As
filed
with the Securities and Exchange Commission on August 18, 2006
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
|
|
41-1458152
|
(State
or other jurisdiction
of
|
|
(I.R.S.
Employer Identification
No.)
|
incorporation
or
organization)
|
|
|
350
Hills Street, Suite 106
Richland,
Washington 99354
(Address
of principal executive offices)
2006
Director 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 900
Phoenix,
Arizona 85012-2600
(602)
248-0088
CALCULATION
OF REGISTRATION FEE
Title
of Securities to be Registered
|
|
Maximum
Amount to be Registered(1)
|
|
Proposed
Maximum Offering Price Per Share(2)
|
|
Proposed
Maximum Aggregate Offering
Price
|
|
Amount
of Registration Fee
|
|
2006
Director Stock Option Plan Common
Stock, $0.001
par value
|
|
|
1,000,000
|
|
$
|
3.05
|
|
$
|
3,050,000
|
|
$
|
326.35
|
|
(1)
|
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.
|
(2)
|
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 bid and asked
prices
of the Registrant’s common stock on August 16,
2006.
|
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, 2005 (filed
October 11, 2005), which contains audited financial statements for our latest
fiscal year for which such statements have been filed and our amended Annual
Reports on Form 10-KSB/A for the fiscal year ended June 30, 2005 (filed May
9,
2006 and June 27, 2006).
(b) Our
Quarterly Reports on Form 10-QSB for the fiscal quarter ended September 30,
2005
(filed November 21, 2005), for the fiscal quarter ended December 31, 2005 (filed
February 17, 2006) and for the fiscal quarter ended March 31, 2006 (filed May
22, 2006), and our amended Quarterly Reports on Form 10-QSB/A for the fiscal
quarter ended September 30, 2005 (filed May 16, 2006) and for the fiscal quarter
ended December 31, 2005 (filed May 12, 2006).
(c) Our
Current Reports on Form 8-K filed on August 3, 2005, August 17, 2005, November
3, 2005, December 12, 2005, December 14, 2005, December 20, 2005, December
29,
2005, March 24, 2006, April 6, 2006, May 9, 2006, June 21, 2006 and August
10,
2006, and our amended Current Reports on Form 8-K/A filed on August 15, 2005
and
May 2, 2006.
(d) The
description of our common stock contained in our Registration Statement on
Form
SB-2, filed with the Commission on November 10, 2005, 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 Michael Dunlop,
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, Phoenix, Arizona 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 options to purchase 234,236 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.
Exhibit
Number
|
|
Exhibit
|
|
|
|
4.12
|
|
2006
Director Stock Option Plan
|
|
|
|
5.1
|
|
Opinion
of Keller Rohrback, P.L.C.
|
|
|
|
23.1
|
|
Consent
of Keller Rohrback, P.L.C. (included in Exhibit 5.1)
|
|
|
|
23.2
|
|
Consent
of S.W. Hatfield, CPA
|
|
|
|
23.3
|
|
Consent
of DeCoria, Maichel & Teague, P.S.
|
|
|
|
24.1
|
|
Power
of Attorney (see signature
page)
|
Item
9. Undertakings.
(a)
The
undersigned Registrant hereby undertakes:
(i)
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(1)
To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(2)
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; and
(3)
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)(i)(1) and (a)(i)(2) 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 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement;
(ii)
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
(iii)
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 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 the 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, 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 16th
day of
August, 2006.
|
|
|
|
ISORAY,
INC. |
|
|
|
|
By: |
/s/ Roger
Girard |
|
Roger
Girard, Chairman and
Chief
Executive Officer
|
POWER
OF ATTORNEY
KNOW
ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Roger Girard, his or her attorney-in-fact and agent,
with the power of substitution and resubsitution, for him or her and in his
or
her 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 or she 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
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/
Roger Girard
|
|
Chief
Executive Officer and Chairman
|
|
August
16, 2006
|
Roger
Girard |
|
|
|
|
|
|
|
|
|
/s/
Michael Dunlop
|
|
Chief
Financial Officer
|
|
August
16, 2006
|
Michael
Dunlop |
|
|
|
|
|
|
|
|
|
/s/
Stephen Boatwright
|
|
Director
|
|
August
16, 2006
|
Stephen
Boatwright |
|
|
|
|
|
|
|
|
|
/s/
Robert Kauffman
|
|
Director
|
|
August
16, 2006
|
Robert
Kauffman |
|
|
|
|
|
|
|
|
|
/s/
Thomas LaVoy
|
|
Director
|
|
August
16, 2006
|
Thomas
LaVoy |
|
|
|
|
|
|
|
|
|
/s/
David Swanberg
|
|
Director
|
|
August
16, 2006
|
David
Swanberg |
|
|
|
|
|
|
|
|
|
/s/
Dwight Babcock
|
|
Director
|
|
August
16, 2006
|
Dwight
Babcock |
|
|
|
|
|
|
|
|
|
/s/
Albert Smith
|
|
Director
|
|
August
16, 2006
|
Albert
Smith |
|
|
|
|
INDEX
TO EXHIBITS
Exhibit
Number
|
|
Exhibit
|
|
|
|
4.12
|
|
2006
Director Stock Option Plan
|
|
|
|
5.1
|
|
Opinion
of Keller Rohrback, PLC
|
|
|
|
23.1
|
|
Consent
of Keller Rohrback, PLC (included in Exhibit 5.1)
|
|
|
|
23.2
|
|
Consent
of S.W. Hatfield, CPA
|
|
|
|
23.3
|
|
Consent
of DeCoria, Maichel & Teague, P.S.
|
|
|
|
24.1
|
|
Power
of Attorney (see signature
page)
|