Securities Registration: Employee Benefit Plan (s-8)
August 02 2021 - 2:38PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on August 2, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933
Kinder Morgan, Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or
organization)
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1001 Louisiana Street, Suite 1000
Houston, Texas 77002
(Address of registrant’s principal executive
offices)
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80-0682103
(I.R.S. Employer
Identification No.)
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Kinder Morgan, Inc. 2021 Amended and Restated
Stock Incentive Plan
(Full title of Plan)
Catherine Callaway James
Vice President and General Counsel
Kinder Morgan, Inc.
1001 Louisiana Street, Suite 1000
Houston, Texas 77002
(713) 369-9000
(Name, address and telephone number, including
area code, of agent for service)
Copies to:
Troy L. Harder
Bracewell LLP
711 Louisiana Street, Suite 2300
Houston, Texas 77002-2770
Telephone: (713) 221-1456
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer x
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Accelerated filer ¨
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Non-accelerated filer ¨
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Smaller reporting
company ¨
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Emerging growth
company ¨
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If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
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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Class P Common Stock, $0.01 par value per share
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30,000,000
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$17.70
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$531,000,000
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$57,932.10
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(1)
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The Kinder Morgan, Inc. 2021 Amended and Restated Stock Incentive Plan (the “2021 Plan”) amends and restates, and
replaces, the Kinder Morgan, Inc. 2015 Amended and Restated Stock Incentive Plan (the “2015 Plan”) and provides for the
issuance of up to 30,000,000 shares of Class P Common Stock, not including 33,000,000 shares approved for issuance under the plan
prior to the amendment and restatement by the 2021 Plan. The number of shares registered hereby does not include 5,411,230 shares authorized
for issuance but not issued or subject to outstanding awards under the 2015 Plan that are available for issuance under the 2021 Plan (the
“Prior Plan Shares”). The Prior Plan Shares were registered on Form S-8 (Registration No. 333-205430) filed with
the Securities and Exchange Commission on July 1, 2015 in connection with the 2015 Plan.
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(2)
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Pursuant to Rule 457(h) under the Securities Act, the Proposed
Maximum Offering Price Per Share and the Proposed Maximum Aggregate Offering Price are estimated, solely for the purpose of computing
the registration fee, based on the average of the high and low sale prices of the common stock as reported by the New York Stock Exchange
on July 27, 2021.
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PART I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the plan
information required by Item 1 of Form S-8 and the statement of availability of registrant information and any other information
required by Item 2 of Form S-8 will be sent or given to participants as specified by Rule 428 under the Securities Act of 1933,
as amended (the “Securities Act”). In accordance with Rule 428 and the requirements of Part I of Form S-8,
such documents are not being 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. The Registrant will maintain
a file of such documents in accordance with the provisions of Rule 428. Upon request, the Registrant will furnish to the Commission
or its staff a copy or copies of all of the documents included in such file.
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 filed by the Registrant
with the Commission (other than, in each case, documents or information that is deemed to be furnished and not filed in accordance with
Commission rules) are incorporated by reference into this Registration Statement:
All documents filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after this Registration Statement and prior to the filing of a post-effective
amendment hereto which indicates that all securities offered have been sold or which deregisters all such securities then remaining unsold
(other than information that is furnished rather than filed in accordance with Commission rules), will be deemed to be incorporated herein
by reference and to be a part hereof from the date of filing such documents. Any statement contained herein or in any document incorporated
or deemed to be incorporated by reference herein will be deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained in any other subsequently filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or superseded will not be deemed to constitute a part of
this Registration Statement, except as so modified or superseded.
Item 4.
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Description of Securities.
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Not applicable.
Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
Item 6.
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Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation
Law, or DGCL, provides that a corporation may indemnify any person who was or is a party 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 the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. Section 145 further provides that a corporation similarly may indemnify
any such person serving in any such capacity who was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorney's fees) actually
and reasonably incurred in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only
to the extent that the Delaware Court of Chancery or such other court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper.
As permitted by the DGCL, the registrant's certificate
of incorporation includes a provision that eliminates the personal liability of its directors for monetary damages for breach of fiduciary
duty as a director, except for liability:
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·
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for any breach of the director's duty of loyalty to the registrant or its
stockholders;
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·
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for acts or omissions not in good faith or that involve intentional misconduct
or knowing violation of law;
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·
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under Section 174 of the DGCL regarding unlawful dividends and stock
purchases; or
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·
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for any transaction from which the director derived an improper personal
benefit.
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As permitted by the DGCL, the registrant's certificate
of incorporation and bylaws provide that:
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·
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the registrant is required to indemnify its directors and officers to the
fullest extent permitted under the DGCL, subject to very limited exceptions;
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·
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the registrant may indemnify its other employees and agents to the fullest
extent permitted by law, subject to very limited exceptions;
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·
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the registrant is required to advance expenses, as incurred, to its directors
and officers in connection with a proceeding to the maximum extent permitted under the DGCL, subject to very limited exceptions; and
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·
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the rights conferred in the certificate of incorporation or bylaws are not
exclusive.
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The registrant maintains liability insurance policies
covering its officers and directors against some liabilities, including certain liabilities under the Securities Act, that may be incurred
by them.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing
provisions, the registrant has been informed 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.
Item 7.
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Exemption from Registration Claimed.
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Not applicable.
Each of the following exhibits
is filed herewith:
Exhibit
Number
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Description
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4.1
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Form of certificate representing Class P common shares of Kinder Morgan, Inc. (filed as Exhibit 4.1 to Kinder Morgan, Inc.’s Registration Statement on Form S-1 filed on January 18, 2011 (File No. 333-170773)).
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4.2
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Shareholders Agreement among Kinder Morgan, Inc. and certain holders of common stock (filed as Exhibit 4.2 to Kinder Morgan, Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2011 (File No. 001-35081)).
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4.3
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Amendment No. 1 to the Shareholders Agreement among Kinder Morgan, Inc. and certain holders of common stock (filed as Exhibit 4.3 to Kinder Morgan, Inc.’s Current Report on Form 8-K filed on May 30, 2012 (File No. 001-35081)).
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4.4
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Amendment No. 2 to the Shareholders Agreement among Kinder Morgan, Inc. and certain holders of common stock (filed as Exhibit 4.1 to Kinder Morgan, Inc.’s Current Report on Form 8-K filed on December 3, 2014 (File No. 001-35081)).
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4.5
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2021 Amended and Restated Kinder Morgan, Inc. Stock Incentive Plan (filed as Exhibit 4.5 to Post-Effective Amendment No. 1 to KMI’s Registration Statement on Form S-8 filed July 16, 2021 (File No. 333-205430)).
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4.6
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2021 Form of Employee Restricted Stock Unit Agreement (filed as Exhibit 10.3 to Kinder Morgan, Inc.’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2021 (File No. 001-35081)).
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4.7
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Description of Capital Stock of Kinder Morgan, Inc. Registered Pursuant to Section 12 of the Securities Exchange Act of 1934 (filed as Exhibit 4.35 to Kinder Morgan, Inc.’s Annual Report on Form 10-K filed on February 5, 2021 (File No. 001-35081)).
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5.1 *
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Opinion of Bracewell LLP regarding the validity of the securities being registered.
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23.1 *
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Consent of Bracewell LLP (included in their opinion filed as Exhibit 5.1).
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23.2 *
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Consent of PricewaterhouseCoopers LLP.
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24.1 *
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Powers of Attorney.
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* Filed herewith.
(a)
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The undersigned Registrant hereby undertakes:
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(1) To file, during any period in which offers
or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required
by section 10(a)(3) of the Securities Act of 1933;
(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 a 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;
(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) of this section 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 Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(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 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.
(h) 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 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 Houston, Texas, on August 2, 2021.
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KINDER MORGAN, INC.
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By:
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/s/
David P. Michels
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Name:
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David P. Michels
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Title:
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Vice President and Chief Financial Officer
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Pursuant to the requirements
of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on August 2, 2021.
Signature
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Title
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/s/ David P. Michels
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Vice President and Chief Financial Officer (principal
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David P. Michels
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financial officer and principal accounting officer)
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/s/ Steven J. Kean
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Chief Executive Officer (principal executive officer); Director
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Steven J. Kean
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/s/ Richard D. Kinder*
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Executive Chairman
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Richard D. Kinder
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/s/ Kimberly A. Dang
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President; Director
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Kimberly A. Dang
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/s/ Ted A. Gardner*
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Director
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Ted A. Gardner
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/s/ Anthony W. Hall, Jr.*
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Director
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Anthony W. Hall, Jr.
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/s/ Gary L. Hultquist*
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Director
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Gary L. Hultquist
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/s/ Ronald L. Kuehn, Jr.*
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Director
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Ronald L. Kuehn, Jr.
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/s/ Deborah A. Macdonald*
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Director
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Deborah A. Macdonald
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/s/ Michael C. Morgan*
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Director
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Michael C. Morgan
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/s/ Arthur C. Reichstetter *
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Director
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Arthur C. Reichstetter
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/s/ C. Park Shaper*
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Director
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C. Park Shaper
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/s/ William A. Smith*
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Director
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William A. Smith
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/s/ Joel V. Staff*
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Director
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Joel V. Staff
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/s/ Robert F. Vagt*
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Director
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Robert F. Vagt
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/s/ Perry M. Waughtal*
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Director
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Perry M. Waughtal
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*By:
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/s/ Catherine C. James
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Catherine C. James
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Attorney-in-fact for persons indicated
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