SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
THE CLOROX COMPANY
(Exact name of registrant as specified in its charter)
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Delaware |
31-0595760 |
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(State or other jurisdiction of |
(IRS Employer |
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incorporation or organization) |
Identification Number) |
1221 Broadway, Oakland, California 94612-1888
(510) 271-7000
(Address, including zip code, and telephone number, including area
code, of registrant153s principal executive offices)
Laura Stein
Senior Vice President : General Counsel
The Clorox Company
1221 Broadway
Oakland, California 94612-1888
(510) 271-7000
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies to:
Linda L. Griggs, Esq.
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
(202) 739-3000
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are to be offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the 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, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. 190
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) 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. ¨
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. ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. 190
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
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): ¨
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Large accelerated filer 190 |
Accelerated filer ¨ |
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Non-accelerated filer ¨ |
Smaller reporting company ¨ |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Proposed |
Proposed |
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Maximum |
maximum |
Amount of |
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Title of each class of securities to |
Amount to be |
Offering Price |
aggregate |
Registration |
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be registered |
registered |
per Unit |
offering price |
Fee |
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Debt Securities |
(1) |
(1) |
(1) |
(1) |
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(1) An indeterminate amount of securities to be offered at indeterminate prices is being registered pursuant to this registration statement. The Registrant is deferring payment of the registration fee pursuant to Rule 456(b) and is omitting this information in reliance on Rule 456(b) and Rule 457(r). |
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PROSPECTUS [omitted by Findlaw]
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses to be borne by the Registrant in connection with the offerings described in this Registration Statement.
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SEC filing fee for registration statement |
$ |
(1) |
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Rating agencies153 fees |
(2) |
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Legal fees and expenses |
(2) |
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Accounting fees and expenses |
(2) |
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Trustees153 fees and expenses |
(2) |
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Printing |
(2) |
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Blue sky fees and expenses |
(2) |
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Miscellaneous |
(2) |
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Total |
$ |
(2) |
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(1) |
To be deferred pursuant to Rule 456(b) and calculated in connection with the offering of securities under this registration statement pursuant to Rule 457(r). |
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(2) |
These fees and expenses will be reflected in the applicable prospectus supplement. |
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Item 15. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law (8 Delaware Code §145), the Company has broad powers to indemnify its directors and officers against liabilities that they may incur in such capacities, including liabilities under the Securities Act of 1933, as amended. In addition, the Company153s Restated Certificate of Incorporation provides for indemnification of its directors and officers.
Article Eight of the Company153s Restated Certificate of Incorporation provides that anyone who is or was a director or officer of the Company shall be indemnified and held harmless to the fullest extent authorized by the Delaware General Corporation Law. This includes indemnity against all expenses, liability and loss (including attorneys153 fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement).
Pursuant to Delaware law, this includes elimination of liability for monetary damages for breach of the directors153 fiduciary duty of care to the Company and its stockholders. These provisions do not eliminate the directors153 duty of care and, in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law. The provision does not affect a director153s responsibilities under any other laws, such as the federal securities laws, or state or federal environmental laws.
Article Nine of the Company153s Restated Certificate of Incorporation provides that its directors shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty, except for liability (i) for any breach of the director153s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware (relating to certain unlawful payments of dividends or unlawful stock purchases or redemptions), or (iv) for any transaction from which the director derived an improper benefit.
Policies of insurance are maintained by the Company under which the directors and officers of the Company are insured, within the limits and subject to the limitations of the policies, against certain expenses in connection with the defense of actions, suits or proceedings, and certain liabilities which might be imposed as a result of such actions, suits or proceedings, to which they are parties by reason of being or having been such directors or officers.
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In addition, the Company has entered into various agreements whereby it has agreed to indemnify its officers and directors for specific liabilities that they may incur in such capacities, including any liability that may arise in the management of the Company153s employee benefit plans. In addition, the Company has entered into change of control agreements with certain of its officers pursuant to which, among other things, it has agreed to make an additional payment to the officer in respect of any tax imposed on the officer under Section 4999 of the Internal Revenue Code of 1986, as amended (which deals with certain payments contingent on a change in control).
Item 16. Exhibits.
The following is a list of all exhibits filed as a part of this registration statement on Form S-3.
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Exhibit |
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Number |
Description of Exhibit |
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1.1 |
Form of Underwriting Agreement* |
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4.1 |
Form of Indenture between the Company and The Bank of New York Trust Company, N.A., as trustee (incorporated by reference from Exhibit 4.1 to the Registration Statement on Form S-3 filed by The Clorox Company, file no. 333-146472, filed October 3, 2007) |
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4.2 |
Supplemental Indenture between the Company, The Bank of New York Trust Company, N.A., as trustee, and Wells Fargo Bank, National Association, as trustee (incorporated by reference from Exhibit 4.4 to the Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 filed by The Clorox Company, file no. 333-146472, filed November 4, 2009) |
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4.3 |
Second Supplemental Indenture between the Company and Wells Fargo Bank, National Association, as trustee (incorporated by reference from Exhibit 4.1 to the Current Report on Form 8-K filed by The Clorox Company, filed November 5, 2009) |
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5.1 |
Opinion of Morgan, Lewis & Bockius LLP |
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12.1 |
Computation of Ratio of Earnings to Fixed Charges of the Company and Subsidiaries |
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23.1 |
Consent of Ernst & Young LLP |
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23.2 |
Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1) |
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24.1 |
Power of Attorney (included on signature page) |
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25.1 |
Statement of Eligibility on Form T-1 of Wells Fargo Bank, National Association, to act as trustee under the Indenture |
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*To be filed by amendment or as an exhibit to a document incorporated herein by reference.
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Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. 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 SEC 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; 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 (i), (ii) and (iii) do not apply if the registration statement is on Form S-3 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, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of 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;
(4) that, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; and
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(5) that, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of an undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of Registrant153s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act 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 SEC 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, The Clorox Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Oakland, state of California, on the 14th day of November, 2011.
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THE CLOROX COMPANY |
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By: |
/s/ Donald R. Knauss |
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Donald R. Knauss |
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Chairman and Chief Executive Officer |
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POWER OF ATTORNEY
The undersigned do hereby constitute and appoint Donald R. Knauss, Laura Stein, and Daniel J. Heinrich, or any of them, our true and lawful attorneys and agents, to sign for us or any of us in our names and in the capacities indicated below, any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto and other documents required in connection therewith, and to do any and all acts and things in our names and in the capacities indicated below, which said attorneys and agents, or any of them, may deem necessary or advisable to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules, regulations, and requirements of the Securities and Exchange Commission, in connection with this Registration Statement; and we do hereby ratify and confirm all that the said attorneys and agents, or any of them, shall do or cause to be done by virtue hereof.
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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 the 14th day of November, 2011.
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Signature |
Title |
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/s/ D. R. Knauss |
Chairman and Chief Executive Officer |
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D. R. Knauss |
(Principal Executive Officer) |
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/s/ D. J. Heinrich |
Executive Vice President : Chief Financial Officer |
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D. J. Heinrich |
(Principal Financial Officer) |
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/s/ S. A. Gentile |
Vice President : Controller |
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S. A. Gentile |
(Principal Accounting Officer) |
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/s/ D. Boggan, Jr. |
Director |
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D. Boggan, Jr. |
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/s/ R. H. Carmona |
Director |
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R. H. Carmona |
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/s/ T. M. Friedman |
Director |
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T. M. Friedman |
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/s/ G. J. Harad |
Director |
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G. J. Harad |
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/s/ R. W. Matschullat |
Director |
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R. W. Matschullat |
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/s/ G. G. Michael |
Director |
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G. G. Michael |
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/s/ E. A. Mueller |
Director |
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E. A. Mueller |
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/s/ J. L. Murley |
Director |
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J. L. Murley |
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/s/ P. Thomas-Graham |
Director |
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P. Thomas-Graham |
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/s/ C. M. Ticknor |
Director |
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C. M. Ticknor |
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EXHIBIT INDEX
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Exhibit |
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Number |
Description of Exhibit |
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1.1 |
Form of Underwriting Agreement* |
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4.1 |
Form of Indenture between the Company and The Bank of New York Trust Company, N.A., as trustee (incorporated by reference from Exhibit 4.1 to the Registration Statement on Form S-3 filed by The Clorox Company, file no. 333-146472, filed October 3, 2007) |
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4.2 |
Supplemental Indenture between the Company, The Bank of New York Trust Company, N.A., as trustee, and Wells Fargo Bank, National Association, as trustee (incorporated by reference from Exhibit 4.4 to the Post-Effective Amendment No. 1 to the Registration Statement on Form S-3 filed by The Clorox Company, file no. 333-146472, filed November 4, 2009) |
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4.3 |
Second Supplemental Indenture between the Company and Wells Fargo Bank, National Association, as trustee (incorporated by reference from Exhibit 4.1 to the Current Report on Form 8-K filed by The Clorox Company, filed November 5, 2009) |
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5.1 |
Opinion of Morgan, Lewis & Bockius LLP |
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12.1 |
Computation of Ratio of Earnings to Fixed Charges of the Company and Subsidiaries |
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23.1 |
Consent of Ernst & Young LLP |
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23.2 |
Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1) |
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24.1 |
Power of Attorney (included on signature page) |
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25.1 |
Statement of Eligibility on Form T-1 of Wells Fargo Bank, National Association, to act as trustee under the Indenture |
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*To be filed by amendment or as an exhibit to a document incorporated herein by reference.
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