Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
OCEAN
POWER TECHNOLOGIES, INC.
(Exact
name of registrant as specified in its charter)
Delaware |
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22-2535818 |
(State
or Other Jurisdiction of
Incorporation
or Organization) |
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(I.R.S.
Employer
Identification
No.) |
28
Engelhard Drive, Suite B
Monroe
Township, New Jersey
(Address
of Principal Executive Offices) (Zip Code)
2015
Omnibus Incentive Plan
(Full
title of the plan)
Name,
Address and Telephone
Number
of Agent for Service: |
|
Copy
of Communications to: |
Philipp
Stratmann
President
and Chief Executive Officer
28
Engelhard Drive, Suite B
Monroe
Township, New Jersey 08831
(609)
730-0400 |
|
Kevin
J. Poli
Porter
Hedges LLP
1000
Main Street, 36th Floor
Houston,
Texas 77002-6336
(713)
226-6600 |
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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 |
☐ |
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.
☐
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Ocean
Power Technologies, Inc. (the “Company”) prepared this Registration Statement in accordance with the requirements of
Form S-8 under the Securities Act of 1933, as amended (the “Securities Act”), to register an additional 1,250,000 shares
of our common stock related to the 2015 Omnibus Incentive Plan, as amended, all of which are the same class as other securities for
which registration statements on Form S-8, File Nos. 333-208522, 333-214316, 333-224436, 333-232755, 333-252372, 333-262684 and
333-269344 have been previously filed. The documents containing the information specified in Part I of this Registration Statement
will be sent or given to participants in the 2015 Omnibus Incentive Plan, as amended, as specified by Rule 428(b)(1) promulgated
under the Securities Act. Such documents need not be filed with the Securities and Exchange Commission (the
“Commission”), either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 promulgated 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 Registration Statement, taken together, constitute a prospectus that meets the
requirement of Section 10(a) of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents, which have previously been filed by the Company with the Commission under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), are incorporated herein by reference:
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● |
The
Company’s Annual Report on Form 10-K for the fiscal year ended April 30, 2023, filed with the Commission on July 28, 2023,
as amended by the Annual Report on Form 10-K/A filed on August 28, 2023 (File No. 001-33417); |
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● |
The
Company’s Quarterly Reports on Form 10-Q for the fiscal quarters ended July 31, 2023 and October 31, 2023 filed with the Commission
on September 13, 2023 and December 13, 2023, respectively (File No. 001-33417); |
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● |
The
Company’s Current Reports on Form 8-K and 8-K/A, filed with the Commission on June 8, 2023, June 9, 2023, June 30, 2023, August 7, 2023, September 8, 2023, September 13, 2023, October 12, 2023, October 24, 2023, October 25, 2023, November 7, 2023, November 16, 2023, December 13, 2023, January 17, 2024, January 29, 2024, February 2, 2024, February 14, 2024, February 22, 2024 and March 1, 2024 (File No. 001-33417) and our Current Report on Form 8-K/A on June 30, 2023 (File No. 001-33417) (excluding any information
furnished pursuant to Item 2.02 or Item 7.01 of any such Current Report on Form 8-K); and |
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● |
The
description of our common stock set forth in our registration statement on Form 8-A filed on April 18, 2007 (File No. 001-33417)
and in any and all subsequent amendments and reports filed for the purpose of updating that description. |
In
addition, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (excluding
any information furnished pursuant to Item 2.02 or Item 7.01 on any Current Report on Form 8-K) prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities offered hereby 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. 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 subsequently filed document that also is or is deemed to be incorporated by reference herein, as the case may be, modifies
or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Officers and Directors.
Section
102 of the General Corporation Law of the State of Delaware permits a corporation to eliminate the personal liability of directors of
a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where
the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law,
authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal
benefit. The Registrant’s certificate of incorporation provides that no director of the Registrant shall be personally liable to
it or its stockholders for monetary damages for any breach of fiduciary duty as director, notwithstanding any provision of law imposing
such liability, except to the extent that the General Corporation Law of the State of Delaware prohibits the elimination or limitation
of liability of directors for breaches of fiduciary duty.
Section
145 of the General Corporation Law of the State of Delaware provides that a corporation has the power to indemnify a director, officer,
employee, or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against
expenses (including attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by the
person in connection with an action, suit or proceeding to which he is or is threatened to be made a party by reason of such position,
if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation,
and, in any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions
brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other
adjudicating court determines that, despite the adjudication of liability but in view of all of 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 shall deem proper.
The
Registrant’s certificate of incorporation provides that the Registrant will indemnify each person who was or is a party or threatened
to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the
Registrant) by reason of the fact that he or she is or was, or has agreed to become, a director or officer of the Registrant, or is or
was serving, or has agreed to serve, at the Registrant’s request as a director, officer, partner, employee or trustee of, or in
a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being referred
to as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with
such action, suit or proceeding and any appeal therefrom, if such Indemnitee acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the Registrant’s best interests, and, with respect to any criminal action or proceeding,
he or she had no reasonable cause to believe his or her conduct was unlawful. The Registrant’s certificate of incorporation provides
that the Registrant will indemnify any Indemnitee who was or is a party to an action or suit by or in the right of the Registrant to
procure a judgment in the Registrant’s favor by reason of the fact that the Indemnitee is or was, or has agreed to become, a director
or officer of the Registrant, or is or was serving, or has agreed to serve, at the Registrant’s request as a director, officer,
partner, employee or trustee or, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise,
or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees)
and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action, suit
or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in,
or not opposed to, the best interests of the Registrant, except that no indemnification shall be made with respect to any claim, issue
or matter as to which such person shall have been adjudged to be liable to the Registrant, unless a court determines that, despite such
adjudication but in view of all of the circumstances, he or she is entitled to indemnification of such expenses. Notwithstanding the
foregoing, to the extent that any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by the Registrant
against all expenses (including attorneys’ fees) actually and reasonably incurred in connection therewith. Expenses must be advanced
to an Indemnitee under certain circumstances.
The
Registrant maintains a general liability insurance policy that covers certain liabilities of the Registrant’s directors and officers
arising out of claims based on acts or omissions in their capacities as directors or officers.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
*
Filed herewith.
Item
9. Undertakings.
(a)
The Company 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 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 (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in 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.
(b)
The Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company’s
annual report pursuant to Section 13(a) or 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 Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid by a director,
officer or controlling person of the Company 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 Company 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, 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 Monroe Township, State of New Jersey, on this 7th day of March, 2024.
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OCEAN
POWER TECHNOLOGIES, INC. |
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By:
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/s/
Philipp Stratmann |
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Philipp
Stratmann |
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President
and Chief Executive Officer |
POWER
OF ATTORNEY
We
the undersigned officers and directors of Ocean Power Technologies, Inc., hereby, severally constitute and appoint Philipp Stratmann
and Robert P. Powers, each of them singly, our true and lawful attorneys with full power to them and each of them singly, to sign for
us and in our names in the capacities indicated below, the registration statement on Form S-8 filed herewith and any and all pre-effective
and post-effective amendments to said registration statement and any subsequent registration statement for the same offering which may
be filed under Rule 462(b) and generally to do all such things in our names and on our behalf in our capacities as officers and directors
to enable Ocean Power Technologies, Inc. to comply with the provisions of the Securities Act of 1933, and all requirements of the Securities
and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them,
to said registration statement and any and all amendments thereto or to any subsequent registration statement for the same offering which
may be filed under Rule 462(b).
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/
Philipp Stratmann |
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President,
Chief Executive Officer |
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March 7, 2024 |
Philipp
Stratmann |
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and
Director (Principal Executive Officer) |
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/s/
Robert P. Powers |
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Senior
Vice President and Chief Financial Officer |
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March 7, 2024 |
Robert
P. Powers |
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(Principal
Financial Officer) |
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/s/
Joseph DiPietro |
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Controller
and Treasurer |
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March 7, 2024 |
Joseph
DiPietro |
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(Principal
Accounting Officer) |
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/s/
Terence J. Cryan |
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Chairman
of the Board and Director |
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March 7, 2024 |
Terence
J. Cryan |
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/s/
Clyde W. Hewlett |
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Director |
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March 7, 2024 |
Clyde
W. Hewlett |
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/s/
Diana G. Purcel |
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Director |
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March 7, 2024 |
Diana
G. Purcel |
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/s/
Peter E. Slaiby |
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Director |
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March 7, 2024 |
Peter
E. Slaiby |
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/s/
Natalie Lorenz-Anderson |
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Director |
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March 7, 2024 |
Natalie
Lorenz-Anderson |
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Exhibit
5.1
|
1000
Main Street, 36th Floor
Houston,
Texas 77002
Telephone
{713} 226-6000
Telecopier
{713} 228-1331
porterhedges.com |
March 7, 2024
014660/0002
Ocean
Power Technologies, Inc.
28
Engelhard Drive, Suite B
Monroe
Township, NJ 08831
Ladies
and Gentlemen:
We
have acted as counsel to Ocean Power Technologies, Inc., a Delaware corporation (the “Company”), in connection with the preparation
for filing with the Securities and Exchange Commission (the “Commission”) of a registration statement on Form S-8 (the “Registration
Statement”) under the Securities Act of 1933, as amended. The Registration Statement relates to the registration of 2,900,000 shares
(the “Shares”) of the Company’s common stock, par value $.001 per share (the “Common Stock”), issuable
pursuant to the Company’s 2015 Omnibus Incentive Plan (the “Plan”).
We
have examined the Plan and such corporate records, documents, instruments and certificates of the Company, and have reviewed such questions
of law as we have deemed necessary, relevant or appropriate to enable us to render the opinion expressed herein. In such examination,
we have assumed without independent investigation the authenticity of all documents submitted to us as originals, the genuineness of
all signatures, the legal capacity of all natural persons, and the conformity of any documents submitted to us as copies to their respective
originals. As to certain questions of fact material to this opinion, we have relied without independent investigation upon statements
or certificates of public officials and officers of the Company.
Based
upon such examination and review, we are of the opinion that the Shares have been duly and validly authorized and will, upon issuance
and delivery as contemplated by the Plan, be validly issued, fully paid and non-assessable outstanding shares of Common Stock.
This
Firm consents to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that
this Firm is in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations
of the Commission promulgated thereunder.
This
opinion is rendered on the date hereof and we disclaim any duty to advise you regarding any changes in the matters addressed herein.
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Very truly yours, |
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/s/
Porter Hedges LLP |
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PORTER
HEDGES LLP |
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement of Ocean Power Technologies, Inc. on Form S-8 to be filed on
or about March 6, 2024 of our report dated July 28, 2023, on our audits of the financial statements as of April 30, 2023 and 2022 and
for each of the years then ended which report was included in the Annual Report on Form 10-K, and as amended on Form 10-K/A filed on
August 28, 2023.
/s/
EisnerAmper LLP |
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EISNERAMPER
LLP |
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Iselin,
NJ |
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March
6, 2024 |
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Exhibit 107
Calculation
of Filing Fee Tables
S-8
(Form Type)
Ocean
Power Technologies, Inc
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered Securities
Security Type | |
Security Class Title | |
Fee Calculation Rule | | |
Amount Registered |
| |
Proposed Maximum Offering Price Per Unit |
| |
Maximum Aggregate Offering Price | | |
Fee Rate | | |
Amount of Registration Fee | |
Equity | |
Common stock, par value $0.001 per share | |
| 457 | (c) | |
2,900,000 |
(1) | |
$ |
0.27 |
(2) | |
$ | 783,000 | | |
| 0.00014760 | | |
$ | 116 | |
Total Offering Amounts |
|
|
| |
$ | 783,000 | | |
| | | |
$ | 116 | |
Total Fee Offsets |
|
|
| |
| | | |
| | | |
| N/A | |
Net Fee Due |
|
|
| |
| | | |
| | | |
$ | 116 | |
(1) | Pursuant
to Rule 416(a) of the Securities Act of 1933, as amended, this registration statement
also registers hereunder an indeterminate number of shares of common stock issuable as a
result of the anti-dilution provisions of the 2015 Omnibus Incentive Plan (the “Plan”). |
(2) | Pursuant
to Rule 457(c), the registration fee is calculated on the basis of the average of the high
and low sale prices for the common stock on the NYSE American on March 5, 2024,
$0.27. Pursuant to General Instruction E to Form S-8, the registration fee is calculated
only with respect to additional securities registered under the Plan. |
Table
2: Fee Offset Claims and Sources
| |
Registrant or Filer Name | |
Form or Filing Type | |
File Number | |
Initial Filing Date | |
Filing Date | |
Fee Offset Claimed | |
Security Type Associated with Fee Offset Claimed | |
Security Title Associated with Fee Offset Claimed | |
Unsold Securities Associated with Fee Offset Claimed | |
Unsold Aggregate Offering Amount Associated with Fee Offset Claimed |
|
Fee Paid with Fee Offset Source |
Rule 457(p) |
|
|
Fee Offset Claims | |
N/A | |
N/A | |
N/A | |
N/A | |
| |
N/A | |
N/A | |
N/A | |
N/A | |
N/A |
|
|
Fee Offset Sources | |
N/A | |
N/A | |
N/A | |
| |
N/A | |
| |
| |
| |
| |
|
|
N/A |
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