Securities Registration: Employee Benefit Plan (s-8)
June 12 2020 - 4:17PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on June 12, 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
Marker
Therapeutics, Inc.
(Exact name of registrant as specified in
its charter)
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Delaware
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45-4497941
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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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3200 Southwest Freeway, Suite 2240
Houston, Texas
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77027
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(Address of Principal Executive Offices)
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(Zip Code)
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Marker Therapeutics, Inc. 2020 Equity
Incentive Plan
(Full title of the plan)
Peter Hoang
President, Chief Executive Officer and
Director
Marker Therapeutics, Inc.
3200 Southwest Freeway, Suite 2240
Houston, Texas 77027
(713) 400-6400
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
Divakar Gupta
Darren DeStefano
Madison A. Jones
Cooley LLP
55 Hudson Yards
New York, NY 10001
Tel: (212) 479-6000
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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x
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Non-accelerated filer
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¨
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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 (1)
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Proposed
maximum
offering price
per share(3)
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Proposed
maximum
aggregate
offering price(3)
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Amount of
registration fee
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2020 Equity Incentive Plan
Common Stock, $0.01 par value per share
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10,772,798 shares (2)
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$2.25
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$24,238,795.50
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$3,146.20
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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 shall also cover any additional shares of the Registrant’s Common Stock (“Common Stock”) that become issuable under the Marker Therapeutics, Inc. 2020 Equity Incentive Plan (the “2020 Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction.
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(2)
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Subject to adjustment for certain changes in the Registrant’s capitalization, the aggregate number of shares of our common stock that may be issued under the 2020 Plan will not exceed 10,772,798, which is the sum of (i) 3,260,000 new shares and (ii) up to 7,512,798 shares, which is the number of shares remaining available for the grant of new awards under the Prior Plans as of immediately prior to the effective date of the 2020 Plan and the Prior Plans’ Returning Shares (as defined below), as such shares become available from time to time. The term “Prior Plans’ Returning Shares” refers to the following shares of common stock subject to any stock award granted under the Registrant’s 2014 Omnibus Stock Ownership Plan, as amended (the “2014 Plan”) and the 2009 Stock Incentive Plan, as amended (the “2009 Plan” and together with the 2014 Plan, the “Prior Plans”) that were outstanding as of May 19, 2020: (i) any shares subject to such stock award that are not issued because such award or any portion thereof expires or otherwise terminates without all of the shares covered by such award having been issued; (ii) any shares subject to such stock award that are not issued because such award or any portion thereof is settled in cash; (iii) any shares issued pursuant to such stock award that are forfeited back to or repurchased by us because of the failure to meet a contingency or condition required for the vesting of such shares, (iv) any shares issued pursuant to such stock award that are withheld or reacquired by us to satisfy the exercise, strike or purchase price; or (v) any shares issued pursuant to such stock award that are withheld or reacquired by us to satisfy a tax withholding obligation. No further grants will be made under the Prior Plans.
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(3)
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This estimate is made solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h)(1) and Rule 457(c) of the Securities Act. The price per share and aggregate offering price are based upon the average of the high and low prices of Registrant’s Common Stock on June 8, 2020, as reported on The Nasdaq Global Market.
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PART I
INFORMATION REQUIRED
IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with this registration
statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this registration
statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant
with the Securities and Exchange Commission (“SEC”) are incorporated by reference into this registration statement
(other than information furnished under Item 2.02 or Item 7.01 of Form 8-K or other portions of documents filed with the SEC which
are furnished, but not filed, pursuant to applicable rules promulgated by the SEC):
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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 with the SEC on March 12, 2020 and the information specifically incorporated by reference into the Registrant’s Annual Report on Form 10-K for
the year ended December 31, 2019, from the Registrant’s Definitive Proxy Statement on Schedule 14A, filed with the SEC on
April 17, 2020;
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(b)
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The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2020, filed with the SEC on May 11, 2020;
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(d)
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the description of the Registrant’s Common Stock contained in the Registrant’s registration statement on Form 8-A
(File No. 001-37939), filed with the SEC on November 3, 2016, including any amendment or report filed for the purpose of updating
such description.
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All reports and other documents subsequently
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this registration
statement and to be a part hereof from the date of the filing of such reports and documents; provided, however, that documents,
reports and definitive proxy or information statements, or portions thereof, which are furnished and not filed in accordance with
the rules of the SEC shall not be deemed incorporated by reference into this registration statement. Any statement contained in
a document 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 statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant is incorporated under the
laws of the State of Delaware. Section 145 of the Delaware General Corporation Law provides that a Delaware corporation may indemnify
any persons who were, are, or are threatened to be made, parties 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 such corporation), by reason
of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the
request of such corporation as an officer, director, employee or agent of another corporation or enterprise. The indemnity may
include 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, provided that such person acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify
any persons who were, are, or are threatened to be made, a party to any threatened, pending or completed action or suit 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 such corporation,
or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise.
The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit provided such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the corporation’s best interests except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful
on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the
expenses (including attorneys’ fees) actually and reasonably incurred.
The Registrant’s Amended and Restated
Certificate of Incorporation and Amended and Restated Bylaws provide for indemnification of the Registrant’s directors and
officers to the fullest extent permitted by law. Insofar as indemnification for liabilities under the Securities Act may be permitted
to directors, officers or controlling persons of the Registrant pursuant to the Registrant’s Amended and Restated Certificate
of Incorporation, Amended and Restated Bylaws and the Delaware General Corporation Law (the “DGCL”), the Registrant
has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable.
Section 102(b)(7) of the DGCL provides that
a certificate of incorporation may include a provision which eliminates or limits the personal liability of a director 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 company 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, relating to prohibited dividends
or distributions or the repurchase or redemption of stock or (iv) for any transaction from which the director derives an improper
personal benefit. The Registrant’s Amended and Restated Certificate of Incorporation includes such a provision. As a result
of this provision, the Registrant and its stockholders may be unable to obtain monetary damages from a director for breach of his
or her duty of care.
As permitted under the DGCL, the Registrant
has entered into indemnification agreements with each of its directors and certain of its executive officers that require the Registrant
to indemnify such persons against any and all expenses (including attorneys’, witness or other professional fees), and, unless
in connection with a proceeding by or in the right of the Registrant, any and all judgments, fines and amounts paid in settlement,
actually and reasonably incurred by such persons or on such persons’ behalf in connection with any proceeding, whether actual
or threatened, to which any such person may be involved as a party or otherwise by reason of the fact that such person is or was
a director or an executive officer of the Registrant or is or was serving at the request of the Registrant as a director, officer,
employee, agent or fiduciary of another enterprise, provided such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal proceeding, had no reasonable
cause to believe such person’s conduct was unlawful. Under these agreements, the Registrant is not required to provide indemnification
for certain matters, including:
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indemnification beyond that permitted by applicable law;
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except as provided in the indemnification agreements, an accounting of profits made from the purchase and sale (or sale and
purchase) by such director or executive officer of securities of the Registrant within the meaning of Section 16(b) of the Exchange
Act or similar provisions of state statutory law or common law;
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except as provided in the indemnification agreements, any reimbursement of the Registrant by such director or executive officer
of any bonus or other incentive-based or equity-based compensation or of any profits realized by such director or executive officer
from the sale of securities of the Registrant, as required in each case under the Exchange Act; or
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except as provided in the indemnification agreements, in connection with any proceeding initiated by such director or executive
officer, unless (i) the Registrant’s Board of Directors authorized the proceeding prior to its initiation or (ii) the Registrant
provides the indemnification, in its sole discretion, pursuant to the powers vested in the Registrant under applicable law.
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The indemnification agreements also set
forth certain procedures, presumptions and remedies that will apply in the event of a claim for indemnification thereunder.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Item 9. Undertakings.
(a)
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of 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 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 a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in 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) do not apply if the registration statement is on Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in
the registration statement; and
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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, 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 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 City of Houston, State of Texas, on June 12, 2020.
Marker Therapeutics, Inc.
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By:
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/s/ Peter Hoang
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Peter Hoang
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Chief Executive Officer (Principal Executive Officer)
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POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS,
that each person whose signature appears below constitutes and appoints Richard A. Fair, as his true and lawful attorney-in-fact
and agent, with the full power of substitution, for him and in his name, place or stead, in any and all capacities, to sign any
and all amendments to this Registration Statement (including post-effective amendments), and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the
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 or substitutes, 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
and on the dates indicated.
Signature
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Title
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Date
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/s/ Peter Hoang
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President, Chief Executive Officer and Director
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June 12, 2020
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Peter Hoang
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(Principal Executive Officer)
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/s/ Anthony Kim
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Chief Financial Officer (Principal Financial
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June 12, 2020
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Anthony Kim
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and Accounting Officer)
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/s/ Frederick Wasserman
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Director
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June 12, 2020
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Frederick Wasserman
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/s/ David Laskow-Pooley
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Director
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June 12, 2020
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David Laskow-Pooley
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/s/ John Wilson
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Director
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June 12, 2020
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John Wilson
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/s/ Juan Vera
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Director
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June 12, 2020
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Juan Vera
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/s/ N. David Eansor
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Director
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June 12, 2020
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N. David Eansor
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/s/ Steve Elms
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Director
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June 12, 2020
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Steve Elms
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