Ionatron, Inc. - Securities Registration: Employee Benefit Plan (S-8)
18 October 2007 - 5:54AM
Edgar (US Regulatory)
As
filed
with the Securities and Exchange Commission on October 17, 2007
(File
No.
333- )
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
______________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
______________
IONATRON,
INC.
(Exact
name of registrant as specified in its charter)
Delaware
|
|
77-0262908
|
(State
or other jurisdiction of
incorporation
or organization)
|
|
(I.R.S.
Employer Identification No.)
|
|
|
|
3716
East Columbia Street - Suite 120, Tucson AZ
|
|
85714
|
(Address
of principal executive offices)
|
|
(Zip
Code)
|
2007
Stock Incentive Plan; Non-plan employee options and equity award
|
(Full
title of the plan)
|
|
Mr.
Dana A. Marshall
Chief
Executive Officer and President
|
Ionatron,
Inc.
3716
East Columbia Street - Suite 120, Tucson, AZ
85714
|
(Name
and address of agent for service)
|
|
(520)
628-7415
|
(Telephone
number, including area code, of agent for service)
|
Copy
to:
|
Robert
J. Mittman, Esq.
Brad
L. Shiffman, Esq.
|
Blank
Rome LLP
|
405
Lexington Avenue
|
New
York, New York 10174
|
CALCULATION
OF REGISTRATION FEE
Title
of Securities to be
Registered
|
|
Amount
to be
Registered
|
|
Proposed
Maximum Aggregate Price
Per
Share (1)
|
|
Proposed
Maximum Aggregate
Offering
Price
(1)
|
|
Amount
of Registration
Fee
|
Common
Stock, par value $.001 per share
|
|
10,917,000
shares (2)(3)
|
|
$ —
|
|
$45,659,755
|
|
$1,401.75
|
|
|
|
|
|
|
|
|
|
(1)
|
Estimated
solely for the purpose of calculating the registration fee. Calculated
pursuant to Rule 457 under the Securities Act of 1933, as amended,
based
upon, as to (i) the 800,000 outstanding non-plan employee options
to
purchase shares of common stock (the “Non-Plan Options”) of Ionatron, Inc.
(the “Registrant”), upon the exercise price thereof, (ii) the 117,000
outstanding restricted stock units (“RSUs”), each RSU covering one share
of common stock, upon the average of the high and low sales price
of the
common stock of the Registration as reported on October 12, 2007,
and
(iii) the10,000,000 shares to be issued upon exercise of options
or other
awards currently available for grant under the 2007 Plan, upon
the average
of the high and low sales price of the common stock of the Registrant
as
reported on October 12, 2007.
|
(2)
|
Pursuant
to Rule 416 under the Securities Act of 1933, as amended, this
registration statement also covers an indeterminate number of shares
of
the Registrant's common stock that may be issued pursuant to the
anti-dilution provisions of the Registrant's 2007 Plan and the
Non-Plan
Options.
|
(3)
|
Includes
preferred share purchase rights. Prior to the occurrence of certain
events
the preferred share purchase rights will not be evidenced separately
from
the Registrant’s common stock.
|
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1
.
Plan
Information
.*
Item
2
.
Registrant Information and Employee Plan Annual Information
*
*Information
required by Part I to be contained in the Section 10(a) prospectus is omitted
from this Registration Statement in accordance with Rule 428 under the
Securities Act of 1933, as amended, and the Note to Part I of Form S-8.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
Incorporation
of Documents by Reference
.
The
following documents previously filed by the Registrant with the Securities
and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
(1)
|
The
Registrant's Annual Report on Form 10-K for the year ended December
31,
2006;
|
(2)
|
The
Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31,
2007;
|
(3)
|
The
Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30,
2007;
|
(4)
|
The
Registrant’s Current Report on Form 8-K for the event dated January 19,
2007 filed with the Commission on January 25,
2007;
|
(5)
|
The
Registrant’s Current Report on Form 8-K for the event dated February 1,
2007 filed with the Commission on February 1,
2007.
|
(6)
|
The
Registrant’s Current Report on Form 8-K for the event dated February 14,
2007 filed with the Commission on February 16,
2007.
|
(7)
|
The
Registrant’s Current Report on Form 8-K for the event dated May 4, 2007
filed with the Commission on May 4,
2007.
|
(8)
|
The
Registrant’s Current Report on Form 8-K for the event dated May 11, 2007
filed with the Commission on May 16,
2007.
|
(9)
|
The
Registrant’s Current Report on Form 8-K for the event dated June 11, 2007
filed with the Commission on June 11, 2007, as amended June 12,
2007.
|
(10)
|
The
Registrant’s Current Report on Form 8-K for the event dated September 4,
2007 filed with the Commission on September 5,
2007.
|
(11)
|
The
Registrant’s Current Report on Form 8-K for the event dated September 10,
2007 filed with the Commission on September 12,
2007.
|
(12)
|
The
description of the Registrant's common stock, par value $.001 per
share,
contained in the Registrant's Registration Statement on Form 8-A
filed
with the Commission March 4, 1992 and any amendments thereto and
description of the attendant Preferred Share Purchase Rights contained
in
the Registrant's Registration Statement on Form 8-A filed with
the
Commission on April 7, 1999 and any amendments thereto; and
|
(13)
|
A
ll
documents subsequently filed by the registrant pursuant to Sections
13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 a part hereof from the respective
date of
filing of such documents. Any statement contained in a document
incorporated by reference herein is modified or superseded for
all
purposes to the extent that a statement contained in this Registration
Statement or in any other subsequently filed document which is
incorporated by reference modifies or replaces such
statement.
|
Item
4.
Description
of Securities
.
Not
applicable.
Item
5.
Interests
of Named Experts and Counsel
.
The
legality of the Common Stock offered hereby will be passed upon for the
registrant by the law firm of Blank Rome LLP. Blank Rome LLP and certain
of its
partners own securities of the Registrant.
Item
6.
Indemnification
of Directors and Officers
.
Sections
145 of the General Corporation Law of the State of Delaware provides for
the
indemnification of officers and directors under certain circumstances against
expenses incurred in successfully defending against a claim and authorizes
Delaware corporations to indemnify their officers and directors under certain
circumstances against expenses and liabilities incurred in legal proceedings
involving such persons because of their being or having been an officer or
director.
Section
102(b) of the Delaware General Corporation Law permits a corporation, by
so
providing in its certificate of incorporation, to eliminate or limit director's
liability to the corporation and its stockholders for monetary damages arising
out of certain alleged breaches of their fiduciary duty. Section 102(b)(7)
provides that no such limitation of liability may affect a director's liability
with respect to any of the following: (i) breaches of the director's duty
of loyalty to the corporation or its stockholders; (ii) acts or omissions
not
made in good faith or which involve intentional misconduct of knowing violations
of law; (iii) liability for dividends paid or stock repurchased or redeemed
in
violation of the Delaware General Corporation Law; or (iv) any transaction
from
which the director derived an improper personal benefit. Section 102(b)(7)
does
not authorize any limitation on the ability of the corporation or its
stockholders to obtain injunctive relief, specific performance or other
equitable relief against directors.
Article
Ninth of the Registrant's Certificate of Incorporation and Article XVIII
of the
Registrant's By-laws provide that all persons who the registrant is empowered
to
indemnify pursuant to the provisions of Section 145 of the General Corporation
Law of the State of Delaware (or any similar provision or provisions of
applicable law at the time in effect), shall be indemnified by the Registrant
to
the full extent permitted thereby. The foregoing right of indemnification
shall
not be deemed to be exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors, or otherwise.
Article
Tenth of the Registrant's Certificate of Incorporation provides that no director
of the Registrant shall be personally liable to the Registrant or its
stockholders for any monetary damages for breaches of fiduciary duty as a
director, provided that this provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty
to
the registrant or its stockholders; (ii) for acts or omissions in good faith
or
which involve intentional misconduct or a knowing violation of law; (iii)
under
Section 174 of the General Corporation Law of the State of Delaware; or (iv)
for
any transaction from which the director derived an improper personal
benefit.
Item
7.
Exemption from Registration Claimed.
Not
applicable.
Item
8.
Exhibits
.
Exhibit
No
.
Description
|
5
|
Opinion
of Blank Rome LLP.
|
|
23.1
|
Consent
of BDO Seidman, LLP.
|
|
23.2
|
Consent
of Blank Rome LLP (included in Exhibit
5).
|
|
24.1
|
Powers
of Attorney (included on the signature
page).
|
Item
9.
Undertakings.
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
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 and 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 prices
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 (1)(i) and (1)(ii) 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 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 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.
The
undersigned 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
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 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 payment by the Registrant in the successful
defense
of any action, suit or proceeding) is asserted by such director, officer
or
controlling person, 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
jurisdiction 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
Tucson, State of Arizona, on the 16
th
day of
October 2007.
IONATRON,
INC.
By:
/s/
Kenneth M. Wallace
Kenneth
M. Wallace,
Chief
Financial Officer
Each
person whose signature appears below authorizes each of Dana A. Marshall
and
Kenneth M. Wallace or either of them as his true and lawful attorney-in-fact
with full power of substitution to execute in the name and on behalf of each
person, individually and in each capacity stated below, and to file any and
all
amendments to this Registration Statement, including any and all post-effective
amendments thereto.
In
accordance with the requirements of the Securities Act of 1933, this
Registration Statement was signed by the following person in the capacities
and
on the dates stated.
Signature
|
Title
|
Date
|
|
|
|
/s/
David C. Hurley
David
C. Hurley
|
Chairman
and Director
|
October 15,
2007
|
|
|
|
/s/
Dana A. Marshall
Dana
A. Marshall
|
Chief
Executive Officer, President and Director (principal executive
officer)
|
October 15,
2007
|
|
|
|
/s/
Kenneth M. Wallace
Kenneth
M. Wallace
|
Chief
Financial Officer (principal financial officer)
|
October 15,
2007
|
|
|
|
/s/
Stephen A. McCommon
Stephen
A. McCommon
|
Vice
President Finance and Chief Accounting Officer (principal accounting
officer)
|
October 15,
2007
|
|
|
|
/s/
George P. Farley
George
P. Farley
|
Director
|
October 17,
2007
|
|
|
|
/s/
James K. Harlan
James
K. Harlan
|
Director
|
October 15,
2007
|
|
|
|
/s/
James M. McDivitt
James
M. McDivitt
|
Director
|
October 17,
2007
|
Exhibit
Index
Exhibit
No.
Description
5
|
Opinion
of Blank Rome LLP
|
23.1
|
Consent
of BDO Seidman LLP
|
23.2
|
Consent
of Blank Rome LLP
|
|
(included
on signature page)
|
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