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Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
AutoWeb, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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1-34761
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33-0711569
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(State
or other jurisdiction of incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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400 North Ashley Drive, Suite 300
Tampa, Florida 33602-4314
(Address
of principal executive offices) (Zip Code)
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(949) 225-4500
Registrant’s telephone number, including area
code
Inducement Stock Option Award Agreements
(Full
title of the plan)
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Glenn E. Fuller, Esq.
Executive Vice President, Chief Legal Officer and
Secretary
6410 Oak Canyon, Suite 250
Irvine, California 92618-5214
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(Name
and address of agent for service)
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(949) 862-1392
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(Telephone
number of agent for service)
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With a copy to:
Keith Paul Bishop, Esq.
Allen, Matkins, Leck, Gamble, Mallory & Natsis LLP
1900 Main Street, 5th Floor
Irvine, California 92614-7321
Telephone: (949) 553-1313
Indicate by check
mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company, or 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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Smaller reporting company ☒
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Non-accelerated filer ☐
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Emerging growth company☐
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Accelerated filer ☐
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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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☐
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CALCULATION OF REGISTRATION FEE
Title of Securities
To Be Registered
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Amount To Be
Registered (1)(2)
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Proposed Maximum
Offering
Price Per Share
(4)
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Proposed Maximum
Aggregate
Offering Price
(4)
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Amount of
Registration Fee (4)
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Common Stock, par
value $0.001 per share (3)
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411,667(3)
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$3.09
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$1,272,051.03
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$138.78
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(1)
The number
of shares of common stock, par value $0.001 per share
(“Common
Stock”), of AutoWeb, Inc., a Delaware corporation
(“Registrant”)
set forth above consists of the aggregate number of shares of
Common Stock that may be sold and issued upon exercise of stock
options to acquire shares of Common Stock granted at a fixed
exercise price (“Inducement
Stock Options”) granted to certain employees of the
Registrant as inducement material to their acceptance of employment
with the Registrant under Inducement Stock Option Award Agreements
(“Inducement Stock Option
Agreements”).
(2)
The maximum
number of shares of Common Stock that may be upon sold and issued
upon exercise of the Inducement Stock Options is subject to
adjustment in accordance with certain anti-dilution and other
provisions of the Inducement Stock Option Agreements. Accordingly,
pursuant to Rule 416 under the Securities Act of 1933, as amended
(“Securities
Act”), this Registration
Statement includes, in addition to the number of shares of Common
Stock stated above, an indeterminate number of shares of Common
Stock that may be subject to grant or otherwise issuable after the
operation of any such anti-dilution and other
provisions.
(3)
Each share
of Common Stock being registered hereunder, if issued prior to the
termination by the Registrant of its Tax Benefit Preservation Plan
dated May 26, 2010 with Computershare Trust Company, N.A., as
amended by Amendment No. 1 dated as of April 14, 2014, Amendment
No. 2 dated April 13, 2017, and Amendment No. 3 dated March 31,
2020, includes rights to acquire Series A Junior Participating
Preferred Stock of the Registrant. Prior to the occurrence of
certain events, these rights will not be exercisable or evidenced
separately from the Common Stock and have no value except as
reflected in the market price of the shares to which they are
attached.
(4)
The Proposed Maximum
Offering Price Per Share, Proposed Maximum Aggregate Offering Price
and the Amount of Registration Fee have been computed pursuant
to Rule 457(h) under the Securities Act. The amounts shown are
based upon the weighted average exercise prices of the Inducement
Stock Options set forth in the Inducement Stock Option Agreements.
The preferred share
purchase rights, which are attached to the shares of Common Stock
registered hereunder, will be issued for no additional
consideration. Accordingly, no additional registration fee is
required with respect to such preferred share purchase
rights.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
documents containing the information required by Part I of Form S-8
will be sent or given to the optionees granted Inducement Stock
Options as specified by Rule 428(b)(1) under the Securities Act of
1933, as amended (“Securities
Act”). These documents are not required to be and are
not filed with the Securities and Exchange Commission
(“Commission”)
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 in
this registration statement pursuant to Item 3 of Part II of this
Form S-8, 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.
AutoWeb, Inc., a
Delaware corporation (“Registrant”), is subject to the
informational and reporting requirements of Sections 13(a) and 14
of the Securities Exchange Act of 1934, as amended
(“Exchange
Act”), and in accordance therewith files reports,
proxy statements and other information with the
Commission.
The
following documents, which are on file with the Commission, are
incorporated herein by reference:
(a) The
Registrant’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2020, filed on March 11, 2021.
(b) The
Registrant’s Current Reports on Form 8-K filed on January 15,
February 23, and March 4, 2021.
(c) The
description of the Common Stock and associated preferred share
purchase rights which is contained in the Registrant’s
Registration Statements on Form 8-A filed under the Exchange Act on
March 13, 1997; March 5, 1999; and June 2, 2010, including any
amendments or reports filed for the purpose of updating such
description.
All
documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act, prior to the filing of a post-effective amendment to this
registration statement 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 with the Commission.
Any
statement contained in a 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 statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this registration statement. Unless expressly incorporated by
reference into this registration statement, a report (or portion
thereof) furnished, but not filed, on Form 8-K under the Exchange
Act is not incorporated by reference into 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.
Section
145 of the Delaware General Corporation Law (“DGCL”) authorizes the Registrant
to indemnify its directors and officers subject to specified
conditions. Section 145 provides that it is not exclusive of other
rights to which a director or officer may be entitled under any
bylaw, agreement, vote of the stockholders or disinterested
directors or otherwise.
Article
IX of the Registrant’s Seventh Amended and Restated
Certificate of Incorporation generally requires the Registrant to
indemnify to the fullest extent permitted and in accordance with
the laws of Delaware any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative by reason of the fact that he or
she is or was a director, officer, employee or agent of the
Registrant, or is or was serving at the request of the Registrant
as a director, officer, employee or agent of another enterprise
against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably
occurred provided specified conditions are met. Article IX also
requires (in the case of a director) and permits (in the case of an
officer, employee or agent) the Registrant to advance expenses
incurred in defending a proceeding upon the receipt of an
undertaking to repay the advance if it is ultimately determined
that the person is not entitled to be indemnified. The rights set
forth in Article IX are not exclusive.
Article
VII of the Registrant’s Seventh Amended and Restated Bylaws
generally requires the Registrant to indemnify to the maximum
extent and in the manner permitted by the DGCL any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by reason
of the fact that the person is or was a director, officer, employee
or agent of the Registrant, or is or was serving at the request of
the Registrant as a director, officer, employee or agent of another
enterprise, or as a member of any committee or similar body,
provided specified conditions are met. Article VII also requires
the Registrant to advance expenses incurred by a present or former
officer or director in defending a proceeding upon receipt of an
undertaking to repay the advance if it is ultimately determined
that the person is not entitled to be indemnified. The Registrant
has entered into agreements to indemnify its directors and officers
to the fullest extent permitted by Delaware law. These agreements,
subject to specified conditions, indemnify the Registrant’s
directors and officers for expenses including attorneys’
fees, judgments, fines and settlement amounts incurred by any such
person in any action or proceeding arising out of such
person’s services as an officer or director of the
Registrant.
As
permitted by Section 102(b)(7) of the DGCL, Article IX of the
Registrant’s Seventh Amended and Restated Certificate of
Incorporation provides that a director shall not be personally
liable to the Registrant or any stockholder for monetary damages
for breach of fiduciary duty, except for any matter in respect of
which that director (1) is liable under Section 174 of the DGCL (or
any amendment or successor thereto), or (2) is liable by reason
that, in addition to any and all other requirements for liability,
the director: (a) shall have breached the director’s duty of
loyalty to the Registrant or its stockholders; (b) shall not have
acted in good faith or, in failing to act, shall not have acted in
good faith; (c) shall have acted in a manner involving intentional
misconduct or a knowing violation of the law or, in failing to act,
shall have acted in a manner involving intentional misconduct or a
knowing violation of law; or (d) shall have derived an improper
personal benefit.
To the
extent indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling
the Registrant as discussed above, 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.
A
policy of directors’ and officers’ liability insurance
is maintained by the Registrant that insures directors and officers
for losses as a result of claims against directors and officers of
the Registrant in their capacity as directors and officers and also
reimburses the Registrant for payments permitted by the
DGCL.
Item 7. Exemption from Registration Claimed.
Not
applicable.
Item 8. Exhibits.
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Exhibit No.
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Description
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4.1
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Seventh Amended and Restated Certificate of
Incorporation of AutoWeb, Inc. (filed with the Secretary of the
State of Delaware on June 22, 2020), incorporated by reference
to Exhibit
3.1 to the Current
Report on Form 8-K filed with the SEC on June 23, 2020 (SEC File
No. 001-34761).
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4.2
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Seventh Amended and Restated
Bylaws of AutoWeb, Inc. dated as of October 9, 2017, incorporated
by reference to Exhibit
3.5 to the Current Report on Form 8-K filed with the
SEC on October 10, 2017 (SEC File No. 001-34761).
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4.3
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Tax Benefit Preservation Plan dated as of May 26,
2010, by and between Company and Computershare Trust Company, N.A.,
as rights agent, together with the following exhibits thereto:
Exhibit A – Form of Right Certificate; and Exhibit B –
Summary of Rights to Purchase Shares of Preferred Stock of Company,
incorporated by reference to Exhibit
4.1 to the Current
Report on Form 8-K filed with the SEC on June 2, 2010 (SEC
File No. 000-22239); Amendment No. 1 to Tax Benefit Preservation
Plan dated as of April 14, 2014, between Company and Computershare
Trust Company, N.A., as rights agent, incorporated by reference
to Exhibit
4.1 to the Current
Report on Form 8-K filed with the SEC on April 16, 2014 (SEC
File No. 001-34761); Amendment No. 2 to Tax Benefit Preservation
Plan dated as of April 13, 2017, between Company and
Computershare Trust Company, N.A., as rights agent, incorporated by
reference to Exhibit
4.1 to the Current
Report on Form 8-K filed with the SEC on April 14, 2017 (SEC File
No. 001-34761); Amendment No. 3 to Tax Benefit Preservation Plan
dated as of March 31, 2020, between Company and Computershare Trust
Company, N.A., as rights agent, incorporated by reference
to Exhibit
4.1 to the Current
Report on Form 8-K filed with the SEC on April 2, 2020 (SEC File
No. 001-34761); Certificate of Adjustment Under Section 11(m) of
the Tax Benefit Preservation Plan, incorporated by reference
to Exhibit
4.3 to the Quarterly
Report on Form 10-Q for the Quarterly Period ended September 30,
2012 filed with the SEC on November 8, 2012 (SEC File No.
001-34761).
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Opinion
of Allen Matkins Leck Gamble Mallory & Natsis LLP.
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Consent
of Moss Adams LLP, independent registered public accounting
firm.
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Consent
of Allen Matkins Leck Gamble Mallory & Natsis LLP (included in
Exhibit 5.1).
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Power
of Attorney (included on the Signature Page).
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99.1
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Inducement
Stock Option Award Agreement (Non-Qualified Stock Options), dated
November 30, 2020, by and between the Company and Michael A.
Sadowski, which is incorporated by reference to
Exhibit 10.14 to the Annual Report on Form 10-K for the year
ended December 31, 2020, filed with the SEC on March 11, 2020 (SEC
File No. 001-34761).
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99.2
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Inducement Stock Option Award
Agreement (Non-Qualified Stock Options), dated January 16, 2019, by
and between the Company and Daniel R. Ingle, which is incorporated
by reference to Exhibit
10.25 to
the Annual Report on Form 10-K for the year ended December 31,
2018, filed with the SEC on March 7, 2019 (SEC File No.
001-34761).
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99.3
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Inducement Stock Option Award
Agreement (Non-Qualified Stock Options), dated December 17, 2018,
by and between the Company and Joseph P. Hannan, which is
incorporated by reference to
Exhibit
10.2 to
the Current Report on Form 8-K filed with the SEC on December 17,
2018 (SEC File No. 001-34761).
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99.4
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Inducement Stock Option Award
Agreement (Non-Qualified Stock Options), dated October 22, 2018, by
and between the Company and Sara E. Partin, which is incorporated
by reference to
Exhibit
10.2 to
the Quarterly Report on Form 10-Q for the Quarterly Period ended
September 30, 2018 filed with the SEC on November 8, 2018 (SEC File
No. 001-34761).
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* Filed or furnished herewith
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;
(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 20% change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the
effective registration statement; and
(iii)
To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
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 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 this registration
statement.
(2)
That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered herein, 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
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.
C.
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 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 of 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 Exchange 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 Irvine, State
of California, on March 11, 2021.
Date:
March 11, 2021
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AUTOWEB,
INC.
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By:
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/s/
Glenn E. Fuller
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Glenn
E. Fuller, Executive Vice President,
Chief
Legal Officer and Secretary
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KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jared R. Rowe, Glenn E.
Fuller, and Michael A Sadowski, with full power to act without the
other, and each of them, as such person’s true and lawful
attorney- or attorneys-in-fact and agent or agents, with full power
of substitution and re-substitution, for such person and in such
person’s name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments)
to the registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission and any other regulatory
authority, 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 he
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or
such person’s 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.
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Signature
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Title
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Date
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/s/
Michael J. Fuchs
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Chairman of the Board and Director
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March 11, 2021
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MICHAEL J. FUCHS
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/s/ Jared R. Rowe
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President and Chief Executive Officer and Director (Principal
Executive Officer)
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March 11, 2021
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JARED R. ROWE
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/s/ Michael A. Sadowski
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Executive Vice President, Chief Financial Officer (Principal
Financial Officer)
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March 11, 2021
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MICHAEL A. SADOWSKI
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/s/ Cheray L. Duran
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Vice President, Corporate Controller (Principal Accounting
Officer)
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March
11, 2021
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CHERAY L. DURAN
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/s/ Michael A. Carpenter
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Director
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March 11, 2021
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MICHAEL A. CARPENTER
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/s/ Matias de Tezanos
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Director
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March 11, 2021
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MATIAS DE TEZANOS
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/s/ Chan W. Galbato
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Director
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March 11, 2021
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CHAN W. GALBATO
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/s/ Mark N. Kaplan
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Director
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March 11, 2021
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MARK N. KAPLAN
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/s/ Janet M. Thompson
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Director
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March 11, 2021
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JANET M. THOMPSON
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/s/ Jose Vargas
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Director
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March 11, 2021
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JOSE VARGAS
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