As filed with the Securities and Exchange Commission on November 23, 2021.April 14, 2023
Registration No. 333-261185333-
Delaware | | | 2836 | | | 31-1103425 |
(State or other jurisdiction of incorporation or organization) | | | (Primary Standard Industrial Classification | | | (I.R.S. Employer Identification |
Large accelerated filer | | | ☐ | | | Accelerated filer | | | ☐ |
Non-accelerated filer | | | ☒ | | | Smaller | | | ☒ |
| | | | Emerging | | | ☐ |
PRELIMINARY PROSPECTUS | | | SUBJECT TO COMPLETION | | | DATED APRIL 14, 2023 |
• | 73,659 Commitment Shares that we issued to Lincoln Park as consideration for its commitment to purchase shares of our common stock under the Purchase Agreement; and |
• | Up to 2,856,578 shares of our common stock we may issue and sell to Lincoln Park from time to time, at our sole discretion, during the 24-month period commencing on the Commencement Date in accordance with the Purchase Agreement. |
Assumed Average Purchase Price Per Share | | | Number of Shares to be Issued if Full Purchase(1) | | | Percentage of Outstanding Shares of Common Stock After Giving Effect to the Sales to Lincoln Park(2) | | | Gross Proceeds from the Future Sale of Shares to Lincoln Park Under the Purchase Agreement(1) |
$3.50 | | | 2,856,578 | | | 35.45% | | | $9,998,023 |
$3.6094(3) | | | 2,770,544 | | | 34.76% | | | $10,000,000 |
$4.00 | | | 2,500,000 | | | 32.46% | | | $10,000,000 |
$4.50 | | | 2,222,222 | | | 29.94% | | | $10,000,000 |
$5.00 | | | 2,000,000 | | | 27.77% | | | $10,000,000 |
(1) | Although the Purchase Agreement provides that we may sell up to $10,000,000 of our common stock to Lincoln Park, we are only registering 2,930,237 shares of our common stock for resale under the registration statement of which this prospectus forms a part, including the 73,659 Commitment Shares that we issued to Lincoln Park on April 6, 2023 in consideration of Lincoln Park’s commitment to purchase shares of our common stock at our direction under the Purchase Agreement, for which received no cash proceeds. Therefore, only 2,856,578 of such shares represent shares that we may issue and sell to Lincoln Park for cash consideration in purchases under the Purchase Agreement. We have included in this column only the 2,856,578 shares that we may issue and sell to Lincoln Park for cash consideration in purchases under the Purchase Agreement that are being registered for resale in the offering made by this prospectus (excluding the 73,659 Commitment Shares), giving effect to the Exchange Cap but without regard for the Beneficial Ownership Limitation. |
(2) | The denominator is based on 5,200,729 shares of our common stock outstanding as of April 13, 2023 (which includes the 73,659 Commitment Shares), adjusted to include the number of shares of our common stock set forth in the adjacent column. The numerator is based on the number of shares of our common stock set forth in the adjacent column. |
(3) | The Minimum Price. |
Name of Selling Stockholder | | | Number of Shares of Common Stock Owned Prior to Offering(2) | | | Maximum Number of Shares of Common Stock to be Offered Pursuant to this Prospectus(3) | | | Number of Shares of Common Stock Owned After Offering(4) | ||||||
| | Number | | | Percent | | | | | Number | | | Percent | ||
Lincoln Park Capital Fund, LLC(1) | | | 73,659 | | | 1.42% | | | 2,930,237 | | | 0 | | | — |
(1) | Josh Scheinfeld and Jonathan Cope, the Managing Members of Lincoln Park Capital, LLC, the manager of Lincoln Park Capital Fund, LLC, are deemed to be beneficial owners of all of the shares of common stock owned directly by Lincoln Park Capital Fund, LLC. Messrs. Cope and Scheinfeld have shared voting and investment power over the shares of common stock being offered under the registration statement filed with the SEC in connection with the transactions contemplated under the Purchase Agreement and the Registration Rights Agreement. Neither Lincoln Park Capital, LLC nor Lincoln Park Capital Fund, LLC is a licensed broker dealer or an affiliate of a licensed broker dealer. |
(2) | Represents the 73,659 Commitment Shares that we issued to Lincoln Park on April 6, 2023 as consideration for its commitment to purchase our common stock at our direction under the Purchase Agreement. In accordance with Rule 13d-3(d) under the Exchange Act, we have excluded from the number of shares of our common stock beneficially owned prior to the offering all of the 2,856,578 shares of our common stock that we may issue and sell to Lincoln Park pursuant to the Purchase Agreement from and after commencement that are being registered for resale under the registration statement that includes this prospectus, because the issuance and sale of such shares to Lincoln Park under the Purchase Agreement is solely at our discretion and is subject to certain conditions, the satisfaction of all of which are outside of Lincoln Park’s control, including the registration statement that includes this prospectus becoming and remaining effective under the Securities Act. Furthermore, under the terms of the Purchase Agreement, issuances and sales of shares of our common stock to Lincoln Park under the Purchase Agreement are subject to certain limitations on the amounts we may sell to Lincoln Park at any time, including the Exchange Cap and the Beneficial Ownership Limitation. See the description under the heading “The Lincoln Park Transaction” for more information about the Purchase Agreement. |
(3) | Although the Purchase Agreement provides that we may sell up to $10,000,000 of our common stock to Lincoln Park, we are only registering 2,930,237 shares of our common stock for resale under this prospectus, including the 73,659 Commitment Shares that we issued to Lincoln Park on April 6, 2023 as consideration for its commitment to purchase our common stock at our direction under the Purchase Agreement, for which we will receive no cash proceeds. Therefore, only 2,856,578 of such shares represent shares that we may issue and sell to Lincoln Park for cash consideration in purchases under the Purchase Agreement from time to time, at our sole discretion, during the 24-month period commencing on the Commencement Date. Depending on the price per share at which we sell our common stock to Lincoln Park pursuant to the Purchase Agreement, we may need to sell to Lincoln Park under the Purchase Agreement more shares of our common stock than are offered under this prospectus in order to receive aggregate gross proceeds equal to the full $10,000,000 available to us under |
(4) | Assumes the sale of all shares of our common stock registered for resale by the selling stockholder pursuant to the registration statement that includes this prospectus, although the selling stockholder is under no obligation known to us to sell any shares of common stock at any particular time. |
• | our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March 20, 2023; |
• | our Current Reports on Form 8-K, filed with the SEC on January 4, 2023, January 10, 2023, January 26, 2023, February 22, 2023, and April 11, 2023; and |
• | the Company’s Registration Statement on Form 8-A filed with the SEC on October 22, 2021, in which there is described the terms, rights and provisions applicable to the shares of the Company’s common stock, including any amendment or report filed for the purpose of updating such description, including the description of the common stock filed as Exhibit 4.1 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 filed on April 15, 2022. |
Item 13. | Other Expenses of Issuance and Distribution |
Item | | | Amount to be paid |
SEC registration fee | | | $ |
Accounting fees and expenses | | | |
Legal fees and expenses | | | |
Miscellaneous fees and expenses | | | |
Total | | | $ |
Item 14. | Indemnification of Directors and Officers. |
Item 15. | Recent Sales of Unregistered Securities. |
Item 16. | Exhibits and Financial Statement Schedules. |
(a) |
(b) | Financial Statement |
| | Agreement and Plan of Merger and Reorganization, dated August 12, 2020, by and among NTN Buzztime, Inc., BIT Merger Sub, Inc. and Brooklyn ImmunoTherapeutics LLC (incorporated by reference to Exhibit 2.1 to the Company’s proxy statement/prospectus on Form S-4/A, filed with the SEC on January 20, 2021). | |
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| | Agreement and Plan of Acquisition, dated as of July 16, 2021, by and among Brooklyn ImmunoTherapeutics, Inc., Brooklyn Acquisition Sub, Inc., Novellus LLC, Novellus, Inc., and the Sellers’ Representative (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on July 19, 2021). | |
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| | Composite Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 to the Company’s Annual Report on Form 10-K filed on March 20, 2023). | |
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| | Certificate of Validation of the Company, filed on September 3, 2021 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on September 13, 2021). | |
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| | Second Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed on October 11, 2022). | |
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| | Specimen Stock Certificate evidencing shares of common stock of the Company (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-1 filed on April 30, 2021). | |
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| | Description of the Registrant’s Securities Registered Pursuant to Section 12 of the Securities Exchange Act of 1934 (incorporated by reference to Exhibit 4.1 to the Company’s Annual Report on Form 10-K, filed on April 15, 2022). | |
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| | Purchase Agreement, dated as of April 5, 2023, by and between Eterna Therapeutics Inc. and the purchaser party thereto (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on April 11, 2023). | |
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| | Registration Rights Agreement, dated as of April 5, 2023, by and between Eterna Therapeutics Inc. and the purchaser party thereto (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed on April 11, 2023). | |
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| | Form of Pre-Funded Warrant (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed on March 9, 2022). | |
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| | Form of Common Stock Warrant (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K, filed on March 9, 2022). |
| | Form of Warrant (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on December 5, 2022). | |
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| | Opinion of Greenberg Traurig, LLP. | |
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| | Registration Rights Agreement, dated as of May 26, 2021, between Brooklyn ImmunoTherapeutics, Inc. and Lincoln Park Capital Fund, LLC (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed on May 26, 2021). | |
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| | Registration Rights Agreement, dated as of July 16, 2021, by and among Brooklyn ImmunoTherapeutics, Inc. and the individuals and entities named therein (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed on July 19, 2021). | |
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| | Purchase Agreement, dated as of May 26, 2021, between Brooklyn ImmunoTherapeutics, Inc. and Lincoln Park Capital Fund, LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on May 26, 2021). | |
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| | Brooklyn ImmunoTherapeutics, Inc. 2021 Inducement Stock Incentive Plan (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K, filed on May 26, 2021). | |
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| | Brooklyn ImmunoTherapeutics, Inc. Restated 2020 Stock Incentive Plan (incorporated by reference to Exhibit 99.1 to the Company’s Form 8-K, filed on September 13, 2021). | |
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| | Agreement to Assign Space Lease dated March 5, 2022 between Brooklyn ImmunoTherapeutics, LLC and Regen Lab USA LLC (incorporated by reference to Exhibit 10.5 to the Company’s Quarterly Report on Form 10-Q, filed on June 30, 2022). | |
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| | Assignment and Assumption of Lease dated March 25, 2022 between Brooklyn ImmunoTherapeutics, LLC and Regen Lab USA LLC (incorporated by reference to Exhibit 10.6 to the Company’s Quarterly Report on Form 10-Q, filed on June 30, 2022). | |
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| | Amended and Restated Executive Employment Agreement, dated as of May 10, 2022, by and between Brooklyn ImmunoTherapeutics, Inc. and Andrew Jackson (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on May 31, 2022). | |
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| | Torrey Pines Science Center Lease, dated March 31, 2022, between Brooklyn ImmunoTherapeutics, Inc. and Torrey Pines Science Center Limited Partnership (incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q, filed on August 11, 2022). | |
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| | Master Services Agreement, dated September 9, 2022, by and between Factor Bioscience Inc. and the Company (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on September 15, 2022). | |
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| | Securities Purchase Agreement, dated as of November 23, 2022, by and among Eterna Therapeutics Inc. and the purchasers party thereto (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on November 25, 2022). | |
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| | Angel Offer Letter, dated December 30, 2022, by and among Eterna Therapeutics Inc. and Dr. Matthew Angel (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on January 4, 2023). | |
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| | Exclusive License Agreement, dated February 20, 2023, by and between Factor Bioscience Limited and Eterna Therapeutics Inc (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on February 22, 2023). | |
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| | Exclusive License Agreement, dated as of April 26, 2021, between Factor Bioscience Limited, Novellus Therapeutics Limited and Eterna Therapeutics (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K, filed on April 30, 2021). | |
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| | First Amendment to Exclusive License Agreement, dated November 22, 2022, by and among Eterna Therapeutics Inc., Eterna Therapeutics LLC, Novellus Therapeutics Limited and Factor Bioscience Limited (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on November 22, 2022). | |
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| | Separation Agreement and General Release, dated May 25, 2022, by and between Eterna Therapeutics Inc. and Howard J. Federoff (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed on May 31, 2022). | |
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| | Third Amended and Restated Exclusive License Agreement, dated November 1, 2020, by and between Factor Bioscience Limited and Novellus Therapeutics Limited (incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q, filed on November 14, 2022). | |
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| | Separation Agreement and General Release, dated August 24, 2022, by and between Eterna Therapeutics Inc and Kevin D’Amour (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K/A, filed on September 1, 2022). | |
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| | Sublease Agreement, dated October 18, 2022, by and between E.R. Squibb & Sons, LLC and Eterna Therapeutics Inc. (incorporated by reference to Exhibit 10.16 to the Company’s Annual Report on Form 10-K, filed on March 20, 2023). | |
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| | Option Agreement, dated October 8, 2022, by and between Exacis Biotherapeutics, Inc. and Eterna Therapeutics Inc. (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on October 14, 2022). | |
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| | Lease Termination Agreement, dated November 30, 2022, by and between Torrey Pines Science Center Limited Partnership and Eterna Therapeutics Inc. (incorporated by reference to Exhibit 10.21 to the Company’s Annual Report on Form 10-K, filed on March 20, 2023). | |
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| | Registration Rights Agreement, dated as of December 2, 2022, by and among Eterna Therapeutics Inc. and the purchasers party thereto (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed on December 5, 2022). | |
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| | First Amendment to Lease Termination Agreement, dated December 29, 2022, by and between Torrey Pines Science Center Limited Partnership and Eterna Therapeutics Inc. (incorporated by reference to Exhibit 10.22 to the Company’s Annual Report on Form 10-K, filed on March 20, 2023). | |
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| | Registration Rights Agreement, dated as of April 26, 2021, between Eterna Therapeutics Inc. and Lincoln Park Capital Fund, LLC (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed on April 30, 2021). | |
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| | Purchase Agreement, dated as of April 26, 2021, between Eterna Therapeutics Inc. and Lincoln Park Capital Fund, LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on April 30, 2021). | |
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| | Securities Purchase Agreement, dated as of March 6, 2022, by and between Brooklyn ImmunoTherapeutics, Inc. and the purchaser party thereto (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed on March 9, 2022). | |
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| | Registration Rights Agreement, dated as of March 6, 2022, by and between Brooklyn ImmunoTherapeutics, Inc. and the purchaser party thereto (incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K, filed on March 9, 2022). | |
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| | Marcum, LLP letter dated January 24, 2022 (incorporated by reference to Exhibit 16.1 to the Company’s Current Report on Form 8-K, filed on January 24, 2022). | |
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| | Marcum, LLP letter dated April 19, 2022 (incorporated by reference to Exhibit 16.1 to the Company’s Current Report on Form 8-K, filed on April 19, 2022). | |
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| | Subsidiaries of the Company (incorporated by reference to Exhibit 21.1 to the Company’s Annual Report on Form 10-K, filed on March 20, 2023). | |
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| | Consent of the Independent Registered Accounting Firm, Grant Thornton LLP. | |
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| | Consent of the Independent Registered Accounting Firm, Marcum LLP. | |
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| | Consent of Greenberg Traurig, LLP. (included in Exhibit 5.1) | |
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| | Power of Attorney (included on the signature pages hereto) | |
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| | Filing Fee Table |
* | Filed herewith |
+ | Management contract or compensatory plan. |
(a) | Pursuant to Item 601(b)(2) of Regulation S-K, portions of this exhibit have been omitted because the Company customarily and actually treats the omitted portions as private or confidential, and such portions are not material and would likely cause competitive harm to the Company if publicly disclosed. The |
(b) | Certain identified information has been excluded from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed. |
Item 17. | Undertakings |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this |
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as |
To reflect in the prospectus any facts or events arising after the effective date of |
To include any material information with respect to the plan of distribution not previously disclosed in |
(2) | That, for the |
(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. |
(4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, |
each prospectus |
The |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the |
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| | By: | | | /s/ | |
| | Name: | | | Andrew Jackson | |
| | Title: | | | Chief Financial Officer | |
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| | Title | | | Date | |
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/s/ | | | Chief Executive Officer, President and Director ( | | | |
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/s/ Andrew Jackson | | | Chief Financial Officer (Principal Financial Officer) | | | April 14, 2023 |
Andrew Jackson | | |||||
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/s/ Sandra Gurrola | | | Vice President of Finance ( | | | |
Sandra Gurrola | | |||||
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Charles Cherington | | |||||
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| | Director | | | ||
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| | Director | | | ||
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/s/ William Wexler | | | Director | | | April 14, 2023 |
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