As filed with the
Securities and Exchange Commission on June 17, 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
___________________________
FLOTEK
INDUSTRIES, INC.
(Exact name of
registrant as specified in its charter)
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Delaware
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90-0023731
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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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8846 N. Sam
Houston Pkwy W.
Houston,
Texas
(Address of Principal
Executive Offices)
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77064
(Zip Code)
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___________________________
Flotek
Industries, Inc. Employment Inducement Plan
(Full Title of the
Plan)
___________________________
Nicholas J.
Bigney
Senior Vice
President, General Counsel & Corporate Secretary
Flotek
Industries, Inc.
8846 N. Sam
Houston Pkwy W.
Houston,
Texas 77064
(Name and Address
of Agent for Service)
(713)
849-9911
(Telephone Number,
including Area Code, of Agent for Service)
Copies
to:
Robert C.
Morris
Brandon T.
Byrne
Norton Rose
Fulbright US LLP
Fulbright
Tower
1301
McKinney, Suite 5100
Houston,
Texas 77010
(713)
651-5151
___________________________
Indicate by check
mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer,” “smaller reporting
company,” and “emerging growth company” in Rule 12b-2 of the
Exchange Act.
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Large accelerated
filer ¨
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Accelerated filer
x
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Non-accelerated filer
¨
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Smaller reporting
company x
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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.
¨
___________________________
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 aggregate offering price(2)
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Amount of registration fee
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Common Stock, par value
$0.0001 per share
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3,000,000
shares(3)
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$3,270,000
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$424.45
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_________________
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(1)
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Represents shares
of common stock being registered for issuance under the Flotek
Industries, Inc. Employment Inducement Plan. Pursuant to Rule
416(a) under the Securities Act of 1933, as amended (the
“Securities Act”), this registration statement shall also be deemed
to cover any additional securities to be offered or issued in
connection with the provisions of the above-referenced plan by
reason of any stock splits, stock dividends, recapitalizations, or
similar events or transactions.
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(2)
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Estimated
pursuant to Rule 457(c) and (h) under the Securities Act solely for
the purpose of calculating the registration fee on the basis of the
average of the high and low sales prices per share of the Common
Stock as reported by the New York Stock Exchange on June 16,
2020.
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(3)
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Represents shares
of Common Stock reserved and available for issuance under the
Flotek Industries, Inc. Employment Inducement Plan approved by the
Board of Directors of Flotek Industries, Inc. on June 12,
2020.
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Proposed sales to
take place as soon after the effective date of this registration
statement as awards are granted, exercised, or distributed under
the Flotek Industries, Inc. Employment Inducement
Plan.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents
containing the information specified in Part I of Form S-8 will be
sent or given to plan participants as specified by Rule 428(b)(1)
promulgated by the U.S. Securities and Exchange Commission (the
“SEC”) under the Securities Act of 1933, as amended (the
“Securities Act”). Such documents need not be filed with the SEC
either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 under the Securities
Act. These documents and the documents incorporated by reference
into this Registration Statement pursuant to Item 3 of Part II of
this Registration Statement, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation
of Documents by Reference.
The following
documents previously filed by the Company with the SEC are
incorporated in this Registration Statement by
reference:
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1.
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the Company’s
Annual Report on
Form
10-K for the fiscal year ended
December 31, 2019, filed with the SEC on March 6,
2020;
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2.
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the Company’s
Amendment No. 1 to the Annual Report on
Form
10-K/A for the fiscal year ended
December 31, 2019, filed with the SEC on March 16,
2020;
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3.
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the Company’s
Amendment No. 2 to the Annual Report on
Form
10-K/A for the fiscal year ended
December 31, 2019, filed with the SEC on June 10,
2020;
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4.
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the Company’s
Definitive Proxy Statement filed with the SEC on
April 3,
2020 (to the extent the
information therein is incorporated by reference into the Company’s
Annual Report on Form 10-K for the fiscal year ended December 31,
2019);
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5.
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the Company’s
Quarterly Report on
Form
10-Q for the quarterly period
ended March 31, 2020, filed with the SEC on June 12,
2020;
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6.
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the Company’s
Current Reports on Form 8-K, filed with the SEC on
January 6,
2020,
January 13,
2020,
March 3,
2020,
March 9,
2020,
March 17,
2020,
March 31,
2020,
April 3,
2020,
April 13,
2020,
April 17,
2020,
May 7,
2020,
May 19,
2020,
May 29,
2020,
June 12,
2020 and
June 16,
2020 (except, in each case, any
information, including exhibits, furnished to the SEC pursuant
Items 2.02 and 7.01); and
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7.
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the description
of the Common Stock contained in the Company’s Registration
Statement on
Form
8-A (File No. 001-13270), filed
with the SEC on December 26, 2007, including any amendment or
report filed for the purpose of updating such
description.
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All documents
filed by us pursuant to Sections 13(a), 13(c), 14, and 15(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”),
subsequent to the effective date of this Registration Statement,
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 we
disclose under Item 2.02 or Item 7.01 (and any related exhibits) of
any Current Report on Form 8-K that we may from time to time
furnish to the SEC be incorporated by reference into, or otherwise
become a part of, this Registration Statement. 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.
The Company is
incorporated in the State of Delaware. Section 145 of the General
Corporation Law of the State of Delaware (the “DGCL”) empowers a
Delaware corporation to indemnify any person who was or is a party
to or is threatened to be made a party to any threatened, pending,
or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (other than an action by or in the
rights of the corporation) by reason of the fact that such person
is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation
as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise. The
indemnity may include expenses (including attorneys’ fees),
judgments, fines, and amounts paid in settlement actually and
reasonably incurred by such person. The statute provides that it is
not exclusive of other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise. Section 145
further provides that a corporation has the power to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee, or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise against any liability
asserted against such person and incurred by such person in any
such capacity, or arising out of such person’s status as such,
whether or not the corporation would have the power to indemnify
such person against such liability under Section 145.
Section 102(b)(7)
of the DGCL provides that a certificate of incorporation may
contain a provision eliminating or limiting the personal liability
of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that
such provision shall not eliminate or limit the liability of a
director: (i) for any breach of the director’s duty of loyalty to
the corporation or its stockholders; (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) for payments of unlawful dividends or
unlawful stock purchases or redemptions; or (iv) for any
transaction from which the director derived an improper personal
benefit. In accordance with Section 102(b)(7) of the DGCL, our
Amended and Restated Certificate of Incorporation, as amended,
contains a provision that generally eliminates the personal
liability of directors for monetary damages for breaches of their
fiduciary duty, subject to the limitations of Section
102(b)(7).
Furthermore, our
Amended and Restated Certificate of Incorporation, as amended, and
our Second Amended and Restated Bylaws: (i) provide for the
indemnification of our directors and officers to the fullest extent
permitted by applicable law; (ii) provide that the right to
indemnification includes the right to be paid or reimbursed by us
for the reasonable expenses incurred in advance of a proceeding’s
final disposition; (iii) provide that we may pay or reimburse
expenses incurred by a director or officer in connection with their
appearance as a witness or other participation in a proceeding at a
time when they are not a named defendant or respondent in the
proceeding; and (iv) provide that we may purchase insurance by us
to protect us and any person who is or was serving as our director,
officer, employee, or agent. We maintain insurance policies that
provide coverage to our directors and officers against certain
liabilities.
Item 7. Exemption
from Registration Claimed.
Not
applicable.
Item 8.
Exhibits.
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Exhibit Number
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Description of Exhibit
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4.1
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4.2
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4.3
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4.4
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4.5
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5.1*
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23.1*
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23.2*
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24.1*
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Power of Attorney (included
on signature pages)
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99.1*
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99.2*
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99.3*
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* Filed
herewith.
Item 9.
Undertakings.
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(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 of 1933, as
amended (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 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
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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
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 registrant pursuant to
Section 13
or
Section 15(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), that are incorporated by reference in
the Registration Statement.
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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 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.
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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 provisions described in Item 6 of this Registration
Statement, or otherwise, the registrant 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 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, the registrant
certifies that it has reasonable grounds to believe 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 17, 2020.
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FLOTEK
INDUSTRIES, INC.
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/s/ John W. Gibson,
Jr.
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Name:
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John W. Gibson,
Jr.
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Title:
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President, Chief Executive
Officer & Chairman of the Board
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POWER OF
ATTORNEY
Each person whose
signature appears below constitutes and appoints John W. Gibson Jr.
and Nicholas J. Bigney, and each of them, singly, as such person’s
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for such person in such person’s
name, place, and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said
attorney-in-fact and agents full power and authority to do and
perform each and every act and thing requisite or necessary to be
done in and about the premises, 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
or either of them or their 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 dates indicated.
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/s/ John W. Gibson,
Jr.
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President, Chief Executive
Officer & Chairman of the Board
(Principal
Executive Officer, Principal Financial Officer and Principal
Accounting Officer)
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June 17,
2020
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John W. Gibson,
Jr.
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/s/ Michelle M.
Adams
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Director
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June 17,
2020
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Michelle M.
Adams
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/s/ Kevin W.
Brown
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Director
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June 17,
2020
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Kevin W. Brown
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/s/ Ted D. Brown
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Director
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June 17,
2020
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Ted D. Brown
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/s/ Paul W.
Hobby
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Director
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June 17,
2020
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Paul W. Hobby
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/s/ David
Nierenberg
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Director
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June 17,
2020
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David Nierenberg
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