As filed with the Securities and Exchange Commission
on August 9, 2022
Registration No. 333-239728
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INSEEGO
CORP.
(Exact name of registrant as specified in its
charter)
Delaware |
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81-3377646 |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification Number) |
9710 Scranton Road, Suite 200
San Diego, California 92121
(858) 812-3400
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Kurt E. Scheuerman
Senior Vice President and General Counsel
Inseego Corp.
9710 Scranton Road, Suite 200
San Diego, California 92121
(858) 812-3400
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy To:
Teri O’Brien, Esq.
Latham & Watkins LLP
12670 High Bluff Drive
San Diego, California 92130
(858) 523-5400
From time to time after the effective date of
this Registration Statement.
(Approximate date of commencement of proposed
sale to the public)
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration
statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under
the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under
the Securities Act, check the following box. ☐
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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☒ |
Accelerated filer |
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☐ |
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Non-accelerated filer |
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☐ |
Smaller reporting company |
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☐ |
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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 Securities Act. ☐
EXPLANATORY NOTE
This Post-Effective Amendment No. 2 to the Registration Statement on
Form S-3 (Commission File No. 333-239728), as previously amended by Post-Effective Amendment No. 1 (as so amended, the “Registration
Statement”), of Inseego Corp. is being filed solely to update the opinion of legal counsel and auditor’s consent filed with
the Registration Statement as Exhibits 5.1 and 23.2, respectively, and to amend the information contained in the Registration Statement
under the Legal Matters heading by replacing the reference to “Paul Hastings LLP” thereunder with “Latham & Watkins
LLP”. Accordingly, this Post-Effective Amendment No. 2 consists only of the facing page, this explanatory note, Part II of the Registration
Statement, and updated Exhibits 5.1 and 23.2. The prospectus is otherwise unchanged and has been omitted.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated costs
and expenses payable by us in connection with the offering of the securities being registered. All the amounts shown are estimates, except
for the registration fee.
Registration Fee |
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$ |
10,500 |
(1) |
Legal Fees and Expenses |
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$ |
100,000 |
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Accounting Fees and Expenses |
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$ |
5,000 |
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Miscellaneous |
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$ |
1,000 |
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Total |
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$ |
116,500 |
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(1) Fee previously paid.
In addition to the above, the selling securityholders
will pay all underwriting discounts and selling commissions, if any, in connection with the sale of the shares of Common Stock.
Item 15. Indemnification of Directors and Officers.
Section 145(a) of the Delaware General Corporation
Law (the “DGCL”) provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another
corporation or enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such person in connection with such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL provides that a
Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person
acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit if he or she acted under similar standards, except that
no indemnification may be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable
to the corporation unless and only to the extent that the court in which such action or suit was brought shall determine that, despite
the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to be indemnified
for such expenses which the court shall deem proper.
Section 145 of the DGCL further provides that:
(i) to the extent that a present or former or director or officer of a corporation has been successful on the merits or otherwise
in the defense of any action, suit or proceeding referred to in subsections (a) and (b) or in the defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by
him or her in connection therewith; (ii) indemnification provided for by Section 145 shall not be deemed exclusive of any other
rights to which the indemnified party may be entitled; and (iii) the corporation may purchase and maintain insurance on behalf of
any present or former director, officer, employee or agent of the corporation or any person who at the request of the corporation was
serving in such capacity for another entity against any liability asserted against such person and incurred by him or her in any such
capacity or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against
such liabilities under Section 145.
Our Certificate of Incorporation provides that,
to the fullest extent permitted by the DGCL, our directors shall not be personally liable to the Company or its stockholders for monetary
damages for breach of the directors’ fiduciary duties. This provision in our Certificate of Incorporation does not eliminate the
duty of care, and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware law. In addition, each director will continue to be subject to liability for breach of the director’s duty
of loyalty, for acts or omissions not in good faith or involving intentional misconduct or knowing violations of the law, for actions
leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that
are unlawful under Delaware law. The provision also does not affect a director’s responsibilities under any other law, such as the
federal securities laws or state or federal environmental laws.
Article 6 of our Bylaws provides that we will indemnify,
to the maximum extent and in the manner permitted by the DGCL, each person who was or is made a party or is threatened to be made a party
to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that
he or she is or was a director or officer of the Company, whether the basis of such proceeding is alleged action in an official capacity
as a director or officer or in any other capacity while serving as a director or officer, against all expenses, liability and loss reasonably
incurred or suffered by such person in connection therewith.
In addition to the above, we have entered into
indemnification agreements with each of our directors and executive officers (each, an “Indemnitee”). In general, the indemnification
agreements provide that, subject to certain limitations, the Company will indemnify and hold harmless each Indemnitee against all expenses,
judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by such Indemnitee or on such Indemnitee’s
behalf, in connection with certain pending, completed or threatened proceedings, as defined in the indemnification agreements, if the
Indemnitee acted in good faith and reasonably in the best interests of the Company and, with respect to any criminal proceeding, had no
reasonable cause to believe that his or her conduct was unlawful. We also have directors’ and officers’ liability insurance,
which provides coverage against certain liabilities that may be incurred by our directors and officers in their capacities as directors
and officers of the Company.
Item 16. Exhibits.
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Incorporated by Reference |
Exhibit
Number |
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Exhibit Description |
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Form |
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Filing Date |
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Exhibit
Number |
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3.1 |
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Amended and Restated Certificate of Incorporation. |
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8-K |
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November 9, 2016 |
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3.1 |
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3.2 |
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Certificate of Designation of Series D Junior Participating Preferred Stock of Inseego Corp. |
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8-K |
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January 22, 2018 |
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3.1 |
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3.3 |
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Certificate of Designation of Series E Fixed-Rate Cumulative Perpetual Preferred Stock of Inseego Corp. |
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8-K |
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August 13, 2019 |
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3.1 |
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3.4 |
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Certificate of Amendment to Certificate of Designation of Series E Fixed-Rate Cumulative Perpetual Preferred Stock. |
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8-K |
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March 10, 2020 |
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3.1 |
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3.5 |
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Amended and Restated Bylaws. |
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8-K |
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November 9, 2016 |
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3.2 |
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4.1 |
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Form of Inseego Corp. Common Stock Certificate. |
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8-K |
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November 9, 2016 |
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4.1 |
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4.2 |
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Base Indenture, dated May 12, 2020, between Inseego Corp. and Wilmington Trust, National Association, as trustee. |
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8-K |
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May 12, 2020 |
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4.1 |
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4.3 |
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First Supplemental Indenture, dated May 12, 2020, between Inseego Corp. and Wilmington Trust, National Association, as trustee. |
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8-K |
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May 12, 2020 |
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4.2 |
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4.4 |
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Form of 3.25% convertible senior note due 2025 (included in Exhibit 4.2 to the Registrant’s Current Report on Form 8-K (File No. 001-38358) filed on May 12, 2020). |
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8-K |
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May 12, 2020 |
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4.3 |
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5.1* |
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Opinion of Latham & Watkins LLP. |
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23.1* |
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Opinion of Latham & Watkins LLP (included in Exhibit 5.1). |
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23.2* |
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Consent of Independent Registered Public Accounting Firm (Marcum LLP). |
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24.1 |
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Power of Attorney (included on signature page). |
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S-3ASR |
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July 2, 2020 |
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24.1 |
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25.1 |
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Form T-1 Statement of Eligibility of Trustee under the Senior Debt Indenture. |
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S-3ASR |
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May 7, 2020 |
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25.1 |
______________________
* Filed herewith.
Item 17. Undertakings.
(a) The
undersigned registrant 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 of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in the 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; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information
in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) of this section do not apply if 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 in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, 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.
(5) That, for the purpose of determining liability
under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall
be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however,
that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated
or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first
use.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) 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 the 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 of 1933 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 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.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this Post-Effective Amendment No. 2 to the Registration Statement on Form S-3 to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on August 7,
2022.
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INSEEGO CORP. |
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By: |
/s/ Ashish Sharma |
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Ashish Sharma
President and Chief Executive Officer |
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
NAME |
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TITLE |
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DATE |
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/s/ Ashish Sharma |
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President and Chief Executive Officer |
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August 7, 2022 |
Ashish Sharma |
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(Principal Executive Officer) |
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/s/ Robert Barbieri |
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Chief Financial Officer |
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August 6, 2022 |
Robert Barbieri |
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(Principal Financial and Accounting Officer) |
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/s/ Jeffrey Tuder |
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Chairman of the Board of Directors |
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August 5, 2022 |
Jeffrey Tuder |
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/s/ Christopher Harland |
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Director |
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August 5, 2022 |
Christopher Harland |
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/s/ James B. Avery |
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Director |
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August 8, 2022 |
James B. Avery |
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/s/ Stephanie Bowers |
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Director |
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August 9, 2022 |
Stephanie Bowers |
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/s/ Christopher Lytle |
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Director |
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August 5, 2022 |
Christopher Lytle |
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