Securities Registration: Employee Benefit Plan (s-8)
September 26 2017 - 6:04AM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on September 25, 2017
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)
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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)
Tyler B. Wilson,
Esq.
General Counsel
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)
Copy to:
Thomas Levato,
Esq.
Goodwin Procter
LLP
The New York
Times Building
620 Eighth Avenue
New York, NY 10018
(212) 459-7256
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,”
“smaller reporting company and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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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.
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CALCULATION
OF REGISTRATION FEE
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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 $0.001 per share
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1,148,342
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$
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0.5797
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$
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665,694
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$
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77.16
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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 September 22, 2017.
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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, 2016, filed with the SEC on March 31, 2017;
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(b)
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Our Quarterly Reports on Form 10-Q filed with the SEC on May 15, 2017 for the quarterly period ended March 31, 2017 and on August 21, 2017 for the quarterly period ended June 30, 2017.
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(c)
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Our Current Reports on Form 8-K or Form 8-K/A filed with the SEC on January 5, 2017, January 10, 2017, February 2, 2017, May 9, 2017, May 11, 2017, May 17, 2017, May 22, 2017, June 12, 2017, June 19, 2017, June 20, 2017, July 24, 2017, June 25, 2017, July 27, 2017, August 18, 2017, September 11, 2017, September 18, 2017 and September 21, 2017.
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(d)
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Our Definitive Information Statement on Schedule 14C filed with the SEC on July 24, 2017;
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(e)
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Our Definitive Information Statement on
Schedule 14C filed with the SEC on August 23, 2017; and
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(f)
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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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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
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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 September 25, 2017.
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/s/
Ermanno Santilli
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By:
Ermanno Santilli
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Title: 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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September 25, 2017
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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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September 25, 2017
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Ermanno Santilli
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(principal executive officer)
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/s/ Luisa Ingargiola
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Chief Financial Officer, Secretary and Director
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September 25, 2017
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Luisa Ingargiola
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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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September 25, 2017
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Carla Santilli
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/s/ Christopher Huntington
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Director
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September 25, 2017
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Christopher Huntington
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/s/ Kevin Pollack
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Director
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September 25, 2017
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Kevin Pollack
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/s/ William W. Staunton III
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Director
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September 25, 2017
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William W. Staunton III
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/s/ Joe C. Stone
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Director
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September 25, 2017
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Joe C. Stone
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