Securities Registration: Employee Benefit Plan (s-8)
June 07 2018 - 4:08PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on June 7, 2018
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ProPhase
Labs, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
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23-2577138
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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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ProPhase
Labs, Inc.
621
N. Shady Retreat Road
Doylestown,
PA 18901
(215)
345-0919
(Address
of Principal Executive Offices)
THE
PROPHASE LABS, INC.
Amended and Restated
2010
Equity Compensation Plan
THE
PROPHASE LABS, INC.
Amended and Restated
2010
directors’ Equity Compensation Plan
(Full
title of the plans)
Ted
Karkus
Chief
Executive Officer
ProPhase
Labs, Inc.
621
N. Shady Retreat Road
Doylestown,
PA 18901
(215)
345-0919
(Name,
address and telephone number (including area code) of agent for service)
Copy
to:
Herb
Kozlov, Esq.
Reed
Smith LLP
Aron
Izower, Esq.
Reed
Smith LLP
599
Lexington Avenue
New
York, New York 10022
Tel:
(212) 521-5400; Fax: (212) 521-5450
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 definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act (check one):
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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[ ]
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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.
[ ]
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, $0.0005 par value, reserved for issuance under the Amended and Restated 2010 Equity Compensation Plan
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700,000
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$
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2.97
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$
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2,079,000
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$
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258.84
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Common Stock, $0.005 par value, reserved for issuance under the Amended and Restated 2010 Directors’ Equity Compensation Plan
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250,000
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$
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2.97
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$
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742,500
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$
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92.44
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TOTAL
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$
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351.28
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(1)
This Registration Statement covers, in addition to the number of shares of ProPhase Labs, Inc, common stock, $0.0005 par value
per share (“Common Stock”), stated above, an additional indeterminate number of shares of Common Stock that may be
offered or issued pursuant to The ProPhase Labs, Inc. Amended and Restated 2010 Equity Compensation Plan (the “2010 Plan”)
and The ProPhase Labs, Inc. Amended and Restated 2010 Directors’ Equity Compensation Plan (the “2010 Directors’
Plan” and, together with the 2010 Plan, the “Plans”) as a result of one or more adjustments under the Plans
to prevent dilution resulting from one or more stock splits, stock dividends or similar transactions pursuant to Rule 416(a) under
the Securities Act of 1933, as amended (the “Securities Act”).
(2)
Pursuant to Rule 457(c) and 457(h) of the Securities Act, and solely for the purpose of calculating the amount of the registration
fee, the proposed maximum offering price per share and the proposed maximum aggregate offering price are based on the average
of the high and low sales prices of the Common Stock on The Nasdaq Capital Market on June 6, 2018.
EXPLANATORY
NOTE
ProPhase
Labs, Inc. (the “Registrant”) is filing this Registration Statement on Form S-8 for the purpose of registering (i)
an additional 700,000 shares of common stock issuable to eligible persons under the Registrant’s Amended and Restated 2010
Equity Compensation Plan (the “2010 Plan”), which shares are in addition to the 1,781,500 shares registered on the
Registrant’s Form S-8 filed on September 30, 2010 (File No. 333-169697) (the “2010 Form S-8”), the 700,000 shares
registered on the Registrant’s Form S-8 filed on July 10, 2013 (File No. 333-189875) (the “2013 Form S-8”),
and the 700,000 shares registered on the Registrant’s Form S-8 filed on April 27, 2017 (File No. 333-217484) and (ii) an
additional 250,000 shares of common stock issuable to eligible persons under the Registrant’s Amended and Restated 2010
Directors’ Equity Compensation Plan (the “2010 Directors’ Plan” and, together with the 2010 Plan, the
“Plans”), which shares are in addition to the 214,165 shares registered on the 2010 Form S-8 and the 175,000 shares
registered on the 2013 Form S-8.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
information required by Part I is included in one or more documents to be sent or given to participants in the Plans pursuant
to Rule 428 under the Securities Act. In accordance with the rules and regulations of the Securities and Exchange Commission
(the “Commission”), and the instructions to Form S-8, such documents are not being filed with the Commission
either as a part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities
Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents previously filed with the Commission are hereby incorporated by reference into this Registration Statement:
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(a)
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the
Registrant’s annual report on Form 10-K for the fiscal year ended December 31, 2017 filed on March 28, 2018;
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(b)
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the
Registrant’s quarterly report on Form 10-Q for the fiscal quarter ended March 31, 2018 filed on May 15, 2018;
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(c)
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the
Registrant’s current reports on Form 8-K filed on February 21, 2018, April 16, 2018, May 8, 2018, and May 24, 2018;
and
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(d)
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the
description of the Registrant’s Common Stock set forth in the Registrant’s registration statement on Form 8-A,
filed with the Commission on October 25, 1996, including any amendments or reports filed for the purpose of updating such
description.
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In
addition, all documents that the Registrant files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act of 1934,
as amended (the “Exchange Act”), subsequent to the filing of this Registration Statement 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 to be incorporated by reference into this Registration Statement and to be a part hereof
from the date of filing of such documents, except as to any document or portion of any document that is deemed furnished and not
filed.
Pursuant
to Rule 412 under the Securities Act, any statement contained in the documents incorporated or deemed to be incorporated by reference
in this Registration Statement shall be deemed to be modified, superseded or replaced for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed
to be incorporated by reference in this Registration Statement modifies, supersedes or replaces such statement. Any such statement
so modified, superseded or replaced shall not be deemed, except as so modified, superseded or replaced, to constitute a part of
this Registration Statement.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
Section
145 of the Delaware General Corporation Law permits a corporation to indemnify any director, officer, employee or agent of the
corporation, or person 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 attorney’s fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding brought against
such person, if such person acted in good faith and in a manner that the person reasonably believed to be in, or not opposed to,
the best interests of the corporation, and, with respect to any criminal action or proceeding, if he or she had no reasonable
cause to believe his or her conduct was unlawful. In a derivative action, (i.e., one brought by or on behalf of the corporation),
indemnification may be provided only for expenses actually and reasonably incurred by the person in connection with the defense
or settlement of such an action or suit if such person acted in good faith and in a manner that he or she reasonably believed
to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be provided if such person
shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the 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 shall deem proper.
The
Registrant’s certificate of incorporation and amended and restated bylaws provide that the Registrant shall indemnify, to
the fullest extent permitted by the Delaware General Corporation Law, as the same may be amended or supplemented from time to
time, any and all past, present and future directors and officers of the Registrant, and any other persons to which the Delaware
General Corporation Law permits the Registrant to provide indemnification (“Indemnified Persons”), from and against
any and all costs, expenses (including attorneys’ fees), damages, judgments, penalties, fines, punitive damages, excise
taxes assessed with respect to an employee benefit plan and amounts paid in settlement in connection with any action, suit or
proceeding in which the director or officer may be involved as a party or otherwise, by reason of the fact that such person was
serving as a director, officer, employee or agent of the Registrant, including service with respect to an employee benefit plan.
The
Registrant’s amended and restated bylaws provide that the right to indemnification shall include the right to be paid by
the Registrant the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however,
that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an indemnitee in his or her capacity
as a director or officer (and not in any capacity in which service was or is rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the Registrant of an undertaking, by or on behalf of
such Indemnified Person, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal that such indemnitee is not entitled to be indemnified for such expenses under the bylaws
or otherwise. Under the terms of the amended and restated bylaws, if the Registrant does not pay a proper claim for indemnification
in full within 60 days after receiving a written claim for such indemnification, except in the case of a claim for an advancement
of expenses, in which case the applicable period shall be 20 days, the claimant may bring an action against the Company to recover
the unpaid amount of the claim.
Pursuant
to Section 102(b)(7) of the Delaware General Corporation Law, the Company’s certificate of incorporation eliminates the
liability of a director to the Company or its stockholders for monetary damages for a breach of fiduciary duty as a director,
except for liabilities arising:
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from
any breach of the director’s duty of loyalty to the Company or its stockholders;
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from
acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
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under
Section 174 of the Delaware General Corporation Law; or
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from
any transaction from which the director derived an improper personal benefit.
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The
Company has also entered into substantially identical indemnity agreements with each member of the Board of Directors and Mr.
Ted Karkus, the Company’s Chairman and Chief Executive Officer. These agreements provide, among other things, that we will
indemnify each director and Mr. Karkus in the event that they become a party or otherwise a participant in any action or proceeding
on account of their service as a director or officer of the Company (or service for another corporation or entity in any capacity
at the request of the Company) to the fullest extent permitted by applicable law. Under the indemnity agreement, we will pay,
in advance of the final disposition of any such action or proceeding, expenses (including attorneys’ fees) incurred by our
directors or officers in defending or otherwise responding to such action or proceeding upon receipt of a written undertaking
from the directors or officers to repay the amount advanced consistent with applicable law in the event that a court shall ultimately
determine that he or she is not entitled to be indemnified for such expenses. The contractual rights to indemnification provided
by the indemnity agreements are subject to the limitations and conditions specified in the agreements, and are in addition to
any other rights each director and officer may have under our amended and restated bylaws, each as amended from time to time,
and applicable law.
Directors
and officers of the Company are also covered by directors’ and officers’ liability insurance under which they are
insured (subject to certain exceptions and limitations specified in the policy) against expenses and liabilities arising out of
proceedings to which they are parties by reason of being or having been directors or officers. Under these policies, the insurer,
on the Company’s behalf, may also pay amounts for which the Company has granted indemnification to the directors or officers.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
Item
9. Undertakings.
(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;
(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 this Registration Statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in this 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 periodic 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 this 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 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 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.
(h)
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, as amended, the Company 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, thereto duly authorized, in the City of Doylestown, State of Pennsylvania,
on June 7, 2018.
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PROPHASE
LABS, INC.
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By:
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/s/
Ted Karkus
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Ted
Karkus
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Chief
Executive Officer and Chairman
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POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS that each of the undersigned directors and officers of ProPhase Labs, Inc. hereby appoints Ted Karkus
and Monica Brady, and each of them acting singly, as his or her true and lawful attorney-in-fact and agent, for him or her and
in his or her name, place and stead, with full power to act alone, to sign on his or her behalf and in the capacity set forth
below, any and all amendments and post-effective amendments and supplements to this Registration Statement on Form S-8 and to
file each such amendment and post-effective amendment and supplements to this Registration Statement, with all exhibits thereto,
and any and all other documents in connection therewith, with the Securities and Exchange Commission, hereby granting unto said
attorney-in-fact and agent full power and authority to do and perform any and all acts and things requisite and necessary or appropriate
to be done in and about the premises as fully to all intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent 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.
Signature
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Title
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Date
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Chief
Executive Officer and Chairman
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/s/
Ted Karkus
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(
Principal
Executive Officer
)
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June
7, 2018
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Ted
Karkus
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Chief
Accounting Officer
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/s/
Monica Brady
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(
Principal
Financial and Accounting Officer
)
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June
7, 2018
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Monica
Brady
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/s/
Jason Barr
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Director
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June
7, 2018
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Jason
Barr
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/s/
Mark Burnett
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Director
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June
7, 2018
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Mark
Burnett
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/s/
Louis Gleckel
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Director
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June
7, 2018
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Louis
Gleckel, MD
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