As filed with the Securities and Exchange Commission on October 24, 2005
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
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IKONICS CORPORATION
(Exact name of Registrant as specified in its charter)
MINNESOTA 41-0730027
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4832 GRAND AVENUE 55807
DULUTH, MINNESOTA (Zip Code)
(Address of principal executive offices)
IKONICS CORPORATION 1995 STOCK INCENTIVE PLAN
(Full title of the plan)
JON GERLACH
Chief Financial Officer and Vice President of Finance
IKONICS Corporation
4832 Grand Avenue
Duluth, Minnesota 55807
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (218) 624-6400
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Each Class of Securities to Amount Offering Aggregate Amount of
Be registered To Be Price Per Offering Registration
Registered Share (2) Price (2) Fee
(1)
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Common Stock, $.01 par value 37,500 $6.00(3) $225,000 $27.00
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(1) This Registration Statement relates to 37,500 shares of Common Stock to
be offered pursuant to the Registrant's 1995 Stock Incentive Plan and
will also cover any additional shares of Common Stock that become
issuable under this Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
Registrant's receipt of consideration that results in an increase in
the number of the outstanding shares of the Registrant's Common Stock.
(2) Estimated solely for the purpose of determining the registration fee.
(3) Computed in accordance with Rule 457(h) of the Securities Act of 1933.
This computation is based on the average of the high and low prices as
reported on the Nasdaq SmallCap Market on October 20, 2005.
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IKONICS CORPORATION
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose
of registering 37,500 shares of the Registrant's Common Stock to be issued
pursuant to the IKONICS Corporation 1995 Stock Incentive Plan (the "Plan"). In
accordance with Section E of the General Instructions to Form S-8, the
Registration Statement previously filed with the Securities and Exchange
Commission (the "Commission") relating to the Plan (File No. 333-92893) is
incorporated by reference herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Registrant filed with the Commission
pursuant to the Securities Exchange Act of 1934 are, as of their respective
dates, incorporated herein by reference and made a part hereof:
(1) The Annual Report on Form 10-KSB of the
Registrant for the fiscal year ended December 31, 2004 (which
incorporates by reference certain portions of the Registrant's
definitive proxy statement for its 2005 annual meeting of
shareholders) filed pursuant to Section 15(d) of the
Securities Exchange Act of 1934;
(2) All other reports filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since the
filing of the annual report referred to in (1) above; and
(3) The description of the Registrant's Common Stock
that is contained in the Registration Statement on Form 10-SB
(File No. 000-25727), as amended (declared effective on June
4, 1999), filed under the Securities Exchange Act of 1934 and
all amendments and reports filed for the purpose of updating
this description.
All reports and other documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment that indicates that all of the shares of Common Stock
offered have been sold or that deregisters all shares of the Common Stock then
remaining unsold shall be deemed to be incorporated by reference in and a part
of this Registration Statement from the date of filing of these 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 incorporated herein by reference or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes the statement. Any statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Commission, this indemnification is against
public policy as expressed in the Securities Act of 1933, and is therefore
unenforceable.
The Registrant also maintains a director and officer insurance policy
to cover the Registrant, its directors and its officers against certain
liabilities.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Article V, Sections 1 and 2 of the Registrant's By-Laws, as
amended, and Article 8, Section 8.5 of the Registrant's Restated Articles of
Incorporation, as amended, the Registrant indemnifies its directors and officers
and advances litigation expenses to the fullest extent required or permitted by
Minnesota Statutes Section 302A.521. This indemnification is subject to the
requirement in the case of legal judgments, that the individual seeking
indemnification is not finally adjudged to have been guilty of willful
misconduct detrimental to the best interests of the Registrant. Section 302A.521
requires the Registrant to indemnify a person made or threatened to be made a
party to a proceeding, by reason of the former or present official capacity of
the person with respect to the Registrant, against judgments, penalties, fines,
including without limitation, excise taxes assessed against the person with
respect to an employee benefit plan, settlements, and reasonable expenses,
including attorneys' fees and disbursements, if, with respect to the acts or
omissions of the person complained of in the proceeding, such person (1) has not
been indemnified by another organization or employee benefit plan for the same
judgments, penalties, fines, including without limitation, excise taxes assessed
against the person with respect to an employee benefit plan, settlements, and
reasonable expenses, including attorneys' fees and disbursements, incurred by
the person in connection with the proceeding with respect to the same acts or
omissions; (2) acted in good faith; (3) received no improper personal benefit,
and statutory procedure has been followed in the case of any conflict of
interest by a director; (4) in the case of a criminal proceeding, had no
reasonable cause to believe the conduct was unlawful; and (5) in the case of
acts or omissions occurring in the person's performance in the official capacity
of director or, for a person not a director, in the official capacity of
officer, committee member, employee or agent, reasonably believed that the
conduct was in the best interests of the Registrant, or in the case of
performance by a director, officer, employee or agent of the Registrant as a
director, officer, partner, trustee, employee or agent of another organization
or employee benefit plan, reasonably believed that the conduct was not opposed
to the best interests of the Registrant. In addition, Section 302A.521, subd. 3,
requires payment by the Registrant upon written request, of reasonable expenses
in advance of final disposition in certain instances.
The Restated Articles of Incorporation of the Registrant, as amended,
eliminate the personal liability of a director to the Registrant or its
shareholders for monetary damages for breach of fiduciary duty as a director,
except under certain circumstances involving any breach of the director's duty
of loyalty to the Registrant or its shareholders, acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law, or
for any unlawful acts under Sections 302A.559 or 80A.23 of Minnesota Statutes.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
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3.1 Restated Articles of Incorporation of Registrant, as amended. (Incorporated by reference to
the like numbered Exhibit to the Registrant's Registration Statement on Form 10-SB filed
with the Commission on April 7, 1999 (Registration No. 000-25727).)
3.2 By-Laws of the Registrant, as amended. (Incorporated by reference to the like numbered
Exhibit to the Registrant's Registration Statement on Form 10-SB filed with the Commission
on April 7, 1999 (Registration No. 000-25727).)
5 Opinion of Faegre & Benson LLP, counsel for the Registrant.
10 IKONICS Corporation 1995 Stock Incentive Plan, as amended. (Incorporated by reference to
Exhibit B to the Registrant's proxy statement for its 2004 Annual Meeting of Shareholders
filed with the Commission on March 29, 2004 (File No. 000-25727).)
23.1 Consent of Faegre & Benson LLP. (included in Exhibit 5 to this Registration Statement.)
23.2 Consent of McGladrey & Pullen, LLP.
24 Powers of Attorney.
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ITEM 9. UNDERTAKINGS.
A. The 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 of 1933;
(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 Securities and
Exchange 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 Registration Statement is on Form S-3, Form S-8 or Form
F-3, and 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 Securities and Exchange Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each 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 Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the 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.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 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 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 Duluth, State of Minnesota on the 24th day of
October, 2005.
IKONICS CORPORATION
By /s/ Jon Gerlach
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Jon Gerlach
Chief Financial Officer and
Vice President of Finance
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on October 24, 2005 by the
following persons in the capacities indicated:
NAME TITLE
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/s/ William C. Ulland Chairman, Chief Executive Officer, President
----------------------------------------------------------------- and Director
William C. Ulland (Principal Executive Officer)
/s/ Jon Gerlach Chief Financial Officer and
----------------------------------------------------------------- Vice President of Finance
Jon Gerlach (Principal Financial and Accounting Officer)
/s/ * Director
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Charles H. Andresen
/s/ * Director
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Rondi Erickson
/s/ * Director
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H. Leigh Severance
/s/ * Director
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Gerald W. Simonson
/s/ * Director
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David O. Harris
* Jon Gerlach, by signing his name hereto, does hereby sign this document
on behalf of each of the above-named directors of the registrant
pursuant to powers of attorney duly executed by these persons.
/s/ Jon Gerlach
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Attorney-in-Fact
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INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION DESCRIPTION
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3.1 Restated Articles of Incorporation of Registrant, as Incorporated by reference
amended.
3.2 By-Laws of the Registrant, as amended. Incorporated by reference
5 Opinion of Faegre & Benson LLP, counsel for the Registrant. Incorporated by reference
10 IKONICS Corporation 1995 Stock Incentive Plan, as amended. Filed herewith
23.1 Consent of Faegre & Benson LLP. Included in Exhibit 5 to this
Registration Statement
23.2 Consent of McGladrey & Pullen, LLP. Filed herewith
24 Powers of Attorney. Filed herewith