Securities Registration: Employee Benefit Plan (s-8)
August 11 2017 - 4:12PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on August 11, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Assembly Biosciences, Inc.
(Exact Name of Registrant as Specified in
Its Charter)
Delaware
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20-8729264
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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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11711 N. Meridian Street, Suite 310
Carmel, Indiana
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46032
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(Address of Principal Executive Offices)
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(Zip Code)
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Assembly Biosciences, Inc. 2017 Inducement
Award Plan
(Full Title of the Plan)
Derek
A. Small
Chief Executive Officer and President
Assembly Biosciences, Inc.
11711 N. Meridian Street, Suite 310
Carmel, Indiana 46032
(Name and Address of Agent For Service)
(317) 210-9311
(Telephone Number, Including Area Code,
of Agent For Service)
Copies to:
Mitchell
S. Bloom, Esq.
Maggie
L. Wong, Esq.
Goodwin
Procter LLP
100
Northern Avenue
Boston,
Massachusetts 02210
(617)
570-1000
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Elizabeth
H. Lacy
General
Counsel
Assembly
Biosciences, Inc.
11711
N. Meridian Street, Suite 310
Carmel, Indiana 46032
(317)
210-9311
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Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
¨
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Accelerated filer
x
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Non-accelerated filer
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Smaller reporting company
¨
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(Do not check if a smaller reporting company)
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Emerging growth company
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 7(a)(2)(B) of the Securities Act .
¨
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
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Proposed
Maximum
Aggregate
Offering Price(2)
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Amount of
Registration
Fee
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Common Stock, $0.001 par value per share
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800,000
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$
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23.05
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$
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18,440,000
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$
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2,137.20
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(1)
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In accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration
statement (the “Registration Statement”) shall be deemed to cover any additional securities that may from time to time
be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
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(2)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to
Rule 457(h) under the Securities Act. The offering price per share and aggregate offering price are based upon the average of the
high and low prices of the registrant’s common stock on August 8, 2017, as reported on the NASDAQ Capital Market.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
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Item 1.
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Plan Information.
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The documents containing the
information specified in Part I will be delivered in accordance with Form S-8 and Rule 428(b) under the Securities Act of
1933, as amended (the “Securities Act”). Such documents are not required to be, and are not, filed with the
Securities and Exchange Commission (the “Commission”), either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents, and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
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Item 2.
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Registrant Information and Employee Plan Annual Information.
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The written statement required by Item 2 of Part I is included
in documents delivered to participants in the plan covered by this Registration Statement pursuant to Rule 428(b) of the Securities
Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The following documents, which have been
filed with the Commission by Assembly Biosciences, Inc. (the “Company” or the “Registrant”), pursuant to
the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as applicable, are hereby
incorporated by reference in, and shall be deemed to be a part of, this Registration Statement:
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(a)
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The Company’s Annual Report on Form 10-K for the year ended December 31, 2016, filed with the Commission on
March 2, 2017;
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(b)
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The Company’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2017 and June 30, 2017, filed with the
Commission on May 8, 2017 and August 9, 2017, respectively;
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(c)
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The Company’s Current Reports on Form 8-K filed with the Commission on January 10, 2017 (as to Item 1.01 only) and
June 2, 2017 (as amended on June 14, 2017); and
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(d)
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The description of the Company’s common stock in the Company’s Registration Statement on Form 8-A (File No. 001-35005)
filed with the Commission on December 10, 2010, including any amendment or report filed by the Company for the purpose of updating
such description.
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All documents subsequently filed by the
Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective amendment
to this Registration Statement that indicates that all of the shares of common stock registered hereunder have been sold or that
deregisters all of such shares then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the respective dates of filing of such documents, except as to any portion of any future annual or
quarterly report to stockholders or document or current report furnished under current Items 2.02 or 7.01 of Form 8-K that is not
deemed filed under such provisions.
Any statement contained in a document 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 that also is or is deemed
to be incorporated by reference herein, modifies or supersedes such earlier statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
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Item 4.
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Description of Securities.
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel.
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None.
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Item 6.
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Indemnification of Directors and Officers.
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The Company is incorporated under the laws
of the State of Delaware. Section 145 of the Delaware General Corporation Law (the “DGCL”) provides that a Delaware
corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer, director, employee, or agent of such corporation, or is or
was serving at the request of such person as an officer, director, employee, or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit, or proceeding, provided that such person acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with
respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal.
Section 145 of the DGCL also gives a corporation
the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is
or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including
attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action
or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests
of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper. Section 145 further provides that, to the extent that a present or former director
or officer of a corporation has been successful on the merits or otherwise in defense of any such action, suit or proceeding, or
in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred by such person in connection therewith.
The Company’s Amended and Restated
Bylaws provide that:
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The Company shall indemnify its directors, officers and, in the discretion of its board of directors, certain employees and
agents to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended; and
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the Company shall advance reasonable expenses, including attorneys’ fees, to its directors and officers in connection
with legal proceedings relating to their service for or on behalf of the Company, subject to limited exceptions.
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Section 145 of the DGCL also
authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted
against him and incurred by him in any such capacity, arising out of his status as such, whether or not the corporation would
otherwise have the power to indemnify him under Section 145. The Company maintains general liability insurance which
covers certain liabilities of its directors and officers arising out of claims based on acts or omissions in their capacities
as directors or officers, including liabilities under the Securities Act.
The Company has adopted provisions in the
Company’s certificate of incorporation that limit or eliminate the personal liability of the Company’s directors to
the fullest extent permitted by the DGCL, as it now exists or may in the future be amended. Consequently, a director will not be
personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except for
liability for:
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any breach of the director’s duty of loyalty to the Company or its stockholders;
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any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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any unlawful payments related to dividends or unlawful stock purchases, redemptions or other distributions under Section 174
of the DGCL; or
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any transaction from which the director derived an improper personal benefit..
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These limitations of liability do not alter
director liability under the federal securities laws and do not affect the availability of equitable remedies such as an injunction
or rescission.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
See the Exhibit Index on the page immediately
preceding the exhibits for a list of exhibits filed as part of this Registration Statement on Form S-8, which Exhibit Index
is incorporated herein by reference.
The undersigned Registrant hereby undertakes:
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(1)
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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.
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to include any prospectus required by Section 10(a)(3) of
the Securities Act;
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ii.
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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% change in the
maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration
Statement; and
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iii.
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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;
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provided, however, that paragraphs (1)(i) and (1)(ii) 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 Exchange
Act that are incorporated by reference in the Registration Statement.
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(2)
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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.
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(3)
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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.
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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 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 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.
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 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 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 Carmel, state of Indiana, on August 11, 2017.
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ASSEMBLY BIOSCIENCES, INC.
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By:
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/s/ Derek A. Small
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Derek A. Small
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President and Chief Executive Officer
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POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors
of Assembly Biosciences, Inc., hereby severally constitute and appoint Derek A. Small and David J. Barrett, and each of them singly
(with full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution in each of them for him and in his name, place and stead, and in any and all capacities, to sign for us and
in our names in the capacities indicated below any and 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 or necessary to be done in and about the premises, as full to all intents and purposes
as he 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 below.
Signature
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Title
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Date
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/s/ Derek A. Small
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Director, President and Chief Executive Officer (Principal Executive Officer)
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August 11, 2017
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Derek A. Small
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/s/ David J. Barrett
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Chief Financial Officer and Chief Operating Officer (Principal Financial Officer and Accounting Officer)
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August 11, 2017
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David J. Barrett
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/s/ Anthony E. Altig
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Director
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August 11, 2017
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Anthony E. Altig
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/s/ Mark Auerbach
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Director
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August 11, 2017
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Mark Auerbach
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/s/ Richard DiMarchi
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Director
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August 11, 2017
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Richard DiMarchi
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/s/ Myron Z. Holubiak
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Director
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August 11, 2017
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Myron Z. Holubiak
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/s/ Alan J. Lewis
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Director
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August 11, 2017
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Alan J. Lewis
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/s/ William R. Ringo, Jr.
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Director
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August 11, 2017
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William R. Ringo, Jr.
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INDEX TO EXHIBITS
Number
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Description
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4.1
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Amended and Restated Certificate of Incorporation of the Company (1)
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4.2
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of the Company (2)
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4.3
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Amended and Restated Bylaws of the Company (3)
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4.4
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Specimen Common Stock Certificate (4)
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5.1*
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Opinion of Goodwin Procter LLP, counsel to the Company
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23.1*
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Consent of Goodwin Procter LLP (included in Exhibit 5.1)
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23.2*
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Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
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23.3*
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Consent of EisnerAmper LLP, Independent Registered Public Accounting Firm
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24.1*
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Power of Attorney (included on the signature page of this registration statement)
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99.1
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2017 Inducement Award Plan (5)
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*Filed herewith.
(1) Filed as Exhibit 3.1 to the Company’s Amendment No. 3
to Registration Statement on Form S-1 (File No. 333-168224), filed on November 16, 2010 and incorporated herein by reference.
(2) Filed as Exhibit 3.1 to the Company’s Current Report
on Form 8-K (File No. 001-35005), filed on July 14, 2014 and incorporated herein by reference.
(3) Filed as Exhibit 3.2 to the Company’s Registration
Statement on Form S-1 (File No. 333-168224), filed on July 20, 2010 and incorporated herein by reference.
(4) Filed as Exhibit 4.1 to the Company’s Registration
Statement on Form S-3 (File No. 333-208806), filed on December 30, 2015 and incorporated herein by reference
(5) Filed as Exhibit 10.1 to the Company’s Quarterly Report
on Form 10-Q (File No. 001-35005), filed on August 9, 2017.
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