacities, to sign this registration Statement on Form S-8 under the
Securities Act of 1933, including post-effective amendments and other related
documents, and to file the same with the Securities and Exchange Commission
under said Act, hereby granting power and authority to do and perform any and
all acts and things requisite and necessary to be done in and about the
premises, as fully as to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
and the foregoing Power of Attorney have been signed by the following persons in
the capacities and on the date(s) indicated:
Signature
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Capacity
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Date
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James
P. Fogarty
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President
and Chief Executive Officer and Director (principal executive
officer)
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June
22, 2009
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Alan
Rosskamm
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Chairman
of the Board and Director
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June
22, 2009
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Arnaud
Ajdler
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Director
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June
22, 2009
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Michael
C. Appel
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Director
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June
22, 2009
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/S/ Richard W. Bennet,
III
Richard
W. Bennet, III
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Director
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June
22, 2009
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Yvonne
M. Curl
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Director
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June
22, 2009
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Pamela
Davies
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Director
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June
22, 2009
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Michael
Goldstein
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Director
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June
22, 2009
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Charles
T. Hopkins
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Director
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June
22, 2009
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Katherine
M. Hudson
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Director
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June
22, 2009
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/S/ M. Jeannine
Strandjord
M.
Jeannine Strandjord
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Director
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June
22,
2009
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Eric
M. Specter
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Executive
Vice President and Chief Financial Officer (principal financial
officer)
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June
22, 2009
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John
J. Sullivan
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Senior
Vice President and Corporate Controller (principal accounting
officer)
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June
22, 2009
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EXHIBIT
INDEX
Exhibit
Number
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Description
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5
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Opinion
of Colin D. Stern, Esq. as to the legality of the shares being
registered.
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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 Colin D. Stern, Esq. (included in Exhibit 5).
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24
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Power
of Attorney (set forth on the signature page of this Registration
Statement).
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