Maryland
(State or Other Jurisdiction of
Incorporation or Organization)
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95-4598246
(I.R.S. Employer
Identification No.)
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Large Accelerated Filer
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ý
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Accelerated Filer
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¨
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Non-Accelerated Filer
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¨
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Smaller Reporting Company
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¨
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Title Of Each Class of Securities To Be Registered
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Amount
To Be
Registered
(1)(2)
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Proposed
Maximum
Offering Price
Per Share
(3)
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Proposed
Maximum
Aggregate
Offering
Price
(3)
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Amount of
Registration
Fee
(3)
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Common Stock, $0.01 par value
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1,595,000
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$
28.39
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$ 45,282,050
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$ 2,526.74
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(1)
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In the event of a stock split, stock dividend, or similar transaction involving Kilroy Realty Corporation’s common stock, $.01 par value (“Common Stock”), the number of shares registered hereby shall automatically be increased to cover the additional shares in accordance with Rule 416(a) under the Securities Act of 1933, as amended (“Securities Act”).
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(2)
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Covers 1,595,000 additional shares of Common Stock available for issuance under the Kilroy Realty 2006 Incentive Award Plan, as amended (the “Plan”), pursuant to an amendment approved by the stockholders of Kilroy Realty Corporation on May 27, 2009. The Plan authorizes the issuance of a maximum of 3,130,000 shares of Common Stock. However, the offer and sale of 1,535,000 shares of Common Stock issued
or issuable under the Plan have previously been registered pursuant to Registration Statement on Form S-8 (No. 333-135385).
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(3)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rules 457(c) and (h) under the Securities Act, based upon the average of the high and low prices of a share of Common Stock as reported on the New York Stock Exchange on September 14, 2009.
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Exhibit No.
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Description
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3(i).1
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Articles of Amendment and Restatement of the Registrant (1)
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3(ii).1
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Second Amended and Restated Bylaws of the Registrant (2)
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3(ii).2
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Amendment No. 1 to Second Amended and Restated Bylaws of the Registrant (3)
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4.1
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Form of Certificate for Common Stock (1)
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4.2†
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Kilroy Realty 2006 Incentive Award Plan (4)
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4.3†
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Amendment to Kilroy Realty 2006 Incentive Award Plan (5)
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4.4†
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Second Amendment to Kilroy Realty 2006 Incentive Award Plan (6)
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4.5†
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Third Amendment to Kilroy Realty 2006 Incentive Award Plan (3)
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4.6†
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Form of Restricted Stock Award Agreement (7)
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5.1*
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Opinion of Ballard Spahr LLP
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23.1*
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Consent of Ballard Spahr LLP (included in Exhibit 5.1)
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23.2* | Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm |
24.1* | Power of Attorney (included on the signature page of this Registration Statement) |
*
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Filed herewith
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†
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Management contract or compensatory plan or arrangement
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(1)
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Incorporated by reference to our Registration Statement on Amendment No. 3 to Form S-11 (No. 333-15553).
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(2)
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Incorporated by reference to our Current Report on Form 8-K as filed with the Commission on December 12, 2008 (No. 001-12675).
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(3)
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Incorporated by reference to our Current Report on Form 8-K as filed with the Commission on May 27, 2009 (No. 001-12675).
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(4)
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Incorporated by reference to our Registration Statement on Form S-8 as filed with the Commission on June 28, 2006 (No. 333-135385).
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(5)
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Incorporated by reference to our Annual Report on Form 10-K for the year ended December 31, 2006 as filed with the Commission on February 28, 2007 (No. 001-12675).
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(6)
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Incorporated by reference to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2007 as filed with the Commission on April 27, 2007 (No. 001-12675).
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(7)
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Incorporated by reference to our Current Report on Form 8-K as filed with the Commission on February 8, 2007 (No. 001-12675).
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KILROY REALTY CORPORATION
By:
/s/ Heidi R. Roth
Heidi R. Roth
Senior Vice President and Controller
(Principal Accounting Officer)
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Signature
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Title
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Date
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/s/ John B. Kilroy, Sr.
John B. Kilroy, Sr.
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Chairman of the Board
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September 16, 2009
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/s/ John B. Kilroy, Jr.
John B. Kilroy, Jr.
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President, Chief Executive Officer and Director (Principal Executive Officer)
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September 16, 2009
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/s/ Richard E. Moran Jr.
Richard E. Moran Jr.
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Executive Vice President, Chief Financial Officer and Secretary (Principal Financial Officer)
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September 16, 2009
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/s/ Heidi R. Roth
Heidi R. Roth
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Senior Vice President and Controller
(Principal Accounting Officer)
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September 16, 2009
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/s/ Edward F. Brennan, Ph.D.
Edward F. Brennan, Ph.D.
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Director
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September 16, 2009
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/s/ William P. Dickey
William P. Dickey
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Director
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September 16, 2009
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/s/ Scott S. Ingraham
Scott S. Ingraham
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Director
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September 16, 2009
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/s/ Dale F. Kinsella
Dale F. Kinsella
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Director
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September 16, 2009
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Exhibit No.
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Description
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3(i).1
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Articles of Amendment and Restatement of the Registrant (1)
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3(ii).1
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Second Amended and Restated Bylaws of the Registrant (2)
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3(ii).2
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Amendment No. 1 to Second Amended and Restated Bylaws of the Registrant (3)
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4.1
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Form of Certificate for Common Stock (1)
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4.2†
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Kilroy Realty 2006 Incentive Award Plan (4)
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4.3†
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Amendment to Kilroy Realty 2006 Incentive Award Plan (5)
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4.4†
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Second Amendment to Kilroy Realty 2006 Incentive Award Plan (6)
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4.5†
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Third Amendment to Kilroy Realty 2006 Incentive Award Plan (3)
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4.6†
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Form of Restricted Stock Award Agreement (7)
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5.1*
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Opinion of Ballard Spahr LLP
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23.1*
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Consent of Ballard Spahr LLP (included in Exhibit 5.1)
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23.2*
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Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm
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24.1* | Power of Attorney (included on the signature page of this Registration Statement) | |
*
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Filed herewith
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†
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Management contract or compensatory plan or arrangement
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(1)
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Incorporated by reference to our Registration Statement on Amendment No. 3 to Form S-11 (No. 333-15553).
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(2)
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Incorporated by reference to our Current Report on Form 8-K as filed with the Commission on December 12, 2008 (No. 001-12675).
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(3)
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Incorporated by reference to our Current Report on Form 8-K as filed with the Commission on May 27, 2009 (No. 001-12675).
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(4)
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Incorporated by reference to our Registration Statement on Form S-8 as filed with the Commission on June 28, 2006 (No. 333-135385).
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(5)
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Incorporated by reference to our Annual Report on Form 10-K for the year ended December 31, 2006 as filed with the Commission on February 28, 2007 (No. 001-12675).
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(6)
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Incorporated by reference to our Quarterly Report on Form 10-Q for the quarter ended March 31, 2007 as filed with the Commission on April 27, 2007 (No. 001-12675).
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(7)
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Incorporated by reference to our Current Report on Form 8-K as filed with the Commission on February 8, 2007 (No. 001-12675).
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Re:
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Kilroy Realty Corporation, a Maryland corporation (the "Company") – Registration Statement on Form S-8 pertaining to One Million Five Hundred Ninety-Five Thousand (1,595,000) shares (the “Shares”) of Common Stock, par value one cent ($0.01) per share (“Common Stock”) of the Company to be issued under
the Kilroy Realty 2006 Incentive Award Plan, as amended (the “Plan”)
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Ladies and Gentlemen:
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(i)
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The corporate charter of the Company (the “Charter”) represented by Articles of Amendment and Restatement filed with the State Department of Assessments and Taxation of Maryland (the “Department”) on January 21, 1997, Articles Supplementary filed with the Department on February 6, 1998, Articles Supplementary filed with the
Department on April 20, 1998, Articles Supplementary filed with the Department on October 15, 1998, Articles Supplementary filed with the Department on November 25, 1998, Certificate of Correction filed with the Department on March 4, 1999, Articles Supplementary filed with the Department on December 10, 1999, Articles Supplementary filed with the Department on December 30, 1999, Articles Supplementary filed with the Department on October 23,
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2003, Articles Supplementary filed with the Department on March 11, 2004, Articles Supplementary filed with the Department on March 11, 2004, Articles Supplementary filed with the Department on December 3, 2004, Articles Supplementary filed with the Department on December 3, 2004, Articles Supplementary filed with the Department on October 2, 2008,
Articles Supplementary filed with the Department on October 2, 2008, and Articles of Amendment filed with the Department on May 27, 2009;
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(ii)
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the Second Amended and Restated Bylaws of the Company, adopted as of December 11, 2008, as amended by the Amendment No. 1 to the Second Amended and Restated Bylaws, adopted as of May 27, 2009 (the “Bylaws”);
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(iii)
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the Written Organizational Action of the Board of Directors (the “Board of Directors”) of the Company, dated as of September 13, 1996 (the "Organizational Minutes");
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(iv)
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resolutions adopted by the Board of Directors on or as of March 30, 2006 and March 31, 2009 (the "Directors’ Resolutions");
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(v)
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the Plan consisting of the Kilroy Realty 2006 Incentive Award Plan dated May 18, 2006 (the “Original Plan”), the Amendment to Kilroy Realty 2006 Incentive Award Plan dated December 7, 2006 (the “First Amendment”), the Second Amendment to Kilroy 2006 Incentive Award Plan dated March 1, 2007 (the “Second Amendment”)
and the Third Amendment to Kilroy Realty Incentive Award Plan dated May 27, 2009 (the “Third Amendment”);
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(vi)
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the Registration Statement, in substantially the form to be filed with the Commission pursuant to the Act;
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(vii)
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a status certificate of the Department, dated as of a recent date, to the effect that the Company is duly incorporated and existing under the laws of the State of Maryland;
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(viii)
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a Certificate of Tyler H. Rose, Senior Vice President, Treasurer and Assistant Secretary of the Company and Tamara J. Porter, Vice President and Corporate Counsel of the Company, dated as of the date hereof (the "Officers' Certificate"), to the effect that, among other things, the Charter, the Bylaws, the Organizational Minutes, the Directors’
Resolutions and
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the Plan are true, correct and complete, have not been rescinded or modified and are in full force and effect on the date of the Officers’ Certificate and certifying as to the approval of the Plan, including all amendments thereto, by the Board of Directors, the approval of the Original Plan by the stockholders of the Company by the requisite
vote at the annual meetings of stockholders held on May 18, 2006, and the approval of the Third Amendment by the stockholders of the Company by the requisite vote at the annual meeting of stockholders held on May 27, 2009; and
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(ix)
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such other documents and matters as we have deemed necessary and appropriate to render the opinions set forth in this letter, subject to the limitations, assumptions, and qualifications noted below.
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(a)
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each person executing any of the Documents on behalf of any party (other than the Company) is duly authorized to do so;
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(b)
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each natural person executing any of the Documents is legally competent to do so;
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(c)
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any of the Documents submitted to us as originals are authentic; the form and content of any Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such documents as executed and delivered; any of the Documents submitted to us as certified, facsimile or photostatic copies
conform to the original document; all signatures on all of the Documents are genuine; all public records reviewed or relied upon by us or on our behalf are true and complete; all statements and information contained in the Documents are true and complete; there has been no modification of, or amendment to, any of the Documents, and there has been no waiver of any provision of any of the Documents by action or omission of the parties or otherwise;
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(d)
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none of the Shares will be issued or transferred in violation of the provisions of Article IV, Section E of the Charter relating to restrictions on ownership and transfer of capital stock; and
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(e)
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upon each issuance of any of the Shares subsequent to the date hereof, the total number of shares of Common Stock of the Company issued and outstanding, after giving effect to such issuance of such Shares, will not
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exceed the total number of shares of Common Stock that the Company is authorized to issue under its Charter.
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(1)
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The Company is a corporation duly incorporated and validly existing as a corporation in good standing under the laws of the State of Maryland.
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(2)
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The Shares are available for issuance pursuant to the Plan and if, as and when the Shares are issued, either as stock awards or upon the exercise of options granted under the Plan, pursuant, in each case, to authorization by the Board of Directors, in exchange for the consideration therefore, all in accordance with, and subject to such authorization
by the Board of Directors, the terms and conditions of the Plan and the stock awards or options relating to such Shares, such Shares will be duly authorized, validly issued and fully paid and non-assessable.
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