Securities Registration: Employee Benefit Plan (s-8)
August 05 2022 - 4:17PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on August 5, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
Intrepid Potash, Inc.
(Exact name of registrant as specified in its
charter)
Delaware |
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26-1501877 |
(State
or other jurisdiction of incorporation or organization) |
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(I.R.S.
Employer Identification No.) |
707
17th Street, Suite 4200
Denver, Colorado 80202 |
(Address
of principal executive offices, including zip code) |
INTREPID POTASH, INC. AMENDED AND RESTATED
EQUITY INCENTIVE PLAN
(Full title of the plan)
Matthew D. Preston
Chief Financial Officer
707 17th Street, Suite 4200
Denver, Colorado 80202
(303) 296-3006
(Name, address and telephone number, including
area code, of agent for service)
Copy
to:
Ned A. Prusse
Perkins Coie LLP
1900 Sixteenth Street, Suite 1400
Denver, Colorado 80202
(303) 291-2300
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a 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.
Large
accelerated filer ¨ |
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Accelerated
filer x |
Non-accelerated
filer ¨ |
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Smaller
reporting company ¨
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. o
EXPLANATORY NOTE
This registration statement on Form S-8
is filed by Intrepid Potash, Inc. relating to 600,000 additional shares of common stock, par value $0.001 per share, authorized
to be issued pursuant to the Intrepid Potash, Inc. Amended and Restated Equity Incentive Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities
and Exchange Commission (the “Commission”) by Intrepid Potash, Inc. (the “Registrant”) are hereby incorporated
by reference in this Registration Statement:
| • | The
description of the Registrant’s common stock as set forth in the Registration
Statement on Form 8-A, filed with the Commission on April 16, 2008 under Section 12(b) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including
any amendments or reports filed for the purpose of updating such description (including Exhibit 4.1
to the Registrant’s Annual Report on Form 10-K for the year ended December 31,
2019 filed with the SEC on March 3, 2020). |
All documents filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (excluding
any portions of these documents that are furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K and any exhibits
included with such Items) after the date hereof, and prior to the filing of a post-effective amendment which indicates that the securities
offered hereby have been sold or which deregisters the securities covered hereby then remaining unsold, shall also be deemed to be incorporated
by reference into this Registration Statement and to be a part hereof commencing on the respective dates on which such documents are
filed.
Any statement contained in this Registration
Statement or in a document incorporated or deemed to be incorporated by reference in this Registration Statement will be deemed to be
modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference in this Registration Statement modifies or supersedes that statement. Any statement so modified
or superseded will 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.
None.
Item 6. Indemnification of Directors and
Officers.
Section 102 of the Delaware General Corporation
Law (the “DGCL”) grants the Registrant the power to limit the personal liability of its directors or its stockholders for
monetary damages for breach of a fiduciary duty. Article VI of its restated certificate of incorporation eliminates the personal
liability of directors for monetary damages for actions taken as a director, except for liability for breach of the duty of loyalty;
for acts or omissions not in good faith or involving intentional misconduct or knowing violation of law; under Section 174 of the
DGCL (unlawful dividends); or for transactions from which the director derived improper personal benefit.
Under Section 145 of the DGCL, a corporation
has the power to indemnify directors and officers under certain prescribed circumstances against certain costs and expenses, actually
and reasonably incurred in connection with any action, suit or proceeding, whether civil, criminal, administrative or investigative,
to which any of them is a party by reason of his being a director or officer of the corporation if it is determined that he acted in
accordance with the applicable standard of conduct set forth in such statutory provision. Article IX of the Registrant’s amended
and restated bylaws requires it to indemnify any current or former directors or officers to the fullest extent permitted by the DGCL,
and to pay expenses incurred in defending any such proceeding in advance of its final disposition upon delivery to the Registrant of
an undertaking, by or on behalf of an indemnified person, to repay all amounts so advanced if it should be determined ultimately that
such person is not entitled to be indemnified under this section or otherwise. Article IX also permits the Registrant to indemnify
any current or former employees or agents to the fullest extent permitted by the DGCL, and to pay expenses incurred in defending any
such proceeding in advance of its final disposition upon such terms and conditions, if any, as the Registrant deems appropriate.
Section 145 of the DGCL 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 against
any liability asserted against and incurred by such person in any such capacity, or arising out of such person’s status as such.
As permitted by Section 145 and Section 9.05 of the Registrant’s amended and restated bylaws, the Registrant has obtained
insurance policies insuring its directors and officers against certain liabilities that they may incur in their capacity as directors
and officers.
The Registrant has entered into separate indemnification
agreements with each of its directors and certain of its officers, which may be broader than the specific indemnification provisions
contained in the DGCL. These indemnification agreements may require the Registrant, among other things, to indemnify its directors and
officers against liabilities that may arise by reason of their status or service as directors or officers, other than liabilities arising
from willful misconduct. These indemnification agreements may also require the Registrant to advance any expenses incurred by the directors
or officers as a result of any proceeding against them as to which they could be indemnified and to obtain directors’ and officers’
insurance, if available on reasonable terms.
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 statute, provision of the Registrant’s
restated certificate of incorporation or amended and restated bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. |
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Description |
4.1 |
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Restated
Certificate of Incorporation of Intrepid Potash, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s
Current Report on Form 8-K filed on April 25, 2008). |
4.2 |
|
Certificate
of Amendment to Restated Certificate of Incorporation of Intrepid Potash, Inc. (incorporated by reference to Exhibit 3.1
to the Registrant’s Current Report on Form 8-K filed on May 26, 2016). |
4.3 |
|
Certificate
of Amendment to Restated Certificate of Incorporation of Intrepid Potash, Inc. (incorporated by reference to Exhibit 3.1
to the Registrant’s Current Report on Form 8-K filed on August 14, 2020). |
4.4 |
|
Amended
and Restated Bylaws of Intrepid Potash, Inc. (incorporated by reference to Exhibit 3.2 to the Registrant’s Current
Report on Form 8-K filed on June 25, 2015). |
5.1 |
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Opinion
of Perkins Coie LLP. |
10.1 |
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Intrepid
Potash, Inc. Amended and Restated Equity Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s
Current Report on Form 8-K filed on May 23, 2022). |
23.1 |
|
Consent
of KPMG LLP. |
23.2 |
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Consent
of Agapito Associates, Inc. |
23.3 |
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Consent
of Perkins Coie LLP (included in opinion filed as Exhibit 5.1). |
24.1 |
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Power
of Attorney (included on signature page). |
107 |
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Filing
Fee Table |
Item 9. Undertakings.
A. 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; |
| (ii) | 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 |
| (iii) | 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; |
provided,
however, that 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 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.
| (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 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 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 this 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 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. |
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 Denver, State of Colorado, on August 5, 2022.
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INTREPID POTASH, INC. |
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By: |
/s/ Robert P. Jornayvaz III |
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Robert P. Jornayvaz III |
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Executive Chairman of the Board, President and Chief Executive Officer |
POWER OF ATTORNEY
Each person whose individual signature appears
below hereby authorizes Robert P. Jornayvaz III and Matthew D. Preston, or each of them, as attorneys-in-fact, with full power of substitution,
to execute in the name and on the 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.
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 date indicated.
Signature |
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Title |
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Date |
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/s/ Robert
P. Jornayvaz III |
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Executive Chairman
of the Board and Chief Executive Officer (Principal Executive Officer) |
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August 5,
2022 |
Robert P. Jornayvaz III |
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/s/ Matthew
D. Preston |
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Chief Financial
Officer (Principal Financial and Accounting Officer) |
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August 5,
2022 |
Matthew D. Preston |
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/s/ Chris
A. Elliott |
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Director |
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August 5,
2022 |
Chris A. Elliott |
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/s/ Lori
A. Lancaster |
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Director |
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August 5,
2022 |
Lori A. Lancaster |
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/s/ Mary
E. McBride |
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Director |
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August 5,
2022 |
Mary E. McBride |
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/s/ Barth
E. Whitham |
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Lead Director |
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August 5,
2022 |
Barth E. Whitham |
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/s/ William M. Zisch |
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Director |
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August 5,
2022 |
William M. Zisch |
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