Securities Registration: Employee Benefit Plan (s-8)
19 November 2020 - 8:50AM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on November 18, 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
PACIFIC
ETHANOL, INC.
(Exact
name of registrant as specified in its charter)
Delaware
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41-2170618
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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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400 Capitol Mall,
Suite 2060, Sacramento, California
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95814
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(Address of Principal
Executive Offices)
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(Zip Code)
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2016
STOCK INCENTIVE PLAN
(Full
title of the plan)
Michael
D. Kandris
Chief Executive Officer
Pacific Ethanol, Inc.
400 Capitol Mall, Suite 2060, Sacramento, California 95814
(Name
and address of agent for service)
(916)
403-2123
(Telephone
number, including area code, of agent for service)
Copies
of all correspondence to:
John
T. Bradley, Esq.
Troutman
Pepper Hamilton Sanders LLP
5 Park Plaza, Suite 1400, Irvine, California 92614
(949) 622-2700
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐
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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.
☐
CALCULATION
OF REGISTRATION FEE
Title of Securities to be Registered
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Amount to be Registered(1)
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Proposed Maximum
Offering Price
Per Share(2)
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Proposed Maximum
Aggregate
Offering Price(2)
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Amount of
Registration Fee(2)
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Common Stock, $0.001 par value
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1,750,000
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$
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5.77
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$
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10,097,500.00
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$
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1,101.64
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(1)
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In
the event of a stock split, stock dividend, or similar transaction involving the Registrant’s
Common Stock, the number of shares registered hereby shall automatically be increased
to cover the additional shares in accordance with Rule 416(a) under the Securities Act
of 1933, as amended (the “Securities Act”).
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(2)
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Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under
the Securities Act, and is based upon the average of high and low sales prices of the
Registrant’s common stock on The NASDAQ Capital Market on November 17, 2020.
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EXPLANATORY
NOTE
Pacific
Ethanol, Inc. (referred to as “we,” “us,” and through similar terms) filed the following registration
statement with the Securities and Exchange Commission on Form S-8:
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Registration
No. 333-212070, filed on June 16, 2016 with respect to 1,150,000 shares of our common
stock relating to our 2016 Stock Incentive Plan (the “Plan”);
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Registration
No. 333-225622, filed on June 14, 2018 with respect to 2,500,000 shares of our common
stock relating to our Plan; and
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Registration
No. 333-234613, filed on November 8, 2019 with respect to 2,000,000 shares of our common
stock relating to our Plan.
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We
amended the Plan in March 2018 to increase the number of shares covered by the Plan from 1,150,000 to 3,650,000 shares of common
stock. Our stockholders adopted and approved this increase at our 2018 annual meeting of stockholders held on June 14, 2018.
We
amended the Plan in April 2019 to increase the number of shares covered by the Plan from 3,650,000 shares to 5,650,000 shares
of common stock. Our stockholders adopted and approved this increase at our 2019 annual meeting of stockholders held on November
7, 2019.
We
amended the Plan in September 2020 to increase the number of shares covered by the Plan from 5,650,000 shares to 7,400,000 shares
of common stock. Our stockholders adopted and approved this increase at our 2020 annual meeting of stockholders held on November
18, 2020.
This
Form S-8 is filed for the purpose of registering the additional 1,750,000 shares of common stock under the amended Plan.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
documents containing the information specified in Part I, Items 1 and 2, will be sent or given to each participant in accordance
with Form S-8 and Rule 428(b)(1) of the Securities Act. We will furnish without charge to each participant to whom information
is required to be delivered, upon written or oral request, a copy of each document incorporated by reference in Part II, Item
3 of this registration statement, which documents are incorporated by reference in the Section 10(a) prospectus, and any
other documents required to be delivered to them under Rule 428(b) of the Securities Act. Requests should be directed to Pacific
Ethanol, Inc., 400 Capitol Mall, Suite 2060, Sacramento, California 95814, Attention: Secretary. Our telephone number is (916)
403-2123.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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ITEM 3.
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Incorporation
of Documents by Reference.
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We
incorporate the following documents by reference in this registration statement:
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Our
current report on Form 8-K for November 18, 2020, as filed with the Securities and Exchange
Commission on November 18, 2020;
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Our
quarterly report on Form 10-Q for the three months ended September 30, 2020, as filed
with the Securities and Exchange Commission on November 16, 2020;
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Our
current report on Form 8-K for November 9, 2020, as filed with the Securities and Exchange
Commission on November 9, 2020;
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Our
current report on Form 8-K for November 6, 2020, as filed with the Securities and Exchange
Commission on November 9, 2020;
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Our
current report on Form 8-K for October 28, 2020, as filed with the Securities and Exchange
Commission on October 28, 2020;
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Our
current report on Form 8-K for October 26, 2020, as filed with the Securities and Exchange
Commission on October 26, 2020;
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Our
current report on Form 8-K for October 22, 2020, as filed with the Securities and Exchange
Commission on October 23, 2020;
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Our
current report on Form 8-K for September 30, 2020, as filed with the Securities and Exchange
Commission on October 5, 2020;
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Our
current report on Form 8-K for August 13, 2020, as filed with the Securities and Exchange
Commission on August 13, 2020;
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Our
quarterly report on Form 10-Q for the three months ended June 30, 2020, as filed with
the Securities and Exchange Commission on August 13, 2020;
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Our
current report on Form 8-K for August 11, 2020, as filed with the Securities and Exchange
Commission on August 11, 2020;
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Our
current report on Form 8-K for August 6, 2020, as filed with the Securities and Exchange
Commission on August 10, 2020;
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Our
current report on Form 8-K for August 4, 2020, as filed with the Securities and Exchange
Commission on August 7, 2020;
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Our
current report on Form 8-K for May 22, 2020, as filed with the Securities and Exchange
Commission on May 29, 2020;
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Our
quarterly report on Form 10-Q for the three months ended March 31, 2020, as filed with
the Securities and Exchange Commission on May 14, 2020;
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Our
current report on Form 8-K for May 12, 2020, as filed with the Securities and Exchange
Commission on May 12, 2020;
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Our
current report on Form 8-K for May 5, 2020, as filed with the Securities and Exchange
Commission on May 11, 2020;
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Our
current report on Form 8-K for May 4, 2020, as filed with the Securities and Exchange
Commission on May 7, 2020;
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Our
annual report on Form 10-K/A for the year ended December 31, 2019, as filed with the
Securities and Exchange Commission on April 29, 2020;
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Our
current report on Form 8-K for April 17, 2020, as filed with the Securities and Exchange
Commission on April 23, 2020;
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Our
current report on Form 8-K for April 15, 2020, as filed with the Securities and Exchange
Commission on April 21, 2020;
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Our
annual report on Form 10-K for the year ended December 31, 2019, as filed with the Securities
and Exchange Commission on March 30, 2020;
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Our
current report on Form 8-K for March 16, 2020, as filed with the Securities and Exchange
Commission on March 26, 2020;
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Our
current report on Form 8-K for March 10, 2020, as filed with the Securities and Exchange
Commission on March 12, 2020;
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Our
current report on Form 8-K for February 28, 2020, as filed with the Securities and Exchange
Commission on March 5, 2020;
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Our
current report on Form 8-K/A for November 7, 2019, as filed with the Securities and Exchange
Commission on January 24, 2020;
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Our
current report on Form 8-K for January 15, 2020, as filed with the Securities and Exchange
Commission on January 22, 2020;
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Our
current report on Form 8-K for December 29, 2019, as filed with the Securities and Exchange
Commission on January 3, 2020; and
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The
description of our capital stock contained in our Current Report on Form 8-K filed with
the Securities and Exchange Commission on April 13, 2017.
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All
reports and other documents we subsequently file after the date of this registration statement under Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), prior to the filing of a post-effective
amendment which indicates that all securities offered under this registration statement have been sold, or which deregisters all
securities then remaining unsold, shall be deemed incorporated by reference into this registration statement and shall be a part
of this registration statement from the date of filing such documents.
For
purposes of this registration statement, any document or any statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the extent that a subsequently filed document or a statement
contained herein or in any other subsequently filed document, which also is or is deemed to be incorporated herein by reference
modifies or supersedes such document or such statement in such document. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this registration statement.
Notwithstanding
the above, information that is “furnished to” the Securities and Exchange Commission shall not be deemed “filed
with” the Securities and Exchange Commission and shall not be deemed incorporated by reference into this registration statement.
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ITEM 4.
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Description
of Securities.
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Not
applicable.
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ITEM 5.
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Interests
of Named Experts and Counsel.
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Not
applicable.
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ITEM 6.
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Indemnification
of Directors and Officers.
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Section
145 of the Delaware General Corporation Law (“DGCL”) permits a corporation to indemnify its directors and officers
against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with a pending
or completed action, suit or proceeding if the officer or director acted in good faith and in a manner the officer or director
reasonably believed to be in the best interests of the corporation.
Our
certificate of incorporation provides that, except in certain specified instances, our directors shall not be personally liable
to us or our stockholders for monetary damages for breach of their fiduciary duty as directors, except liability for the following:
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any
breach of their duty of loyalty to Pacific Ethanol or our stockholders;
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acts
or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law;
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unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided in Section
174 of the DGCL; and
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any
transaction from which the director derived an improper personal benefit.
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In
addition, our certificate of incorporation and bylaws obligate us to indemnify our directors and officers against expenses and
other amounts reasonably incurred in connection with any proceeding arising from the fact that such person is or was an agent
of ours. Our bylaws also authorize us to purchase and maintain insurance on behalf of any of our directors or officers against
any liability asserted against that person in that capacity, whether or not we would have the power to indemnify that person under
the provisions of the DGCL. We have entered and expect to continue to enter into agreements to indemnify our directors and officers
as determined by our board of directors. These agreements provide for indemnification of related expenses including attorneys’
fees, judgments, fines and settlement amounts incurred by any of these individuals in any action or proceeding. We believe that
these bylaw provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and officers.
We also maintain directors’ and officers’ liability insurance.
The
limitation of liability and indemnification provisions in our certificate of incorporation and bylaws may discourage stockholders
from bringing a lawsuit against our directors for breach of their fiduciary duty. They may also reduce the likelihood of derivative
litigation against our directors and officers, even though an action, if successful, might benefit us and our stockholders. Furthermore,
a stockholder’s investment may be adversely affected to the extent that we pay the costs of settlement and damage awards
against directors and officers as required by these indemnification provisions. At present, there is no pending litigation or
proceeding involving any of our directors, officers or employees regarding which indemnification is sought, and we are not aware
of any threatened litigation that may result in claims for indemnification.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling
persons under the foregoing provisions of our certificate of incorporation or bylaws, or otherwise, we have been informed that
in the opinion of the Securities and Exchange Commission, this indemnification is against public policy as expressed in the Securities
Act and is therefore unenforceable.
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ITEM 7.
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Exemption
from Registration Claimed.
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Not
Applicable.
The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to the registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; 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 (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment
by those clauses is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference into the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at
the termination of the offering.
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.
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 indemnification provisions summarized in Item 6 above, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Sacramento, State of California, on this 18th day of
November, 2020.
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PACIFIC ETHANOL, INC.,
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a Delaware corporation
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By:
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/s/ MICHAEL D. KANDRIS
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Michael D. Kandris
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President and Chief Executive Officer
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POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Michael Kandris his
attorney-in-fact and agent, with the power of substitution and resubstitution, for him and in his name, place or stead, in any
and all capacities, to sign any amendment to this registration statement on Form S-8, and to file such amendments, together with
exhibits and other documents in connection therewith, with the Securities and Exchange Commission, granting to such attorney-in-fact
and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about
the premises, as fully as he might or could do in person, and ratifying and confirming all that the attorney-in-fact and agent,
or his substitute or substitutes, may 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.
Signature
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Title
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Date
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/s/ WILLIAM L. JONES
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Chairman of the Board and Director
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November 18, 2020
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William L. Jones
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/s/ MICHAEL D. KANDRIS
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President, Chief Executive Officer
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November 18, 2020
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Michael D. Kandris
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(principal executive officer), Chief Operating
Officer and Director
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/s/ BRYON T. MCGREGOR
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Chief Financial Officer
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November 18, 2020
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Bryon T. McGregor
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(principal financial and accounting officer)
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/s/ TERRY L. STONE
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Director
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November 18, 2020
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Terry L. Stone
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/s/ JOHN L. PRINCE
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Director
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November 18, 2020
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John L. Prince
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/s/ DOUGLAS L. KIETA
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Director
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November 18, 2020
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Douglas L. Kieta
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Director
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November 18, 2020
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Dianne S. Nury
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/s/ GILBERT E. NATHAN
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Director
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November 18, 2020
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Gilbert E. Nathan
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