Securities Registration: Employee Benefit Plan (s-8)
December 07 2017 - 5:31PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on December 7, 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
Authentidate Holding Corp.
(Exact name of
Registrant as specified in its charter)
Delaware
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14-1673067
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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2225 Centennial Drive
Gainesville, GA 30504
1 (888) 661-0225
(Address, including zip code, and telephone
number, including area
code, of principal executive offices)
2011 Omnibus Equity Incentive Plan, as
amended
(Full title of
the Plan)
Hanif A. Roshan
Chief Executive Officer
2225 Centennial Drive
Gainesville, GA 30504
1 (888) 661-0225
Copies to:
Victor J. DiGioia, Esq.
Michael A. Goldstein, Esq.
Becker & Poliakoff, LLP
45 Broadway
New York, New York 10006
(212) 599-3322
(Name and address, including zip code
and telephon8e
number, including area code, of agent
for service)
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
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Accelerated filer
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Non-accelerated filer
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¨
(Do not check if a smaller reporting company)
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Smaller reporting company
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x
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Emerging growth company
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¨
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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.
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CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered
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Amount
of
Shares to be
Registered (1)
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Proposed
Maximum
Offering Price
Per Share
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Proposed
Maximum
Aggregate Offering
Price
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Amount
of
Registration
Fee
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Common Stock, par value $0.001 per share
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321,849
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(2)
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$
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2.18
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(3)
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$
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701,631
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$
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87.35
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Common Stock, par value $0.001 per share
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443,480
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(4)
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$
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1.10
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(6)
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$
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487,828
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$
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60.74
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Common Stock, par value $0.001 per share
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234,671
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(5)
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$
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1.10
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(6)
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$
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258,138
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$
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32.14
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Total
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1,000,000
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$
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1,447,597
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$
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180.23
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(1)
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On July 11, 2016, an additional 1,000,000 shares of common stock were authorized for issuance under Authentidate Holding Corp.’s 2011 Omnibus Equity Incentive Plan, as amended (the “Plan”), in accordance with the provisions of the Plan. This Registration Statement covers such additional shares of common stock. Pursuant to Rule 416 under the Securities Act of 1933, this Registration Statement shall also cover any additional shares of common stock which become issuable under the Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of outstanding shares of the Registrant’s common stock.
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(2)
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Represents 321,849 shares of the Registrant’s common stock subject to outstanding options granted under the Plan.
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(3)
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This estimate is made pursuant to Rule 457(h) of the Securities Act solely for purposes of calculating the registration fee. For the shares of common stock reserved for issuance upon the exercise of outstanding awards granted under the Plan, the Proposed Maximum Offering Price Per Share is $2.18 per share, which is the weighted average exercise price of outstanding awards granted under the Plan.
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(4)
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Represents 443,480 shares of the Registrant’s common stock reserved for issuance
pursuant to unvested restricted stock units under the Plan.
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(5)
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Represents shares of the Registrant’s common stock available for future issuance under the Plan from the additional shares authorized for issuance under the Plan, as described in Note 1, above.
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(6)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h). The Proposed Maximum Offering Price Per Share is based on the average of the high ($1.10) and low ($1.10) prices for the Registrant’s common stock reported on the Over the Counter Bulletin Board on December 4, 2017.
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PART I
Information Required in the Section 10(a)
Prospectus
Explanatory Note
This Registration Statement on Form S-8
is being filed for the purpose of registering an aggregate of 1,000,000 additional shares of common stock of the Registrant to
be issued pursuant to the Registrant’s 2011 Omnibus Equity Incentive Plan, as amended (the “
Plan
”). At
the Registrant’s Annual Meeting of Stockholders held on July 11, 2016, the Registrant’s stockholders approved an amendment
to the Plan to increase the number of shares of common stock that may be issued pursuant to awards under the Plan by 1,000,000
shares and
the Registrant is filing the present Registration Statement in connection with
such amendment to the Plan. The additional shares registered hereby are in addition to the shares of common stock of the Registrant
authorized for issuance under the Plan which were registered pursuant to previous registration statements on Form S-8.
The
contents of the previous registration statements on Form S-8 filed by the registrant with the Securities and Exchange Commission
on January 31, 2012 (Registration No. 333-179269) and July 10, 2014 (Registration No. 333-197346) are incorporated by reference
into this registration statement pursuant to General Instruction E to Form S-8 regarding registration of additional securities.
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Item 1.
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Plan Information.
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Item 2.
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Registrant Information and Employee Plan Annual Information.
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The documents containing the information
specified in Part I will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended
(the “
Securities Act
”). Such documents are not being filed with the Securities and Exchange Commission (the
“
Commission
”) either as part of this Registration Statement or as prospectus supplements pursuant to Rule 424
of the Securities Act. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3
of Part II hereof, 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
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Item 3.
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Incorporation of Documents by Reference.
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The Commission allows us to incorporate
by reference the information we file with it, which means that we can disclose important information to you by referring to those
documents. The information incorporated by reference is an important part of this Registration Statement, and information that
we file later with the Commission will automatically update and supersede this information. We incorporate by reference the following
documents we have filed, or may file, with the Commission:
(1)
Our
Annual Report on Form 10-K for the fiscal year ended June 30, 2017 filed with the Commission under the Securities Act on October
13, 2017;
(2)
All
other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by Registrant’s
latest annual report referred to in (1) above; and
(3) The
description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on April 17, 2000.
All documents we file pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that indicates that all securities
offered hereby have been sold or that deregisters all securities covered hereby then remaining unsold, are deemed to be incorporated
by reference in this Registration Statement and are a part hereof from the date of filing of such documents.
Any information that we later file with
the Commission will automatically update and supersede the information and statements contained in a document incorporated or deemed
to be incorporated by reference herein. Any such information or statement so modified or superseded will not be deemed, except
as so modified or superseded, to constitute part of this Registration Statement. Under no circumstances will any information filed
under items 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless such Form 8-K expressly provides to the
contrary.
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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 (the “DGCL”) provides that a corporation may indemnify directors and officers as well as other employees
and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which
such person is made a party by reason of such person being or having been a director, officer, employee or agent of the corporation.
Section 145 of the DGCL also provides that expenses (including attorneys’ fees) incurred by a director or officer in
defending an action may be paid by a corporation in advance of the final disposition of an action if the director or officer undertakes
to repay the advanced amounts if it is determined such person is not entitled to be indemnified by the corporation. The DGCL provides
that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 102(b)(7) of the DGCL permits
a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable
to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends
or unlawful stock repurchases, redemptions or other distributions, or (iv) for any transaction from which the director derived
an improper personal benefit.
Our Certificate of Incorporation limits
the liability of our directors and provides that our directors will not be personally liable for monetary damages for breach of
their fiduciary duties as directors, except liability for: (i) breach of a director’s duty of loyalty, (ii) acts
or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) the unlawful
payment of a dividend or an unlawful stock purchase or redemption, and (iv) any transaction from which a director derives
an improper personal benefit. Our Certificate of Incorporation also provides that we shall indemnify our directors to the fullest
extent permitted by Section 145 of the General Corporation Law of the State of Delaware. In addition, our bylaws provide that
we shall indemnify our directors to the fullest extent authorized under the laws of the State of Delaware. Our bylaws also provide
that our Board of Directors shall have the power to indemnify any other person that is a party to an action, suit or proceeding
by reason of the fact that the person is an officer or employee of our company. We have an insurance policy that insures our directors
and officers, within the limits and subject to the limitations of the policy, against certain expenses in connection with the defense
of actions, suits or proceedings, and certain liabilities that might be imposed as a result of such actions, suits or proceedings,
to which they are parties by reason of being or having been directors or officers.
We have entered into indemnification agreements
with each of our non-employee directors that require us to indemnify these persons against expenses, witness fees, damages, judgments,
fines and settlement amounts incurred by the director in any action or proceeding, whether actual, pending or threatened, subject
to certain limitations, to which any of these people may be made a party by reason of the fact that he or she is or was serving
as our director or officer or is or was serving or at any time serves at our request as a director, officer, employee or other
agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. Our employment agreements
with our executive officers also require us to indemnify such persons, to the full extent permitted by law, from and against any
and all claims arising from or related to their employment by us.
Insofar as indemnification for liabilities
arising under the Securities Act, is permitted for our directors, officers or controlling persons, pursuant to the above mentioned
statutes or otherwise, we understand that the SEC is of the opinion that such indemnification may contravene federal public policy,
as expressed in the Securities Act, and therefore, is unenforceable. Accordingly, in the event that a claim for such indemnification
is asserted by any of our directors, officers or controlling persons, and the SEC is still of the same opinion, we (except insofar
as such claim seeks reimbursement from us of expenses paid or incurred by a director, officer of controlling person in successful
defense of any action, suit or proceeding) will, unless the matter has theretofore been adjudicated by precedent deemed by our
counsel to be controlling, submit to a court of appropriate jurisdiction the question whether or not indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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Item 7.
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Exemption From Registration Claimed.
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Not applicable.
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(a)
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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,
(i) to include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933, as amended (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) of the Securities Act
if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective Registration Statement.
(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 registration statement is on Form S-8 (§239.16b of this chapter), and the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic reports filed by us 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 therein, 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 our 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 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.
(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, we have 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 us of expenses incurred or paid by one of our directors, officers or controlling
persons 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, we 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, as amended, 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 Gainesville, State of Georgia, December 7, 2017.
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Authentidate Holding Corp.
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By:
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/s/ Hanif A. Roshan
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Hanif A. Roshan
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Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENT, that
each person whose signature appears below constitutes and appoints Hanif A. Roshan, his or her true and lawful attorney-in-fact
and agent, 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 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 substitutes
or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates
indicated.
NAME
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TITLE
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DATE
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/s/ Hanif A. Roshan
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Chief Executive Officer and Chairman of the Board
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December 7, 2017
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Hanif A. Roshan
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(Principal Executive Officer)
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/s/ Charles C. Lucas III
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Director
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December 7, 2017
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Charles C. Lucas III
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/s/ Marc Horowitz
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Director
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December 7, 2017
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Marc Horowitz
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/s/ Mustafa C. Chagani
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Director
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December 7, 2017
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Mustafa C. Chagani
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/s/ Varinder Rathore, M.D.
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Director
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December 7, 2017
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Varinder Rathore, M.D.
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/s/ Michael J. Poelking
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Chief Financial Officer & Treasurer
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December 7, 2017
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Michael J. Poelking
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(Principal Financial and Accounting Officer)
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