As Filed with the Securities and Exchange
Commission on August 25, 2015
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)
Minnesota |
|
41-1458152 |
(State or other jurisdiction
of incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
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.
Gallagher & Kennedy, P.A.
2575 E. Camelback Road
Phoenix, Arizona 85016
(602) 530-8000
Facsimile Number: (602) 530-8500
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):
Large accelerated filer |
¨ |
|
Accelerated filer |
x |
Non-accelerated filer |
¨ |
|
Smaller reporting company |
¨ |
CALCULATION
OF REGISTRATION FEE
Title of each class of securities to be registered | |
Amount to be registered(1) | | |
Proposed maximum offering price per unit | | |
Proposed maximum aggregate offering price (3) | | |
Amount of registration fee(4) | |
Common stock, par value $0.001 per share (2) | |
| — | | |
| — | | |
| — | | |
| — | |
Preferred stock, par value $0.001 per share | |
| — | | |
| — | | |
| — | | |
| — | |
Warrants | |
| — | | |
| — | | |
| — | | |
| — | |
Units(5) | |
| — | | |
| — | | |
| — | | |
| — | |
Total | |
| | | |
| | | |
$ | 20,000,000 | | |
$ | 2,324 | |
(1) |
There are being registered hereunder such indeterminate number of shares of common stock, preferred stock, warrants to purchase common stock or preferred stock, and such indeterminate number of units, as may be determined from time to time at indeterminate prices. The securities registered also include such indeterminate amounts and numbers of common stock and preferred stock as may be issued upon conversion of or exchange for preferred stock that provide for conversion or exchange, upon exercise of warrants, or pursuant to the antidilution provisions of any such securities. The securities being registered hereunder also include such indeterminate number of securities as may be issuable with respect to the securities being registered hereunder as a result of stock splits, stock dividends or similar transactions, in each case determined in accordance with to Rule 416 under the Securities Act. |
(2) |
Each share of common stock also includes preferred share purchase rights to purchase shares of Series C Junior Participating Preferred Stock under the registrant’s Rights Agreement dated February 1, 2007 as described under “Description of Capital Stock.” The preferred stock purchase rights are not currently separable from the shares of common stock and are not currently exercisable. The preferred stock purchase rights are attached to and trade with the common stock and no separate consideration is payable for the rights. Therefore, the registration fee for the preferred stock purchase rights is included in the fee for the common stock. |
(3) |
In no event will the aggregate offering price for all securities pursuant to this registration statement exceed $20,000,000. |
(4) |
Calculated pursuant to Rule 457(o) under the Securities Act. |
(5) |
Any of the securities registered hereunder may be sold separately, or as units with other securities registered hereby. We will determine the proposed maximum offering price per unit when we issue the above listed securities. The proposed maximum per unit and aggregate offering prices per class of securities will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered under this registration statement and is not specified as to each class of security pursuant to General Instruction II.D of Form S-3 under the Securities Act. |
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 August 25, 2015
ISORAY, INC.
$20,000,000
Common Stock
Preferred
Stock
Warrants
Units
We may offer to the public
from time to time in one or more series or issuances at prices and on terms that we will determine at the time of each offering,
shares of our common stock, shares of preferred stock, warrants to purchase shares of our common stock and/or preferred stock,
units consisting of a combination of the foregoing securities, or any combination of these securities. The aggregate initial offering
price of all securities sold by us pursuant to this prospectus will not exceed $20,000,000.
This prospectus describes
the general manner in which our securities may be offered using this prospectus. Each time we offer and sell securities, we will
provide you with a prospectus supplement that will contain specific information about the terms of that offering. Any prospectus
supplement may also add, update, or change information contained in this prospectus. You should carefully read this prospectus
and the applicable prospectus supplement as well as the documents incorporated or deemed to be incorporated by reference in this
prospectus before you purchase any of the securities offered hereby. This prospectus may not be used to offer and sell securities
unless accompanied by a prospectus supplement.
We may offer the securities
directly or through agents or to or through underwriters or dealers. If any agents or underwriters are involved in the sale of
the securities their names, and any applicable purchase price, fee, commission or discount arrangement between or among them, will
be set forth, or will be calculable from the information set forth, in an accompanying prospectus supplement. The securities may
be offered and sold through public or private transactions at market prices prevailing at the time of sale, at a fixed price or
fixed prices, at negotiated prices, at various prices determined at the time of sale or at prices related to prevailing market
prices. We can sell the securities through agents, underwriters or dealers only with delivery of a prospectus supplement describing
the method and terms of the offering of such securities. In addition, shares of our common stock may be offered from time to time
through ordinary brokerage transactions on the NYSE MKT. See “Plan of Distribution.”
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 MKT under the symbol "ISR" and as of August 20, 2015, the closing price of our common stock was $1.48.
Investing in the securities
we may offer involves various risks. See the sections entitled "Risk Factors" on page 3 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.
You should read the entire prospectus carefully before you make your investment decision.
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 ________.
TABLE OF CONTENTS
The registration statement,
including the exhibits and the documents incorporated herein by reference, can be read on the Securities and Exchange Commission
website or at the Securities and Exchange Commission offices mentioned under the heading "Where You Can Find More Information."
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 filed with the Securities and Exchange Commission, or SEC, using a “shelf” registration
process. Under this shelf registration process, we may sell any of the securities, or any combination of the securities, described
in this prospectus, in each case in one of more offerings up to a total dollar amount of proceeds of $20,000,000. This prospectus
describes the general manner in which our securities may be offered by this prospectus. Each time we sell securities, we will provide
a prospectus supplement that will contain specific information about the terms of those securities and terms of that offering.
The prospectus supplement may also add, update or change information contained in this prospectus or in documents incorporated
by reference in this prospectus. To the extent that any statement that we make in a prospectus supplement is inconsistent with
statements made in this prospectus or in documents incorporated by reference in this prospectus, you should rely on the information
in the prospectus supplement. You should carefully read both this prospectus and any prospectus supplement together with the additional
information described under “Where You Can Find More Information” before buying any securities in this offering.
ABOUT ISORAY
In this prospectus, the
terms "IsoRay," the "Company," "we," "us," "our" and similar terms refer to IsoRay,
Inc. and its subsidiaries IsoRay, Medical, Inc. (Medical) and IsoRay International LLC.
In 2003, IsoRay obtained
clearance from the FDA for treatment for all solid tumor applications using Cesium-131. As of the date of this prospectus, such
applications include prostate cancer; ocular melanoma; head, neck and lung tumors; breast cancer; liver cancer; brain cancer; colorectal
cancer; gynecological cancer; esophageal cancer; and pancreatic cancer. The brachytherapy seed form of Cesium-131 may be used in
surface, interstitial 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 approximately 30 years with attributes
that could make it the long-term "seed of choice" for internal radiation therapy procedures.
Brachytherapy seeds are
small devices used in an interstitial 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 titanium capsule. When brachytherapy is the only treatment (monotherapy)
used in the prostate, approximately 70 to 120 seeds are permanently implanted in the prostate in an outpatient procedure. 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 to 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 as an adjunct therapy 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 commonly vary from as few as 8 seeds to more than
100 seeds depending on the type of cancer, the location of the tumor being treated and the type of therapy being utilized.
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, however, the market for the treatment has been
limited generating a minimal amount of revenue for the Company. The Company continues to make the treatment available to interested
physicians and medical facilities. In June 2009, the Company began selling its Proxcelan® Cs-131 seeds for treatment
of head and neck tumors, commencing with treatment of a tumor that could not be accessed by other treatment modalities. The Company
obtained clearance in August 2009 from the FDA to permit loading Cesium-131 into bioabsorbable braided sutures which are commonly
referred to in the industry as braided strands, facilitating treatment of brain, lung, and head and neck tumors, as well as tumors
in other organs, with Proxcelan® Cs-131. During the fiscal year ended June 30, 2010, the Company expanded the number
of areas of the body in which the Proxcelan® Cs-131 seeds were being utilized for treatment by adding lung cancer
in August 2009, colorectal cancer in October 2009, and chest wall cancer in December 2009. During the fiscal year ended June 30,
2011, the Company continued the expansion in the number of areas of the body in which the Proxcelan® Cs-131 seeds
were being utilized through the addition of the treatment of brain cancer in September 2010 and the treatment of gynecological
cancer in December 2010.
In March 2011, the Company
received clearance to commercially deliver Proxcelan® Cesium-131 brachytherapy seeds that are preloaded into bioabsorbable
braided sutures into Europe. This clearance permits the product to be commercially distributed for treatment of brain, lung, and
head and neck tumors, as well as tumors in other organs, in Europe.
In
August 2011, Medical received clearance from the FDA for its premarket notification (510(k)) for the GliaSite®
Radiation Therapy System (GliaSite® RTS). The GliaSite®
RTS is the only FDA-cleared balloon catheter device used in the treatment of brain cancer.
In May 2012, Medical received
a CE mark for the GliaSite® RTS which states that the Company conforms with the product requirements of the European
Council Directive 93/42/EEC. The CE mark allows the GliaSite® RTS to be sold in 31 European countries and to be
marketed in the European Free Trade Associate member states and the European Union. In June 2012, the first Cesium-131 brachytherapy
seed sutured mesh was implanted on a patient suffering from a recurring meningioma tumor.
Management focused in fiscal
2012 and 2013 on obtaining its regulatory clearances and final research and development of its GliaSite® RTS, entering
into international distribution agreements to sell the product in Europe and Australia, and marketing its brain and lung products.
The GliaSite® RTS is the world’s only system that enables doctors to use liquid radiation in areas where the
cancer is most likely to remain after brain surgery and tumor removal. In fiscal 2013, the Company began supporting the use of
a system developed at the Barrow Neurologic Institute to deliver doses of Cesium-131 to treat malignant meningioma, brain metastases,
and primary cancers of the brain. A multi-institutional study was conducted to explore the use of braided sutures containing Proxcelan®
Cs-131 seeds placed directly into the cavity following surgical resection of brain metastases.
In August 2013, Medical
received an approval for an extension to the scope of the CE mark for the GliaSite® RTS. This approval allows Medical
to implement certain product improvements that management believes will enhance GliaSite® RTS’s acceptance
by customers in the European market.
In December 2013, the Company
received clearance for Cesitrex™ from the US Food and Drug Administration. Cesitrex™ is the liquid
form of Cesium-131 and can be used in place of Iotrex®, the liquid form of Iodine-125, in the Company’s GliaSite®
RTS. In May 2014, the Company received clearance for Cesitrex™ from the Washington Department of Health. In June
2014, the Company delivered its first order of Cesitrex™ for use in treating a patient.
Our principal executive
offices are located at 350 Hills Street, Suite 106, Richland, Washington 99354, and our telephone number is (509) 375-1202. We
maintain an Internet website at www.isoray.com. Information on or accessible through our website does not constitute part
of this prospectus and should not be relied upon in connection with making any investment decision with respect to the securities
offered by this prospectus.
Although
our predecessor operating company was organized in 1998, IsoRay, Inc. was incorporated in 1983 in Minnesota and operated under
the name Century Park Pictures Corporation until the merger with IsoRay Medical, Inc. on July 28, 2005.
RISK FACTORS
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.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
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.
USE OF PROCEEDS
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, research and development, 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.
The intended application
of proceeds from the sale of any particular offering of securities using this prospectus will be described in the accompanying
prospectus supplement relating to such offering. The precise amount and timing of the application of these proceeds will depend
on our funding requirements and the availability and costs of other funds.
GENERAL DESCRIPTION OF SECURITIES
We may offer and sell, at any time and from
time to time:
| · | shares of our common stock; |
| · | shares of our preferred stock; |
| · | warrants to purchase shares of our common stock and/or preferred stock; |
| · | units consisting of a combination of the foregoing; or |
| · | any combination of these securities. |
The terms of any securities
we offer will be determined at the time of sale. When particular securities are offered, a supplement to this prospectus will be
filed with the SEC, which will describe the terms of the offering and sale of the offered securities.
DESCRIPTION OF CAPITAL STOCK
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 MKT under the symbol "ISR". As of August 20, 2015, 55,013,553 shares of common stock were issued and outstanding,
and there were approximately 237 holders of record.
The Company's Articles
of Incorporation provide that the Company has the authority to issue 200 million shares of capital stock, which are currently divided
into two classes as follows: 192,998,329 shares of common stock, par value of $0.001 per share; and 7,001,671 shares of preferred
stock, also with a par value of $0.001 per share.
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 8774
Lucent Blvd., Ste 225, Highlands Ranch, CO 80129, and its telephone number is (303) 262-0600.
Listing
Our shares of common stock
are traded on the NYSE MKT under the ticker symbol “ISR.”
DESCRIPTION OF PREFERRED STOCK
We may issue our preferred
stock, par value $0.001 per share, from time to time in one or more series. Of the 7,001,671 shares of presently authorized preferred
stock, 1,000,000 are designated as Series A Preferred Stock, 5,000,000 are designated as Series B Preferred Stock, 1,000,000 are
designated as Series C Junior Participating Preferred Stock, and 1,671 are designated as Series D. Convertible Preferred Stock.
The Series C preferred shares are related to the Rights Agreement described above. As of August 20, 2015, no shares of our Series
A, Series C or Series D preferred stock were outstanding and 59,065 shares of our Series B preferred stock were outstanding.
Series A
Series A preferred shares
are entitled to a 10% dividend annually on the stated par value per share. These shares are convertible into shares of common stock
at the rate of one share of common stock for each share of Series A preferred stock, and are subject to automatic conversion into
common stock upon the closing of an underwritten public offering pursuant to an effective registration statement under the Securities
Act of 1933 covering the offer and sale of common stock in which the gross proceeds to the Company are at least $4 million. Series
A preferred shareholders have voting rights equal to the voting rights of common stock, except that the vote or written consent
of a majority of the outstanding preferred shares is required for any changes to the Company's Articles of Incorporation, Bylaws
or Certificate of Designation, or for any bankruptcy, insolvency, dissolution or liquidation of the Company. Upon liquidation of
the Company, the Company's assets are first distributed ratably to the Series A preferred shareholders.
Series B
Series B preferred shares
are entitled to a cumulative 15% dividend annually on the stated par value per share. These shares are convertible into shares
of common stock at the rate of one share of common stock for each share of Series B preferred stock, and are subject to automatic
conversion into common stock upon the closing of an underwritten public offering pursuant to an effective registration statement
under the Securities Act of 1933 covering the offer and sale of common stock in which the gross proceeds to the Company are at
least $4 million. Series B preferred shareholders have voting rights equal to the voting rights of common stock, except that the
vote or written consent of a majority of the outstanding preferred shares is required for any changes to the Company's Articles
of Incorporation, Bylaws or Certificate of Designation, or for any bankruptcy, insolvency, dissolution or liquidation of the Company.
Upon liquidation of the Company, the Company's assets are first distributed ratably to the Series A preferred shareholders, then
to the Series B preferred shareholders.
Series D
Established in August 2013,
Series D preferred shares are entitled to dividends in the same form as dividends actually paid on shares of common stock. Additionally,
the Company shall not pay any dividends on shares of common stock (other than dividends in the form of common stock) unless the
holders of Series D Convertible Preferred Stock shall first receive dividends on shares of Series D Convertible Preferred Stock
held by them (on an as-if-converted-to-common-stock-basis) in an amount equal to and in the same form as any such dividends (other
than dividends in the form of common stock) to be paid on shares of common stock. Except as required by law, shares of Series D
Convertible Preferred Stock shall not have the right to vote on any matter other than those set forth in the Certificate of Designation
with the potential to specifically adversely affect the Series D Convertible Preferred Stock. Series D Convertible Preferred shares
are convertible into shares of common stock at the rate of 1,869.15 shares of common stock for each share of Series D Convertible
Preferred Stock at any time at the option of the holder, provided that the holder will be prohibited from converting shares of
Series D Convertible Preferred Stock into shares of our common stock if, as a result of the conversion, the holder, together with
its affiliates, would beneficially own more than 9.99% of the total number of shares of our common stock then issued and outstanding,
which is referred to herein as the “Beneficial Ownership Limitation”.
Undesignated Preferred Stock
Our Articles of Incorporation
authorize our Board of Directors to issue preferred stock from time to time with such designations, preferences, conversion or
other rights, voting powers, restrictions, dividends or limitations as to dividends or other distributions, qualifications or terms
or conditions of redemption as shall be determined by the Board of Directors for each class or series of stock subject to the provisions
of our Articles of Incorporation. Preferred stock is available for possible future financings or acquisitions and for general
corporate purposes without further authorization of stockholders unless such authorization is required by applicable law, the rules
of the NYSE MKT or other securities exchange or market on which our stock is then listed or admitted to trading.
The Board of Directors,
without approval of holders of common stock, can issue preferred stock with voting, conversion or other rights that could adversely
affect the voting power and other rights of the holders of common stock. Preferred stock could thus be issued quickly with terms
calculated to delay or prevent a change in control of or make removal of management more difficult and/or impair the liquidation
rights of our common stock. Additionally, the issuance of preferred stock may have the effect of decreasing the market price of
the common stock.
If we offer a specific
series of new preferred stock under this prospectus, we will describe the terms of the preferred stock in the prospectus supplement
for such offering and will file a copy of the certificate establishing the terms of the preferred stock with the SEC. To the extent
required, this description will include:
| • | the title and stated or par value of the preferred stock; |
| • | the number of shares of the preferred stock offered, the liquidation preference per share and the
offering price of the preferred stock; |
| • | the dividend rate(s), period(s) and/or payment date(s) or method(s) of calculation thereof applicable
to the preferred stock; |
| • | whether dividends shall be cumulative or non-cumulative and, if cumulative, the date from which
dividends on the preferred stock shall accumulate; |
| • | the procedures for any auction and remarketing, if any; |
| • | the provisions for a sinking fund, if any, for the preferred stock; |
| • | any voting rights of the preferred stock; |
| • | the provisions for redemption, if applicable, of the preferred stock; |
| • | any listing of the preferred stock on any securities exchange or market; |
| • | the terms and conditions, if applicable, upon which the preferred stock will be convertible into
our common stock, including the conversion price or the manner of calculating the conversion price and conversion period, and any
other terms of conversion (including any anti-dilution provisions, if any); |
| • | the relative ranking and preferences of the preferred stock as to dividend rights and rights upon
liquidation, dissolution or winding up of the affairs of the Company; |
| • | any material limitations on issuance of any series of preferred stock ranking senior to or on a
parity with the series of preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of the Company; |
| • | any other affirmative, negative or other covenants or contractual rights which might be attendant
with the specific series of preferred stock; |
| • | if appropriate, a discussion of Federal income tax consequences applicable to the preferred stock;
and |
| • | any other specific terms, preferences, rights, limitations or restrictions of the preferred stock. |
The preferred stock offered
by this prospectus, when issued, will not have, or be subject to, any preemptive or similar rights, and will, when issued, be fully
paid and non-assessable.
DESCRIPTION OF WARRANTS
We may issue warrants for
the purchase of shares of our common stock and/or preferred stock in one or more series together with other securities or separately,
as described in each applicable prospectus supplement. Warrants may be issued independently or together with any preferred stock
or common stock, and may be attached to or separate from any offered securities.
The applicable prospectus
supplement will contain, where applicable, the following terms of and other information relating to the warrants:
| • | the specific designation and aggregate number of, and the price at which we will issue, the warrants; |
| • | the currency or currency units in which the offering price, if any, and the exercise price are
payable; |
| • | the designation, amount and terms of the securities purchasable upon exercise of the warrants; |
| • | if applicable, the exercise price for shares of our common stock and the number of shares of common
stock to be received upon exercise of the warrants; |
| • | if applicable, the exercise price for shares of our preferred stock, the number of shares of preferred
stock to be received upon exercise of the warrants, and a description of that series of our preferred stock; |
| • | the date on which the right to exercise the warrants will begin and the date on which that right
will expire or, if the warrants may not be continuously exercised throughout that period, the specific date or dates on which the
warrants may be exercised; |
| • | whether the warrants will be issued in fully registered form or bearer form, in definitive or global
form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the
form of the unit and of any security included in that unit; |
| • | any applicable material U.S. federal income tax consequences; |
| • | the identity of any warrant agent for the warrants and of any other depositaries, execution or
paying agents, transfer agents, registrars or other agents; |
| • | the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the
warrants on any securities exchange or market; |
| • | if applicable, the date from and after which the warrants and the common stock and/or preferred
stock will be separately transferable; |
| • | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
| • | information with respect to book-entry procedures, if any; |
| • | the anti-dilution provisions of the warrants, if any; |
| • | any redemption or call provisions; |
| • | whether the warrants are to be sold separately or with other securities as parts of units; and |
| • | any additional terms of the warrants, including terms, procedures and limitations relating to the
exchange and exercise of the warrants. |
DESCRIPTION OF UNITS
We may issue units composed
of one or more of the other securities described in this prospectus 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 may evidence units by
unit certificates that we issue under a separate agreement. We may issue the units under a unit agreement between us and one or
more unit agents. If we elect to enter into a unit agreement with a unit agent, the unit agent will act solely as our agent in
connection with the units and will not assume any obligation or relationship of agency or trust for or with any registered holders
of units or beneficial owners of units. We will indicate the name and address and other information regarding the unit agent in
the applicable prospectus supplement relating to a particular series of units if we elect to use a unit agent.
We will describe in the
applicable prospectus supplement the terms of the series of units being offered, including:
| • | 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; |
| • | any provisions of the governing unit agreement that differ from those described herein; and |
| • | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the
securities comprising the units. |
The other provisions regarding
our common stock, preferred stock and/or warrants as described in this section will apply to each unit to the extent such unit
consists of shares of our common stock, preferred stock and/or warrants.
PLAN OF DISTRIBUTION
We may sell the securities
offered through this prospectus (i) to or through underwriters or dealers, (ii) directly to a single purchaser or multiple
purchasers, including our affiliates, (iii) through agents, or (iv) through a combination of any these methods. The securities
may be distributed at a fixed price or prices, which may be changed, market prices prevailing at the time of sale, prices related
to the prevailing market prices, or negotiated prices. The prospectus supplement will include the following information:
| • | the terms of the offering; |
| • | the names of any underwriters or agents; |
| • | the name or names of any managing underwriter or underwriters; |
| • | the purchase price of the securities; |
| • | any over-allotment options under which underwriters may purchase additional securities from us; |
| • | the net proceeds from the sale of the securities; |
| • | any delayed delivery arrangements; |
| • | any underwriting discounts, commissions and other items constituting underwriters’ compensation; |
| • | any initial public offering price; |
| • | any discounts or concessions allowed or reallowed or paid to dealers; |
| • | any commissions paid to agents; and |
| • | any securities exchange or market on which the securities may be listed. |
Any public offering price
and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
Sale Through Underwriters or Dealers
Only underwriters named
in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If underwriters are used
in the sale, the underwriters will acquire the securities for their own account, including through underwriting, purchase, security
lending or repurchase agreements with us. The underwriters may resell the securities from time to time in one or more transactions,
including negotiated transactions. Underwriters may sell the securities in order to facilitate transactions in any of our other
securities (described in this prospectus or otherwise), including other public or private transactions and short sales. Underwriters
may offer securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly
by one or more firms acting as underwriters. Unless otherwise indicated in the prospectus supplement, the obligations of the underwriters
to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all the offered
securities if they purchase any of them. The underwriters may change from time to time any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers.
If dealers are used in
the sale of securities offered through this prospectus, we will sell the securities to them as principals. They may then resell
those securities to the public at varying prices determined by the dealers at the time of resale. The prospectus supplement will
include the names of the dealers and the terms of the transaction.
In compliance with the
guidelines of the Financial Services Regulatory Authority, Inc., or FINRA, the maximum compensation to be received by a FINRA member
or independent broker-dealer may not exceed 8% of the offering proceeds.
Direct Sales and Sales Through Agents
We may sell the securities
offered through this prospectus directly. In this case, no underwriters or agents would be involved. Such securities may also be
sold through agents designated from time to time. The prospectus supplement will name any agent involved in the offer or sale of
the offered securities and will describe any commissions payable to the agent. Unless otherwise indicated in the prospectus supplement,
any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We may sell the securities
directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act with
respect to any sale of those securities. The terms of any such sales will be described in the prospectus supplement.
Delayed Delivery Contracts
If the prospectus supplement
indicates, we may authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase securities
at the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those conditions described in the prospectus supplement. The applicable
prospectus supplement will describe the commission payable for solicitation of those contracts.
Market Making, Stabilization and Other Transactions
We may elect to list offered
securities on an exchange or in the over-the-counter market. Any underwriters that we use in the sale of offered securities may
make a market in such securities, but may discontinue such market making at any time without notice. Therefore, we cannot assure
you that the securities will have a liquid trading market.
Certain persons participating
in an offering may engage in overallotment, stabilizing transactions, syndicate covering transactions and penalty bids in accordance
with rules and regulations under the Exchange Act. Overallotment involves the sale in excess of the offering size, which create
a short position. Stabilizing transactions involve bids to purchase the underlying security in the open market for the purpose
of pegging, fixing or maintaining the price of the securities. Syndicate covering transactions involve purchases of the securities
in the open market after the distribution has been completed in order to cover syndicate short positions.
Penalty bids permit the
underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate member
are purchased in a syndicate covering transaction to cover syndicate short positions. Stabilizing transactions, syndicate covering
transactions and penalty bids may cause the price of the securities to be higher than it would be in the absence of the transactions.
The underwriters may, if they commence these transactions, discontinue them at any time.
General Information
Agents, underwriters, and
dealers may be entitled, under agreements entered into with us, to indemnification by us against certain liabilities, including
liabilities under the Securities Act. Our agents, underwriters, and dealers, or their affiliates, may be customers of, engage in
transactions with or perform services for us, in the ordinary course of business.
LEGAL MATTERS
Certain legal matters with
respect to the securities being offered hereby will be passed on by Gallagher & Kennedy, P.A., Phoenix, Arizona.
EXPERTS
DeCoria, Maichel &
Teague, P.S., independent registered public accounting firm, has audited our consolidated balance sheets as of June 30, 2014 and
June 30, 2013, and related consolidated statements of operations, shareholders' equity and cash flows for the years ended June
30, 2014 and 2013, included in our Annual Report on Form 10-K for the fiscal year ended June 30, 2014, 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.
INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
MATERIAL CHANGES
None.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration
statement on Form S-3 with the SEC relating to the securities 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 securities 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.
INCORPORATION BY REFERENCE
This prospectus is part
of a registration statement filed with the SEC. The SEC allows us to “incorporate by reference” into this prospectus
the information that we file with them, which means that we can disclose important information to you by referring you to those
documents. The information incorporated by reference is considered to be part of this prospectus, and information that we
file later with the SEC will automatically update and supersede this information. The following documents were filed with
the SEC pursuant to the Exchange Act and are incorporated by reference and made a part of this prospectus:
| • | Annual Report on Form 10-K for the fiscal year ended June 30, 2014, filed on September 29,
2014; |
| • | Quarterly Reports on Form 10-Q for the fiscal quarters ended September 30, 2014, December 31, 2014
and March 31, 2015, filed on November 14, 2014, February 17, 2015 and May 15, 2015; |
| • | Current Reports on Form 8-K filed on August 7, 2014, August 14, 2014, September 4, 2014, September
30, 2014, November 17, 2014, February 18, 2015, March 2, 2015, May 18, 2015 and June 22, 2015; |
| • | Proxy Statement and Additional Materials on Schedule 14A filed on January 14, 2015; |
| • | the description of our common stock contained in our Registration Statement on Form 8-A filed with
the SEC on April 12, 2007 (File No. 001-333407), including any amendments or reports filed for the purpose of updating such
description; |
| • | the description of our rights contained in our Registration Statement on Form 8-A filed on February
7, 2007 (File No. 001-14247), including any amendments or reports filed for the purpose of updating such description; and |
| • | all documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (i) after the date on which this registration
statement that includes this prospectus was initially filed with the SEC and prior to the effectiveness of such registration statement,
and (ii) after the date of this prospectus and prior to the termination of this offering, unless otherwise stated therein. |
Notwithstanding the foregoing,
information furnished under Items 2.02 and 7.01 of any Current Report on Form 8-K, including the related exhibits, is
not incorporated by reference in this prospectus.
Any statement contained
herein or made in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement contained herein, or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus
We will provide without
charge to each person to whom this prospectus is delivered, upon oral or written request, a copy of any or all of the foregoing
documents incorporated herein by reference (other than exhibits to such documents unless such exhibits are specifically incorporated
by reference into the information that this prospectus incorporates). Written or telephone requests should be directed to: IsoRay,
Inc., 350 Hills Street, Suite 106, Richland, Washington 99354, telephone number (509) 375-1202, Attn: Corporate Secretary.
You should rely only on
the information contained or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different or additional information. We will not make an offer of these securities in any state
where the offer is not permitted. You should not assume that the information in this prospectus or any supplement is accurate as
of any date other than the date of those documents.
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
has entered into Indemnification Agreements with each officer and director who took office subsequent to July 1, 2006, 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 costs and expenses payable by the Registrant in connection with this offering, other than underwriting commissions and
discounts, all of which are estimated except for the SEC registration fee.
Item | |
Amount | |
SEC registration fee | |
$ | 2,324 | |
FINRA filing fee* | |
| | |
Printing and engraving expenses* | |
| | |
Legal fees and expenses * | |
| | |
Accounting fees and expenses * | |
| | |
Transfer agent and registrar’s fees and expenses * | |
| | |
Miscellaneous expenses* | |
| | |
| |
| | |
Total | |
$ | * | |
| * | Estimated expenses not
presently known. |
To be filed by amendment, Form 8-K or Rule 424
filing.
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. The Company has 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. The Registrant maintains a directors’ and officers’ insurance policy.
The policy insures directors and other officers against unindemnified losses arising from certain wrongful acts in their capacities
as directors and officers and reimburses the Registrant for those losses for which the Registrant has lawfully indemnified its
directors and officers. The policy contains various exclusions.
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.* |
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. |
3.6 |
|
Certificate of Designation and Preferences, Rights and Limitations of Series D Convertible Preferred Stock dated August 9, 2013 of IsoRay, Inc., incorporated by reference to the Form 8-K filed on August 29, 2013. |
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. |
4.34 |
|
Specimen Common Stock Certificate* |
4.35 |
|
Form of Certificate of Designation.* |
4.36 |
|
Form of Preferred Stock Certificate.* |
4.37 |
|
Form of Warrant Agreement.* |
4.38 |
|
Form of Warrant Certificate.* |
4.39 |
|
Form of Stock Purchase Agreement.* |
4.40 |
|
Form of Unit Agreement.* |
5.1 |
|
Opinion of Gallagher & Kennedy, P.A. |
12.1 |
|
Statement of Computation of Ratios.* |
23.1 |
|
Consent of Gallagher & Kennedy, P.A. (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 amendment or by a Current Report on Form 8-K and incorporated by reference herein. |
Item 17. Undertakings.
| a. | The undersigned registrant hereby undertakes: |
| 1. | To file, during any period in which offers or sales are being made, a post-effective amendment
to this registration statement: |
| i. | To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; |
| ii. | To reflect in the prospectus any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation
from the low or high 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;
and |
| iii. | To include any material information with respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such information in the registration statement; |
Provided however, that: Paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
| 2. | That, for the purpose of determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| 3. | To remove from registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering. |
| b. | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| 1. | 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 |
| 2. | 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. |
| 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: |
| i. | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering
required to be filed pursuant to Rule 424; |
| ii. | 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; |
| iii. | 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 |
| iv. | 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. | The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus,
to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference
in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange
Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X are not set forth
in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly
report that is specifically incorporated by reference in the prospectus to provide such interim financial information. |
| f. | 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. |
| g. | 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 August 24, 2015.
|
ISORAY, INC. |
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By: |
/s/ Dwight Babcock |
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Dwight Babcock, Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS,
that each person whose signature appears below constitutes and appoints Dwight Babcock, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and his name, place and stead, in any and all capacities, to
sign any or all amendments (including pre-effective and post-effective amendments) to this registration statement, and to file
the same, with all exhibits thereto and other documents in connection therewith, including any Registration Statement filed pursuant
to Rule 462(b) under the Securities Act of 1933, with the SEC, granting unto said attorney-in-fact and agent, 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 to all intents
and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or any
of his substitutes, may lawfully 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.
Signatures |
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Title |
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Date |
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/s/ Dwight Babcock |
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President, Chief Executive Officer and |
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August 24, 2015 |
Dwight Babcock |
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Chairman of the Board of Directors |
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(Principal Executive Officer) |
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/s/ Brien Ragle |
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Chief Financial Officer |
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August 24, 2015 |
Brien Ragle |
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/s/ Thomas LaVoy |
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Director |
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August 24, 2015 |
Thomas LaVoy |
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/s/ Philip Vitale |
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Director |
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August 24, 2015 |
Philip Vitale |
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/s/ Michael McCormick |
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Director |
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August 24, 2015 |
Michael McCormick |
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Exhibit 5.1
August 25, 2015
IsoRay, Inc.
350 Hills Street, Suite 106
Richland, WA 99354
| Re: | IsoRay, Inc., Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel
to IsoRay, Inc., a Minnesota corporation (the “Company”), in connection with the preparation of a registration statement
on Form S-3 (the “Registration Statement”), filed today by the Company with the Securities and Exchange Commission
(the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating
to the offer and sale from time to time by the Company of up to a maximum of $20,000,000 aggregate initial offering price of a
presently indeterminate amount of the following securities (each a “Security” and collectively, or in any combination,
the “Securities”):
(i) shares
of the Company’s common stock, $0.001 par value per share (the “Common Stock”);
(ii) preferred
stock purchase rights associated with the Common Stock (the “Rights”) to be issued pursuant to the Rights Agreement
(as defined below);
(iii) one
or more classes or series of shares of the Company’s preferred stock, $0.001 par value per share (the “Preferred Stock”);
(iv) warrants
representing the rights to purchase shares of Common Stock or Preferred Stock (the “Warrants”); and
(v) units
representing Common Stock and Rights, Preferred Stock, Warrants or any combination(s) thereof (each a “Unit” and collectively
the “Units”).
The opinions contained
in this opinion letter are delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities
Act.
The Securities may be issued
and sold by the Company, from time to time on a delayed or continuous basis pursuant to applicable provisions of Rule 415 under
the Securities Act, in amounts, at prices and on terms to be determined in light of market conditions at the time of sale, and
as set forth in the Registration Statement, any amendment thereto, the prospectus contained therein (the “Prospectus”)
and any supplements to the Prospectus (each, a “Prospectus Supplement”).
August 25, 2015
Page 2
You have requested our
opinion as to the matters set forth below in connection with the Registration Statement. For purposes of rendering the opinions
set forth below, we have examined (i) the Registration Statement, including the exhibits filed therewith, (ii) the Prospectus,
(iii) the Company’s Articles of Incorporation, as amended or supplemented (the “Articles of Incorporation”),
(iv) the Company’s Bylaws, as amended (the “Bylaws”), (v) records of proceedings of the Board of Directors, or
committees thereof, and records of proceedings of the stockholders, deemed by us to be relevant to this opinion letter, and (vi)
the Rights Agreement (the “Rights Agreement”) dated February 1, 2007 between the Company and Computershare Trust Company
N.A. (the “Rights Agent”). We also have made such further legal and factual examinations and investigations as we deemed
necessary for purposes of expressing the opinion set forth herein.
We have assumed that the
terms of the Securities will have been established so as not to, and that the execution and delivery by the Company of the Securities,
and the performance of its obligations under the Securities, will not, violate, conflict with or constitute a default under (i)
any agreement or instrument to which the Company is subject (except that we do not make the assumption set forth in this clause
(i) with respect to those agreements and instruments that are listed on the Exhibit Index in Part II of the Registration Statement),
(ii) any law, rule or regulation to which the Company is subject (except that we do not make the assumption with respect to Opined
on Law (as defined below)), (iii) any judicial or regulatory order or decree of any governmental authority or (iv) any consent,
approval, license, authorization or validation of, or filing, recording or registration with any governmental authority.
As to certain factual matters
relevant to this opinion letter, we have relied conclusively upon originals or copies, certified or otherwise identified to our
satisfaction, of such records, agreements, documents and instruments, as we have deemed appropriate as a basis for the opinion
hereinafter set forth. Except to the extent expressly set forth herein, we have made no independent investigations with regard
to matters of fact, and, accordingly, we do not express any opinion as to matters that might have been disclosed by independent
verification.
For purposes of this opinion
letter, we have assumed the accuracy and completeness of each document submitted to us, the genuineness of all signatures on original
documents, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents
submitted to us as facsimile, electronic, certified, conformed or photostatic copies thereof, and the due execution and delivery
of all documents where due execution and delivery are prerequisites to the effectiveness thereof. We have further assumed the legal
capacity of natural persons, that persons identified to us as officers of the Company are actually serving in such capacity, that
the representations of officers and employees of the Company are correct as to questions of fact, that the Board of Directors will
have taken all action necessary to set the issuance price of the Securities to be offered and sold and that each party to the documents
we have examined or relied on (other than the Company) has the power, corporate or other, to enter into and perform all obligations
thereunder and also have assumed the due authorization by all requisite action, corporate or other, the execution and delivery
by such parties of such documents, and the validity and binding effect thereof on such parties. We have not independently verified
any of these assumptions.
August 25, 2015
Page 3
The opinions expressed
in this opinion letter are limited to (i) the General Corporation Law of the State of Minnesota (the “MGCL”) and the
applicable provisions of the Minnesota Constitution and the reported judicial decisions interpreting such statute and provisions,
and (ii) federal laws of the United States of America to the extent referred to specifically herein (all of the foregoing being
referred to as “Opined on Law”). We do not express any opinion herein concerning any other laws. We are not engaged
in the practice of law in the State of Minnesota; however, we are generally familiar with the MGCL as currently in effect and have
made such inquiries as we consider necessary to render the opinion contained herein. We assume no obligations to revise or supplement
this opinion in the event of future changes in such laws or in the interpretations thereof or such facts.
All references in this
opinion letter to the Board of Directors of the Company are intended to include an authorized committee thereof empowered and authorized
to act under the MGCL in lieu of the full Board of Directors of the Company.
Based on the foregoing
and in reliance thereon, and subject to the assumptions, qualifications, limitations and exceptions set forth below, we are of
the opinion that:
1. With respect to any
shares of Common Stock to be offered by the Company pursuant to the Registration Statement (the “Offered Common Shares”),
(i) when the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective
under the Securities Act, (ii) when an appropriate prospectus supplement with respect to the Offered Common Shares has been prepared,
delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (iii) if the Offered
Common Shares are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the
Offered Common Shares has been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) when
the Board of Directors, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken
all necessary corporate action to approve the issuance of the Offered Common Shares, the consideration to be received therefor
and related matters, (v) when the terms of the issuance and sale of the Offered Common Shares have been duly established in conformity
with the Articles of Incorporation and the Bylaws so as not to violate any applicable law or result in a default under or breach
of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any
court or governmental body having jurisdiction over the Company and (vi) when certificates in the form required under the MGCL
representing the Offered Common Shares are duly executed, countersigned, registered and delivered upon payment of the agreed upon
consideration therefor, the Offered Common Shares (including any shares of Common Stock duly issued upon conversion, exchange or
exercise of any Preferred Stock or Warrants), when issued and sold in accordance with the applicable underwriting agreement, or
any other duly authorized, executed and delivered valid and binding agreement, will be duly authorized, validly issued, fully paid
and nonassessable, provided that the consideration therefor is not less than $0.001 per share of Common Stock.
August 25, 2015
Page 4
2. With respect to the
Rights, when the actions with respect to the Common Stock referred to in paragraph 1. above have been taken, and assuming (a) the
Rights Agreement has been duly authorized, executed and delivered by the Rights Agent, (b) the Common Stock has been duly issued
and sold as contemplated by the Registration Statement, and (c) the Rights have been issued in conformity with the Rights Agreement,
the Rights associated with the Common Stock will be validly issued.
3. With respect to the
shares of any series of Preferred Stock to be offered by the Company pursuant to the Registration Statement (the “Offered
Preferred Shares”), (i) when the Registration Statement, as finally amended (including all necessary post-effective amendments),
has become effective under the Securities Act, (ii) when an appropriate prospectus supplement with respect to the Offered Preferred
Shares has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder,
(iii) if the Offered Preferred Shares are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement
with respect to the Offered Preferred Shares has been duly authorized, executed and delivered by the Company and the other parties
thereto, (iv) the Board of Directors, including any appropriate committee appointed thereby, and appropriate officers of the Company
have taken all necessary corporate action to approve the issuance, sale and terms of the Offered Preferred Shares, the consideration
to be received therefor and related matters, including the adoption of a Certificate of Designation or Amendment to the Articles
of Incorporation for the Offered Preferred Shares in accordance with the applicable provisions of the MGCL (the “Certificate
of Designation”); (v) the filing of the Certificate of Designation or Amendment, as applicable with the Secretary of State
of the State of Minnesota has duly occurred; (vi) the terms of the Offered Preferred Shares and of their issuance and sale have
been duly established in conformity with the Articles of Incorporation, including the Certificate of Designation or Amendment,
as applicable relating to the Offered Preferred Shares, and the Bylaws so as not to violate any applicable law or result in a default
under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company and (vii) certificates in the form required under
MGCL representing the Offered Preferred Shares are duly executed, countersigned, registered and delivered upon payment of the agreed
upon consideration therefor, the Offered Preferred Shares (including any shares of Preferred Stock duly issued upon conversion,
exchange or exercise of any Preferred Stock or Warrants), when issued and sold in accordance with the applicable underwriting agreement,
or any other duly authorized, executed and delivered valid and binding agreement, will be duly authorized, validly issued, fully
paid and nonassessable, provided that the consideration therefor is not less than $0.001 per share of Preferred Stock.
August 25, 2015
Page 5
4. With respect to the
Warrants to be offered by the Company pursuant to the Registration Statement (the “Offered Warrants”), (i) when the
Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective under the
Securities Act, (ii) when an appropriate prospectus supplement with respect to the Offered Warrants has been prepared, delivered
and filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (iii) if the Offered Warrants
are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Offered Warrants
has been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) the Board of Directors, including
any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action
to approve the issuance, sale and terms of the Offered Warrants, the consideration to be received therefor and related matters;
(v) the terms of the Offered Warrants and of their issuance and sale have been duly established in conformity with the Articles
of Incorporation and the Bylaws so as not to violate any applicable law or result in a default under or breach of any agreement
or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental
body having jurisdiction over the Company and the applicable Warrant Agent; (vi) the Common Stock or the Preferred Stock relating
to such Offered Warrants have been duly authorized for issuance, (vii) the applicable Warrant Agreement has been duly authorized,
executed and delivered by each party thereto, and (viii) the Offered Warrants have been duly executed, delivered, countersigned,
issued and sold in accordance with the provisions of the applicable Warrant Agreement to be filed on a Current Report on Form 8-K
in the manner contemplated in the Registration Statement or any prospectus supplement relating thereto, the Offered Warrants, when
issued and sold in accordance with the applicable Warrant Agreement and the applicable purchase agreement or any other duly authorized,
executed and delivered valid and binding purchase or agency agreement, will be valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, except to the extent that enforcement thereof may be limited by
(a) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect
relating to creditors’ rights generally, (b) general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity) and (c) public policy considerations which may limit the rights of parties to obtain remedies.
5. With respect to any
offering of Units by the Company pursuant to the Registration Statement (the “Offered Units”), when (i) the Registration
Statement, as finally amended (including all necessary post-effective amendments), has become effective under the Securities Act,
(ii) an appropriate prospectus supplement with respect to the Offered Units has been prepared, delivered and filed in compliance
with the Securities Act and the applicable rules and regulations thereunder, (iii) if the Offered Units are to be sold pursuant
to a firm commitment underwritten offering or in a best efforts placement offering, the underwriting agreement or placement agency
agreement with respect to the Offered Units has been duly authorized, executed and delivered by the Company and the other parties
thereto, (iv) the Board of Directors, including any appropriate committee appointed thereby, and appropriate officers of the Company
have taken all necessary corporate action to approve the form, issuance, execution and terms of the Offered Units, the related
unit agreements between the Company and the unit agent or purchaser named therein (“Unit Agreements”), if any, and
any Offered Securities which are components of such Offered Units, the terms of the offering thereof and related matters, (v) the
terms of the issuance and sale of the Offered Units have been duly established in conformity with the Articles of Incorporation
and the Bylaws so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding
upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction
over the Company and (vi) the (1) Offered Units, (2) the Unit Agreements, if any, and (3) such Offered Securities that are components
of such Offered Units have been duly and properly sold, paid for and delivered as contemplated in the Registration Statement, any
prospectus supplement relating thereto and, if applicable, in accordance with the applicable underwriting or other purchase agreement
and otherwise in accordance with the provisions of any applicable (i) Unit Agreement and (ii) Warrant Agreement, in the case of
Warrants, such Units will be validly issued and will entitle the holder thereof to the rights specified in the Unit Agreements,
if any.
August 25, 2015
Page 6
The opinions set forth
above are subject to the following additional assumptions:
(i) the
Registration Statement, any amendments thereto (including post-effective amendments), will have been declared effective under the
Securities Act and such effectiveness shall not have been terminated, suspended or rescinded;
(ii) all
Securities will be issued and sold in compliance with applicable federal and state securities laws, rules and regulations and solely
in the manner provided in the Registration Statement and the appropriate Prospectus Supplement and there will not have occurred
any change in law or fact affecting the validity of any of the opinions rendered herein;
(iii) in
the case of an agreement pursuant to which any Securities are to be issued or governed, there will have been no additions, deletions
or modifications of the terms or provisions contained in the forms thereof included as exhibits to the Registration Statement that
would affect the validity of any of the opinions rendered herein;
(iv) a
definitive purchase, underwriting or similar agreement and any other necessary agreements with respect to any Securities offered
or issued will have been duly authorized and duly executed and delivered by the Company and the other parties thereto;
(v) in
the case of any underwriting or purchase agreement, Warrant Agreement, certificate of designation, amendment to the Articles of
Incorporation, or other agreement pursuant to which any Securities are to be issued or governed, there shall be no terms or provisions
contained therein which would affect the validity of any of the opinions rendered herein;
(vi) the
final terms of any of the Securities (including any Securities comprising the same or subject thereto), and when issued, the issuance,
sale and delivery thereof by the Company, and the incurrence and performance of the Company’s obligations thereunder or respect
thereof in accordance with the terms thereof, and any consideration received by the Company for any such issuance, sale and delivery,
will comply with, and will not violate, the Articles of Incorporation or Bylaws or any applicable law, rule or regulation, or result
in a default under or breach of any agreement or instrument binding upon the Company and will comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company or to which the issuance, sale and delivery of such
Securities or the incurrence and performance of such obligations may be subject or violate any applicable public policy, or be
subject to any defense in law or equity;
(vii) the
Company shall have taken any action required to be taken by the Company, based on the type of Security being offered, to authorize
the offer and issuance thereof, and such authorization shall remain in effect and unchanged at all times during which the Securities
are offered and issued and shall not have been modified or rescinded (subject to the further assumption that the sale of any Security
takes place in accordance with such authorization), the Board of Directors of the Company shall have duly established the terms
of such Security and duly authorized and taken any other necessary corporate action to approve the issuance and sale of such Security
in conformity with the Articles of Incorporation and Bylaws (subject to the further assumption that neither the Articles of Incorporation
nor Bylaws have been amended from the date hereof in a manner that would affect the validity of any of the opinions rendered herein),
and such authorization shall remain in effect and unchanged at all times during which the Securities are offered and issued and
shall not have been modified or rescinded (subject to the further assumption that the sale of any Security takes place in accordance
with such authorization); (viii) there will exist, under the Articles of Incorporation, the requisite number of authorized but
unissued shares of Common Stock or Preferred Stock (and securities of any class into which any of the Preferred Stock may be convertible),
as the case may be; and
August 25, 2015
Page 7
(viii) to
the extent they purport to relate to liabilities resulting from or based upon gross negligence, recklessness or other conduct committed
or omitted willfully or in bad faith or any violation of federal or state securities or blue sky laws, we express no opinions concerning
the enforceability of indemnification provisions.
With respect to the Rights,
(i) our opinions thereon do not address the determination of a court of competent jurisdiction may make regarding whether the Board
of Directors of the Company would be required to redeem or terminate, or take action with respect to, the Rights at some future
time based on the facts and circumstances existing at that time, (ii) we have assumed that the Board of Directors of the Company
acted in a manner consistent with its fiduciary duties as required under applicable law in adopting the Rights Agreement, and (iii)
this opinion addresses the validity of the Rights and the Rights Agreement in their entirety, and we render no opinion as to the
validity of any particular provision of the Rights Agreement or of Rights issued thereunder or as to the effect of the exercise
by the Company of its rights under each such provision on the validity of the Rights Agreement and the Rights in their entirety.
To the extent that the
obligations of the Company under each Warrant Agreement may be dependent upon such matters, we assume for purposes of our opinions
thereon that the Warrant Agent thereunder will be duly organized, validly existing and in good standing under the laws of its jurisdiction
of organization; that the Warrant Agent will be duly qualified to engage in the activities contemplated by the Warrant Agreement;
that the Warrant Agreement will have been duly authorized, executed and delivered by the Warrant Agent and will constitute the
valid and binding obligation of the Warrant Agent, enforceable against the Warrant Agent in accordance with its terms; that the
Warrant Agent will be in compliance, with respect to acting as a Warrant Agent under the Warrant Agreement, with all applicable
laws and regulations; and that the Warrant Agent will have the requisite organizational and legal power and authority to perform
its obligations under the Warrant Agreement.
The opinions set forth
above in numbered paragraphs (1) through (5) are subject to (i) the effect of any bankruptcy, insolvency, reorganization, moratorium,
arrangement or similar laws affecting the rights and remedies of creditors generally, including the effect of statutory or other
laws regarding fraudulent transfers or preferential transfers, and (ii) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or other
equitable remedies regardless of whether enforceability is considered in a proceeding in equity or at law. We express no opinion
regarding the effectiveness of (i) any waiver of stay, extension or usury laws or of unknown future rights; or (ii) provisions
may be held unenforceable as contrary to federal or state securities laws.
August 25, 2015
Page 8
We express no opinion as
to any provision in any Warrant Agreement, stock purchase contract, unit purchase agreement, other agreement pursuant to which
any Securities are to be issued or governed, or the Articles of Incorporation or Bylaws (i) that purports to waive forum non conveniens
or trial by jury; (ii) that relates to judgments in currencies other than U.S. dollars; (iii) that releases, exculpates or exempts
a party from, or requires indemnification or contribution of a party for, liability for its own negligence or misconduct; (iv)
that purports to allow any party to unreasonably interfere in the conduct of the business of another party; (v) that purports to
require any party to pay any amounts due to another party without a reasonable accounting of the sums purported to be due; (vi)
that purports to prohibit the assignment of rights that that may be assigned pursuant to applicable law regardless of an agreement
not to assign such rights; (vii) that purports to require that amendments to any agreement be in writing; (viii) relating to powers
of attorney, severability or set-off; (ix) that purports to limit access exclusively to any particular courts; (x) that provides
a waiver of stay, extension or usury laws or of unknown future rights; and (xi) providing that decisions by a party are conclusive
or may be made in its sole discretion. We express no opinion concerning whether a U.S. federal court would accept jurisdiction
in any dispute, action, suit or proceeding arising out of or relating to any agreement or the transactions contemplated thereby.
No opinion may be implied
or inferred beyond the opinions expressly stated in numbered paragraphs (1) through (5) above. Our opinions expressed herein are
as of the date hereof, and we undertake no obligation to advise you of any changes in applicable law or any other matters that
may come to our attention after the date hereof that may affect our opinion expressed herein
We hereby consent to the
filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the caption “Legal Matters”
in the Prospectus. In giving our consent, we do not thereby admit that we are experts with respect to any part of the Registration
Statement, the Prospectus or any Prospectus Supplement within the meaning of the term “expert”, as used in Section
11 of the Securities Act or the rules and regulations promulgated thereunder by the Commission nor do we admit that we are in the
category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
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Very truly yours, |
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/s/ Gallagher & Kennedy, P.A. |
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference
in the Form S-3 Registration Statement of our report dated September 22, 2014, with respect to the consolidated balance sheets
of IsoRay, Inc. and Subsidiaries as of June 30, 2014 and 2013, and the related consolidated statements of operations, changes in
shareholders’ equity and cash flows for the years then ended, which report is included in the Form 10-K filing for IsoRay,
Inc. filed on September 29, 2014. We also consent to the reference to our firm under the heading “Experts” in the Registration
Statement.
/s/ DeCoria, Maichel & Teague, P.S.
Spokane, Washington
August 25, 2015
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