Securities Registration: Employee Benefit Plan (s-8)
November 17 2020 - 5:11PM
Edgar (US Regulatory)
Registration No. 333-_______
As filed with the Securities and Exchange Commission
on November 17, 2020
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PREDICTIVE ONCOLOGY INC.
(Exact name of registrant as specified
in its charter)
Delaware
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2915 Commers Drive, Suite 900
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33-1007393
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(State or other jurisdiction
of
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Eagan, Minnesota 55121
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(I.R.S. Employer
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Incorporation or organization)
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(Address of principal executive
offices)
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Identification No.)
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_______________________________
AMENDED AND RESTATED 2012 STOCK INCENTIVE PLAN
(Full title of the Plan)
_______________________________
Bob Myers
Chief Financial Officer
Predictive Oncology Inc.
2915 Commers Drive, Suite
900
Eagan, Minnesota 55121
Telephone: (651) 389-4800
(Name and address of agent for
service)
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Copy to:
Martin R. Rosenbaum, Esq.
Maslon LLP
3300 Wells Fargo Center
90 South 7th Street
Minneapolis, Minnesota
55402
Telephone: (612) 672-8200
Facsimile: (612) 672-8397
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, 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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Accelerated Filer ☐
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Non- Accelerated Filer ☑
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Smaller reporting company ☑
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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 the Securities Act. ☐
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CALCULATION OF REGISTRATION FEE
Title of
Securities to be Registered
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Proposed Maximum Amount to be
Registered (1)
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Proposed
Maximum
Offering Price
Per Share (2)
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Aggregate
Offering Price (2)
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Amount of
Registration Fee (2)
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Common stock, par value
$.01 per share
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750,000 (3)
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$0.6972
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$522,900.00
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$57.05
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(1)
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Pursuant to Rule 416(a), this Registration Statement also covers additional securities that may be offered as a result of stock
splits, stock dividends, or similar transactions relating to the shares covered by this registration statement. In addition, pursuant
to Rule 416(c) under the Securities Act of 1933, this registration statement covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan(s) described herein.
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(2)
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Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(c) and (h) and based upon the average
of the high and low sale prices of the registrant’s common stock on November 12, 2020, as reported on The NASDAQ Capital
Market.
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(3)
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The registrant’s Amended and Restated 2012 Stock Incentive Plan authorizes the issuance of a maximum of 100,000,000 shares
of the registrant’s common stock, $.01 par value per share. Initially, 100,000,000 shares of common stock were authorized
under such plan, of which an aggregate of 20,000,000 shares were previously registered on Form S-8 (File No. 333-186464),
filed on February 5, 2013; 30,000,000 shares were previously registered on Form S-8 (File No. 333-188510), filed on May 10, 2013;
and 50,000,000 shares were previously registered on Form S-8 (File No. 333-198378), filed on August 27, 2014. The registrant completed
a 1-for-75 reverse stock split effective October 24, 2014, which reduced the authorized shares from 100,000,000 to 1,333,334. An
additional 98,666,666 shares were registered on Form S-8 (File No. 333-213742), filed on September 22, 2016. The registrant
completed a 1-for-25 reverse stock split effective October 27, 2016, which reduced the authorized shares from 100,000,000 to 4,000,000.
An additional 6,000,000 shares was registered on Form S-8 (File No. 333-230704), filed on April 3, 2019. The contents of the prior
registration statements are incorporated herein by reference. The registrant completed a one-for-ten (1:10) reverse stock split
that was effective for trading purposes on October 29, 2019, which reduced the authorized shares from 10,000,000 to 1,000,000.
On September 3, 2020, the registrant’s stockholders approved an amendment to increase the reserve of shares of common stock
under the Amended and Restated 2012 Plan to 1,750,000 shares. This registration statement registers an additional 750,000 shares
under the Amended and Restated 2012 Stock Incentive Plan.
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INCORPORATION OF CONTENTS OF
REGISTRATION STATEMENTS BY REFERENCE
A registration statement on Form S-8 (File No. 333-186464) was filed
with the Securities and Exchange Commission on February 5, 2013, covering the registration of 20,000,000 shares initially authorized
for issuance under the registrant’s 2012 Stock Incentive Plan (the “2012 Plan”). Additional registration statements
were filed on Form S-8 (File No. 333-188510) with the Securities and Exchange Commission on May 10, 2013, covering the registration
of an additional 30,000,000 shares authorized for issuance under the registrant’s 2012 Plan, and on Form S-8 (File No. 333-198378)
with the Securities and Exchange Commission on August 27, 2014, covering the registration of an additional 50,000,000 shares authorized
for issuance under the registrant’s 2012 Plan. The contents of the prior registration statements are incorporated herein
by reference. The registrant completed a 1-for-75 reverse stock split effective October 24, 2014, which reduced the authorized
shares under the 2012 Plan from 100,000,000 to 1,333,334. An additional 98,666,666 shares were registered on Form S-8 (File No. 333-213742),
filed on September 22, 2016. The registrant completed a 1-for-25 reverse stock split effective October 27, 2016, which reduced
the authorized shares from 100,000,000 to 4,000,000. An additional 6,000,000 shares was registered on Form S-8 (File No. 333-230704),
filed on April 3, 2019. The contents of the prior registration statements are incorporated herein by reference. The registrant
completed a one-for-ten (1:10) reverse stock split that was effective for trading purposes on October 29, 2019, which reduced the
authorized shares from 10,000,000 to 1,000,000. This registration statement should also be considered a post-effective amendment
to the above-mentioned registration statements. Pursuant to Rule 429 and General Instruction E of Form S-8, this registration statement
is being filed to register an additional 750,000 shares under the 2012 Plan.
PART I
As permitted by the rules of the Securities and Exchange Commission,
this registration statement omits the information specified in Part I of Form S-8. The documents containing the information specified
in Part I of this registration statement will be sent or given to eligible employees as specified in Rule 428(b)(1) promulgated
under the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not being filed with the Securities
and Exchange Commission either as part of this registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424 promulgated under the Securities Act.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed by the registrant with the Securities
and Exchange Commission are hereby incorporated herein by this reference:
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(a)
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Annual Report on Form 10-K for the fiscal year ended December 31, 2019;
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(b)
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Quarterly Reports on Form 10-Q for the quarters ended March 31, 2020, June 30, 2020 and September 30, 2020;
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(c)
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Current Reports on Form 8-K filed October 15, 2020, September 30, 2020, September 25, 2020, September 24, 2020, September 16,
2020, September 8, 2020, August, 13, 2020, July 20, 2020, July 7, 2020, June 26, 2020, June 19, 2020, June 12, 2020, June 8, 2020,
June 2, 2020, 2 reports filed on May 8, 2020, May 1, 2020, April 30, 2020, April 24, 2020, April 22, 2020, April 1, 2020, March
23, 2020, March 16, 2020, February 21, 2020, February 7, 2020, February 4, 2020, January 28, 2020, January 24, 2020, January 6,
2020; and April 10, 2019, as amended by Amendment No. 1 on June 18, 2019 and Amendment No. 2 on September 26, 2019; and
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(d)
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The description of the Company’s common stock filed as Exhibit 4.29 “Description of Registrant’s Securities”
to the Company’s Annual Report on Form 10-K on April 1, 2020.
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All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 filing of such documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other
subsequently filed document which also is incorporated by reference herein) modifies or supersedes such statement. Any statement
so modified or superseded shall not be deemed to constitute a part hereof 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.
We are a Delaware corporation and certain provisions of the Delaware
Statutes and our bylaws provide for indemnification of our officers and directors against liabilities that they may incur in such
capacities. A summary of the circumstances in which indemnification is provided is discussed below, but this description
is qualified in its entirety by reference to our bylaws and to the statutory provisions.
Section 145 of the Delaware General Corporation Law provides for,
under certain circumstances, the indemnification of our officers, directors, employees and agents against liabilities that they
may incur in such capacities. A summary of the circumstances in which such indemnification provided for is contained herein, but
that description is qualified in its entirety by reference to the relevant Section of the Delaware General Corporation Law.
In general, the statute provides that any director, officer, employee
or agent of a corporation may be indemnified against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement, actually and reasonably incurred in a proceeding (including any civil, criminal, administrative or investigative
proceeding) to which the individual was a party by reason of such status. Such indemnity may be provided if the indemnified person’s
actions resulting in the liabilities: (i) were taken in good faith; (ii) were reasonably believed to have been in or not opposed
to our best interest; and (iii) with respect to any criminal action, such person had no reasonable cause to believe the actions
were unlawful. Unless ordered by a court, indemnification generally may be awarded only after a determination of independent members
of the Board of Directors or a committee thereof, by independent legal counsel or by vote of the stockholders that the applicable
standard of conduct was met by the individual to be indemnified.
The statutory provisions further provide that to the extent a director,
officer, employee or agent is wholly successful on the merits or otherwise in defense of any proceeding to which he was a party,
he is entitled to receive indemnification against expenses, including attorneys’ fees, actually and reasonably incurred in
connection with the proceeding.
Indemnification in connection with a proceeding by or in the right
of the Company in which the director, officer, employee or agent is successful is permitted only with respect to expenses, including
attorneys’ fees actually and reasonably incurred in connection with the defense. In such actions, the person to be indemnified
must have acted in good faith, in a manner believed to have been in our best interest and must not have been adjudged liable to
us unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability, in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expense which the Court of Chancery or such other court shall deem proper. Indemnification
is otherwise prohibited in connection with a proceeding brought on behalf of the Company in which a director is adjudged liable
to us, or in connection with any proceeding charging improper personal benefit to the director in which the director is adjudged
liable for receipt of an improper personal benefit.
Delaware law authorizes us to reimburse or pay reasonable expenses
incurred by a director, officer, employee or agent in connection with a proceeding in advance of a final disposition of the matter.
Such advances of expenses are permitted if the person furnishes to us a written agreement to repay such advances if it is determined
that he is not entitled to be indemnified by us.
The statutory section cited above further specifies that any provisions
for indemnification of or advances for expenses does not exclude other rights under our certificate of incorporation, corporate
bylaws, resolutions of our stockholders or disinterested directors, or otherwise. These indemnification provisions continue for
a person who has ceased to be a director, officer, employee or agent of the corporation and inure to the benefit of the heirs,
executors and administrators of such persons.
The statutory provision cited above also grants the power to the
Company to purchase and maintain insurance policies that protect any director, officer, employee or agent against any liability
asserted against or incurred by him in such capacity arising out of his status as such. Such policies may provide for indemnification
whether or not the corporation would otherwise have the power to provide for it.
Articled 8 and 9 of our certificate of incorporation provide that
we shall indemnify our directors and officers to the fullest extent permitted by the Delaware General Corporation Law.
We have purchased directors’ and officers’ liability
insurance in order to limit the exposure to liability for indemnification of directors and officers, including liabilities under
the Securities Act of 1933.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted for our directors, officers, and controlling persons pursuant to the foregoing provisions or otherwise, we
have 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(a)(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 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 Securities and Exchange Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and prices 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; 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 (a)(1)(i) and (a)(1)(ii)
of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the registrant pursuant to Section 13 or Section 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 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.
(b) The undersigned registrant hereby undertakes that, for the 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 Section 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 this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(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 SEC 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, 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 Eagan and
the State of Minnesota, on this 17th day of November, 2020.
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PREDICTIVE ONCOLOGY INC.
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By:
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/s/ Bob Myers
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Bob Myers, Chief Financial Officer
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POWER OF ATTORNEY
Each person whose signature to this registration statement appears
below hereby constitutes and appoints Carl Schwartz and Bob Myers, signing singly as his or her true and lawful attorney-in-fact
and agent, with full power of substitution, to sign on his behalf individually and in the capacity stated below and to perform
any acts necessary to be done in order to file all amendments to this registration statement and any and all instruments or documents
filed as part of or in connection with this registration statement or the amendments thereto and each of the undersigned does hereby
ratify and confirm all that said attorney-in-fact and agent, or his substitutes, shall do or cause to be done by virtue hereof.
The undersigned also grants to said attorney-in-fact,
full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers
herein expressly granted. This Power of Attorney shall remain in effect until revoked in writing by the undersigned.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the capacities and on the dates indicated:
Signature
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Title
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Date
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/s/ Carl Schwartz
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Chief Executive Officer (principal executive officer) and Director
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November 17, 2020
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Carl Schwartz
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/s/ Bob Myers
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Chief Financial Officer (principal financial and accounting officer)
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November 17, 2020
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Bob Myers
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/s/ J. Melville Engle
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Director and Chairman
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November 17, 2020
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J. Melville Engle
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/s/ Daniel E. Handley
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Director
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November 17, 2020
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Daniel E. Handley
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/s/ Gregory S. St.Clair, Sr.
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Director
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November 17, 2020
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Gregory S. St.Clair, Sr.
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/s/ Chuck Nuzum
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Director
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November 17, 2020
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Chuck Nuzum
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/s/ Nancy Chung-Welch
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Director
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November 17, 2020
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Nancy Chung-Welch
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/s/ Richard L. Gabriel
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Director
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November 17, 2020
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Richard L. Gabriel
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EXHIBIT INDEX
* Filed herewith
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