Securities Registration: Employee Benefit Plan (s-8)
May 26 2020 - 5:12PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on May 26, 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
BED BATH & BEYOND INC.
(Exact name of Registrant as specified in
its charter)
New York
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11-2250488
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(State or other jurisdiction of
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(I.R.S. Employer
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incorporation or organization)
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Identification Number)
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650 Liberty Avenue
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Union, New Jersey
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07083
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(Address of Principal Executive Offices)
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(ZIP Code)
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Inducement Equity Awards
(Full Title of the Plan)
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Mark J. Tritton
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Copies to:
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President and Chief Executive Officer
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Michael E. Ellis, Esq.
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Bed Bath & Beyond Inc.
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Proskauer Rose LLP
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650 Liberty Avenue
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Eleven Times Square
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Union, New Jersey 07083
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New York, New York 10036
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(Name and Address of Agent for Service)
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(212) 969-3000
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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 x
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Accelerated Filer
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¨
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Smaller Reporting Company
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¨
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Non-Accelerated Filer ¨
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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. o
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CALCULATION OF REGISTRATION FEE
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Title Of Securities
To Be Registered
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Amount To Be
Registered(1)
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Proposed
Maximum
Offering Price(1)
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Amount
Of
Registration
Fee(2)
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Common
Stock, par value $.01 per share
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$
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1,000,000
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$
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1,000,000
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$
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129.80
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(1) Pursuant to
Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall
also cover any additional shares of common stock, par value $0.01 per share (the “Common Stock”) of Bed Bath &
Beyond Inc. (the “Registrant” or the “Company”) that may from time to time be offered or issued by reason
of any stock split, stock dividend, recapitalization or other similar transaction effected without the Registrant’s receipt
of consideration that results in an increase in the number of the Registrant’s outstanding shares of Common Stock.
(2) Calculated in
accordance with Rule 457(o) of the Securities Act.
EXPLANATORY NOTE
Pursuant
to the Employment Agreement between the Company and Cindy Davis, dated as of April 30, 2020, the Company intends to grant service-based
restricted stock units to Ms. Davis on May 26, 2020 equal in value to $1,000,000, based on the volume-weighted average closing
price of a share of Common Stock of the Company over the twenty trading day period ending immediately prior to the grant date.
This Registration Statement registers the shares of Common Stock issuable upon vesting and settlement of such grants.
The foregoing grant is made as an inducement
material to Ms. Davis’ acceptance of employment as the Chief Brand Officer of the Company and President, Decorist, and was
approved by the Company’s Compensation Committee of the Board of Directors. Such grant is made in reliance on Nasdaq Listing
Rule 5635(c)(4), which exempts certain inducement equity grants from the general requirement of the Nasdaq rules that equity-based
compensation plans and arrangements be approved by stockholders.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Items 1 and
2 of Part I of the Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428
under the Securities Act and the introductory note to Part I of Form S-8. The documents containing the information specified
in Part I will be delivered to the participants in the agreement covered by this Registration Statement as required by Rule 428(b)(1) under
the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company hereby incorporates by reference
into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “Commission”):
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(c)
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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
ended February 29, 2020; and
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(d)
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The description of the Common Stock contained in the
Company’s Registration Statement on Form 8-A, filed with the Commission on May 11, 1992, and any amendment or
report filed for the purpose of updating such description.
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All documents filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the effective date of this Registration Statement
and prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered hereby
have been sold or deregistering all securities then remaining unsold, shall be deemed to be incorporated by reference herein and
to be part hereof from the date of filing of such documents. In no event, however, will any information that the Registrant discloses
under Item 2.02 or Item 7.01 of any Current Report on Form 8-K that the Registrant may from time to time furnish to the Commission
be incorporated by reference into, or otherwise become a part of, this Registration Statement, unless otherwise indicated therein.
Any statement contained in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a statement contained 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 to constitute a part of this Registration Statement, except as so modified
or superseded.
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 402(b) of the New York Business Corporation
Law provides that, subject to conditions and qualifications provided by statute, a certificate of incorporation may set forth a
provision eliminating or limiting the personal liability of directors to the Company or its shareholders for damages for any breach
of duty in such capacity.
The Company’s Restated Certificate of Incorporation, as
amended (the “Certificate of Incorporation”), provides that no director of the Company shall be personally liable to
the Company or any of its shareholders for damages for any breach of duty in such capacity except for liability of any director
if a judgment or other final adjudication adverse to the director establishes that his acts or omissions were in bad faith or involved
intentional misconduct or a knowing violation of law or that he personally gained in fact a financial profit or other advantage
to which he was not legally entitled or that his acts violated Section 719 of the New York Business Corporation Law. If the
New York Business Corporation Law hereafter is amended to authorize the further elimination or limitation of the liability of directors,
then the liability of a director of the Company, in addition to the limitation on personal liability provided therein, shall be
limited to the fullest extent permitted by the amended New York Business Corporation Law. Any repeal or modification of such Article of
the Certificate of Incorporation shall be prospective only, and shall not adversely affect any limitation on the personal liability
of a director of the Company existing at the time of such repeal or modification.
The Company’s Amended and Restated By-laws govern the
indemnification of any director or officer of the Company or any employee of the Company who is or was involved in any manner (including,
without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation,
claim, action, suit or proceeding, whether civil, criminal, administrative, investigative or otherwise by reason of the fact that,
in the case of directors and officers of the Company, is or was a director or officer of the Company, or is or was at the request
of the Company serving as an officer or director or in any other capacity with another corporation, partnership, joint venture,
trust or other enterprise or entity (including, without limitation, any employee benefit plan), and in the case of employees of
the Company, is or was serving (a) as a director or officer of a corporation or in a capacity equivalent to that of a director
or officer for any partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan)
in which the Company had at the time of such service, directly or indirectly, a 50% or greater equity interest or (b) at the
written request of the Company, as a director or officer of a corporation or in a capacity equivalent to that of a director or
officer for any partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan)
in which the Company had at the time of such service, directly or indirectly, a significant business interest but a less than 50%
equity interest (or, in the case of an employee benefit plan, no equity interest at all), against all expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such
proceeding.
The Company has obtained directors and officers liability insurance
which insures the Company’s officers and directors against certain liabilities.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions,
the Registrant has been informed that in the opinion of the Commission such indemnification is against public policy as expressed
in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
* This Exhibit was originally filed in paper
format. Accordingly, a hyperlink has not been provided.
** Filed herewith.
Item 9. 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;
(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 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 percent change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
(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 (A) paragraphs (a)(1)(i) and (a)(1)(ii) 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 Exchange Act that are incorporated by reference in
the 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 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.
(h) 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 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 Union, State of New Jersey, on May 26, 2020.
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BED BATH & BEYOND INC.
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By:
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/s/ Mark J. Tritton
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Mark J. Tritton
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Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that
each person whose signature appears below hereby constitutes and appoints Mark J. Tritton and Gustavo Arnal, such person’s
true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for and in such person’s
name, place and stead, in the capacities indicated below, to sign this Registration Statement on Form S-8 of Bed Bath &
Beyond Inc. and any and all amendments (including post-effective amendments) thereto, and to file or cause to be filed the same,
with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith, as fully to all intents and purposes as such person might, or could, do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, and each of them, or his or her substitute or substitutes,
may lawfully do or 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 date indicated.
Signatures
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Title
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Date
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By:
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/s/ Mark J. Tritton
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President and Chief Executive Officer and Director (Principal Executive Officer)
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Mark J. Tritton
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By:
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/s/ Gustavo Arnal
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Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer)
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Gustavo Arnal
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By:
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/s/ Patrick R. Gaston
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Director (Independent Chairman)
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Patrick R. Gaston
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By:
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/s/ Stephanie Bell-Rose
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Director
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Stephanie Bell-Rose
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By:
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/s/ Harriet Edelman
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Director
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Harriet Edelman
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By:
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/s/ John E. Fleming
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Director
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John E. Fleming
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By:
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/s/ Sue E. Gove
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Director
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Sue E. Gove
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By:
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/s/ Jeffrey A. Kirwan
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Director
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Jeffrey A. Kirwan
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By:
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/s/ Johnathan B. Osborne
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Director
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Johnathan B. Osborne
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By:
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/s/ Harsha Ramalingam
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Director
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Harsha Ramalingam
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By:
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/s/ Virginia P. Ruesterholz
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Director
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Virginia P. Ruesterholz
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By:
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/s/ Joshua E. Schechter
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Director
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Joshua E. Schechter
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By:
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/s/ Andrea Weiss
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Director
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Andrea Weiss
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By:
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/s/ Mary A. Winston
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Director
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Mary A. Winston
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By:
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/s/ Ann Yerger
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Director
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Ann Yerger
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