Securities Registration: Employee Benefit Plan (s-8)
May 06 2019 - 4:04PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission May 6, 2019
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CORNING INCORPORATED
(Exact name of registrant as specified in its charter)
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New York
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16-0393470
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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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One Riverfront Plaza
Corning, New York 14831
(Address of principal executive offices)
2019 EQUITY PLAN FOR
NON-EMPLOYEE
DIRECTORS
(Full title of the plan)
Linda E.
Jolly
Vice President and Corporate Secretary
One Riverfront Plaza
Corning Incorporated
Corning, New York 14831
(607)
974-9000
jollyle@corning.com
(Name, address and telephone number of agent for service)
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.
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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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Smaller reporting company
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☐
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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
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Title of Securities
to be Registered
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Amount
to be
Registered
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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 $.50 per share
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1,500,000 shares
(1)
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$
31.88
(2)
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$
47,820,000
(2)
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$
5,795.78
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(1)
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Includes shares issuable as awards of restricted stock, rights to acquire stock and options to purchase stock.
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the Securities Act), this Registration Statement will also cover any additional shares of common stock which become issuable under the 2019 Equity Plan for
Non-Employee
Directors by reason of any stock dividend, stock split, recapitalization or similar transaction.
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(2)
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Estimated solely to calculate the registration fee pursuant to Rule 457(h) of the Securities Act. The offering
price per share and aggregate offering price are calculated based upon the average of the high and low prices of the common stock of Corning Incorporated (the Registrant) on May 3, 2019, as reported on the New York Stock Exchange.
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EXPLANATORY NOTE
This registration statement on Form
S-8
(this Registration Statement) is filed for the
purpose of registering 1,500,000 shares of common stock, par value $0.50 per share (Common Stock), of Corning Incorporated (the Registrant) issuable as awards of shares of Common Stock, rights to acquire Common Stock or
options to purchase Common Stock issued to eligible
non-employee
directors under the Corning Incorporated 2019 Equity Plan for
Non-Employee
Directors.
PART I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8
will be sent or given to participating
non-employee
directors as specified by the Securities and Exchange Commission (the Commission) in Rule 428(b)(1) of the
Securities Act. Such documents need not be filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents
incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, 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 following documents filed by the Registrant with the Commission are incorporated by reference into this Registration Statement:
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1.
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Annual Report on
Form
10-K
for the fiscal year ended December 31, 2018, filed on February 10, 2019;
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2.
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Quarterly Report on
Form
10-Q
for the quarter ended March 31, 2019 filed with the SEC on May 3, 2019;
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4.
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the description of Common Stock contained in Registrants Registration Statement on
Form
S-3,
No.
333-222158
, filed with the Commission on December 19, 2017.
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All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in and to be a part of this Registration
Statement from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this
Registration Statement. For the purposes of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded to the extent that a statement
contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein 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.
Item 4. Description of Securities
Not Applicable
Item 5. Interests of
Named Experts and Counsel
Linda Jolly, who is issuing the opinion of counsel on the legality of the Registrants Common Stock
offered hereby, is Vice President and Corporate Secretary of the Registrant. Ms. Jolly owns a
de minimis
number of shares of and other interests in the Common Stock of the Registrant.
Item 6. Indemnification of Directors and Officers
Sections 722 and 723 of the Business Corporation Law of the State of New York (the BCL) provide that a corporation may indemnify
its current and former directors and officers under certain circumstances. Section 8.4 of the Registrants
By-Laws
provides that the Registrant shall indemnify each director and officer against all
actual and reasonable costs and expenses incurred by him in connection with the defense of any claim, action, suit or proceeding against him by reason of his being or having been a director or officer of the Registrant to the full extent permitted
by, and consistent with, the BCL. The Registrant maintains policies of insurance with respect to its indemnification obligations.
Section 402(b) of the BCL provides that a corporation may include a provision in its certificate of incorporation limiting the
liability of its directors to the corporation or its shareholders for damages for any breach of duty, except for a breach involving intentional misconduct, bad faith, a knowing violation of law or receipt of an improper personal benefit or for
certain illegal dividends, loans or stock repurchases. Paragraph 6 of the Registrants Restated Certificate of Incorporation contains such a provision.
For the undertaking in relation to indemnification, please see Item 9 below.
Item 7. Exemption From Registration Claimed
Not Applicable
Item 8. Exhibits
INDEX TO EXHIBITS
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Exhibit
Number
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Description
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4.1
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Corning Incorporated 2019 Equity Plan for
Non-Employee
Directors*
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4.2
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Restated Certificate of Incorporation of Corning Incorporated, dated April
27, 2012, filed with the Secretary of State of the State of New York on April 27, 2012 (Incorporated by reference to Exhibit 3(i) 1 of Cornings Form
8-K
filed on May 1, 2012).
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4.3
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Certificate of Amendment to the Restated Certificate of Incorporation of Corning Incorporated, dated January
14, 2014, filed with the Secretary of State of the State of New York on January 14, 2014 (Incorporated by reference to Exhibit 3.1 of Cornings Form
8-K
filed on January 15, 2014).
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4.4
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Amended and Restated By-Laws of Corning Incorporated, effective as of December
7, 2015 (Incorporated by reference to Exhibit 3(ii) of Cornings Form
8-K
filed December 7, 2015).
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5.1
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Opinion of Counsel.*
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23.1
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Consent of Independent Registered Public Accounting Firm*
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23.2
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Consent of Counsel (included in Exhibit 5.1).*
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24.1
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Power of Attorney is contained on the signature page of this Registration Statement.
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Item 9. Undertakings
(a)
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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 this 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. 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.
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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 this
Registration Statement or any material change to such information in this Registration Statement;
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Provided however,
that:
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A.
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Paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form
S-8,
and 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 Securities Exchange Act of 1934 that are incorporated by reference into this 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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(b)
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans 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.
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(h)
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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 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 Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Corning, State of New York, on May 6, 2019.
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CORNING INCORPORATED (Registrant)
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By
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/s/ R. Tony Tripeny
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R. Tony Tripeny, Executive Vice President and
Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints R. Tony Tripeny and Edward A. Schlesinger,
each acting alone, as his or her true and lawful
attorney-in-fact
and agent, with full power of substitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933 and any and all amendments (including post-effective amendments) to this Registration Statement and to any registration
statement filed pursuant to Rule 462(b), and to file same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact
and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the foregoing, 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, or his substitute, 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 on May 6, 2019.
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Signature
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Capacity
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/s/ Wendell P. Weeks
(Wendell P. Weeks)
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Chairman, Chief Executive Officer and President
(Principal Executive Officer)
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/s/ R. Tony Tripeny
(R. Tony Tripeny)
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Executive Vice President and Chief Financial Officer
(Principal Financial Officer)
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/s/ Edward A. Schlesinger
(Edward A. Schlesinger)
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Senior Vice President and Controller
(Principal Accounting Officer)
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/s/ Donald W. Blair
(Donald W. Blair)
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Director
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/s/ Leslie A. Brun
(Leslie A. Brun)
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Director
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/s/ Stephanie A. Burns
(Stephanie A. Burns)
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Director
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/s/ John A. Canning, Jr.
(John A. Canning, Jr.)
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Director
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/s/ Richard T. Clark
(Richard T. Clark)
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Director
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/s/ Robert F. Cummings, Jr.
(Robert F. Cummings, Jr.)
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Director
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/s/ Deborah A. Henretta
(Deborah A. Henretta)
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Director
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/s/ Daniel P. Huttenlocher
(Daniel P. Huttenlocher)
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Director
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/s/ Kurt M. Landgraf
(Kurt M. Landgraf)
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Director
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/s/ Kevin J. Martin
(Kevin J. Martin)
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Director
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/s/ Deborah D. Rieman
(Deborah D. Rieman)
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Director
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/s/ Hansel E. Tookes II
(Hansel E. Tookes II)
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Director
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/s/ Mark S. Wrighton
(Mark S. Wrighton)
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Director
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