Unassociated Document
As
Filed with the Securities and Exchange Commission on October 27,
2009
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
ISORAY,
INC.
(Exact name of registrant as
specified in its charter)
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Minnesota
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41-1458152
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(State
or other jurisdiction
of
incorporation or organization)
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(I.R.S.
Employer
Identification
No.)
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350
Hills Street, Suite 106
Richland,
WA 99354
(509)
375-1202
(Address
and Telephone Number of Principal Executive Offices and Principal Place of
Business)
Dwight
Babcock, CEO
350
Hills Street, Suite 106
Richland,
WA 99354
(509)
375-1202
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copy to:
Stephen
R. Boatwright, Esq.
Alicia
M. Corbett, Esq.
Keller
Rohrback, PLC
3101
North Central Avenue, Suite 1400
Phoenix,
Arizona 85012
(602)
248-0088
Facsimile
Number: (602) 248-2822
Approximate
date of commencement of proposed sale to the public: From time to time after the effective
date of this Registration Statement.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. ¨
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. x
If this
Form is filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. ¨
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. ¨
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. ¨
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. ¨
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of "large accelerated filer, "accelerated filer" and "smaller
reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
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Large
accelerated filer
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¨
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Accelerated
filer
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¨
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Non-accelerated
filer
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¨
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Smaller
reporting company
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x
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CALCULATION
OF REGISTRATION FEE
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Title
of each class of
securities
to be registered
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Amount to be
Registered (1)
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Proposed
maximum
offering price
per
share (1)
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Proposed
maximum
aggregate
offering price (1) (4)
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Amount
of
registration
fee
(5)
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Common
Stock ($0.001 par value)
(2)
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Warrants
(3)
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Total
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$15,000,000
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$837.00
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(1)
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Pursuant
to General Instruction II.D of Form S-3, the table lists each class of
securities being registered and the aggregate proceeds to be raised in the
offering, but does not specify by each class information as to the amount
to be registered, the proposed maximum offering price per unit or the
proposed maximum aggregate offering price. Any securities registered
hereunder for the offering may be sold separately or as units with other
securities registered hereunder for the offering. In no event will the
aggregate offering price of all securities issued from time to time in the
offering pursuant to this registration statement exceed $15,000,000,
inclusive of any exercise price thereof. Pursuant to Rule 416(a) under the
Securities Act, the shares being registered hereunder also include such
indeterminate number of shares of our common stock as may be issued from
time to time with respect to the shares being registered hereunder as a
result of stock splits, stock dividends or similar
transactions. At no time will the aggregate maximum offering
price of all securities issued in a primary offering subject to General
Instruction I.B.6. in any given 12-month period exceed the amount allowed
under General Instruction I.B.6.
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(2)
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Subject
to note 1 above, there is being registered hereunder an indeterminate
number of shares of our common stock as may from time to time be sold
hereunder. In addition, pursuant to Rule 457(i) under the Securities Act,
the shares being registered hereunder include an indeterminate number of
shares of our common stock as may be issued from time to time upon
conversion, exercise or exchange of the securities issued directly
hereunder.
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(3)
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Subject
to note 1 above, there is being registered hereunder an indeterminate
number of warrants to purchase shares of our common
stock. Separate consideration may or may not be received for
securities that are issuable upon exercise of
warrants.
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(4)
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The
proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee pursuant to
Rule 457(o) under the Securities
Act.
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(5)
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The
registration fee has been calculated pursuant to Rule 457(o) under
the Securities Act on the basis of the maximum aggregate offering price of
the securities listed.
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IsoRay hereby amends this
registration statement on such date or dates as may be necessary to delay its
effective date until IsoRay shall file a further amendment which specifically
states that this registration statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until this
registration statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the Securities and Exchange Commission declares our
registration statement effective. This prospectus is not an offer to sell these
securities and is not soliciting an offer to buy these securities in any state
where the offer or sale is not permitted.
Subject
to Completion, dated October 27, 2009
ISORAY,
INC.
$15,000,000
Common
Stock
Warrants
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission using a "shelf" registration process. We may offer and
sell any combination of our common stock and warrants described in this
prospectus, separately or as units, in one or more offerings from time to time
and at prices and on terms to be determined at or prior to the time of the
applicable offering. The aggregate initial offering price of all securities sold
under this prospectus by us will not exceed $15,000,000. We may offer and sell
these securities to or through one or more underwriters, dealers, and agents, or
directly to purchasers, on a continuous or delayed basis. If any agents or
underwriters are involved in the sale of any of these securities, the applicable
prospectus supplement will provide the names of the agents and underwriters and
any applicable fees, commissions or discounts.
This
prospectus describes the general terms of these securities. We will provide the
specific terms of these securities in supplements to this prospectus. The
prospectus supplement may also add, update or change information in this
prospectus. You should read this prospectus and any prospectus supplement, as
well as the documents incorporated by reference or deemed to be incorporated by
reference into this prospectus, carefully before you invest. This prospectus may not be used to
offer or sell securities unless accompanied by a prospectus
supplement.
Our
principal executive offices are located at 350 Hills Street, Suite 106,
Richland, Washington 99354, and our telephone number is
(509) 375-1202.
Our
common stock is listed on the NYSE Amex Stock Exchange under the symbol "ISR."
As of October 15, 2009, the aggregate market value of our outstanding Common
Stock held by non-affiliates was approximately $25,198,765, based on 22,942,088
shares of outstanding Common Stock, of which 22,500,906 shares were held by
non-affiliates, and a per share price of $1.1199 based on the closing price of
our Common Stock as quoted on the NYSE Amex on October 15, 2009. As
of the date hereof, we have not offered any securities pursuant to General
Instruction I.B.6. of Form S-3 during the prior twelve calendar month period
that ends on, and includes, the date of this prospectus. Each
prospectus supplement will contain information, where applicable, as to any
listing on the NYSE Amex or any other securities exchange of the securities
covered by the prospectus supplement.
Investing in the
securities we may offer involves various risks. See the sections entitled
"Risk
Factors" on page 2 and "Note Regarding Forward-Looking Statements" on page 3.
Additional risks associated with an investment in us as well as with the
particular types of securities will be described in the related prospectus
supplement and certain of our filings with the Securities and Exchange
Commission.
Neither the
Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
The date
of this prospectus is October 27, 2009.
TABLE
OF CONTENTS
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Page
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ABOUT THIS
PROSPECTUS
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1
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ABOUT
ISORAY
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1
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RISK
FACTORS
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2
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NOTE REGARDING FORWARD-LOOKING
STATEMENTS
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3
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USE OF
PROCEEDS
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3
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GENERAL DESCRIPTION OF
SECURITIES
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4
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DESCRIPTION OF CAPITAL
STOCK
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4
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DESCRIPTION OF THE
WARRANTS
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7
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DESCRIPTION
OF UNITS
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9
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PLAN OF
DISTRIBUTION
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10
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LEGAL
MATTERS
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12
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EXPERTS
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12
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INTERESTS
OF NAMED EXPERTS AND COUNSEL
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13
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MATERIAL
CHANGES
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13
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WHERE YOU CAN FIND ADDITIONAL
INFORMATION
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INCORPORATION BY
REFERENCE
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13
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COMMISSION
POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
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Until
____________, all dealers that effect transactions in these securities, whether
or not participating in this offering, may be required to deliver a prospectus.
This is in addition to the dealers' obligation to deliver a prospectus when
acting as underwriters and with respect to their unsold allotments or
subscriptions.
ABOUT
THIS PROSPECTUS
You
should rely only on the information contained or incorporated by reference in
this prospectus. We have not authorized anyone to provide you with
different information. If anyone provides you with different or
inconsistent information, you should not rely on it. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted. You
should not assume that the information in this prospectus is accurate as of any
date other than the date on the front cover of this prospectus. You
should not assume that the information incorporated by reference in this
prospectus is accurate as of any date other than the date the respective
information was filed with the Securities and Exchange
Commission. Our business, financial condition, results of operations
and prospects may have changed since those dates.
This
prospectus is part of a registration statement that we have filed with the
Securities and Exchange Commission, or the SEC, using a "shelf" registration
process. Under this shelf registration process, we may offer from time to time
up to $15,000,000 in the aggregate, inclusive of any exercise price thereof, of
the following securities:
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shares
of our common stock;
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warrants
to purchase shares of our common stock;
or
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any
combination of the foregoing, separately or as
units.
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This
prospectus provides you with a general description of the securities we may
offer. Each time we offer securities, we will provide you with a prospectus
supplement that describes the specific amounts, prices and terms of the
securities we may offer. The prospectus supplement also may add, update or
change information contained in this prospectus. You should read carefully both
this prospectus and any prospectus supplement together with additional
information described below under "Information Incorporated By
Reference."
This
prospectus does not contain all the information provided in the registration
statement we filed with the SEC. For further information about us or the
securities offered hereby, you should refer to that registration statement,
which you can obtain from the SEC as described below under "Where You Can Find
More Information."
Pursuant
to General Instruction I.B.6. of Form S-3, we are permitted to use the
registration statement of which this prospectus forms a part to sell, via a
primary offering, a maximum amount of securities equal to one-third of the
aggregate market value of our outstanding voting and non-voting common equity
held by non-affiliates of our company in any twelve month period.
We may
sell the securities to or through underwriters, dealers or agents or directly to
purchasers. We and our agents reserve the sole right to accept or reject in
whole or in part any proposed purchase of securities. The prospectus supplement,
which we will provide to you each time we offer securities, will set forth the
names of any underwriters, dealers or agents involved in the sale of the
securities, and any applicable fee, commission or discount arrangements with
them. See "Plan of Distribution."
In this
prospectus, the terms "IsoRay," the "Company," "we," "us," "our" and similar
terms refer to IsoRay, Inc. and its operating subsidiary IsoRay, Medical, Inc. ,
and, to the extent applicable, its non-operating subsidiary, IsoRay
International LLC.
In 2003,
IsoRay obtained clearance from the FDA for treatment for all solid tumor
applications using Cesium-131 (Cs-131). Such applications include
prostate cancer; ocular melanoma; head, neck and lung tumors; and breast, liver,
brain and pancreatic cancer. The seed may be used in surface,
interstital and intracavity applications for tumors with known radio
sensitivity. Management believes its Cs-131 technology will allow it
to become a leader in the brachytherapy market. Management believes
that the IsoRay Proxcelan Cesium-131 brachytherapy seed represents the first
major advancement in brachytherapy technology in over 21 years with attributes
that could make it the long-term "seed of choice" for internal radiation therapy
procedures.
IsoRay
began production and sales of Proxcelan Cesium-131 brachytherapy seeds in
October 2004 for the treatment of prostate cancer after clearance of its
premarket notification (510(k)) by the Food and Drug Administration
(FDA). In December 2007, IsoRay began selling its Proxcelan Cs-131
seeds for the treatment of ocular melanoma. On June 1, 2009, the
Company again expanded its application of Cs-131 with the treatment of a head
and neck tumor that could not be accessed by other treatment
modalities. More recently the Company has focused on other
applications which require revising the delivery system from those historically
used by the Company.
In August
2009, IsoRay Medical received clearance from the FDA for its Premarket
Notification (510(k)) for Proxcelan™ Cesium-131 brachytherapy seeds that are
preloaded into bioabsorbable braided strands. This clearance permits the product
to be commercially distributed for treatment of lung, head and neck tumors as
well as tumors in other organs. While Cs-131 brachytherapy seeds
themselves have been cleared for treatment in all organs since 2003, this 510(k)
allows Cs-131 seeds to be delivered in a convenient and sterile format that can
be implanted without additional seed loading by the facility. The 510(k)
also clears the application of braided strands onto a bioabsorbable mesh matrix
to further facilitate the implant procedure.
Brachytherapy
seeds are small devices used in an interstital radiation
procedure. The procedure has become one of the primary treatments for
prostate cancer. The brachytherapy procedure places radioactive seeds
as close as possible to (in or near) the cancerous tumor (the word
"brachytherapy" means close therapy). The seeds deliver therapeutic
radiation thereby killing the cancerous tumor cells while minimizing exposure to
adjacent healthy tissue. This procedure allows doctors to administer
a higher dose of radiation directly to the tumor. Each seed contains
a radioisotope sealed within a welded titanium capsule. When
brachytherapy is the only treatment (monotherapy), approximately 70 to 120 seeds
are permanently implanted in the prostate in an outpatient procedure lasting
less than one hour. The number of seeds used varies based on the size
of the prostate and the activity level specified by the physician. When
brachytherapy is combined with external beam radiation or intensity modulated
radiation therapy (dual therapy), then approximately 40-80 seeds are used in the
procedure. The isotope decays over time and eventually the seeds
become inert. The seeds may be used as a primary treatment or in
conjunction with other treatment modalities, such as chemotherapy, or as
treatment for residual disease after excision of primary tumors. The
number of seeds for other treatment sites will vary from as few as 10-12 to as
many at 80-100 depending on the location of the tumor being
treated.
More
comprehensive information about us is available through our Internet website at
http://www.isoray.com. The
information on our website is not incorporated by reference into this
prospectus. Our executive offices are located at 350 Hills Street, Suite 106,
Richland, Washington 99354, and our telephone number is
(509) 375-1202.
An
investment in our securities involves a high degree of risk. Before
making an investment decision, you should carefully consider the risks described
under "Risk Factors" in the applicable prospectus supplement and in our most
recent Annual Report on Form 10-K, or any updates in our Quarterly Reports on
Form 10-Q, together with all of the other information appearing in this
prospectus or incorporated by reference into this prospectus and any applicable
prospectus supplement, in light of your particular investment objectives and
financial circumstances. The risks so described are not the only risks facing
our company. Additional risks not presently known to us or that we currently
deem immaterial may also impair our business operations. Our business, financial
condition or results of operations could be materially adversely affected by any
of these risks. The trading price of our securities could decline due to any of
these risks, and you may lose all or part of your investment.
In
addition to historical information, this prospectus, any prospectus supplement
and the documents incorporated by reference herein contain certain
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995 (PSLRA). This statement is included for
the express purpose of availing IsoRay, Inc. of the protections of the safe
harbor provisions of the PSLRA.
All statements contained in this
prospectus, any prospectus supplement and the documents incorporated by
reference herein, other than statements of historical facts, that address future
activities, events or developments are forward-looking statements, including,
but not limited to, statements containing the words "believe," "expect,"
"anticipate," "intends," "estimate," "forecast," "project," and similar
expressions. All statements other than statements of historical fact
are statements that could be deemed forward-looking statements, including any
statements of the plans, strategies and objectives of management for future
operations; any statements concerning proposed new products, services,
developments or industry rankings; any statements regarding future revenue,
economic conditions or performance; any statements of belief; and any statements
of assumptions underlying any of the foregoing. These statements are
based on certain assumptions and analyses made by us in light of our experience
and our assessment of historical trends, current conditions and expected future
developments as well as other factors we believe are appropriate under the
circumstances. However, whether actual results will conform to the
expectations and predictions of management is subject to a number of risks and
uncertainties that may cause actual results to differ
materially.
You
should not place undue reliance on our forward-looking statements because the
matters they describe are subject to known and unknown risks, uncertainties and
other unpredictable factors, many of which are beyond our control. Our
forward-looking statements are based on the information currently available to
us and speak only as of the date on the cover of this prospectus, the date of
any prospectus supplement, or, in the case of forward-looking statements
incorporated by reference, as of the date of the filing that includes the
statement. New risks and uncertainties arise from time to time, and it is
impossible for us to predict these matters or how they may affect us. Over time,
our actual results, performance or achievements will likely differ from the
anticipated results, performance or achievements that are expressed or implied
by our forward-looking statements, and such difference might be significant and
materially adverse to our security holders. We do not undertake and specifically
decline any obligation to update any forward-looking statements or to publicly
announce the results of any revisions to any statements to reflect new
information or future events or developments.
We have
identified some of the important factors that could cause future events to
differ from our current expectations and they are described in this prospectus
and supplements to this prospectus under the caption "Risk Factors" as well as
in our most recent Annual Report on Form 10-K, including without limitation
under the captions "Risk Factors" and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and in other documents that we
may file with the SEC, all of which you should review carefully. Please consider
our forward-looking statements in light of those risks as you read this
prospectus and any prospectus supplement.
We will
retain broad discretion over the use of the net proceeds from the sale of our
securities offered by us hereby. Except as described in any prospectus
supplement, we currently intend to use the net proceeds from the sale of
securities offered by us pursuant to this prospectus for working capital,
capital expenditures, investments in our subsidiaries, and other general
corporate purposes. We may also use such proceeds to fund acquisitions of
businesses, technologies or product lines that complement our current business.
However, we currently have no commitments or agreements for any specific
acquisitions. Pending application of the net proceeds, we intend to invest the
net proceeds of the offering of securities by us in investment-grade,
interest-bearing securities.
We,
directly or through agents, dealers or underwriters designated from time to
time, may offer, issue and sell, together or separately, in one or more
offerings, up to $15,000,000 in the aggregate, inclusive of any exercise price
thereof, of:
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shares
of our common stock, par value $0.001 per
share;
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warrants
to purchase shares of our common stock;
or
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any
combination of the foregoing, either individually or as units consisting
of one or more of the foregoing, each on terms to be determined at the
time of sale.
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The
common stock and the warrants, whether issued individually or as units, are
collectively referred to herein as the securities. This prospectus provides you
with a general description of the securities we may offer. Each time we offer
securities, we will provide you with a prospectus supplement that describes the
specific amounts, prices and terms of the securities we offer. The securities
involve various risks that we will describe in the section entitled "Risk
Factors" that will be included in each prospectus supplement.
The
following is a summary description of the rights of our common stock and related
provisions of our amended Articles of Incorporation and our Bylaws. The
following description of our capital stock is intended as a summary only and is
qualified in its entirety by reference to our amended Articles of Incorporation
and our Bylaws, which are filed as exhibits to the registration statement of
which this prospectus forms a part, and to the applicable provisions of
Minnesota law.
Common
Stock
Our
common shares are listed on the NYSE Amex under the symbol "ISR". As
of October 15, 2009, 22,942,088 shares of common stock were issued and
outstanding.
The
holders of our common stock have no preemptive or other subscription rights, and
there are no conversion rights or redemption or sinking fund provisions with
respect to such shares. All of the outstanding shares of our common stock are,
and the shares of our common stock when issued will be, fully paid and
nonassessable.
Voting. Holders of
the common stock are entitled to one vote per share on all matters to be voted
on by the Company's shareholders. The Company's bylaws provide that a
majority of the outstanding shares of the corporation entitled to vote
constitute a quorum at a meeting of the shareholders.
Dividends. The
Company's Board of Directors, in its sole discretion, may declare and pay
dividends on the common stock, payable in cash or other consideration, out of
funds legally available, if all dividends due on the preferred stock have been
declared and paid. The Company has not paid any cash dividends on its
common stock and does not plan to pay any cash dividends on its common stock for
the foreseeable future.
Liquidation, Subdivision, or
Combination. In the event of any liquidation, dissolution or
winding up of the Company or upon the distribution of its assets, all assets and
funds remaining after payment in full of the Company's debts and liabilities,
and after the payment to holders of any then outstanding preferred stock of the
full preferential amounts to which they were entitled, would be divided and
distributed among holders of the common stock.
Anti-Takeover Effects Of Provisions
Of The Articles Of Incorporation. The authorized but unissued
shares of our common and preferred stock are available for future issuance
without our shareholders' approval. These additional shares may be
utilized for a variety of corporate purposes including but not limited to future
public or direct offerings to raise additional capital, corporate acquisitions
and employee incentive plans. The issuance of such shares may also be
used to deter a potential takeover of IsoRay that may otherwise be beneficial to
shareholders by diluting the shares held by a potential suitor or issuing shares
to a shareholder that will vote in accordance with IsoRay's Board of Directors'
desires. A takeover may be beneficial to shareholders because, among
other reasons, a potential suitor may offer shareholders a premium for their
shares of stock compared to the then-existing market price.
On
February 1, 2007, the Board of Directors of IsoRay, Inc. declared a
dividend of one preferred share purchase right (a "Right") for each outstanding
Common Share of the par value of $.001 per share (the "Common Shares") of the
Company. The dividend is payable on February 16, 2007 (the "Record
Date") to shareholders of record on that date.
Each
Right entitles the registered holder to purchase from the Company one
one-hundredth of a Series C Junior Participating Preferred Share of the par
value of $.001 per share (the "Preferred Shares") of the Company at a price of
$25 per one one-hundredth of a Preferred Share (the "Purchase Price"), subject
to adjustment. The description and terms of the Rights are set forth
in a Rights Agreement (the "Rights Agreement"), dated as of February 1,
2007, between the Company and Computershare Trust Company N.A., as Rights Agent
(the "Rights Agent").
Initially,
the Rights will attach to all certificates representing Common Shares then
outstanding and no separate Right Certificates will be
distributed. The Rights will separate from the Common Shares and a
Distribution Date for the Rights will occur upon the earlier of:
(i) the
close of business on the fifteenth day following a public announcement that a
person or group of affiliated or associated persons has become an "Acquiring
Person" (i.e., has become, subject to certain exceptions, the beneficial owner
of 15% or more of the voting power of the outstanding shares of voting capital
stock of the Company in the election of directors), or
(ii) the
close of business on the fifteenth day following the first public announcement
relating to a tender offer or exchange offer the consummation of which would
result in a person or group of affiliated or associated persons becoming,
subject to certain exceptions, the beneficial owner of 15% or more of the voting
power of the outstanding shares of voting capital stock of the Company in the
election of directors (or such later date as may be determined by the Board of
Directors of the Company prior to a person or group of affiliated or associated
persons becoming an Acquiring Person).
Until the
Distribution Date,
(i) the
Rights will be evidenced by the Common Share certificates and will be
transferred with and only with the Common Shares,
(ii) new
Common Share certificates issued after the Record Date upon transfer or new
issuance of the Common Shares will contain a notation incorporating the Rights
Agreement by reference, and
(iii) the
surrender for transfer of any Common Share certificate, even without such
notation or a copy of this Summary of Rights attached thereto, will also
constitute the transfer of the Rights associated with the Common Shares
represented by such certificate.
As
promptly as practicable following the Distribution Date, separate certificates
evidencing the Rights ("Right Certificates") will be mailed to holders of record
of the Common Shares as of the close of business on the Distribution Date and
such separate Right Certificates alone will evidence the Rights.
The
Rights are not exercisable until the Distribution Date. The Rights
will expire on February 16, 2017, unless extended or earlier redeemed or
exchanged by the Company as described below.
The
Purchase Price payable, and the number of Preferred Shares or other securities
or property issuable, upon exercise of the Rights are subject to adjustment from
time to time to prevent dilution:
(i) in
the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Shares,
(ii) upon
the grant to holders of the Preferred Shares of certain rights, options or
warrants to subscribe for or purchase Preferred Shares or convertible securities
at less than the then current market price of the Preferred Shares,
or
(iii) upon
the distribution to holders of the Preferred Shares of evidences of indebtedness
or assets (excluding regular periodic cash dividends or dividends payable in
Preferred Shares) or of subscription rights or warrants (other than those
described in clause (ii) hereof).
The
number of Preferred Shares issuable upon the exercise of a Right is also subject
to adjustment in the event of a dividend on Common Shares payable in Common
Shares, or a subdivision, combination or consolidation of the Common
Shares.
With
certain exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments require an adjustment of at least 1% in the Purchase
Price. No fractional Preferred Shares will be issued (other than
fractional shares which are integral multiples of one one-hundredth (subject to
adjustment) of a Preferred Share, which may, at the election of the Company, be
evidenced by depositary receipts) if in lieu thereof a payment in cash is made
based on the closing price (pro-rated for the fraction) of the Preferred Shares
on the last trading date prior to the date of exercise.
In the
event that any person or group of affiliated or associated persons becomes an
Acquiring Person, proper provision shall be made so that each holder of a Right,
other than Rights that are or were beneficially owned by the Acquiring Person
(which will thereafter be void), will thereafter have the right to receive upon
exercise thereof at the then current exercise price of the Right that number of
Common Shares having a market value of two times the exercise price of the
Right, subject to certain possible adjustments.
In the
event that, after the Distribution Date or within 15 days prior thereto, the
Company is acquired in certain mergers or other business combination
transactions or 50% or more of the assets or earning power of the Company and
its subsidiaries (taken as a whole) are sold after the Distribution Date or
within 15 days prior thereto, each holder of a Right (other than Rights which
have become void under the terms of the Rights Agreement) will thereafter have
the right to receive, upon exercise thereof at the then current exercise price
of the Right, that number of common shares of the acquiring company (or, in
certain cases, one of its affiliates) having a market value of two times the
exercise price of the Right.
In
certain events specified in the Rights Agreement, the Company is permitted to
temporarily suspend the exercisability of the Rights.
At any
time after a person or group of affiliated or associated persons becomes an
Acquiring Person (subject to certain exceptions) and prior to the acquisition by
a person or group of affiliated or associated persons of 50% or more of the
voting power of the outstanding shares of voting capital stock of the Company in
the election of directors, the Board of Directors of the Company may exchange
all or part of the Rights (other than Rights which have become void under the
terms of the Rights Agreement) for Common Shares or equivalent securities at an
exchange ratio per Right equal to the result obtained by dividing the exercise
price of a Right by the current per share market price of the Common Shares,
subject to adjustment.
At any
time prior to such time as a person or group of affiliated or associated persons
becomes an Acquiring Person, the Board of Directors of the Company may redeem
the Rights in whole, but not in part, at a price of $.001 per Right, subject to
adjustment (the "Redemption Price"), payable in cash. The period of
time during which the Rights may be redeemed may be extended by the Board of
Directors of the Company if no person has become an Acquiring
Person. The redemption of the Rights may be made effective at such
time, on such basis and with such conditions as the Board of Directors in its
sole discretion may establish. The Board of Directors and the Company
shall not have any liability to any person as a result of the redemption or
exchange of the Rights pursuant to the provisions of the Rights
Agreement.
The terms
of the Rights may be amended by the Board of Directors of the Company, subject
to certain limitations after such time as a person or group of affiliated or
associated persons becomes an Acquiring Person, without the consent of the
holders of the Rights, including an amendment prior to the date a person or
group of affiliated or associated persons becomes an Acquiring Person to lower
the 15% threshold for exercisability of the Rights to not less than the greater
of (i) the sum of .001% and the largest percentage of the outstanding
shares of voting capital stock of the Company with voting power in the election
of directors then known by the Company to be beneficially owned by any person or
group of affiliated or associated persons (subject to certain exceptions) or
(ii) 10%.
Until a
Right is exercised, the holder thereof, as such, will have no rights as a
shareholder of the Company, including, without limitation, the right to vote or
to receive dividends.
The
foregoing description of the Rights Agreement is qualified in its entirety by
reference to the full text of the Rights Agreement.
Transfer Agent and
Registrar. The transfer agent and registrar for our common
stock is Computershare Trust Company, N.A. The transfer agent's
address is 350 Indiana Street, Golden, CO 80401, and its telephone
number is (303) 262-0600.
DESCRIPTION
OF THE WARRANTS
Terms
of Prospective Warrant Issuances
We may
issue warrants to purchase shares of our common stock in one or more series. The
warrants may be issued independently or together with shares of our common stock
and may be attached to or separate from the shares of our common stock. The
warrants may be issued by us directly or under warrant agreements to be entered
into between us and a bank or trust company, as warrant agent, all as shall be
set forth in the prospectus supplement relating to warrants being offered
pursuant to such prospectus supplement. The following description of the
warrants will apply to the warrants offered by this prospectus unless we provide
otherwise in the applicable prospectus supplement. The applicable prospectus
supplement for a particular series of warrants may specify different or
additional terms.
A copy of
the form of warrant agreement, including the form of warrant certificate
representing a series of warrants, will be filed with the SEC in connection with
the offering of a particular series of warrants. The following
summaries of material provisions of the warrants and the warrant agreements are
subject to, and qualified in their entirety by reference to, all the provisions
of the warrant agreement and warrant certificate applicable to the particular
series of warrants that we may offer under this prospectus. We urge
you to read the applicable prospectus supplement(s) related to the particular
series of warrants that we may offer under this prospectus, as well as any
prospectus supplement, and the complete warrant agreements and warrant
certificates that contain the terms of the warrants.
The
applicable prospectus supplement will describe the following terms of warrants
offered:
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the offering price and aggregate
number of warrants offered;
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if applicable, the number of
warrants issued with each share of common
stock;
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if applicable, the date on and
after which the warrants and the related common stock will be separately
transferable;
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the number of shares of common
stock purchasable upon the exercise of one warrant and the price at which
these shares may be purchased upon such
exercise;
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the effect of any merger,
consolidation, sale or other disposition of our business on the warrant
agreements and the warrants;
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the terms of any rights to redeem
or call the warrants;
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any provisions for changes to or
adjustments in the exercise price or number of shares of common stock
issuable upon exercise of the
warrants;
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the dates on which the right to
exercise the warrants will commence and
expire;
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the manner in which the warrant
agreements and warrants may be
modified;
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the anti-dilutive protections
given to the holders of such
warrants;
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a discussion of any material or
special U.S. federal income tax consequences of holding or exercising the
warrants; and
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any other specific terms,
preferences, rights or limitations of or restrictions on the
warrants.
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Holders
of warrants will not be entitled, by virtue of being such holders, to vote,
consent, receive dividends, receive notice as stockholders with respect to any
meeting of stockholders for the election of our directors or any other matter,
or to exercise any rights whatsoever as our stockholders.
The
exercise price payable and the number of shares of our common stock purchasable
upon the exercise of each warrant will be subject to adjustment in certain
events, including the issuance of a stock dividend to holders of our common
stock or a stock split, reverse stock split, combination, subdivision or
reclassification of our common stock. In lieu of adjusting the number of shares
of our common stock purchasable upon exercise of each warrant, we may elect to
adjust the number of warrants. No fractional shares will be issued upon exercise
of the warrants, but we will pay the cash value of any fractional shares
otherwise issuable. Notwithstanding the foregoing, in case of any consolidation,
merger, or sale or conveyance of our property as an entirety or substantially as
an entirety, the holder of each outstanding warrant shall have the right to the
kind and amount of shares of stock and other securities and property, including
cash, receivable by a holder of the number of shares of our common stock into
which the warrant was exercisable immediately prior to such
transaction.
Each
warrant will entitle the holder to purchase for cash such shares of our common
stock at such exercise price as shall in each case be set forth in, or be
determinable as set forth in, the prospectus supplement relating to the warrants
offered thereby. Warrants may be exercised at any time up to the close of
business on the expiration date set forth in the prospectus supplement relating
to the warrants offered thereby. After the close of business on the expiration
date, unexercised warrants will become void.
The
warrants may be exercised as set forth in the prospectus supplement relating to
the warrants offered. Upon receipt of payment and the warrant certificate
properly completed and duly executed at the corporate trust office of the
warrant agent or any other office indicated in the prospectus supplement, we
will, as soon as practicable, forward the shares of our common stock purchasable
upon such exercise. If less than all of the warrants represented by such warrant
certificate are exercised, a new warrant certificate will be issued for the
remaining warrants.
Governing
Law
Unless we
provide otherwise in the applicable prospectus supplement, the warrants and
warrant agreements will be governed by and construed in accordance with the laws
of the State of Minnesota.
Enforceability
of Rights by Holders of Warrants
Each
warrant agent (if any) will act solely as our agent under the applicable warrant
agreement and will not assume any obligation or relationship of agency or trust
with any holder of any warrant. A single bank or trust company may act as
warrant agent for more than one issue of warrants. A warrant agent will have no
duty or responsibility in case of any default by us under the applicable warrant
agreement or warrant, including any duty or responsibility to initiate any
proceedings at law or otherwise, or to make any demand upon us. Any holder of a
warrant may, without the consent of the related warrant agent or the holder of
any other warrant, enforce by appropriate legal action its right to exercise,
and receive the securities purchasable upon exercise of, its
warrants.
DESCRIPTION
OF UNITS
The
following description, together with the additional information we may include
in any applicable prospectus supplement, summarizes the material terms and
provisions of the units that we may offer under this prospectus. While the terms
we have summarized below will apply generally to any units that we may offer
under this prospectus, we will describe the particular terms of any series of
units in more detail in the applicable prospectus supplement. The terms of any
units offered under a prospectus supplement may differ from the terms described
below. However, no prospectus supplement will fundamentally change the terms
that are set forth in this prospectus or offer a security that is not registered
and described in this prospectus at the time of its effectiveness.
We will
file with the SEC the form of unit agreement that describes the terms of the
series of units we are offering, and any supplemental agreements, before the
issuance of the related series of units. The following summaries of material
terms and provisions of the units are subject to, and qualified in their
entirety by reference to, all the provisions of the unit agreement and any
supplemental agreements applicable to a particular series of units. We urge you
to read the applicable prospectus supplements related to the particular series
of units that we sell under this prospectus, as well as the complete unit
agreement and any supplemental agreements that contain the terms of the
units.
We may
issue units comprised of one or more shares of common stock and warrants in any
combination. Each unit will be issued so that the holder of the unit is also the
holder of each security included in the unit. Thus, the holder of a unit will
have the rights and obligations of a holder of each included security. The unit
agreement under which a unit is issued may provide that the securities included
in the unit may not be held or transferred separately, at any time or at any
time before a specified date.
We will
describe in the applicable prospectus supplement the terms of the series of
units, including, but not limited to:
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the designation and terms of the units and of the securities
comprising the units, including whether and under what circumstances those
securities may be held or transferred separately;
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any provisions of the governing unit agreement that differ from
those described below; and
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any provisions for the issuance, payment, settlement, transfer or
exchange of the units or of the securities comprising the
units.
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The
provisions described in this section, as well as those described under
"Description of Capital Stock" and "Description of the Warrants" will apply to
each unit and to any common stock or warrant included in each unit,
respectively.
We may
issue units in such amounts and in numerous distinct series as we
determine.
Each unit
agent will act solely as our agent under the applicable unit agreement and will
not assume any obligation or relationship of agency or trust with any holder of
any unit. A single bank or trust company may act as unit agent for more than one
series of units. A unit agent will have no duty or responsibility in case of any
default by us under the applicable unit agreement or unit, including any duty or
responsibility to initiate any proceedings at law or otherwise, or to make any
demand upon us. Any holder of a unit may, without the consent of the related
unit agent or the holder of any other unit, enforce by appropriate legal action
its rights as holder under any security included in the unit.
We, the
unit agents and any of their agents may treat the registered holder of any unit
certificate as an absolute owner of the units evidenced by that certificate for
any purpose and as the person entitled to exercise the rights attaching to the
units so requested, despite any notice to the contrary.
PLAN
OF DISTRIBUTION
Pursuant
to General Instruction I.B.6. of Form S-3, we are permitted to use the
registration statement of which this prospectus forms a part to sell, via a
primary offering, a maximum amount of securities equal to one-third of the
aggregate market value of our outstanding voting and non-voting common equity
held by non-affiliates of our company in any twelve month period. We
may, from time to time, offer and sell the securities registered hereby up to
the lesser of this maximum amount or $15,000,000.
We may
sell the securities through underwriters or dealers, through agents, or directly
to one or more purchasers or through a combination of these methods, or through
any other method permitted by applicable law. The applicable prospectus
supplement will describe the terms of the offering of the securities,
including:
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the
name or names of any underwriters, if any, and if required, any dealers or
agents;
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the
purchase price of the securities and the proceeds we will receive from the
sale;
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any
underwriting discounts and other items constituting underwriters'
compensation;
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any
discounts or concessions allowed or reallowed or paid to dealers;
and
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any
securities exchange or market on which the securities may be
listed.
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We may
distribute the securities from time to time in one or more transactions
at:
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a
fixed price or prices, which may be changed from time to
time;
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market
prices prevailing at the time of
sale;
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prices
related to such prevailing market prices;
or
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Only
underwriters named in the prospectus supplement are underwriters of the
securities offered by that prospectus supplement. If we utilize any
underwriters in the sale of our securities in respect of which this prospectus
is delivered, we will enter into an underwriting agreement with those
underwriters at the time of sale to them. We will set forth the names
of these underwriters and the terms of the transaction in the applicable
prospectus supplement, which will be used by the underwriters to make resales of
our securities in respect of which this prospectus is delivered to the
public.
If we use
underwriters in the sale of securities, they will acquire the securities for
their own account and may resell them from time to time in one or more
transactions at a fixed public offering price or at varying prices determined at
the time of sale. We may offer the securities to the public through underwriting
syndicates represented by managing underwriters or by underwriters without a
syndicate. Any public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may change from time to time.
If we use
a dealer in the sale of the securities being offered pursuant to this
prospectus, we will sell the securities to the dealer, as principal. The dealer
may then resell the securities to the public at varying prices to be determined
by the dealer at the time of resale.
We may
sell securities directly or through agents we designate from time to time. We
will name any agent involved in the offering and sale of securities and we will
describe any commissions we will pay the agent in the prospectus supplement.
Unless the prospectus supplement states otherwise, our agent will act on a
best-efforts basis for the period of its appointment.
We may
authorize agents or underwriters to solicit offers by institutional investors to
purchase securities from us at the public offering price set forth in the
prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. We will describe the
conditions to these contracts and the commissions we must pay for solicitation
of these contracts in the prospectus supplement.
In
connection with the sale of the securities, underwriters, dealers or agents may
receive compensation from us, or from purchasers of the securities for whom they
act as agents, in the form of discounts, concessions or commissions.
Underwriters may sell the securities to or through dealers, and those dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters or commissions from the purchasers for whom they may act
as agents. Underwriters, dealers and agents that participate in the distribution
of the securities, and any institutional investors or others that purchase
securities directly and then resell the securities, may be deemed to be
underwriters, and any discounts or commissions received by them from us and any
profit on the resale of the securities by them may be deemed to be underwriting
discounts and commissions under the Securities Act.
We may
provide agents, underwriters and dealers with indemnification against particular
civil liabilities, including liabilities under the Securities Act, or
contribution with respect to payments that the agents, underwriters or dealers
may make with respect to such liabilities. Agents, underwriters and dealers may
engage in transactions with, or perform services for, us in the ordinary course
of business.
In
addition, we may enter into derivative transactions with third parties
(including the writing of options), or sell securities not covered by this
prospectus to third parties in privately negotiated transactions. If the
applicable prospectus supplement indicates, in connection with such a
transaction, the third parties may, pursuant to this prospectus and the
applicable prospectus supplement, sell securities covered by this prospectus and
the applicable prospectus supplement. If so, the third party may use securities
borrowed from us or others to settle such sales and may use securities received
from us to close out any related short positions. We may also loan or pledge
securities covered by this prospectus and the applicable prospectus supplement
to third parties, who may sell the loaned securities or, in an event of default
in the case of a pledge, sell the pledged securities pursuant to this prospectus
and the applicable prospectus supplement. The third party in such sale
transactions will be an underwriter and will be identified in the applicable
prospectus supplement or in a post-effective amendment.
All
securities we offer other than common stock will be new issues of securities
with no established trading market. Any underwriters may make a market in these
securities, but will not be obligated to do so and may discontinue any market
making at any time without notice. We cannot guarantee the liquidity of the
trading markets for any securities.
To the
extent that we make sales through one or more underwriters, dealers or agents in
at-the-market offerings, we will do so pursuant to the terms of a sales agency
financing agreement or other at-the-market offering arrangement between us and
the underwriters or agents. If we engage in at-the-market sales
pursuant to any such agreement, we will issue and sell our securities through
one or more underwriters, dealers or agents, which may act on an agency basis or
on a principal basis. During the term of any such agreement, we may
sell securities on a daily basis in exchange transactions or otherwise as we
agree with the underwriters, dealers or agents. The agreement will
provide that any securities sold will be sold at prices related to the then
prevailing market prices for our securities. Therefore, exact figures
regarding the proceeds that will be raised or commissions to be paid cannot be
determined at this time. Pursuant to the terms of the agreement, we
may also agree to sell, and the relevant underwriters, dealers or agents may
agree to solicit offers to purchase, blocks of our common stock or other
securities. The terms of each such agreement will be set forth in
more detail in the applicable prospectus supplement.
Underwriters
may engage in stabilizing and syndicate covering transactions in accordance with
Rule 104 under the Exchange Act. Rule 104 permits stabilizing bids to
purchase the securities being offered as long as the stabilizing bids do not
exceed a specified maximum. Underwriters may over-allot the offered securities
in connection with the offering, thus creating a short position in their
account. Syndicate covering transactions involve purchases of the offered
securities by underwriters in the open market after the distribution has been
completed in order to cover syndicate short positions. Underwriters may also
cover an over-allotment or short position by exercising their over-allotment
option, if any. Stabilizing and syndicate covering transactions may cause the
price of the offered securities to be higher than it would otherwise be in the
absence of these transactions. These transactions, if commenced, may be
discontinued at any time.
Any
underwriters who are qualified market makers on the NYSE Amex Stock Exchange may
engage in passive market making transactions in the common stock on the NYSE
Amex Stock Exchange in accordance with Rule 103 of Regulation M, during the
business day prior to the pricing of the offering, before the commencement of
offers or sales of the common stock. Passive market makers must
comply with the applicable volume and price limitations and must be identified
as passive market makers. In general a passive market maker must
display its bid at a price not in excess of the highest independent bid for such
security – if all independent bids are lowered below the passive market maker's
bid, however, the passive market maker's bid must then be lowered when certain
purchase limits are exceeded.
Pursuant
to requirements of the Financial Industry Regulatory Authority, or FINRA, the
maximum commission or discount to be received by any FINRA member or independent
broker dealer may not be greater than 8.0% of the gross proceeds received by us
for the sale of any securities being registered pursuant to Securities Act Rule
415.
The place
and time of delivery for our securities in respect of which this prospectus is
delivered will be set forth in the applicable prospectus
supplement.
LEGAL
MATTERS
Certain
legal matters with respect to the securities being offered hereby will be passed
on by Keller Rohrback, PLC, Phoenix, Arizona. If securities are
distributed in an underwritten offering, certain legal matters will be passed
upon for the underwriters by counsel identified in the applicable prospectus
supplement.
DeCoria,
Maichel & Teague, P.S., independent registered public accounting firm, has
audited our consolidated balance sheets as of June 30, 2009 and June 30, 2008,
and related consolidated statements of operations, shareholders' equity and cash
flows for the years ended June 30, 2009 and 2008, included in our Annual Report
on Form 10-K for the fiscal year ended June 30, 2009, as set forth in their
report, which is incorporated by reference in this prospectus and elsewhere in
the registration statement. Our financial statements are incorporated by
reference in reliance on DeCoria, Maichel & Teague, P.S.'s report, given on
the authority of said firm as experts in accounting and auditing.
None.
MATERIAL
CHANGES
None.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We have
filed a registration statement on Form S-3 with the SEC relating to the common
stock and the warrants offered by this prospectus. This prospectus does not
contain all of the information set forth in the registration statement and the
exhibits and schedules thereto. We have omitted parts of the registration
statement, as permitted by the rules and regulations of the SEC. Statements
contained in this prospectus as to the contents of any contract or other
document referred to are not necessarily complete and in each instance reference
is made to the copy of such contract or other document filed as an exhibit to
the registration statement, each such statement being qualified in all respects
by such reference. For further information with respect to us and the common
stock, and the warrants offered hereby, reference is made to such registration
statement, exhibits and schedules.
We are
subject to the information and periodic reporting requirements of the Exchange
Act, and in accordance therewith file periodic reports, current reports, proxy
statements and other information with the SEC. Such periodic reports, current
reports, proxy statements, other information and a copy of this registration
statement on Form S-3 may be inspected by anyone without charge and copies of
these materials may be obtained upon the payment of the fees prescribed by the
SEC, at the Public Reference Room maintained by the SEC at 100 F Street, N.E.,
Washington, D.C. 20549. The public may obtain information on the operation of
the Public Reference Room by calling the SEC at 1-800-SEC-0330. This
registration statement on Form S-3 and the periodic reports, current reports,
proxy statements and other information filed by us are also available through
the Internet web site maintained by the SEC at the following address: http://www.sec.gov.
The SEC
allows us to "incorporate by reference" into this prospectus the information we
file with it. This means that we can disclose important information to you by
referring you to those documents. The information we incorporate by reference is
considered to be a part of this prospectus, and later information we file with
the SEC will automatically update and supersede this information. The following
documents filed with the SEC (in each case, under our Commission File
No. 001-33407) are incorporated by reference in this
prospectus:
(a) Our
Annual Report on Form 10-K for the fiscal year ended June 30, 2009 (filed
September 23, 2009), which contains audited financial statements for our latest
fiscal year for which such statements have been filed.
(b) Our
Current Reports on Form 8-K filed on September 24, 2009 and October 2,
2009.
(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 are
also incorporating by reference any future filings we make with the SEC under
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act until this offering
is completed, including those made between the date of filing of the initial
registration statement and prior to effectiveness of the registration statement,
except for information furnished under Item 2.02 or Item 7.01 of our
Current Reports on Form 8-K which is not deemed to be filed and not incorporated
by reference herein.
We will
provide, without charge, to each person to whom a copy of this prospectus has
been delivered, upon written or oral request of such person, a copy of any or
all of the documents incorporated by reference herein (other than certain
exhibits to such documents not specifically incorporated by
reference). Requests for such copies should be directed to: IsoRay,
Inc., 350 Hills Street, Suite 106, Richland, Washington 99354, telephone number
(509) 375-1202, Attention: Lori Woods, Chief Operating
Officer.
COMMISSION
POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
The
Company's 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 the Company or its 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. On July 1, 2006, the Company entered into
Indemnification Agreements with each of its directors and executive officers,
and the Company intends to enter into substantially identical agreements with
any officers and directors who take office in the future. The purpose of the
Indemnification Agreements is to provide all officers and directors with
indemnification to the fullest extent permitted under the Minnesota Business
Corporations Act.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons pursuant to the
foregoing provisions, or otherwise, in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution.
The
following table sets forth the estimated costs and expenses, other than
underwriting discounts and commissions, payable by the registrant in connection
with the offering of the securities being registered.
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SEC
registration fees
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837 |
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Printing
fees and expenses
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|
$ |
* |
|
Legal
fees and expenses
|
|
$ |
* |
|
Accounting
fees and expenses
|
|
$ |
* |
|
Miscellaneous
expenses
|
|
$ |
* |
|
Total
|
|
$ |
* |
* These
fees and expenses will be determined based on the number of issuances and amount
and type of securities issued. Accordingly, they cannot be estimated
at this time and will be included in the applicable prospectus
supplement.
Item 15.
Indemnification of Directors and Officers.
The
Company's 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 the Company or its 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. On July 1, 2006, the Company entered into
Indemnification Agreements with each of its directors and executive officers,
and the Company intends to enter into substantially identical agreements with
any officers and directors who take office in the future. The purpose of the
Indemnification Agreements is to provide all officers and directors with
indemnification to the fullest extent permitted under the Minnesota Business
Corporations Act.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons pursuant to the
foregoing provisions, or otherwise, in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable.
Item 16.
Exhibits.
|
|
|
|
|
Exhibit
Number
|
|
Description
|
|
|
|
|
1.2*
|
|
Form
of Underwriting Agreement, if any.
|
|
3.3
|
|
Restated
and Amended Articles of Incorporation incorporated by reference to the
Form 10-KSB filed on October 11, 2005.
|
|
3.5
|
|
Amended
and Restated By-Laws of the Company dated as of January 8, 2008,
incorporated by reference to the Form 8-K filed on January 14,
2008.
|
|
4.19
|
|
Rights
Agreement, dated as of February 1, 2007, between the Computershare Trust
Company N.A., as Rights Agent, incorporated by reference to Exhibit 1 to
the Company's Registration Statement on Form 8-A filed on February 7,
2007.
|
|
4.20
|
|
Certificate
of Designation of Rights, Preferences and Privileges of Series C Junior
Participating Preferred Stock, incorporated by reference to Exhibit 1 to
the Company's Registration Statement on Form 8-A filed February 7,
2007.
|
|
4.22*
|
|
Form
of Securities Purchase Agreement, if any.
|
|
4.23*
|
|
Form
of Warrant Agreement, if any.
|
|
4.24*
|
|
Form
of Warrant Certificate, if any.
|
|
4.25*
|
|
Form
of Unit Agreement, if any.
|
|
4.26*
|
|
Form
of Unit Certificate, if any.
|
|
5.1
|
|
Opinion
of Keller Rohrback, PLC.
|
|
23.1
|
|
Consent
of Keller Rohrback, PLC (included in its opinion filed as Exhibit 5.1
hereto).
|
|
23.2
|
|
Consent
of DeCoria, Maichel & Teague, P.S., independent registered public
accounting firm.
|
|
24.1
|
|
Power
of Attorney (included on signature
page).
|
|
*
|
To
be filed by an amendment to the registration statement or as an exhibit to
a Current Report on Form 8-K under the Exchange Act, subsequent to
effectiveness, if necessary.
|
Item 17.
Undertakings.
|
|
a.
|
The
undersigned registrant hereby
undertakes:
|
|
|
|
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
|
|
|
|
To
include any prospectus required by section 10(a)(3) of the Securities Act
of 1933;
|
|
|
|
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.
|
|
|
|
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;
|
|
|
|
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.
|
|
|
|
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.
|
That,
for the purpose of determining liability under the Securities Act of 1933
to any purchaser:
|
|
|
|
If
the Registrant is relying on Rule 430B: Each prospectus filed
by the registrant pursuant to Rule 424(b)(3)shall be deemed to be part of
the registration statement as of the date the filed prospectus was deemed
part of and included in the registration statement;
and
|
|
|
|
If
the Registrant is relying on Rule 430B: Each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part
of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose
of providing the information required by section 10(a) of the Securities
Act of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective
date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of
the registration statement or made in any such document immediately prior
to such effective date.
|
|
|
3.
|
If
the Registrant is subject to Rule 430C, each prospectus filed pursuant to
Rule 424(b) as part of a registration statement relating to an offering,
other than registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be part of
and included in the registration statement as of the date it is first used
after effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract
of sale prior to such first use, supersede or modify any statement that
was made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to
such date of first use.
|
|
|
c.
|
That,
for the purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of the
securities: The undersigned registrant undertakes that in a primary
offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such
purchaser:
|
|
|
|
Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
|
|
|
|
Any
free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
|
|
|
|
The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
|
|
|
|
Any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
|
|
|
d.
|
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.
|
|
|
e.
|
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 Commission such
indemnification is against public policy as expressed in the Securities
Act of 1933 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 of 1933 and will be
governed by the final adjudication of such
issue.
|
|
|
f.
|
The
undersigned registrant hereby undertakes
that:
|
|
|
1.
|
For
purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be
part of this registration statement as of the time it was declared
effective.
|
|
|
2.
|
For
the purpose of determining any liability under the Securities Act of 1933,
each post-effective amendment that contains a form of prospectus 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.
|
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 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 October 26,
2009.
|
|
|
|
|
ISORAY,
INC.
|
|
|
|
|
By:
|
|
|
|
|
|
Dwight
Babcock, Chief Executive Officer
|
|
|
|
|
POWER
OF ATTORNEY
We, the
undersigned directors and officers of IsoRay, Inc., do hereby constitute and
appoint Dwight Babcock and Robert Kauffman, or either of them, our true and
lawful attorneys and agents, to do any and all acts and things in our name and
behalf in our capacities as directors and officers and to execute any and all
instruments for us and in our names in the capacities indicated below, which
said attorneys and agents, or either of them, may deem necessary or advisable to
enable said corporation to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and requirements of the Securities and Exchange
Commission, in connection with this registration statement, including
specifically, but without limitation, power and authority to sign for us or any
of us in our names and in the capacities indicated below, any and all amendments
(including post-effective amendments) to this registration statement, or any
related registration statement that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, as amended; and we do hereby
ratify and confirm all that the said attorneys and agents, or either of them,
shall do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated.
|
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
President,
Chief Executive Officer and
|
|
|
|
Dwight
Babcock
|
|
Chairman
of the Board of Directors
(Principal
Executive Officer)
|
|
October
26, 2009
|
|
|
|
|
|
|
|
Controller
|
|
|
|
Brien
Ragle
|
|
(Principal Financial and Accounting Officer)
|
|
|
|
|
|
|
|
|
|
Vice
Chairman of the Board of Directors
|
|
|
|
Robert
Kauffman
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
|
|
Thomas
LaVoy
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
|
|
Albert
Smith
|
|
|
|
|
EXHIBIT
INDEX
|
|
|
|
|
Exhibit
Number
|
|
Description
|
|
|
|
|
1.2*
|
|
Form
of Underwriting Agreement, if any.
|
|
3.3
|
|
Restated
and Amended Articles of Incorporation incorporated by reference to the
Form 10-KSB filed on October 11, 2005.
|
|
3.5
|
|
Amended
and Restated By-Laws of the Company dated as of January 8, 2008,
incorporated by reference to the Form 8-K filed on January 14,
2008.
|
|
4.19
|
|
Rights
Agreement, dated as of February 1, 2007, between the Computershare Trust
Company N.A., as Rights Agent, incorporated by reference to Exhibit 1 to
the Company's Registration Statement on Form 8-A filed on February 7,
2007.
|
|
4.20
|
|
Certificate
of Designation of Rights, Preferences and Privileges of Series C Junior
Participating Preferred Stock, incorporated by reference to Exhibit 1 to
the Company's Registration Statement on Form 8-A filed February 7,
2007.
|
|
4.22*
|
|
Form
of Securities Purchase Agreement, if any.
|
|
4.23*
|
|
Form
of Warrant Agreement, if any.
|
|
4.24*
|
|
Form
of Warrant Certificate, if any.
|
|
4.25*
|
|
Form
of Unit Agreement, if any.
|
|
4.26*
|
|
Form
of Unit Certificate, if any.
|
|
5.1
|
|
Opinion
of Keller Rohrback, PLC.
|
|
23.1
|
|
Consent
of Keller Rohrback, PLC (included in its opinion filed as Exhibit 5.1
hereto).
|
|
23.2
|
|
Consent
of DeCoria, Maichel & Teague, P.S., independent registered public
accounting firm.
|
|
24.1
|
|
Power
of Attorney (included on signature
page).
|
|
*
|
To
be filed by an amendment to the registration statement or as an exhibit to
a Current Report on Form 8-K under the Exchange Act, subsequent to
effectiveness, if necessary.
|