Attached files
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EX-23.2 - EX-23.2 - Peak Resorts Inc | c63465a3exv23w2.htm |
As filed with
the Securities and Exchange Commission on August 1,
2011
Registration
Statement No. 333-173567
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
Washington, D.C. 20549
Amendment No. 3
to
Form S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
Peak Resorts, Inc.
(Exact name of registrant as
specified in its charter)
Missouri (State or other jurisdiction of incorporation or organization) |
7990 (Primary Standard Industrial Classification Code Number) |
43-1793922 (IRS Employer Identification No.) |
17409 Hidden Valley Drive
Wildwood, Missouri 63025
(636) 938-7474
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Wildwood, Missouri 63025
(636) 938-7474
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Timothy D. Boyd
17409 Hidden Valley Drive
Wildwood, Missouri 63025
(636) 549-0060
(Name, address, including zip code, and telephone number, including area code, of agent for service)
17409 Hidden Valley Drive
Wildwood, Missouri 63025
(636) 549-0060
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to:
David W. Braswell Armstrong Teasdale LLP 7700 Forsyth Boulevard, Suite 1800 St. Louis, Missouri 63105 (314) 552-6631 |
Carmelo M. Gordian David M. Kavanaugh Laurie M. Pompa Andrews Kurth LLP 111 Congress Avenue, Suite 1700 Austin, Texas 78701 (512) 320-9290 |
Approximate date of commencement of proposed sale to the
public: As soon as practicable after this
Registration Statement is declared effective.
If any securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, check the
following
box. o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(c) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
Indicate by check mark whether the registrant is a large
accelerated filer, an 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 o | Accelerated filer o | Non-accelerated filer x | Smaller reporting company o |
(Do not check if a smaller
reporting company)
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933, as amended, or until the
Registration Statement shall become effective on such date as
the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 3 to the Registration Statement on Form S-1 (File No. 333-173567) of Peak
Resorts, Inc. is being filed solely for the purpose of correcting an administrative error to
Exhibit 23.2. Other than the filing of Exhibit 23.2 and corresponding changes to the Exhibit Index
and signature pages, the remainder of the Registration Statement is unchanged.
PART II:
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. | Other Expenses of Issuance and Distribution |
The following table sets forth the costs and expenses, other
than underwriting discounts and commissions, payable solely by
Peak Resorts, Inc. (the Company) and expected to be
incurred in connection with the offer and sale of the securities
being registered. All amounts are estimates, except the SEC
registration fee and the FINRA filing fee.
Amount to be Paid | ||||
SEC registration fee
|
$ | 10,014.00 | ||
FINRA filing fee
|
$ | 9,125.00 | ||
Blue Sky fees and expenses*
|
||||
NASDAQ listing fee*
|
||||
Printing and engraving expenses*
|
||||
Legal fees and expenses*
|
||||
Accounting fees and expenses*
|
||||
Transfer agent fees*
|
||||
Miscellaneous*
|
||||
Total*
|
* | To be completed by amendment. |
Item 14. | Indemnification of Directors and Officers |
The following summary is qualified in its entirety by reference
to the complete text of Sections 351.355 of the Revised
Statutes of Missouri and the amended and restated articles of
incorporation and amended and restated by-laws of the Company.
The Company is a Missouri corporation. Section 351.355(1)
of the Revised Statutes of Missouri provides that a corporation
may indemnify a director, officer, employee or agent of the
corporation in 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, against expenses, including attorneys fees,
judgments, fines and settlement amounts actually and reasonably
incurred by him or her in connection with such action, suit or
proceeding if he or she 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 or
her conduct was unlawful. Section 351.355(2) provides that
the corporation may indemnify any such person in any threatened,
pending or completed action or suit by or in the right of the
corporation against expenses, including attorneys fees and
settlement amounts actually and reasonably incurred by him or
her in connection with the defense or settlement of the action
or suit if he or she 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, except that he or she may not be
indemnified in respect of any claim, issue or matter in which he
or she has been adjudged liable for negligence or misconduct in
the performance of his or her duty to the corporation, unless,
and only to the extent, authorized by the court.
Section 351.355(3) provides that a corporation shall
indemnify any such person against expenses, including
attorneys fees, actually and reasonably incurred by him or
her in connection with the action, suit or proceeding if he or
she has been successful in defense of such action, suit or
proceeding and if such action, suit or proceeding is one for
which the corporation may
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indemnify him or her under Section 351.355(1) or (2).
Section 351.355(7) provides that a corporation shall have
the power to give any further indemnity to any such person, in
addition to the indemnity otherwise authorized under
Section 351.355, provided such further indemnity is either
(i) authorized, directed or provided for in the articles of
incorporation of the corporation or any duly adopted amendment
thereof or (ii) is authorized, directed or provided for in
any bylaw or agreement of the corporation which has been adopted
by a vote of the stockholders of the corporation, provided that
no such indemnity shall indemnify any person from or on account
of such persons conduct which was finally adjudged to have
been knowingly fraudulent, deliberately dishonest or willful
misconduct.
The Companys amended and restated articles of
incorporation provide that the Company shall indemnify its
directors and officers to the fullest extent authorized or
permitted by law; provided, however, that the Company shall not
be obligated to indemnify any director or officer in connection
with a proceeding initiated by such person unless such
proceeding was authorized or consented to by the board of
directors, except for proceedings to enforce rights to
indemnification. The amended and restated articles of
incorporation also state that the Company may, to the extent
authorized from time to time by the board of directors, provide
rights to indemnification to employees and agents of the Company
similar to those provided to directors and officers.
The Companys amended and restated by-laws state that the
Company shall indemnify directors and officers against any
claim, liability or expense incurred as a result of their
service as directors or officers, or as a result of another
other service on behalf of the Company, or service at the
request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or
other enterprise, to the maximum extent permitted by law. The
Company shall indemnify any such person who was or is a party
(other than a party plaintiff suing on his or her own behalf or
in the right of the Company), or is threatened to be made a
party, to any threatened, pending or completed action, suit or
proceeding by reason of such services against expenses
(including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding.
The Companys amended and restated by-laws also provide
that the Company may, if it deems appropriate, indemnify any
employee or agent of the Company against any claim, liability or
expense incurred as a result of his or her service as an
employee or agent or as a result of any other service on behalf
of the Company, or service at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, to the
maximum extent permitted by law or to such lesser extent as the
Company, in its discretion, may deem appropriate. The Company
may indemnify any such person who was or is a party (other than
a party plaintiff suing on his or her own behalf or in the right
of the Company), or is threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding by
reason of such services against expenses (including
attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding. To the extent
that an officer, employee or agent of the Company has been
successful on the merits or otherwise in defense of any action,
suit or proceeding described above, he or she shall be
indemnified against expenses (including attorneys fees)
actually and reasonably incurred by him or her in connection
with the action, suit or proceeding.
Any indemnification required or permitted pursuant to the
Companys amended and restated by-laws, unless ordered by
the court, shall be made by the Company only as authorized in
the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the
circumstances because he or she has met the applicable standard
of conduct set
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forth in the amended and restated by-laws. Such determination
shall be made (i) by the board of directors by a majority
vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding; or (ii) if such quorum is
not obtainable, or if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion; or
(iii) by the stockholders.
Expenses incurred by a person who is or was a director or
officer of the Company in defending a civil or criminal action,
suit or proceeding shall be paid by the Company in advance of
the final disposition of such action, suit or proceeding, and
expenses incurred by a person who is or was an officer, employee
or agent of the Company in defending a civil or criminal action,
suit or proceeding may be paid by the Company in advance of the
final disposition of such action, suit or proceeding as
authorized by the Board of Directors, in either case upon
receipt of an undertaking by or on behalf of the director or the
officer to repay such amount unless it shall ultimately be
determined that he or she is entitled to be indemnified by the
Company as authorized.
Except as may otherwise be permitted by law, no person shall be
indemnified from or on account of such persons conduct
which is finally adjudged to have been knowingly fraudulent,
deliberately dishonest or willful misconduct. The Company may
adopt a more restrictive standard of conduct with respect to the
indemnification of any employee or agent of the Company.
The Company has obtained directors and officers
liability insurance.
Item 15. | Recent Sales of Unregistered Securities |
The Company has not had any unregistered sales or other
issuances of securities during the past three fiscal years.
Item 16. | Exhibits and Financial Statement Schedules |
(a) Exhibits.
See the Exhibit Index on the page immediately preceding the
exhibits for a list of exhibits filed as part of this
registration statement on
Form S-1,
which Exhibit Index is incorporated herein by reference.
(b) Financial Statement Schedules.
Schedule I, Real Estate and Accumulated Depreciation, is
included herein.
Item 17. | Undertakings |
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the Securities
Act), may be permitted to directors, officers and
controlling persons pursuant to the provisions described in
Item 14 above, or otherwise, it is the opinion of the
Securities and Exchange Commission that 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 us of expenses incurred or paid by a director, officer or
controlling person of us 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, we will, unless in the opinion of our counsel
the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
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indemnification by us is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes to provide to the
underwriters at the closing specified in the underwriting
agreement, certificates in such denominations and registered in
such names as required by the underwriters to permit prompt
delivery to each purchaser.
We hereby undertake that:
(i) for purposes of determining any liability under the
Securities Act, the information omitted from the form of
Prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
Prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as
of the time it was declared effective; and
(ii) for purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of Prospectus 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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, Peak Resorts, Inc. has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Wildwood, State of
Missouri, on August 1, 2011.
Peak Resorts,
Inc.
By: |
/s/ Timothy
D. Boyd
|
Timothy D. Boyd
Chief Executive Officer, President and Chairman of the Board
POWER OF
ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Timothy D. Boyd
and Stephen J. Mueller as his true and lawful attorneys-in-fact
and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any
and all capacities, to sign any and all amendments (including
post-effective amendments and registration statements filed
pursuant to Rule 462(b) under the Securities Act of
1933) to this 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 attorneys-in-fact and agents and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that
each of said attorneys-in-fact and agents or their substitutes
or substitute, 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 indicated on August 1, 2011.
Signature
|
Title
|
|||
/s/ Timothy
D. Boyd Timothy D. Boyd |
Chief Executive Officer, President and Chairman of the Board (Principal Executive Officer) |
|||
/s/ Stephen
J. Mueller Stephen J. Mueller |
Chief Financial Officer, Vice President, Secretary and Director (Principal Financial and Accounting Officer) |
|||
* James T. Barry, Jr. |
Director | |||
* Richard Deutsch |
Vice President-Business and Real Estate Development and Director |
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Signature
|
Title
|
|||
* Gregory R. Diekemper |
Director | |||
* Stanley W. Hansen |
Director | |||
* Michael Staenberg |
Director | |||
*By: |
/s/ Timothy
D. Boyd Attorney-in-fact |
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EXHIBIT INDEX
Exhibit |
||
Number
|
Description
|
|
1.1**
|
Form of Underwriting Agreement | |
2.1**
|
Purchase Agreement by and among Mount Snow, Ltd., L.B.O. Holding, Inc. and American Skiing Company, as sellers, and Peak Resorts, Inc., as buyer, dated February 16, 2007. | |
2.2**
|
Agreement of Sale and Purchase between Wildcat Mountain Ski Area, Inc., Meadow Green-Wildcat Skilift Corp. and Meadow Green-Wildcat Corp., as sellers, and WC Acquisition Corp., as purchaser, effective as of October 20, 2010. | |
3.1**
|
Amended and Restated Articles of Incorporation | |
3.2**
|
Amended and Restated By-laws | |
5.1**
|
Form of Opinion of Helfrey, Neiers & Jones P.C. | |
10.1**
|
Loan Agreement by and between Peak Resorts, Inc. and L.B.O. Holding, Inc., as borrowers, and EPT Mount Attitash, Inc., as lender, dated April 4, 2007. | |
10.2**
|
Promissory Note from Peak Resorts, Inc. and L.B.O. Holding, Inc. in favor of EPT Mount Attitash, Inc. dated April 4, 2007. | |
10.3**
|
Note Modification Agreement by and between Peak Resorts, Inc. and L.B.O. Holding, Inc., as borrowers, and EPT Mount Attitash, Inc. as lender, dated October 30, 2007. | |
10.4**
|
Agreement Concerning a Loan for a Holder of a Special Use Permit by and between the United States Department of Agriculture, Forest Service; EPT Mount Attitash, Inc. and L.B.O. Holding, Inc., dated April 4, 2007. | |
10.5**
|
Agreement Concerning a Loan for a Holder of a Special Use Permit by and between the United States Department of Agriculture, Forest Service; EPT Mount Snow, Inc. and Mount Snow, Ltd., dated April 4, 2007. | |
10.6**
|
Promissory Note from Peak Resorts, Inc. and Mount Snow, Ltd. in favor of EPT Mount Snow, Inc., dated April 4, 2007. | |
10.7**
|
Modification Agreement by and between Peak Resorts, Inc. and Mount Snow, Ltd., as borrowers, and EPT Mount Snow, Inc. as lender, dated April 1, 2010. | |
10.8**
|
Loan Agreement by and between Peak Resorts, Inc. and Mount Snow, Ltd., as borrowers, and EPT Mount Snow, Inc., as lender, dated April 4, 2007. | |
10.9**
|
First Modification Agreement by and between Peak Resorts, Inc. and Mount Snow, Ltd., as borrowers, and EPT Mount Snow, Inc., as lender, dated June 30, 2009. | |
10.10**
|
Amended and Restated Promissory Note from Peak Resorts, Inc. and Mount Snow, Ltd. in favor of EPT Mount Snow, Inc., dated June 30, 2009. | |
10.11**
|
Letter Agreement by and between Peak Resorts, Inc. and Mount Snow, Ltd., as borrowers, and EPT Mount Snow, Inc., as lender, dated June 20, 2009. | |
10.12**
|
Amended and Restated Credit and Security Agreement among Mad River Mountain, Inc.; SNH Development, Inc.; L.B.O. Holding, Inc.; Mount Snow, Ltd.; Peak Resorts, Inc.; Hidden Valley Golf and Ski, Inc.; Snow Creek, Inc.; Paoli Peaks, Inc.; Deltrecs, Inc.; Brandywine Ski Resort, Inc.; Boston Mills Ski Resort, Inc.; and JFBB Ski Areas, Inc., as borrowers, and EPT Ski Properties, Inc., as lender, dated October 30, 2007. | |
10.13**
|
Option Agreement between Hidden Valley Golf and Ski, Inc.; Snow Creek, Inc.; Paoli Peaks, Inc.; Brandywine Ski Resort, Inc.; Boston Mills Ski Resort, Inc.; and JFBB Ski Areas, Inc., as sellers, and EPT Ski Properties, Inc. as purchaser, dated October 30, 2007. |
II-7
Exhibit |
||
Number
|
Description
|
|
10.14**
|
Second Amended and Restated Promissory Note from Peak Resorts, Inc.; JFBB Ski Areas, Inc.; Mad River Mountain, Inc.; SNH Development, Inc.; L.B.O. Holding, Inc.; Mount Snow, Ltd.; Hidden Valley Golf and Ski, Inc.; Paoli Peaks, Inc.; Deltrecs, Inc.; Brandywine Ski Resort, Inc.; and Boston Mills Ski Resort, Inc. in favor of EPT Ski Properties, Inc., dated August 5, 2008. | |
10.15**
|
Blanket Conveyance, Bill of Sale and Assignment between Wildcat Mountain Ski Area, Inc., Meadow Green-Wildcat Skilift Corp. and Meadow Green-Wildcat Corp., as assignors, and WC Acquisition Corp., as assignee, dated November 19, 2010. | |
10.16**
|
Agreement Concerning a Loan for a Holder of a Special Use Permit by and between the United States Department of Agriculture, Forest Service; Meadow Green-Wildcat Corp, as lender, and WC Acquisition Corp., as borrower, dated November 19, 2010. | |
10.17**
|
Promissory Note from WC Acquisition Corp. in favor of Wildcat Mountain Ski Area, Inc.; Meadow Green-Wildcat Skilift Corp.; and Meadow Green-Wildcat Corp., dated November 22, 2010. | |
10.18**
|
Unconditional Guaranty of Peak Resorts, Inc., dated November 12, 2010. | |
10.19**
|
Lease Agreement by and between EPT Mad River, Inc. and Mad River Mountain, Inc., dated November 17, 2005. | |
10.20**
|
First Amendment to Lease Agreement by and between EPT Mad River, Inc. and Mad River Mountain, Inc., dated June 30, 2006. | |
10.21**
|
Ground Lease by and between Crotched Mountain Properties, L.L.C. and SNH Development, Inc., dated May 27, 2003. | |
10.22**
|
First Amendment to Ground Lease by and between Crotched Mountain Properties, L.L.C. and SNH Development, Inc., dated April 3, 2004. | |
10.23**
|
Second Amendment to Ground Lease by and between Crotched Mountain Properties, L.L.C. and SNH Development, Inc., dated January 31, 2008. | |
10.24**
|
Lease by and between Big Boulder Corporation and JFBB Ski Areas, Inc., dated December 1, 2005. | |
10.25**
|
Lease by and between Blue Ridge Real Estate Company and JFBB Ski Areas, Inc., dated December 1, 2005. | |
10.26**
|
Lease Agreement by and between Resort Holdings, LLC and Peak Resorts, Inc., dated April 1, 2010. | |
10.27**
|
Lease Agreement by and between Resort Holdings, LLC and Peak Resorts, Inc., dated September 1, 2010. | |
10.28**
|
Lease by and between the Estate of Charles Marvin Weeks and Paoli Peaks, Inc., dated September 26, 1990. | |
10.29**
|
U.S. Department of Agriculture Forest Service Special Use Permit for Attitash. | |
10.30**
|
U.S. Department of Agriculture Forest Service Special Use Permit for Mount Snow. | |
10.31**
|
U.S. Department of Agriculture Forest Service Special Use Permit for Wildcat Mountain. | |
10.32**
|
Promissory Note from SNH Development, Inc. in favor of EPT Crotched Mountain, Inc., dated March 10, 2006. | |
10.33**
|
Guaranty of Payment made by Peak Resorts, Inc. for the benefit EPT Crotched Mountain, Inc., dated March 10, 2006. | |
10.34**
|
Form of Peak Resorts, Inc. Indemnification Agreement. |
II-8
Exhibit |
||
Number
|
Description
|
|
10.35**
|
Limited Liability Company Membership Interest Sale and Assignment Agreement by and between Timothy D. Boyd and Peak Resorts, Inc., dated as of April 1, 2011. | |
10.36**
|
Limited Liability Company Membership Interest Sale and Assignment Agreement by and between Stephen J. Mueller and Peak Resorts, Inc., dated as of April 1, 2011. | |
10.37**
|
Agreement by and between Mount Snow, Ltd. and Leitner-Poma of America, dated as of March 24, 2011. | |
10.38**
|
Executive Employment Agreement by and between Peak Resorts, Inc. and Timothy D. Boyd, dated as of June 1, 2011. | |
10.39**
|
Executive Employment Agreement by and between Peak Resorts, Inc. and Stephen J. Mueller, dated as of June 1, 2011. | |
10.40**
|
Executive Employment Agreement by and between Peak Resorts, Inc. and Richard Deutsch, dated as of June 1, 2011. | |
16.1**
|
Letter from Maher & Company PC to Peak Resorts, Inc. | |
21.1**
|
List of Subsidiaries. | |
23.1*
|
Consent of Helfrey, Neiers & Jones P.C. (included in Exhibit 5.1). | |
23.2
|
Consent of McGladrey & Pullen, LLP. | |
23.3**
|
Consent of The National Ski Areas Association. | |
24.1**
|
Power of Attorney (included on signature page). | |
99.1**
|
Audit Committee Charter. | |
99.2**
|
Compensation Committee Charter. | |
99.3**
|
Nominating and Corporate Governance Committee Charter. |
* | To be filed by amendment. | |
** | Previously filed. | |
| Indicates a management contract or compensatory plan or arrangement. |
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