Securities Registration: Employee Benefit Plan (s-8)
May 11 2016 - 5:09PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on May 11, 2016
Registration
No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INTELLICHECK
MOBILISA, INC.
(Exact
name of registrant as specified in its charter)
Delaware
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11-3234779
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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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100
Jericho Quadrangle, Suite 202, Jericho, NY 11753
(Address
of principal executive offices, including zip code)
Intellicheck
Mobilisa, Inc. 2015 Omnibus Incentive Plan
(
Full
title of plan
)
Dr.
William H. Roof
Chief
Executive Officer
Intellicheck
Mobilisa, Inc.
100
Jericho Quadrangle, Suite 202
Jericho,
NY 11753
(516)
992-1900
(Name,
address and telephone number, including area code, of agent for service)
Copy
to:
Christopher
H. Cunningham
K&L
Gates LLP
925
Fourth Avenue, Suite 2900
Seattle,
Washington 98104
(206)
370-7639
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 the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting 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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[ ] (Do not check if a smaller reporting company)
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Smaller
reporting company
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[X]
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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 (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, par value $0.001 per share, under the Intellicheck Mobilisa, Inc. 2015 Omnibus Incentive Plan
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1,000,000
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$
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1.85
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$
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1,850,000
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$
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186.30
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Total:
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1,000,000
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$
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1.85
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$
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1,850,000
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$
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186.30
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(1)
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Pursuant
to Rule 416(a), includes an indeterminate number of additional shares that may be necessary to adjust the number of shares
reserved for issuance pursuant to the plans as the result of any future stock split, stock dividend or similar adjustment
of the registrant’s outstanding common stock.
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(2)
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Pursuant
to Rule 457(h) and Rule 457(c), the offering price is estimated solely for the purpose of calculating the registration fee.
The proposed maximum offering price per share is estimated to be $1.85, based on the average of the high sales price ($1.88) and the low sales price
($1.82) per share of the registrant’s common stock as reported by the NYSE MKT on May 9, 2016.
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EXPLANATORY
NOTE
Intellicheck
Mobilisa, Inc. (the “Company”) is filing this registration statement on Form S-8 to register 1,000,000 additional
shares of the Company’s common stock authorized for issuance under the Intellicheck Mobilisa, Inc. 2015 Omnibus Incentive
Plan, as amended (the “Incentive Plan”), which was approved by the shareholders of the Company at its annual
meeting on May 4, 2016. The Incentive Plan is an amendment of the Intellicheck Mobilisa, Inc. 2015 Incentive Plan with respect
to which the Company filed a registration statement on Form S-8 (SEC File Number: 333-204308) with the Securities and Exchange
Commission (the “Commission”) on May 19, 2015 (the “Prior Incentive Plan Registration Statement”). In
accordance with General Instruction E of Form S-8, the contents of the Prior Incentive Plan Registration Statement, including
any amendments thereto or filings incorporated therein, are incorporated by reference into this registration statement to the
extent not otherwise amended or superseded by the contents hereof.
PART
II
INFORMATION
REQUIRED IN THIS REGISTRATION STATEMENT
Item
3.
Incorporation of CERTAIN Documents by Reference.
The
following documents filed by the Company with the Commission are hereby incorporated by reference in this Registration Statement:
(a)
The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015, filed with the Commission on March
25, 2016, which contains audited consolidated financial statements for the most recent fiscal year for which such statements have
been filed;
(b)
All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), since the end of the fiscal year covered by the Annual Report on Form 10-K referred to in paragraph
(a) above (excluding any documents or portions of such documents that are furnished under Item 2.02 or Item 7.01 of a current
report on Form 8-K and any exhibits included with such Items); and
(c)
The description of the Company’s common stock contained in the Registration Statement on Form 8-A, filed on November 15,
1999, under Section 12(g) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description.
All
documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof (excluding
any documents or portions of such documents that are furnished under Item 2.02 or Item 7.01 of a current report on Form 8-K and
any exhibits included with such Items), and prior to the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters the securities offered hereby then remaining unsold, shall also be deemed to
be incorporated by reference into this Registration Statement and to be a part hereof commencing on the respective dates on which
such documents are filed.
Any
statement contained in this Registration Statement or in a document incorporated or deemed to be incorporated by reference in
this Registration Statement will 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 in this Registration Statement
modifies or supersedes that statement. Any statement so modified or superseded will 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.
Not
Applicable.
Item
6.
Indemnification of Directors and Officers.
Section
102(b)(7) of the Delaware General Corporation Law (the “DGCL”) permits a Delaware corporation, in its certificate
of incorporation, to limit or eliminate, subject to certain statutory limitations, the liability of a director to the corporation
or its stockholders for monetary damages for breaches of fiduciary duty, 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) under Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. Article eight of the Registrant’s Certificate of Incorporation, as amended, provides
that no director of the Registrant shall be personally liable to the Registrant or its stockholders in accordance with the foregoing
provisions of Section 102(b)(7).
Under
Section 145 of the DGCL, a Delaware corporation has the power to indemnify directors and officers under certain prescribed circumstances
and, subject to certain limitations, against certain costs and expenses, including attorneys’ fees, actually and reasonably
incurred in connection with any action, suit or proceeding, whether civil, criminal, administrative or investigative, to which
any of them is a party by reason of his being a director or officer of the corporation if it is determined that he or she acted
in accordance with the applicable standard of conduct set forth in such statutory provision. Article nine of the Registrant’s
Certificate of Incorporation, as amended, provides that the Registrant will, to the fullest extent permitted by the provisions
of Section 145 of the DGCL, indemnify any and all persons whom it shall have power to indemnify under said section from and against
any and all of the expenses, liabilities, or other matters referred to in or covered by said section, and the indemnification
provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer,
employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.
The
Registrant has purchased directors’ and officers’ liability insurance covering certain liabilities which may be incurred
by the officers and directors of the Registrant in connection with the performance of their duties.
Item
7.
Exemption from Registration Claimed.
Not
Applicable.
Item
8.
Exhibits
.
Exhibit
Number
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Description
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4.1
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Certificate
of Incorporation (Incorporated by reference to the Registrant’s Form SB-2 filed on September 24, 1999), Certificate
of Amendment to the Certificate of Incorporation (Incorporated by reference to the Registrant’s Form 8-K filed on October
28, 2009), Certificate of Amendment to the Certificate of Incorporation (Incorporated by reference to the Registrant’s
Form 8-K filed on August 13, 2014).
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4.2
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Amended
and Restated By-Laws (Incorporated by reference to the Registrant’s Form 8-K filed on August 14, 2007).
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5.1
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Opinion
of K&L Gates LLP regarding legality of the common stock being offered.
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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 K&L Gates LLP (included in its opinion filed as Exhibit 5.1).
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24.1
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Power
of Attorney (included on the signature page).
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99.1
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Intellicheck
Mobilisa, Inc. 2015 Omnibus Incentive Plan (Incorporated by reference to Annex A to the
Registrant’s Definitive Proxy Statement filed on Schedule 14A on April 9, 2015).
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99.2
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Intellicheck
Mobilisa, Inc. 2015 Omnibus Incentive Plan, as amended.
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Item
9.
Undertakings.
A.
The undersigned Regi’strant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of 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; 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 (1)(i) and (1)(ii) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or 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 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefits 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, the Registrant has been advised that, in the opinion
of the Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the 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, in the City of Jericho, State of New York, on May 10, 2016.
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INTELLICHECK MOBILISA, INC.
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By:
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/s/
Dr. William H. Roof
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Dr.
William H. Roof
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Chief
Executive Officer
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POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Dr. William H. Roof his true and lawful attorney-in-fact, with the
power of substitution and resubstitution, for him in his name, place or stead, in any and all capacities, to sign any or all amendments
to this Registration Statement, and to file the same, with exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact and their agents or substitutes,
may lawfully do or lawfully 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 and on the dates indicated.
Signature
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Title
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Date
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/s/
William H. Roof
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Chief
Executive Officer
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May
10, 2016
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William
H. Roof
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(principal
executive officer)
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/s/
Bill White
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Chief
Financial Officer, Secretary and Treasurer
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May
10, 2016
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Bill
White
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(principal
financial and accounting officer)
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/s/
Michael D. Malone
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Chairman
of the Board of Directors
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May
6, 2016
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Vice
Admiral Michael D. Malone
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/s/
Emil R. Bedard
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Director
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May
9, 2016
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Lieutenant
General Emil R. Bedard
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/s/
Jack A. Davis
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Director
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May
9, 2016
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Major
General Jack A. Davis
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/s/
William P. Georges
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Director
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May
9, 2016
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William
P. Georges
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/s/
Guy L. Smith
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Director
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May
9, 2016
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Guy
L. Smith
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INDEX
TO EXHIBITS
Exhibit
Number
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Description
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4.1
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Certificate
of Incorporation (Incorporated by reference to the Registrant’s Form SB-2 filed on September 24, 1999), Certificate
of Amendment to the Certificate of Incorporation (Incorporated by reference to the Registrant’s Form 8-K filed on October
28, 2009), Certificate of Amendment to the Certificate of Incorporation (Incorporated by reference to the Registrant’s
Form 8-K filed on August 13, 2014).
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4.2
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Amended
and Restated By-Laws (Incorporated by reference to the Registrant’s Form 8-K filed on August 14, 2007).
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5.1
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Opinion
of K&L Gates LLP regarding legality of the common stock being offered.
|
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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 K&L Gates LLP (included in its opinion filed as Exhibit 5.1).
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24.1
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Power
of Attorney (included on the signature page).
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99.1
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Intellicheck
Mobilisa, Inc. 2015 Omnibus Incentive Plan (Incorporated by reference to Annex A to the
Registrant’s Definitive Proxy Statement filed on Schedule 14A on April 9, 2015).
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99.2
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Intellicheck
Mobilisa, Inc. 2015 Omnibus Incentive Plan, as amended.
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