Securities Registration: Employee Benefit Plan (s-8)
November 23 2020 - 4:28PM
Edgar (US Regulatory)
As filed with
the Securities and Exchange Commission on November 23, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE Securities Act of 1933
______________________
ANI PHARMACEUTICALS,
INC.
(Exact Name of Registrant
as Specified in Its Charter)
Delaware
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58-2301143
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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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210 Main Street
West
Baudette, Minnesota 56623
(Address of Principal
Executive Offices) (Zip Code)
ANI Pharmaceuticals,
Inc. Sixth Amended and Restated 2008 Stock Incentive Plan Inducement Stock Option Award
(Full Title of the
Plans)
______________________
Stephen P. Carey
Vice President,
Finance and Chief Financial Officer
ANI Pharmaceuticals,
Inc.
210 Main Street
West
Baudette, Minnesota
56623
(Name and Address
of Agent for Service)
(218) 634-3500
(Telephone Number,
including area code, of agent for service)
______________________
Copies to:
Karen A. Dempsey
Jason Flaherty
Orrick, Herrington
& Sutcliffe LLP
405 Howard Street
San Francisco,
California 94105
(415) 773-5700
______________________
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.
Large accelerated
filer ¨
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Accelerated
filer x
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Non-accelerated
filer ¨
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Smaller reporting company ¨
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Emerging growth company ¨
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition
period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
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CALCULATION OF
REGISTRATION FEE
Title of Securities To Be Registered
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Amount
to Be
Registered(1)
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Proposed
Maximum Offering Price
Per Share
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Proposed
Maximum Aggregate Offering Price
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Amount
of Registration Fee
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Common
Stock, par value $0.0001 per share
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–
2008 Stock Incentive Plan
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1,000,000(2)
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$28.34
(3)
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$28,340,000
(3)
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$3,091.90
(3)
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–
Inducement Stock Option Award
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179,643
(4)
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$29.00
(5)
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$5,209,647
(5)
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$568.38
(5)
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TOTAL
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1,179,643
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N/A
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$33,549,647
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$3,660.28
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(1)
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Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities
Act”), this registration statement on Form S-8 shall also cover any additional
shares of common stock (“Common Stock”) of ANI Pharmaceuticals,
Inc. (the “Registrant”) that become issuable in respect of
the securities identified in the above table by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the Registrant’s
receipt of consideration, which results in an increase in the number of the outstanding
shares of Common Stock.
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(2)
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Represents
1,000,000 additional shares of Common Stock reserved for future issuance under the Registrant’s
2008 Stock Incentive Plan (the “2008 Plan”) following stockholder
approval of an amendment to the 2008 Plan.
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(3)
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Estimated
in accordance with Rules 457(c) and (h) under the Securities Act solely for the purpose
of calculating the registration fee based on the average of the high $28.78 and low $27.90
prices of Common Stock on November 16, 2020, as reported on The Nasdaq Global Market.
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(4)
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Represents
shares of Common Stock upon the exercise of an inducement stock option award granted
by the Registrant (the “Stock Option”).
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(5)
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Calculated
solely for the purposes of this offering under Rule 457(h) of the Securities Act, this
price is equal to the per share exercise price of the Stock Option.
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PART I
INFORMATION REQUIRED
IN THE SECTION 10(a) PROSPECTUS
Item 1.
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Plan Information.
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Information
required by this Item 1 to be contained in the Section 10(a) prospectus is omitted from this registration statement on Form S-8
(the “Registration Statement”) in accordance with Rule 428 under the Securities Act of 1933, as amended
(the “Securities Act”) and the instructions to Form S-8. 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 part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act.
Item 2.
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Registrant Information and Employee Plan Annual Information.
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Information
required by this Item 2 to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act and the instructions to Form S-8. In accordance with the rules and regulations of the Commission
and the instructions to Form S-8, such documents are not being filed with the Commission either as 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.
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Incorporation of Documents by Reference.
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The following documents filed by ANI Pharmaceuticals,
Inc. (the “Registrant”) with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), are incorporated herein by reference:
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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, 2019 filed on February 27, 2020, pursuant
to Section 13(a) of the Exchange Act;
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(b)
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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 the Registrant’s Annual Report referred to in (a) above; and
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(c)
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the description
of the Registrant’s common stock contained in the Registrant’s registration
statement on Form 8-A filed on July 19, 2013 under Section 12(b) of the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
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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 hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date
of the filing of such documents, except as to specific sections of such statements as set forth therein.
Unless
expressly incorporated into this Registration Statement, a report furnished on Form 8-K prior or subsequent to the date hereof
shall not be incorporated by reference into this Registration Statement, except as to specific sections of such statements as
set forth therein. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any
subsequently filed document, which also is deemed to be incorporated by reference herein, modifies or supersedes such statement.
Item 4.
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Description of Securities.
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Not
applicable.
Item 5.
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Interests of Named Experts and Counsel.
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Not
applicable.
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 to 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.
The
Registrant’s restated certificate of incorporation and the Registrant’s amended and restated bylaws provide in effect
that, subject to certain limited exceptions, they may indemnify their directors and officers to the extent authorized and permitted
by the DGCL. The Registrant also maintain policies to insure their directors and officers, subject to the limits of the policies,
against certain losses arising from any claims made against them by reason of being or having been such directors or officers.
In addition, the Registrant has entered into contracts with certain directors and officers of the Registrant, providing for indemnification
of such persons by the Registrant to the full extent authorized or permitted by law, subject to certain limited exceptions.
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.
The
Registrant’s restated certificate of incorporation provides that, to the fullest extent permitted by the DGCL, a director
shall not be liable to the Registrant or their stockholders for monetary damages for breach of fiduciary duty as a director. Delaware
law provides that directors of a corporation will not be personally liable for monetary damages for breach of their fiduciary
duties as directors, except for liability for (i) any breach of their duty of loyalty to the corporation or its stockholders,
(ii) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL or (iv) any transaction
from which the director derives an improper personal benefit.
Any
underwriting agreement that the Registrant may enter will likely provide for indemnification by any underwriters of the Registrant,
their directors, their officers who sign the registration statement and their controlling persons, if any, for certain liabilities,
including liabilities arising under the Securities Act.
Item 7.
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Exemption from Registration Claimed.
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Not
applicable.
Exhibit Number
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Exhibit Title
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5.1*
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Opinion of Orrick, Herrington & Sutcliffe LLP.
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23.1*
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Consent of EisnerAmper LLP, independent registered public accounting firm.
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23.2
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Consent of Orrick, Herrington & Sutcliffe LLP (filed as part of Exhibit 5.1).
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24.1
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Power of Attorney (filed as part of signature page).
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99.1
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ANI Pharmaceuticals, Inc. Sixth Amended and Restated 2008 Stock Incentive Plan, which is incorporated by reference to Appendix A to the Registrant’s Definitive Proxy Statement for the 2020 Virtual Annual Meeting filed with the Commission on April 23, 2020, as supplemented on May 21, 2020 (File No. 001-31812).
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99.2
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ANI Pharmaceuticals, Inc. Inducement Stock Option Award Agreement, which is incorporated by reference to Exhibit 10.2 to the Registrant’s Form 10-Q for the fiscal quarter ended September 30, 2020 filed with the Commission on November 5, 2020 (File No. 001-31812).
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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 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
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(iii)
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To include
any material information with respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such information in the Registration
Statement;
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Provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective
amendment by such paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
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(2)
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That, for the
purpose of determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
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(3)
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To remove from
registration by means of a post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
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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 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 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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c.
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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 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 hereby, 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.
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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 Baudette, State of Minnesota, on November 23, 2020.
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ANI PHARMACEUTICALS, INC.
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Date: November 23, 2020
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By:
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/s/ Stephen P. Carey
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Name:
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Stephen P. Carey
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Title:
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Vice President, Finance and Chief Financial
Officer
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POWER OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that the undersigned officers and directors of ANI Pharmaceuticals, Inc., a Delaware corporation,
do hereby constitute and appoint Nikhil Lalwani and Stephen P. Carey, and each of them, the lawful attorneys-in-fact and agents
with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and
agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the
Securities Act, and any rules or regulations or requirements of the Commission in connection with this Registration Statement.
Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign
the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and
all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments
or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each
of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall 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 on behalf of the
Registrant in the capacities and on the dates indicated.
Signature
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Title
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Date
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/s/
Nikhil Lalwani
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President,
Chief Executive Officer and Director
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November
23, 2020
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Nikhil
Lalwani
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(Principal
Executive Officer)
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/s/
Stephen P. Carey
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Vice
President, Finance and Chief Financial Officer
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November 23, 2020
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Stephen
P. Carey
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(Principal
Financial Officer and Principal Accounting Officer)
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/s/
Patrick D. Walsh
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Chairman
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November
23, 2020
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Patrick
D. Walsh
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/s/
Robert E. Brown, Jr.
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Director
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November
23, 2020
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Robert
E. Brown, Jr.
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/s/
Thomas J. Haughey
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Director
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November
23, 2020
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Thomas
J. Haughey
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/s/
David B. Nash, M.D.
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Director
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November
23, 2020
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David
B. Nash, M.D.
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/s/
Antonio Pera
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Director
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November
23, 2020
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Antonio
Pera
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/s/
Jeanne Thoma
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Director
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November
23, 2020
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Jeanne
Thoma
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