Securities Registration: Employee Benefit Plan (s-8)
October 22 2019 - 6:01AM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on October 22, 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
INTERPACE
DIAGNOSTICS GROUP, INC.
(Exact
name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
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22-2919486
(I.R.S. Employer
Identification No.)
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Morris
Corporate Center 1, Building C
300 Interpace Parkway, Parsippany, NJ
(Address of Principal Executive Offices)
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07054
(Zip Code)
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Interpace
Diagnostics Group, Inc. 2019 Equity Incentive Plan
Interpace
Diagnostics Group, Inc. Employee Stock Purchase Plan
(Full title of the plans)
Jack
E. Stover
President
and Chief Executive Officer
Interpace
Diagnostics Group, Inc.
Morris
Corporate Center 1, Building C
300
Interpace Parkway, Parsippany, NJ 07054
(Name and address of agent for service)
(855)
776-6419
(Telephone
number, including area code, of agent for service)
with
a copy to:
Merrill
M. Kraines, Esq.
Pepper
Hamilton LLP
The
New York Times Building
620
Eighth Avenue, 37th Floor
New
York, NY 10018
Tel:
(212) 808-2711
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.
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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[X]
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Smaller
reporting company
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[X]
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Emerging
growth company
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[ ]
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
[ ]
CALCULATION
OF REGISTRATION FEE
Title
of Securities to be Registered
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Amount
to be Registered
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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 $0.01
per share—
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2,300,000
shares
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(1)
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$
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0.810
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(3)
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$
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1,863,000.00
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(3)
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$
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241.82
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(3)
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Common Stock, par value $0.01 per share—
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1,000,000 shares
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(2)
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$
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0.810
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(3)
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$
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810,000.00
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(3)
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$
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105.14
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(3)
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TOTAL
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$
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2,673,000.00
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$
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346.96
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(1)
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Represents
2,300,000 shares of common stock, par value $0.01 per share (such shares, the “Common Stock”), of Interpace
Diagnostics Group, Inc. (the “Registrant” or the “Company”) that are authorized for
issuance under the Interpace Diagnostics Group, Inc. 2019 Equity Incentive Plan (the “2019 Equity Incentive Plan”)
pursuant to the approval of the 2019 Equity Incentive Plan by the Registrant’s stockholders at the annual meeting on
October 10, 2019 (the “Approval Date”). Pursuant to Rule 416 of the Securities Act of 1933, as amended
(the “Securities Act”), this registration statement shall also cover any additional shares of Common Stock
which become issuable under the 2019 Equity Incentive Plan by reason of any stock dividend, stock split, recapitalization
or other similar transaction effected without the receipt of consideration which results in an increase in the number of the
outstanding shares of the Registrant.
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(2)
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Represents
shares of Common Stock that were authorized for issuance under the Registrant’s Employee Stock Purchase Plan (the “Employee
Stock Purchase Plan”) pursuant to the approval of the Employee Stock Purchase Plan by the Registrant’s stockholders
at the annual meeting on the Approval Date. Pursuant to Rule 416 of the Securities Act, this registration statement shall
also cover any additional shares of Common Stock which become issuable under the Employee Stock Purchase Plan by reason of
any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration
which results in an increase in the number of the outstanding shares of the Registrant.
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(3)
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This
estimate is made solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act.
The price shown is based upon the average of the high and low prices reported for the Common Stock on the Nasdaq Capital Market
on October 18, 2019.
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EXPLANATORY
NOTE
This
registration statement is being filed solely for the registration of (a) 2,300,000 shares of common stock, par value $0.01 per
share (the “Common Stock”) of Interpace Diagnostics Group, Inc. (the “Registrant” or the
“Company”) for issuance under the Registrant’s 2019 Equity Incentive Plan (the “2019 Equity
Incentive Plan”) and (b) 1,000,000 shares of Common Stock for issuance under the Registrant’s Employee Stock Purchase
Plan (the “Employee Stock Purchase Plan”), both of which were approved by stockholders of the Company on October
10, 2019 (the “Approval Date”). Pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities
Act”), this registration statement shall also cover any additional shares of Common Stock which become issuable under
the 2019 Equity Incentive Plan or the Employee Stock Purchase Plan by reason of any stock dividend, stock split, recapitalization
or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding
shares of the Registrant.
Contemporaneously
with the filing of this registration statement, the Registrant is filing with the Securities and Exchange Commission (the “Commission”)
a Post-Effective Amendment No. 1 to its registration statement on Form S-8 (File No. 333-224554), filed on April 30, 2018, which
reflects that all or a portion of the 6,150,000 shares of Common Stock authorized for issuance under the Company’s Amended
and Restated 2004 Stock Award and Incentive Plan (the “2004 Equity Incentive Plan”) may potentially be issued
under the 2019 Equity Incentive Plan (as such shares would no longer be issuable under the 2004 Equity Incentive Plan). Following
the Approval Date, no new awards may be granted under the 2004 Equity Incentive Plan (although awards granted under the 2004 Equity
Incentive Plan prior to the Approval Date will remain outstanding in accordance with their terms and those of the 2004 Equity
Incentive Plan).
PART
I
INFORMATION
REQUIRED BY SECTION 10(A) PROSPECTUSES
Information
required by Part I of Form S-8 to be contained in the Section 10(a) prospectus is omitted from this registration statement in
accordance with the provisions of Rule 428 under the Securities Act. The documents containing the information specified in Part
I will be delivered to the participants in the 2019 Equity Incentive Plan and Employee Stock Purchase Plan covered by this Registration
Statement as required by Rule 428(b)(1) of the Securities Act. Such documents are not required to be filed with the Commission
as part of this registration statement.
PART
II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents of the Registrant filed with the Commission are incorporated by reference in this Registration Statement as
of their respective dates:
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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, 2018, filed with the Commission on March 21, 2019;
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(b)
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The Registrant’s Quarterly Reports on Forms 10-Q, as applicable, filed with the Commission on May 14, 2019 and August 13, 2019;
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(c)
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The Registrant’s Current Reports on Forms 8-K, as applicable (other than portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits accompanying such reports that are related to such items) filed with the Commission on January 29, 2019, April 18, 2019, July 19, 2019, as amended on September 20, 2019, August 5, 2019, September 20, 2019, a second report filed on September 20, 2019, October 15, 2019, and October 17, 2019.
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(d)
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The description
of the Registrant’s common stock contained in the Registrant’s Form 8-A filed
with the Commission on May 13, 1998 (Registration No. 000-24249) pursuant to the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment
or report filed for the purpose of further 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 into this Registration Statement and to be a
part hereof 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.
Any statement contained herein or in a document, all or a portion of which is 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 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 amended, 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.
Our
Certificate of Incorporation, as amended and as may be further amended and in effect from time to time, which we refer to as the
amended certificate of incorporation, provides that our directors shall not be personally liable to us or our stockholders for
monetary damages for any breach of fiduciary duty as a director, except for liability for breach of the director’s duty
of loyalty to us or our stockholders, for acts or omissions not in good faith or involving intentional misconduct or a knowing
violation of law, for payment of dividends or approval of stock purchases or redemptions that are prohibited by the General Corporation
Law of the State of Delaware, as amended, which we refer to as the DGCL, or for any transaction from which the director derived
an improper personal benefit. Under the DGCL, our directors have a fiduciary duty to us that is not eliminated by this provision
of the amended certificate of incorporation and, in appropriate circumstances, equitable remedies such as injunctive or other
forms of non-monetary relief will remain available. This provision also does not affect our directors’ responsibilities
under any other laws, such as federal securities laws or state or federal environmental laws.
Section
145 of the DGCL empowers a corporation to indemnify its directors and officers against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit
or proceeding brought by third parties by reason of the fact that they were or are directors or officers of the corporation, if
they acted in good faith, in a manner they 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 that their conduct was unlawful. The
DGCL provides further that the indemnification permitted thereunder shall not be deemed exclusive of any other rights to which
the directors and officers may be entitled under the corporation’s bylaws, any agreement, a vote of stockholders or otherwise.
The amended certificate of incorporation provides that, to the fullest extent permitted by Section 145 of the DGCL, we shall indemnify
any person who is or was a director or officer of us, or is or was serving at our request as a director, officer or trustee of
another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against the expenses, liabilities
or other matters referred to in or covered by Section 145 of the DGCL. Our amended and restated bylaws provide that we will indemnify
any person who was or is a party or threatened to be made a party to any proceeding by reason of the fact that such person is
or was a director or officer of us or is or was serving at our request as a director, officer or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise to the fullest extent permitted by the DGCL. In addition,
we have entered into agreements, or will enter into agreements, with each of our directors and officers under which, among other
things, we have agreed to indemnify the director or officer against expenses incurred in any proceeding, including any action
by us, in which the director or officer was, is or is threatened to be made a party or a participant by reason of his or her status
as a present or former director, officer, employee or agent of us or, at our request, any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise. At present, there is no pending litigation or proceeding involving
any director or officer as to which indemnification will be required or permitted, and we are not aware of any threatened litigation
or proceeding that may result in a claim for such indemnification.
Section
145 of the DGCL also empowers a corporation to purchase insurance for its officers and directors for such liabilities. We maintain
liability insurance for our officers and directors.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
See
the attached Exhibit Index at page 7, which is incorporated herein by reference.
Item
9. Undertakings.
The
undersigned Company 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. 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 SEC pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 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 this Registration Statement
or any material change to such information in this Registration Statement;
provided,
however, that paragraphs (1)(i) and (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
SEC by the Company 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.
The
undersigned Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of
the Company’s annual report pursuant to Section 13(a) or 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.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the SEC
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 Company of expenses incurred or paid
by a director, officer, or controlling person of the Company 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 Company will, unless in
the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the 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 Township of Parsippany, State of New Jersey, on October 22,
2019.
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INTERPACE
DIAGNOSTICS GROUP, INC.
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By:
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/s/
Jack E. Stover
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Name:
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Jack
E. Stover
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Title:
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President
and Chief Executive Officer
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POWER
OF ATTORNEY
Each
individual whose signature appears below constitutes and appoints Jack E. Stover, his or her true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments to this registration rtatement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the SEC, 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 premises, as fully to all intents
and purposes as he 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, as amended, this Registration Statement has been signed by the following persons
in the capacities held on the dates indicated.
Signature
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Title
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Date
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/s/ Jack E. Stover
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President, Chief Executive Officer and Director
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October 22,
2019
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Jack E. Stover
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(Principal Executive Officer)
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/s/ James Early
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Chief Financial Officer
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October 22,
2019
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James Early
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(Principal Financial Officer)
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/s/ Thomas Freeburg
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Chief Accounting Officer
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October 22,
2019
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Thomas Freeburg
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(Principal Accounting Officer)
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Chairman of the Board of Directors
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October 22,
2019
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Stephen J. Sullivan
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/s/ Joseph Keegan
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Director
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October 22,
2019
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Joseph Keegan
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/s/ Eric B. Lev
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Director
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October 22,
2019
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Eric B. Lev
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Director
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October 22,
2019
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Felice Schnoll-Sussman
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/s/ Laurence R. McCarthy
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Director
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October 22,
2019
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Laurence R. McCarthy
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/s/ Robert Gorman
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Director
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October 22,
2019
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Robert Gorman
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