Securities Registration: Employee Benefit Plan (s-8)
19 September 2019 - 7:51PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on September 19, 2019
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
STEREOTAXIS,
INC.
(Exact
name of registrant as specified in its charter)
Delaware
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94-3120386
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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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4320
Forest Park Avenue, Suite 100
St.
Louis, Missouri 63108
(Address
of Principal Executive Offices, including zip code)
Stereotaxis,
Inc. 2009 Employee Stock Purchase Plan, As Amended and Restated
(Full
title of the plans)
David
L. Fischel
Chief
Executive Officer
Stereotaxis,
Inc.
4320
Forest Park Avenue, Suite 100
St.
Louis, Missouri 63108
(314)
678-6100
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
James
L. Nouss, Jr., Esq.
Robert
J. Endicott, Esq.
Bryan
Cave Leighton Paisner LLP
211
North Broadway, Suite 3600
St.
Louis, Missouri 63102-2750
(314)
259-2000
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 [X]
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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
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
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Proposed maximum aggregate
offering price
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Amount of registration fee
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Common Stock, $0.001 par value
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250,000 shares
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$
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3.50
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(2)
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$
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875,000.00
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(2)
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$
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106.05
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(1)
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Pursuant
to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall
also cover an indeterminate number of additional shares of the Registrant’s common stock, par value $0.001 per share
(the “Common Stock”), that becomes issuable under the Stereotaxis, Inc. 2009 Employee Stock Purchase Plan, as
amended, by reason of any stock splits, stock dividends, recapitalization or other similar transactions.
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(2)
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Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) under the Securities Act and based
upon the average of the high and low prices of the Company’s Common Stock as reported by the NYSE American on September
13, 2019.
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EXPLANATORY
NOTE
REGISTRATION
OF ADDITIONAL SHARES
PURSUANT TO GENERAL INSTRUCTION E
On
May 21, 2019, at the Annual Meeting of Shareholders of Stereotaxis, Inc. (the “Registrant” or “Company”),
the shareholders of the Company approved the amendment and restatement (the “Restatement”) of the 2009 Employee Stock
Purchase Plan (the “Plan”), which the Company’s Board of Directors (the “Board”) had previously
approved in February 2019, subject to such shareholder approval. The Plan was originally adopted by the Board and approved by
our shareholders in April 2009 and June 2009, respectively; an amendment to the Plan (the “First Amendment”) was adopted
by the Board and approved by our shareholders in March 2014 and June 2014, respectively; and a second amendment to the Plan was
adopted by the Board in February 2015. The Restatement provides for an increase in the number of shares authorized for issuance
under the Plan by 250,000 shares. Previously, 250,000 shares were authorized under the Plan and registered under the Securities
Act of 1933, as amended (the “Securities Act”), pursuant to a registration statement on Form S-8 previously filed
on August 6, 2009 (Registration No. 333-161079) (the “2009 S-8”), and an additional 250,000 shares were authorized
under the First Amendment and registered under the Securities Act pursuant to a registration statement on Form S-8 previously
filed on August 7, 2014 (Registration No. 333-197930) (the “2014 S-8” and, together with the 2009 S-8, the “Previous
S-8”), which remains in full force and effect.
The
Company is filing this Registration Statement to register under the Securities Act an additional 250,000 shares of the Company’s
Common Stock to be issued pursuant to the Restatement. The additional shares to be registered by this Registration Statement are
of the same class as those securities covered by the Previous S-8. Pursuant to General Instruction E to Form S-8, the contents
of the Previous S-8 are incorporated herein by reference and this Registration Statement is only required to include those items
specified by such instruction.
Unless
the context otherwise requires, references made herein to “Stereotaxis,” “we,” “us,” “our”
and “ours” refer to Stereotaxis, Inc. and its consolidated subsidiaries.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
As
permitted by the rules of the Securities Exchange Commission (“SEC”), this Registration Statement omits the information
specified in Part I of Form S-8. The documents containing the information specified in Part I of this Registration Statement will
be sent or given to eligible employees as specified by Rule 428(b) promulgated under the Securities Act. Such documents are not
being filed with the SEC either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 promulgated under the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents listed in (a) through (d) below, which are on file with the SEC, are incorporated herein by reference
(except for the portions of the Company’s Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 thereof
or otherwise not filed with the SEC which are deemed not to be incorporated by reference into this Registration Statement):
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(a)
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The
Registrant’s Annual Report filed on Form 10-K for the fiscal year ended December 31, 2018, filed with the SEC on March
15, 2019;
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(b)
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The
Registrant’s Quarterly Reports filed on Form 10-Q for the quarterly period ended March 31, 2019, filed with the SEC
on May 9, 2019, and for the quarterly period ended June 30, 2019, filed with the SEC on August 9, 2019;
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(c)
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The
Registrant’s Current Reports on Form 8-K filed with the SEC on January 11, 2019, May 21, 2019, July 1, 2019, August
8, 2019 and September 16, 2019; and
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(d)
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The
description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A
dated September 4, 2019, registering the Registrant’s common stock under Section 12(b) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), including any amendments or reports filed for the purpose of updating
such description.
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In
addition, 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 (other than those made pursuant to Item 2.02 or Item 7.01 of Form 8-K or other information “furnished”
to the Commission) prior to the filing of a post-effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of such documents. These documents include periodic reports, such as Proxy
Statements, Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K (other than the portions
of those documents not deemed to be filed, which is deemed not to be incorporated by reference in this Registration Statement).
Any statement contained in a document incorporated or deemed to be incorporated herein by reference 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.
Item
4. Description of Securities.
The
securities to be offered are registered under Section 12 of the Exchange Act and, accordingly, no description is provided hereunder.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
Our
amended and restated certificate of incorporation provides that, to the fullest extent permitted by the Delaware General Corporation
Law as the same exists or may hereafter be amended, our directors shall not be liable to the Company or our stockholders for monetary
damages for breach of fiduciary duty as a director. In addition, our amended and restated certificate of incorporation provides
that we may, to the fullest extent permitted by law, indemnify any person made or threatened to be made a party to an action,
suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person or his or
her testator or intestate is or was a director, officer or employee of the Company, or any predecessor of the Company, or serves
or served at any other enterprise as a director, officer or employee at the request of the Company.
Our
amended and restated bylaws provide that the Company shall indemnify our directors and officers to the fullest extent not prohibited
by the Delaware General Corporation Law or any other law. We are not required to indemnify any director or officer in connection
with a proceeding brought by such director or officer unless (i) such indemnification is expressly required by law; (ii) the proceeding
was authorized by our board of directors; or (iii) such indemnification is provided by the Company, in its sole discretion, pursuant
to the powers vested in the Company under the Delaware General Corporation Law or any other applicable law. In addition, our amended
and restated bylaws provide that the Company may indemnify its employees and other agents as set forth in the Delaware General
Corporation Law or any other applicable law.
We
have also entered into separate indemnification agreements with our directors and officers that require us, among other things,
to indemnify each of them against certain liabilities that may arise by reason of their status or service with the Company or
on behalf of the Company, other than liabilities arising from willful misconduct of a culpable nature. The Company is not required
to indemnify under the agreement for (i) actions initiated by the director without the authorization of consent of the board of
directors; (ii) actions initiated to enforce the indemnification agreement unless the director is successful; (iii) actions resulting
from violations of Section 16 of the Exchange Act in which a final judgment has been rendered against the director; and (iv) actions
to enforce any non-compete or non-disclosure provisions of any agreement.
The
indemnification provided for above provides for reimbursement of all losses of the indemnified party, including expenses, judgment,
fines and amounts paid in settlement. The right to indemnification set forth above includes the right for us to pay the expenses
(including attorneys’ fees) incurred in defending any such proceeding in advance of its final disposition in certain circumstances.
The
Delaware General Corporation Law provides that indemnification is permissible only when the director, officer, employee, or agent
acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful. The Delaware General
Corporation Law also precludes indemnification in respect of any claim, issue, or matter as to which an officer, director, employee,
or agent shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery of
the State of Delaware or the court in which such action or suit was brought shall determine that, despite such adjudication of
liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court deems proper.
Item
7. Exemption From Registration Claimed.
Not
applicable.
Item
8. Exhibits.
The
following exhibits are filed herewith or incorporated by reference into this registration statement on Form S-8.
Item
9. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(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 SEC pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than 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 (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) 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 Commission by registrant
pursuant to Section 13 and Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of 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.
(4)
That, for the purpose of determining liability under the Securities Act to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) of the Securities Act shall be deemed to be part of the Registration
Statement as of the date the filed prospectus was deemed part of and included in the Registration Statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7), (b)(5), or (b)(7) of the Securities Act as
part of this registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii),
or (x) for the purpose of providing the information required by section 10(a) of the Securities Act shall be deemed to be part
of and included in this registration statement as of the earlier of the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B,
for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in this registration statement or prospectus that is part of this registration statement or made
in a document incorporated or deemed incorporated by reference into this registration statement or prospectus that is part of
this registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in this registration statement or prospectus that was part of this registration statement or
made in any such document immediately prior to such effective date;
(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.
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
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.
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 St. Louis, State of Missouri, on September 19, 2019.
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STEREOTAXIS, INC.
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By:
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/s/
David L. Fischel
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David
L. Fischel
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Chairman
and Chief Executive Officer
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Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons
in the capacities and on the dates indicated.
Signature
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Title(s)
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Date
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/s/
David L. Fischel
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Chairman
of the Board and Chief Executive Officer
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September
19, 2019
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David
L. Fischel
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(principal
executive officer)
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/s/
Martin C. Stammer
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Chief
Financial Officer
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September
19, 2019
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Martin
C. Stammer
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(principal
financial officer and principal accounting officer)
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*
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Director
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September
19, 2019
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David
W. Benfer
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*
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Director
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September
19, 2019
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Nathan
Fischel
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*
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Director
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September
19, 2019
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Joe
Kiani
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*
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Director
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September
19, 2019
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Arun
S. Menawat
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*
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Director
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September
19, 2019
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Robert
J. Messey
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*
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Director
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September
19, 2019
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Ross
B. Levin
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*By:
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/s/
Martin C. Stammer
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Martin
C. Stammer
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Attorney-in-fact
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