Securities Registration: Employee Benefit Plan (s-8)
June 16 2016 - 4:41PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on June 16, 2016
Registration No. 333-________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PACIFIC ETHANOL, INC.
(Exact name of Registrant as specified in its
charter)
Delaware
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41-2170618
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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400 Capitol Mall, Suite 2060, Sacramento, California
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95814
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(Address of Principal Executive Offices)
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(Zip Code)
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2016 STOCK INCENTIVE PLAN
(Full title of the plan)
Neil M. Koehler
Chief Executive Officer
Pacific Ethanol, Inc.
400 Capitol Mall, Suite 2060, Sacramento, California 95814
(Name and address of agent for service)
(916) 403-2123
(Telephone number, including area code, of agent
for service)
Copies
of all correspondence to:
Larry A. Cerutti, Esq.
John T. Bradley, Esq.
Troutman Sanders LLP
5 Park Plaza, Suite 1400
Irvine, California 92614
(949) 622-2700
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 definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company”
in Rule 12b-2 of the Exchange Act.
Large accelerated filer
o
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Accelerated filer
x
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Non-accelerated filer
o
(Do not
check if a smaller reporting company)
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Smaller reporting company
o
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CALCULATION OF REGISTRATION FEE
Title of
Securities to be Registered
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Amount to be
Registered
(1)
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Proposed
Maximum
Offering Price
Per Share
(2)
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Proposed
Maximum
Aggregate
Offering Price
(2)
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Amount of
Registration Fee
(2)
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Common Stock, $0.001 par value
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1,150,000
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$5.55
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$6,382,500.00
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$642.72
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(1)
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In the event of a stock split, stock dividend, or similar transaction involving the
Registrant’s 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 (the “Securities Act”).
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(2)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule
457(h) under the Securities Act, and is based upon the average of high and low sales prices of the Registrant’s common stock
on The NASDAQ Capital Market on June 14, 2016.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
The documents containing
the information specified in Part I, Items 1 and 2, will be sent or given to each participant in accordance with Form S-8 and Rule
428(b)(1) of the Securities Act. We will furnish without charge to each participant to whom information is required to be delivered,
upon written or oral request, a copy of each document incorporated by reference in Part II, Item 3 of this registration statement,
which documents are incorporated by reference in the Section 10(a) prospectus, and any other documents required to be delivered
to them under Rule 428(b) of the Securities Act. Requests should be directed to Pacific Ethanol, Inc., 400 Capitol Mall, Suite
2060, Sacramento, California 95814, Attention: Secretary. Our telephone number is (916) 403-2123.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
ITEM 3.
Incorporation of Documents by
Reference
.
We incorporate the following
documents by reference in this registration statement:
·
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Our current report on Form 8-K for June 16, 2016, as filed with the Securities and
Exchange Commission on June 16, 2016;
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·
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Our quarterly report on Form 10-Q for the three months ended March 31, 2016, as filed
with the Securities and Exchange Commission on May 9, 2016;
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·
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Our current report on Form 8-K for May 4, 2016, as filed with the Securities and Exchange
Commission on May 4, 2016;
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·
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Our amendment no. 1 to annual report on Form 10-K/A for the year ended December 31,
2015, as filed with the Securities and Exchange Commission on March 16, 2016;
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·
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Our annual report on Form 10-K for the year ended December 31, 2015, as filed with
the Securities and Exchange Commission on March 15, 2016;
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·
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Our amendment no. 1 to current report on Form 8-K/A for March 9, 2016, as filed with
the Securities and Exchange Commission on March 10, 2016; and
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·
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Our current report on Form 8-K for March 9, 2016, as filed with the Securities and
Exchange Commission on March 9, 2016; and
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·
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The description of our capital stock contained in amendment no. 3 to our Registration
Statement on Form S-4/A (Reg. No. 333-201879), as filed with the Commission on May 4, 2015, including any amendments or reports
filed for the purpose of updating such description.
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All reports and other documents
we subsequently file after the date of this registration statement under Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (“Exchange Act”), prior to the filing of a post-effective amendment which indicates
that all securities offered under this registration statement have been sold, or which deregisters all securities then remaining
unsold, shall be deemed incorporated by reference into this registration statement and shall be a part of this registration statement
from the date of filing such documents.
For purposes of this registration
statement, any document or any statement contained in a document incorporated or deemed to be incorporated herein by reference
shall be deemed to be modified or superseded to the extent that a subsequently filed document or a statement contained herein or
in any other subsequently filed document, which also is or is deemed to be incorporated herein by reference modifies or supersedes
such document or such statement in such document. Any statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
Notwithstanding the above,
information that is “furnished to” the Securities and Exchange Commission shall not be deemed “filed with”
the Securities and Exchange Commission and shall not be deemed incorporated by reference into 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
.
Section 145 of the Delaware
General Corporation Law (“DGCL”) permits a corporation to indemnify its directors and officers against expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred in connection with a pending or completed action, suit or
proceeding if the officer or director acted in good faith and in a manner the officer or director reasonably believed to be in
the best interests of the corporation.
Our certificate of incorporation
provides that, except in certain specified instances, our directors shall not be personally liable to us or our stockholders for
monetary damages for breach of their fiduciary duty as directors, except liability for the following:
·
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any breach of their duty of loyalty to Pacific Ethanol or our stockholders;
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·
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acts or omissions not in good faith or which involve intentional misconduct or a knowing
violation of law;
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·
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unlawful payments of dividends or unlawful stock repurchases or redemptions as provided
in Section 174 of the DGCL; and
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·
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any transaction from which the director derived an improper personal benefit.
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In addition, our certificate
of incorporation and bylaws obligate us to indemnify our directors and officers against expenses and other amounts reasonably incurred
in connection with any proceeding arising from the fact that such person is or was an agent of ours. Our bylaws also authorize
us to purchase and maintain insurance on behalf of any of our directors or officers against any liability asserted against that
person in that capacity, whether or not we would have the power to indemnify that person under the provisions of the DGCL. We have
entered and expect to continue to enter into agreements to indemnify our directors and officers as determined by our board of directors.
These agreements provide for indemnification of related expenses including attorneys’ fees, judgments, fines and settlement
amounts incurred by any of these individuals in any action or proceeding. We believe that these bylaw provisions and indemnification
agreements are necessary to attract and retain qualified persons as directors and officers. We also maintain directors’ and
officers’ liability insurance.
The limitation of liability
and indemnification provisions in our certificate of incorporation and bylaws may discourage stockholders from bringing a lawsuit
against our directors for breach of their fiduciary duty. They may also reduce the likelihood of derivative litigation against
our directors and officers, even though an action, if successful, might benefit us and our stockholders. Furthermore, a stockholder’s
investment may be adversely affected to the extent that we pay the costs of settlement and damage awards against directors and
officers as required by these indemnification provisions. At present, there is no pending litigation or proceeding involving any
of our directors, officers or employees regarding which indemnification is sought, and we are not aware of any threatened litigation
that may result in claims for indemnification.
Insofar as the provisions
of our certificate of incorporation or bylaws provide for indemnification of directors or officers for liabilities arising under
the Securities Act, we have been informed that in the opinion of the Securities and Exchange Commission this indemnification is
against public policy as expressed in the Securities Act and is therefore unenforceable.
ITEM 7.
Exemption from Registration Claimed
.
Not Applicable.
ITEM 8.
Exhibits
.
Exhibit Number
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Description
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4.1
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2016 Stock Incentive Plan
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5.1
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Opinion of Troutman Sanders LLP
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23.1
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Consent of Troutman Sanders LLP (contained in Exhibit 5.1)
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23.2
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Consent of Independent Registered Public Accounting Firm
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23.3
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Consent of Independent Registered Public Accounting Firm
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24.1
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Power of Attorney (contained on the signature page to this registration statement)
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ITEM 9.
Undertakings
.
The undersigned Registrant
hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to the 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 Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent 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 (1)(i) and (1)(ii) shall not apply if the information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference into the registration statement;
(2) That, for the purpose
of determining any liability under the Securities Act, 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; and
(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.
The undersigned Registrant
hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference into 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.
Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant
pursuant to the indemnification provisions summarized in Item 6 above, 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 Securities
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 Securities 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 Sacramento, State of California, on this 16
th
day of June, 2016.
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PACIFIC ETHANOL, INC.,
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a Delaware corporation
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By:
/s/ NEIL M. KOEHLER
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Neil M. Koehler
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE
PRESENTS, that each person whose signature appears below constitutes and appoints Neil M. Koehler his attorney-in-fact and agent,
with the power of substitution and resubstitution, for him and in his name, place or stead, in any and all capacities, to sign
any amendment to this registration statement on Form S-8, and to file such amendments, together with exhibits and other documents
in connection therewith, with the Securities and Exchange Commission, granting to such attorney-in-fact and agent, 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
as he might or could do in person, and ratifying and confirming all that the attorney-in-fact and agent, or his substitute or substitutes,
may 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
dates indicated.
Signature
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Title
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Date
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/s/ WILLIAM
L. JONES
William L. Jones
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Chairman of the Board and Director
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June 16, 2016
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/s/ NEIL
M. KOEHLER
Neil M. Koehler
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President, Chief Executive Officer (principal executive officer) and Director
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June 16, 2016
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/s/ BRYON
T. MCGREGOR
Bryon T. McGregor
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Chief Financial Officer (principal financial and accounting officer)
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June 16, 2016
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/s/ MICHAEL
D. KANDRIS
Michael D. Kandris
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Chief Operating Officer and Director
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June 16, 2016
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/s/ TERRY
L. STONE
Terry L. Stone
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Director
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June 16, 2016
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/s/ JOHN
L. PRINCE
John L. Prince
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Director
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June 16, 2016
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/s/ DOUGLAS
L. KIETA
Douglas L. Kieta
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Director
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June 16, 2016
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/s/ LARRY
D. LAYNE
Larry D. Layne
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Director
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June 16, 2016
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INDEX TO EXHIBITS
Exhibit
Number
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Description
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4.1
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2016 Stock Incentive Plan
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5.1
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Opinion of Troutman Sanders LLP
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23.1
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Consent of Troutman Sanders LLP (contained in Exhibit 5.1)
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23.2
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Consent of Independent Registered Public Accounting Firm
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23.3
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Consent of Independent Registered Public Accounting Firm
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24.1
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Power of Attorney (contained on the signature page to this registration statement)
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