Securities Registration: Employee Benefit Plan (s-8)
20 April 2018 - 7:32AM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on April 19, 2018
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
MAGNEGAS
CORPORATION
(Exact
name of registrant as specified in its charter)
Delaware
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26-0250418
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
Number)
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11885
44
th
Street North
Clearwater,
Florida 33762
(727)
934-3448
(Address,
Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
MagneGas
Corporation Amended and Restated 2014 Equity Incentive Award Plan
(Full
Title of the Plan)
Ermanno
Santilli
Chief
Executive Officer
11885
44
th
Street North
Clearwater,
Florida
(727)
934-3448
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“non-accelerated filed”, “smaller reporting company” and “emerging growth company” in Rule
12b-2 of the Exchange Act.
Large
accelerated filer
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[ ]
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Accelerated
filer
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[ ]
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Non-accelerated
filer
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[ ]
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Smaller
reporting company
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[X]
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Emerging
growth company
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[X]
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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 13(a) of the Exchange Act. [X]
CALCULATION
OF REGISTRATION FEE
Title
of each class 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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Maximum
Aggregate
Offering Price(2)
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Amount
of
Registration
Fee
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Common
Stock, par value $0.001 per share
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6,000,784
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$
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0.78
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$
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4,680,611.52
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$
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582.74
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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 any additional shares of the Registrant’s common stock that become issuable under the Amended and Restated
2014 Equity Incentive Award Plan (the “Plan”) by reason of any stock dividend, stock split, recapitalization or
other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding
shares of common stock.
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(2)
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Estimated
solely for the purpose of calculating the registration fee, based, in accordance with Rule 457(c) and Rule 457(h) under the
Securities Act, on the average of the high and low prices for the shares of Common Stock market as reported on the Nasdaq
Capital Market on April 19, 2018.
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Part
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information
required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with
the introductory note to Part I of Form S-8. The documents containing the information specified in Part I have been or will be
delivered to the participants in the Plan as required by Rule 428(b) under the Securities Act.
Part
II
INFORMATION
REQUIRED IN REGISTRATION STATEMENT
In
this Registration Statement, MagneGas Corporation, is sometimes referred to as “Registrant,” “we,” “us”
or “our.”
Item
3. Incorporation of Documents by Reference.
The
Securities and Exchange Commission (“SEC”) allows us to “incorporate by reference” the information we
file with them, which means that we can disclose important information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this Registration Statement, and later information filed with the SEC will
update and supersede this information. We hereby incorporate by reference into this Registration Statement the following documents
previously filed with the SEC:
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(a)
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Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the SEC on April 16, 2018;
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(b)
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Our
Current Reports on Form 8-K filed with the SEC on January 4, 2018, January 17, 2018, January 18, 2018, January 23, 2018, February
21, 2018, March 8, 2018, March 16, 2018 and April 4, 2018.
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(c)
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Our
Definitive Information Statement on Schedule 14C filed with the SEC on January 29, 2018; and
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(d)
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The
description of our capital stock contained in our Registration Statement on Form 8-A (File No. 001-35586) filed with the Commission
on August 14, 2012, including any amendment or report filed by the Company for the purpose of updating such description.
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In
addition, all documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the filing of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which de-registers all securities then remaining unsold shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date of filing such documents, except as to specific
sections of such statements as set forth therein. Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that
a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement contained herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein 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.
Under
no circumstances shall any information furnished under Item 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference,
unless such Form 8-K expressly provides to the contrary.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
As
permitted by Section 102 of the Delaware General Corporation Law (the “DGCL”), we have adopted provisions in our amended
and restated certificate of incorporation that limit or eliminate the personal liability of our directors for a breach of their
fiduciary duties of care as directors. The duty of care generally requires that, when acting on behalf of the corporation, directors
exercise an informed business judgment based on all material information reasonably available to them. Consequently, a director
will not be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except
for liability for:
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any
breach of the director’s duty of loyalty to us or our stockholders;
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●
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any
act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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any
act related to unlawful stock repurchases, redemptions or other distributions or payment of dividends; or
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any
transaction from which the director derived an improper personal benefit.
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These
limitations of liability do not affect the availability of equitable remedies such as injunctive relief or rescission. Section
145 of the DGCL provides that a Delaware corporation may indemnify any person who was, is or is threatened to be made, party to
any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director,
employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer employee
or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding,
provided such person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the corporation’s
best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that the person’s
conduct was illegal. A Delaware corporation may indemnify any persons who are, or were, a party to any threatened, pending or
completed action or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer,
employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually
and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person
acted in good faith and in a manner the person reasonably believed to be in or not opposed to the corporation’s best interests,
provided that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged
to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify such person against the expenses which such officer or directors has actually
and reasonably incurred.
Section
145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or
agent of another corporation or enterprise, against any liability asserted against and incurred by such person in any such capacity,
or arising out of the person’s status as such, whether or not the corporation would otherwise have the power to indemnify
such person under Section 145.
The
indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter
acquire under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s
official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased
to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such
person.
We
maintain a general liability insurance policy that covers liabilities of directors and officers of our corporation 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.
The
list of exhibits is set forth under “Exhibit Index” at the end of this Registration Statement and is incorporated
herein by reference.
Item
9. Undertakings.
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(a)
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The
undersigned Registrant hereby undertakes:
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(1)
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To
file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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To
reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement; and
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(iii)
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To
include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration Statement;
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provided
,
however
, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement;
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(2)
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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; and
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(3)
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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.
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(b)
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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 that is incorporated
by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering
thereof.
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(c)
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Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant
of expenses incurred 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.
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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 City of Clearwater, State of Florida, on April 19, 2018.
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/s/
Ermanno Santilli
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By:
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Ermanno
Santilli
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Title:
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Chief
Executive Officer
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POWER
OF ATTORNEY
Each
person whose signature appears below hereby constitutes and appoints Ermanno Santilli and Scott Mahoney, jointly and severally,
his attorneys-in-fact, each with the full power of substitution, for him in any and all capacities, to sign this registration
statement, and any amendments thereto (including post-effective amendments), and to file the same, with all exhibits thereto and
other documents in connection therewith, with the SEC, hereby ratifying and confirming all that each of said attorneys-in-fact,
or his substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities
Act, this registration statement has been signed below by the following persons on behalf of the Registrant and in the capacities
and on the dates indicated.
Signature
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Title
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Date
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/s/
Robert L. Dingess
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Chairman
of the Board
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April
19, 2018
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Robert
L. Dingess
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/s/
Ermanno Santilli
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President,
Chief Executive Officer and Director
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April
19, 2018
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Ermanno
Santilli
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(principal
executive officer)
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/s/
Scott Mahoney
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Chief
Financial Officer, Secretary and Director
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April
19, 2018
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Scott
Mahoney
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(principal
financial and accounting officer)
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/s/
Carla Santilli
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Director
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April
19, 2018
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Carla
Santilli
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/s/
Christopher Huntington
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Director
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April
19, 2018
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Christopher
Huntington
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/s/
Kevin Pollack
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Director
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April
19, 2018
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Kevin
Pollack
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/s/
William W. Staunton III
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Director
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April
19, 2018
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William
W. Staunton III
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/s/
Luisa Ingargiola
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Director
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April
19, 2018
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Luisa
Ingargiola
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