S-8
As
filed
with the Securities and Exchange Commission on January 14, 2008
Registration
No. 333-______
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_________________
FORM
S-8
REGISTRATION
STATEMENT
under
THE
SECURITIES ACT OF 1933
_________________
ISORAY,
INC.
(Exact
name of Registrant as specified in its charter)
Minnesota
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41-1458152
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(State
or other jurisdiction of
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(I.R.S.
Employer Identification No.)
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incorporation
or organization)
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350
Hills Street, Suite 106
Richland,
Washington 99354
(Address
of principal executive offices)
_________________
2008
Employee Stock Option Plan
(Full
title of the Plan)
_________________
Roger
Girard
Chief
Executive Officer
IsoRay,
Inc.
350
Hills Street, Suite 106
Richland,
Washington 99354
(509)
375-1202
(Name,
address and telephone number, including area code, of agent for
service)
_________________
Copy
to:
Stephen
R. Boatwright, Esq.
Alicia
M. Corbett, Esq.
Keller
Rohrback, P.L.C.
3101
North Central Avenue, Suite 1400
Phoenix,
Arizona 85012-2600
(602)
248-0088
CALCULATION
OF REGISTRATION FEE
Title
of Securities to be Registered
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Maximum
Amount to be Registered(1)
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Proposed
Maximum Offering Price Per Share(2)
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Proposed
Maximum Aggregate
Offering
Price
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Amount
of Registration Fee
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2008
Employee Stock Option Plan
Common
Stock, $0.001 par value
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2,000,000
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$
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2.11
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$
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4,220,000
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$
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165.85
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(1)
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This
Registration Statement shall also cover any additional shares of
common
stock which become issuable under the Plan by reason of any stock
divided,
stock split, recapitalization or any other similar transaction effected
without the receipt of consideration which results in an increase
in the
number of the Registrant's outstanding shares of Common
Stock.
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(2)
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Estimated
in accordance with Rule 457(h) under the Securities Act of 1933 (the
“Securities Act”) solely for the purpose of calculating the registration
fee. The computation is based on the average of the high and low
prices of
the Registrant’s common stock, as reported by the American Stock Exchange,
on January 10, 2008.
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PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
Securities and Exchange Commission (the "Commission") requires us to
"incorporate by reference" certain of our publicly-filed documents into this
prospectus, which means that information included in those documents is
considered part of this prospectus. Information that we file with the Commission
after the effective date of this prospectus will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the Commission under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, (the
"Exchange Act"), until we terminate the effectiveness of this registration
statement.
The
following documents filed with the Commission are hereby incorporated by
reference:
(a) Our
Annual Report on Form 10-KSB for the fiscal year ended June 30, 2007 (filed
September 28, 2007), which contains audited financial statements for our latest
fiscal year for which such statements have been filed.
(b) Our
Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2007
(filed November 9, 2007).
(c) Our
Current Reports on Form 8-K filed on October 16, 2007, October 17, 2007,
November 8, 2007 and January 14, 2008.
(d) The
description of our common stock contained in our Registration Statement on
Form
8-A, filed with the Commission on April 12, 2007, including any amendments
or
reports filed for the purpose of updating such description.
We
will
furnish without charge to you, on written or oral request, a copy of any or
all
of the documents incorporated by reference, other than exhibits to those
documents. You should direct any requests for documents to Jonathan Hunt, Chief
Financial Officer, IsoRay, Inc., 350 Hills Street, Suite 106, Richland,
Washington 99354.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Keller
Rohrback, PLC, our counsel, will issue an opinion with respect to the validity
of the shares of common stock being offered hereby. Mr. Boatwright, a member
of
Keller Rohrback, PLC, is a director of the Company. Mr. Boatwright beneficially
owned 60,000 shares of our common stock and options to purchase 150,000 shares
of our common stock as of the date of the opinion.
Item
6. Indemnification of Directors and Officers.
Our
Articles of Incorporation provide to directors and officers indemnification
to
the full extent provided by law, and provide that, to the extent permitted
by
Minnesota law, a director will not be personally liable for monetary damages
to
us or our shareholders for breach of his or her fiduciary duty as a director,
except for liability for certain actions that may not be limited under Minnesota
law.
The
above
discussion of Minnesota law and of our articles of incorporation and bylaws
is
not intended to be exhaustive and is qualified in its entirety by such statutes,
articles of incorporation and bylaws.
In
addition, the Company has entered into indemnification agreements with each
of
its directors and executive officers, pursuant to which the Company has agreed
to indemnify such individuals for any claims made against such individuals
based
on any act, omission or breach of duty committed while acting as director or
officer, except under certain circumstances such as cases involving dishonesty
or improper personal benefit. The Company also maintains an insurance policy
under which its directors and officers are insured against certain liabilities
which might arise out of their relationship with the Company as directors and
officers.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
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4.21 |
2008
Employee Stock Option Plan
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5.1 |
Opinion
of Keller Rohrback, P.L.C.
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23.1 |
Consent
of Keller Rohrback, P.L.C. (included in Exhibit
5.1)
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23.2 |
Consent
of DeCoria, Maichel & Teague, P.S.
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24.1 |
Power
of Attorney (see signature page)
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Item
9. Undertakings.
(a)
The
undersigned Registrant hereby undertakes:
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1. |
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. |
To
include any propectus required by section
10(a)(3)
of
the Securities Act of 1933;
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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 Commission pursuant
to
Rule
424(b)
if, in the aggregate, the changes in volume and price represent no
more
than 20% change in the maximum aggregate offering price set forth
in the
"Calculation of Registration Fee" table in the effective registration
statement.
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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;
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provided
however, that
paragraphs (a)(1)(i) and (a)(1)(ii) of this section 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
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
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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.
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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.
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(b)
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 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.
(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.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant, IsoRay,
Inc.,
a corporation organized and existing under the laws of the State of Minnesota,
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 Richland, State of Washington, on this 11th
day of
January, 2008.
ISORAY,
INC.
Roger
Girard, Chairman and Chief
Executive Officer
KNOW
ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Roger Girard, his attorney-in-fact and agent, with
the
power of substitution and resubsitution, for him or her and in his name, place
or stead, in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8, and to file such amendments, together with exhibits
and
other documents in connection therewith, with the Securities and Exchange
Commission, granting to Roger Girard full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the
premises, as fully as he might or could do in person, and ratifying and
confirming all that the attorney-in-fact and agent, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
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 dates
indicated.
Signature
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Title
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Date
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/s/
Roger E. Girard
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Chief
Executive Officer and Chairman
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January
11, 2008
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Roger
E. Girard |
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/s/
Jonathan Hunt
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Chief
Financial Officer and Principal Accounting Officer
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January
11, 2008
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Jonathan
Hunt |
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/s/
Stephen R. Boatwright
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Director
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January
11, 2008
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Stephen
R. Boatwright |
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/s/
Robert R. Kauffman
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Director
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January
11, 2008
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Robert
R. Kauffman |
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/s/
Thomas C. LaVoy
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Director
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January
11, 2008
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Thomas
C. LaVoy |
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/s/
David J. Swanberg
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Director
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January
11, 2008
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David
J. Swanberg |
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/s/
Dwight Babcock
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Director
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January
11, 2008
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Dwight
Babcock |
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/s/
Albert Smith
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Director
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January
11, 2008
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Albert
Smith |
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INDEX
TO EXHIBITS
4.21 |
2008
Employee Stock Option Plan
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5.1 |
Opinion
of Keller Rohrback, P.L.C.
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23.1 |
Consent
of Keller Rohrback, P.L.C. (included in Exhibit
5.1)
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23.2 |
Consent
of DeCoria, Maichel & Teague, P.S.
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24.1 |
Power
of Attorney (see signature page)
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