As filed with the Securities and Exchange Commission on November 5, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Apartment Investment and Management Company
(Exact Name of Registrant as Specified in Its Charter)
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Maryland (State or Other Jurisdiction of Incorporation or Organization) | | 84-1259577 (I.R.S. Employer Identification No.) |
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4582 South Ulster Street, Suite 1100 Denver, Colorado (Address of Principal Executive Offices) | | 80237 (Zip Code) |
Apartment Investment and Management Company 2015 Stock Award and Incentive Plan
(Full Title of the Plan)
___________________
Lisa R. Cohn
Executive Vice President, General Counsel and Secretary
4582 South Ulster Street, Suite 1100
Denver Colorado 80237
(Name and Address of Agent for Service)
(303) 757-8101
(Telephone Number, Including Area Code, of Agent for Service)
______________________
Copies to:
Jonathan L. Friedman
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue
Los Angeles, California 90071
(213) 687-5000
_______________________
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 Securities Exchange Act of 1934.
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Large accelerated filer | x | | Accelerated filer | o |
Non-accelerated filer | o | (Do not check if a smaller reporting company) | Smaller reporting company | o |
__________________________
CALCULATION OF REGISTRATION FEE
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Title of Securities To Be Registered | Amount To Be Registered(1) | Proposed Maximum Offering Price Per Share(2) | Proposed Maximum Aggregate Offering Price(2) | Amount of Registration Fee(2) |
Class A Common Stock, par value $.01 per share: | 3,900,000 shares | $38.52 | $150,228,000 | $15,128 |
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(1) | In addition, pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 also covers such additional securities as may be issuable pursuant to the anti-dilution provisions of the Apartment Investment and Management Company 2015 Stock Award and Incentive Plan (the “2015 Stock Plan”). |
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(2) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and Rule 457(h) of the Securities Act on the basis of the average of the high and low sale prices for a share of Class A Common Stock on the New York Stock Exchange on November 4, 2015. |
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TABLE OF CONTENTS | |
PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS | 1 |
Item 1. Plan Information | 1 |
Item 2. Registrant Information and Employee Plan Annual Information | 1 |
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT | 1 |
Item 3. Incorporation of Documents by Reference | 1 |
Item 4. Description of Securities | 1 |
Item 5. Interests of Named Experts and Counsel | 1 |
Item 6. Indemnification of Directors and Officers | 1 |
Item 7. Exemption from Registration Claimed | 2 |
Item 8. Exhibits | 2 |
Item 9. Undertakings | 3 |
SIGNATURES | 4 |
EXHIBIT INDEX | 6 |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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* | The documents containing the information specified in Part I of Form S-8 will be sent or given to employees as specified by Rule 428(b)(1) under the Securities Act. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Apartment Investment and Management Company (the “Company”) with the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference:
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(a) | Annual Report on Form 10-K for the fiscal year ended December 31, 2014; |
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(b) | Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2015, June 30, 2015, and September 30, 2015; |
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(c) | Current Reports on Form 8-K dated January 12, 2015 (filed on January 14, 2015), January 16, 2015 (filed on January 20, 2015), September 14, 2015 (filed on September 14, 2015), September 23, 2015 (filed on September 23, 2015) and October 19, 2015 (filed on October 19, 2015); and |
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(d) | The description of the Company’s Class A Common Stock contained in its Registration Statement on Form 8-A (File No. 1-13232) filed January 19, 1994, including any amendment or reports filed for the purpose of updating such description. |
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Any statement contained herein or in a document, all or a portion of which is incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or 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 shall not be deemed, except as so modified or amended, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company’s charter limits the liability of the Company’s directors and officers to the Company and its stockholders to the maximum extent permitted from time to time by Maryland law. Maryland law presently permits the liability of directors and officers to a corporation or its stockholders for money damages to be limited, except (i) to the extent that it is proved that the director or officer actually received an improper benefit or profit in money, property or services for the amount of the benefit or profit in money, property or services actually received, or (ii) to the extent that a judgment or other final adjudication adverse to the director or officer is entered in a proceeding based on a finding that the director’s or officer’s action, or failure to act, was the result of active and deliberate dishonesty and was material to the cause of action adjudicated in the
proceeding. This provision does not limit the ability of the Company or its stockholders to obtain other relief, such as an injunction or rescission.
The Company’s charter and bylaws require the Company to indemnify its directors and officers and permits the Company to indemnify certain other parties to the fullest extent permitted from time to time by Maryland law. Maryland law permits a corporation to indemnify its directors, officers and certain other parties against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made a party by reason of their service to or at the request of the corporation, unless it is established that (i) the act or omission of the indemnified party was material to the matter giving rise to the proceeding and was committed in bad faith or was the result of active and deliberate dishonesty, (ii) the indemnified party actually received an improper personal benefit in money, property or services or (iii) in the case of any criminal proceeding, the indemnified party had reasonable cause to believe that the act or omission was unlawful. Indemnification may be made against judgments, penalties, fines, settlements and reasonable expenses actually incurred by the director or officer in connection with the proceeding; provided, however, that if the proceeding is one by or in the right of the corporation, indemnification may not be made with respect to any proceeding in which the director or officer has been adjudged to be liable to the corporation. In addition, a director or officer may not be indemnified with respect to any proceeding charging improper personal benefit to the director or officer, whether or not involving action in the director’s or officer’s official capacity, in which the director or officer was adjudged to be liable on the basis that personal benefit was improperly received. The termination of any proceeding by conviction, or upon a plea of nolo contendere or its equivalent, or an entry of any order of probation prior to judgment, creates a rebuttable presumption that the director or officer did not meet the requisite standard of conduct required for indemnification to be permitted. It is the position of the Commission that indemnification of directors and officers for liabilities arising under the Securities Act is against public policy and is unenforceable pursuant to Section 14 of the Securities Act.
The Company has entered into agreements with certain of its officers, pursuant to which the Company has agreed to indemnify such officers to the fullest extent permitted by applicable law.
The agreement of limited partnership AIMCO Properties, L.P., or the Aimco Operating Partnership, also provides for indemnification of the Company, or any director or officer of the Company, in its capacity as the previous general partner of the Aimco Operating Partnership, from and against all losses, claims, damages, liabilities, joint or several, expenses (including legal fees), fines, settlements and other amounts incurred in connection with any actions relating to the operations of the Aimco Operating Partnership.
Section 12.6 of the 2015 Stock Plan provides that no member of the Company’s Board of Directors (the “Board”) or of the Compensation and Human Resources Committee of the Board (the “Compensation Committee”), nor any officer or employee of the Company acting on behalf of the Board or the Compensation Committee, shall be personally liable for any action, determination, or interpretation taken or made in good faith with respect to the 2015 Stock Plan and all members of the Board or the Compensation Committee and each and any officer or employee of the Company acting on their behalf shall, to the extent permitted by law, be fully indemnified and protected by the Company in respect of any such action, determination or interpretation.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit No. | | Description |
5.1 | | Opinion of DLA Piper LLP (US) regarding the validity of the securities offered hereby. |
23.1 | | Consent of Ernst & Young LLP. |
23.2 | | Consent of DLA Piper LLP (US) (included in their opinion filed as Exhibit 5.1). |
24.1 | | Powers of Attorney (included on the signature page of this Registration Statement). |
Item 9. Undertakings.
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(a) | 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: |
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(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
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(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 Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement. |
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(iii) | 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 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; and
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(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. |
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(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 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 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 City of Denver, State of Colorado, on November 5, 2015.
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
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By: | | /s/Terry Considine |
| | Terry Considine |
| | Chairman of the Board and Chief Executive Officer |
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Terry Considine and Paul. L. Beldin, and each or either of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement on Form S-8 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 and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, 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 and on the date indicated.
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Signature | Title | Date |
/s/ Terry Considine | Chairman of the Board and Chief Executive Officer (Principal Executive Officer) | November 5, 2015 |
Terry Considine | | |
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/s/ Paul L. Beldin | Executive Vice President and Chief Financial Officer (Principal Financial Officer) | November 5, 2015 |
Paul. L. Beldin | | |
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/s/ Charles A. Higdon | Senior Vice President and Chief Accounting Officer | November 5, 2015 |
Charles A. Higdon | | |
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/s/ James N. Bailey | Director | November 5, 2015 |
James N. Bailey | | |
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/s/ Thomas L. Keltner | Director | November 5, 2015 |
Thomas L. Keltner | | |
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/s/ J. Landis Martin | Director | November 5, 2015 |
J. Landis Martin | | |
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/s/ Robert A. Miller | Director | November 5, 2015 |
Robert A. Miller | | |
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/s/ Kathleen M. Nelson | Director | November 5, 2015 |
Kathleen M. Nelson | | |
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/s/ Michael A. Stein | Director | November 5, 2015 |
Michael A. Stein | | |
EXHIBIT INDEX
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Exhibit No. | | Description |
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5.1 | | Opinion of DLA Piper LLP (US) regarding the validity of the securities offered hereby. |
23.1 | | Consent of Ernst & Young LLP. |
23.2 | | Consent of DLA Piper LLP (US) (included in their opinion filed as Exhibit 5.1). |
24.1 | | Powers of Attorney (included on the signature page of this Registration Statement). |
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| DLA Piper LLP (US) The Marbury Building 6225 Smith Avenue Baltimore, Maryland 21209-3600 www.dlapiper.com
T 410.580.3000 F 410.580.3001 |
November 5, 2015
Apartment Investment and Management Company
4582 South Ulster Street, Suite 1100
Denver, Colorado 80237
Re: Registration Statement on Form S-8
(2015 Stock Award and Incentive Plan)
Ladies and Gentlemen:
We serve as special Maryland counsel to Apartment Investment and Management Company, a Maryland corporation (the “Company”), in connection with the registration under the Securities Act of 1933, as amended (the “Act”), of the sale and issuance of up to 3,900,000 shares (the “Shares”) of Class A Common Stock, $.01 par value per share, of the Company (“Common Stock”), covered by the above-identified Registration Statement (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) on the date hereof. This opinion is being provided at your request in connection with the filing of the Registration Statement.
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (collectively, the “Documents”):
1. The Registration Statement in the form in which it was transmitted to the Commission under the Act;
2. The charter of the Company (the “Charter”), certified as of a recent date by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3. The Bylaws of the Company, certified as of the date hereof by the Secretary of the Company;
4. Resolutions (the “Resolutions”) adopted by the Board of Directors of the Company or a committee thereof relating to (a) the registration, sale and issuance of the Shares and (b) the approval of the Company’s 2015 Stock Award and Incentive Plan (the “Plan”), certified as of the date hereof by the Secretary of the Company;
5. The Plan, certified as of the date hereof by the Secretary of the Company;
6. A certificate of the SDAT as to the good standing of the Company, dated as of the date hereof;
7. A certificate executed by the Secretary of the Company, dated as of the date hereof (the “Certificate”); and
8. Such other documents as we have considered necessary to the rendering of the opinion expressed below.
Apartment Investment and Management Company
November 5, 2015
Page 2
In examining the Documents, and in rendering the opinion set forth below, we have assumed the following: (a) each of the parties to the Documents (other than the Company) has duly and validly executed and delivered each of the Documents and each instrument, agreement and other document executed in connection with the Documents to which such party is a signatory, and each such party’s (other than the Company’s) obligations set forth in the Documents are its legal, valid and binding obligations, enforceable in accordance with their respective terms; (b) each person executing any such instrument, agreement or other document on behalf of any such party (other than the Company) is duly authorized to do so; (c) each natural person executing any such instrument, agreement or other document is legally competent to do so; (d) the Documents accurately describe and contain the mutual understandings of the parties, there are no oral or written modifications of or amendments or supplements to the Documents and there has been no waiver of any of the provisions of the Documents by actions or conduct of the parties or otherwise; and (e) all documents submitted to us as originals are authentic, all documents submitted to us as certified or photostatic copies or telecopies or portable document file (“.PDF”) copies conform to the original documents (and the authenticity of the originals of such copies), all signatures on all documents submitted to us for examination (and including signatures on photocopies, telecopies and .PDF copies) are genuine and all public records reviewed are accurate and complete. As to certain factual matters, we have relied on the Certificate as to the factual matters set forth therein, which we assume to be accurate and complete.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
2. The Shares have been duly authorized and, when issued and delivered in accordance with the Charter, the Resolutions and the Plan, the Shares will be validly issued, fully paid and nonassessable.
The opinion set forth herein is subject to additional assumptions, qualifications and limitations as follows:
(a) We have made no investigation of, and we express no opinion as to, the laws of any jurisdiction other than the laws of the State of Maryland. To the extent that any documents referred to herein are governed by the laws of a jurisdiction other than the State of Maryland, we have assumed that the laws of such jurisdiction are the same as the laws of the State of Maryland.
(b) We further assume that the issuance and sale of the Shares will not cause the Company to exceed the total limit of the authorized capital stock of the Company, as provided in the Charter.
(c) This opinion concerns only the effect of the laws (exclusive of the principles of conflict of laws) of the State of Maryland as currently in effect. We assume no obligation to supplement this opinion if any applicable laws change after the date hereof or if any facts or circumstances come to our attention after the date hereof that might change this opinion.
(d) We express no opinion as to compliance with the securities (or “blue sky”) laws or the real estate syndication laws of the State of Maryland.
(e) We assume that the issuance of the Shares by the Company will not cause any person to violate any of the provisions of the Charter relating to the Initial Holder Limit, the Look-Through Ownership Limit or the Ownership Limit (as those terms are defined in the provisions in the Charter that are applicable to the Shares), and that the Company will not issue any shares of capital stock other than the Shares.
(f) This opinion is limited to the matters set forth herein, and no other opinion should be inferred beyond the matters expressly stated.
The opinion expressed herein is subject to the effect of judicial decisions which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
Apartment Investment and Management Company
November 5, 2015
Page 3
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement and to the reference to our firm and to our opinion in the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Act or the rules and regulations of the Commission thereunder or Item 509 of Regulation S-K. This opinion may not be relied on by any other person or in any other connection without our prior written approval.
Very truly yours,
/s/ DLA PIPER LLP (US)
EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the Apartment Investment and Management Company 2015 Stock Award and Incentive Plan of our reports dated February 26, 2015, with respect to the consolidated financial statements and schedule of Apartment Investment and Management Company, and the effectiveness of internal control over financial reporting of Apartment Investment and Management Company included in its Annual Report (Form 10-K) for the year ended December 31, 2014, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Denver, Colorado
November 4, 2015
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