Securities Registration: Employee Benefit Plan (s-8)
August 20 2021 - 3:14PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on August 20,
2021
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Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
Moving iMage
Technologies, Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State
or other jurisdiction of
incorporation or organization)
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85-1836381
(I.R.S. Employer
Identification No.)
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17760 Newhope Street,
Fountain Valley, California 92075
(Address of principal executive offices)
(714) 751-7998
(Registrant’s telephone number, including
area code)
2019 Omnibus Incentive Plan
(Full title of the plan)
Phil Rafnson
President and Chief Executive Officer
17760 Newhope Street
Fountain Valley, California 92708
(714) 751-7998
(Name, address and telephone number of agent for
service)
With copies to:
Thomas J. Poletti, Esq.
Katherine J. Blair, Esq.
Manatt, Phelps & Phillips, LLP
695 Town Center Drive, 14th Floor
Costa Mesa, California 92626
(714) 371-2501
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a 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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¨
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Accelerated filer
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¨
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Non-accelerated filer
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x
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Smaller reporting company
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x
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Emerging growth company
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x
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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 (2)
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Proposed Maximum
Aggregate Offering
Price (2)
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Amount of
Registration Fee
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Common Stock, par value $0.00001 per share
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750,000
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$
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3.38
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$
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2,531,250.00
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$
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276.16
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(1)
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This Registration Statement covers, in addition to the number of shares of the Registrant’s common
stock (“Common Stock”) stated above, such indeterminate number of any additional shares of Common Stock that may become issuable
under the Moving iMage Technologies, Inc. 2019 Omnibus Plan (the “Plan”), by reason of any stock split, stock dividend
or similar transaction pursuant to Rule 416(a) of 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 amount of the registration fee pursuant to Rule 457(h)(1) and
Rule 457(c) under the Securities Act. The 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 16, 2021, as reported
on NYSE American.
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This Registration Statement shall become effective upon filing in accordance
with Section 8(a) of the Securities Act and Rule 462 under the Securities Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the
information specified in this Part I of Form S-8 will be sent or given to participants in the Moving iMage Technologies, Inc.
2019 Omnibus Incentive Plan (the “Plan”) as specified by Rule 428 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 “SEC”) either as part of this Registration Statement
or as a prospectus or prospectus supplement 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 Form S-8, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference
into this Registration Statement the following documents filed by it with the SEC:
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(b)
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All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act of 1934 , as amended
(the “Exchange Act”) since the end of the year covered by the latest prospectus filed by the Company referred in (a) above;
and
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All documents subsequently
filed by the Registrant with the SEC pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act after the date hereof, and
prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed incorporated by reference into this Registration Statement and to be a part thereof
from the date of the filing of such documents. Any statement contained in the documents incorporated, or deemed to be incorporated, by
reference herein or therein shall be deemed to be modified or superseded for purposes of this Registration Statement and the prospectus
to the extent that a statement contained herein or therein or in any other subsequently filed document which also is, or is deemed to
be, incorporated by reference herein or therein modifies or supersedes such 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 and the prospectus.
Notwithstanding the foregoing, unless specifically stated to the contrary,
none of the information disclosed by the Registrant under Items 2.02 or 7.01 of any Current Report on Form 8-K, including the related
exhibits under Item 9.01, that the Registrant has furnished, or may from time to time furnish, to the Commission is, or will be, incorporated
by reference into, or otherwise included in, 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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Not applicable.
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Item
6.
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Indemnification
of Directors and Officers.
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Section 145 of the Delaware
General Corporation Law, or the DGCL, authorizes a corporation to indemnify its directors and officers against liabilities arising out
of actions, suits and proceedings to which they are made or threatened to be made a party by reason of the fact that they have served
or are currently serving as a director or officer to a corporation. The indemnity may cover expenses (including attorneys’ fees)
judgments, fines and amounts paid in settlement actually and reasonably incurred by the director or officer in connection with any such
action, suit or proceeding. Section 145 permits corporations to pay expenses (including attorneys’ fees) incurred by directors
and officers in advance of the final disposition of such action, suit or proceeding. In addition, Section 145 provides that a corporation
has the power to purchase and maintain insurance on behalf of its directors and officers against any liability asserted against them and
incurred by them in their capacity as a director or officer, or arising out of their status as such, whether or not the corporation would
have the power to indemnify the director or officer against such liability under Section 145.
We have adopted provisions
in our certificate of incorporation and bylaws that limit or eliminate the personal liability of our 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 us or our stockholders
for monetary damages or breach of fiduciary duty as a director, except for liability for:
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·
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any breach of the director’s duty of loyalty
to us or our stockholders;
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·
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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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·
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any unlawful payments related to dividends or
unlawful stock purchases, redemptions or other distributions; or
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·
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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.
In addition, our bylaws provide
that:
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·
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we will indemnify our directors, officers and,
in the discretion of our board of directors, certain employees to the fullest extent permitted by the DGCL, as it now exists or may in
the future be amended; and
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·
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we will advance reasonable expenses, including
attorneys’ fees, to our directors and, in the discretion of our board of directors, to our officers and certain employees, in connection
with legal proceedings relating to their service for or on behalf of us, subject to limited exceptions.
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We have entered into indemnification
agreements with each of our directors and intend to enter into such agreements with certain of our executive officers. These agreements
provide that we will indemnify each of our directors, certain of our executive officers and, at times, their affiliates to the fullest
extent permitted by Delaware law. We will advance expenses, including attorneys’ fees (but excluding judgments, fines and settlement
amounts), to each indemnified director, executive officer or affiliate in connection with any proceeding in which indemnification is available
and we will indemnify our directors and officers for any action or proceeding arising out of that person’s services as a director
or officer brought on behalf of us or in furtherance of our rights. Additionally, certain of our directors or officers may have certain
rights to indemnification, advancement of expenses or insurance provided by their affiliates or other third parties, which indemnification
relates to and might apply to the same proceedings arising out of such director’s or officer’s services as a director referenced
herein. Nonetheless, we have agreed in the indemnification agreements that our obligations to those same directors or officers are primary
and any obligation of such affiliates or other third parties to advance expenses or to provide indemnification for the expenses or liabilities
incurred by those directors are secondary.
We also maintain general liability
insurance which covers certain liabilities of our 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 of 1933, as amended, or the Securities Act.
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Item
7.
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Exemption From Registration Claimed.
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Not applicable.
Item 8. Exhibits.
Exhibit
Number
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Description
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4.1
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Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 of the Registrant’s registration statement on Form S-1 filed October 11, 2019)
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5.1
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Opinion of Manatt, Phelps & Phillips LLP
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23.1
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Consent of CohnReznick LLP
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23.2
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Consent of Manatt, Phelps & Phillips, LLP (included in Exhibit 5.1)
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24
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Power of Attorney (contained on signature page hereto)
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99.1
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Moving iMage Technologies, Inc. 2019 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.3 of the Registrant’s registration statement on Form S-1 originally filed with the Commission on October 11, 2019, and all amendments filed thereto)
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99.2
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Form of Stock Option Award Agreement (incorporated by reference to Exhibit 10.3(a) of the Registrant’s registration statement on Form S-1 originally filed with the Commission on October 11, 2019, and all amendments filed thereto)
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99.3
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Form of Restricted Stock Award Agreement (incorporated by reference to Exhibit 10.3(b) of the Registrant’s registration statement on Form S-1 originally filed with the Commission on October 11, 2019, and all amendments filed thereto)
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99.4
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Form of Restricted Stock Unit Award Agreement (incorporated by reference to Exhibit 10.3(c) of the Registrant’s registration statement on Form S-1 originally filed with the Commission on October 11, 2019, and all amendments filed thereto)
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A. The undersigned Registrant
hereby undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus
required by section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus
any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; 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 A(1)(i) and A(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.
(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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means
of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
B. 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 in the registration statement shall
be deemed to be a new registration statement relating to the securities offered herein, 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 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 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 has duly caused this Registration Statement on Form S-8 to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of Fountain Valley, State of California, on the 20th day of
August, 2021.
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Moving iMage Technologies, Inc.
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By:
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/s/ Phil Rafnson
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Name: Phil Rafnson
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Title: Chief Executive Officer
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POWER OF ATTORNEY
We, the undersigned officers and directors of
Moving iMage Technologies, Inc., do hereby constitute and appoint Phil Rafnson and Michael Sherman, each of them, as his true and
lawful attorneys-in-fact and agents, with full power of substitution for him in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, 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 connection therewith, as
fully 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, this Registration
Statement has been signed by the following persons in the capacities and on the dates indicated.
Name and Signature
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Title
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Date
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/s/ Phil Rafnson
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President, Chief Executive Officer and Chairman of the Board
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August 20, 2021
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Phil Rafnson
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(Principal Executive Officer)
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/s/ Michael Sherman
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Chief Financial Officer
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August 20, 2021
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Michael Sherman
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(Principal Financial and Accounting Officer)
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/s/
Katherine D. Crothall Ph.D.
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Director
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August 20, 2021
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Katherine D. Crothall Ph.D.
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/s/ John C. Stiska
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Director
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August 20, 2021
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John C. Stiska
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/s/ Scott Anderson
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Director
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August 20, 2021
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Scott Anderson
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