As
filed with the Securities and Exchange Commission on July 29, 2008
Registration No. 333- ______
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
____________________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
____________________
POSITRON
CORPORATION
(Exact
Name of Registrant as Specified in Its Charter)
____________________
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Texas
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76-0083622
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(State
or Other Jurisdiction of Incorporation
or Organization)
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(I.R.S.
Employer Identification
No.)
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1304
Langham Creek Drive, Suite 300
Houston,
Texas 77084
(Address
of Principal Executive Offices, including Zip Code)
____________________
2008
Stock Incentive Plan
(Full
Title of the Plan)
____________________
Patrick
Rooney
Chairman
1304
Langham Creek Drive, Suite 300
Houston,
Texas 77084
(Name,
Address and Telephone Number of Agent For Service)
Copies
of all communications to:
Peter
Campitiello, Esq.
Tarter
Krinsky & Drogin LLP
1350
Broadway
New
York, New York 10018
212
216-8000
CALCULATION
OF REGISTRATION FEE
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Title
Of Each Class Of Securities to be Registered
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Amount
to be Registered(1)
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Proposed
Maximum Offering Price Per Share
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Proposed
Maximum Aggregate Offering Price
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Amount
Of Registration Fee
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Common
Stock, $0.01 par value To be issued under the 2008 Stock Option
Plan
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6,000,000 |
(2) |
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$ |
0.07 |
(3) |
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$ |
420,000 |
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$ |
16.51 |
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Total
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6,000,000 |
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$ |
0.07 |
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$ |
420,000 |
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$ |
16.51 |
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(1)
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This
Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the 2008 Stock Option Plan by reason of
any stock dividend, stock split, recapitalization or other similar
transaction effected without the Registrant’s receipt of consideration
which results in an increase in the number of the outstanding shares of
Registrant’s Common Stock.
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(2)
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Represents
shares reserved for issuance under the 2008 Stock Incentive
Plan.
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(3)
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Estimated
solely for the purpose of calculating the registration fee in accordance
with Rules 457(c) and (h) promulgated under the Securities Act of 1933 and
based upon the average of the high and low sales prices of Positron
Corporation Common Stock reported on the Over the Counter Bulletin Board
on July 27, 2008.
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PART
I
Item 1. Plan
Information.*
Item 2. Registrant Information and Employee Program Annual
Information.*
__________
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*
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Information
required by Part I to be contained in each Section 10(a) prospectus is
omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933, as amended (the “Securities Act”) and the Note
to Part I of Form S-8.
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PART
II
Item 3. Incorporation of Documents by Reference.
The
following documents previously filed by Positron Corporation (the “Registrant”)
with the Securities and Exchange Commission (the “Commission”) are hereby
incorporated by reference in this Registration Statement:
(a)
Registrant’s Annual Report on Form 10-KSB for the fiscal year ended December 31,
2007, filed with the Commission on April 14, 2007 pursuant to Section 13(a) of
the Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
(b) All
other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since
the end of the latest fiscal year covered by the document referred to in (a)
above, including Registrant’s Quarterly Reports on Form 10-QSB for the quarterly
periods ended June 30, 2007 September 30, 2007 and March 31, 2008, filed with
the Commission on August 14, 2007, November 14, 2007 and May 20, 2008
respectively.
(c) The
description of Registrant’s Common Stock contained in Registrant’s Registration
Statement on Form S-1, filed with the Commission on August 30, 2007 (File No.
333-145801) pursuant to Rule 14(c) of the Exchange Act, including any amendments
or reports filed for the purpose of updating such description.
In
addition, all documents subsequently filed by Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be a part
hereof from the date of filing of such documents. Unless expressly incorporated
into this Registration Statement, a report furnished on Form 8-K prior or
subsequent to the date hereof shall not be incorporated by reference into this
Registration Statement. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in any subsequently filed document which also is deemed to
be incorporated by reference herein modifies or supersedes such
statement.
Item 4. Description of Securities.
Not
applicable.
Item 5. Interests of Named Experts and Counsel.
Not
applicable.
Item 6. Indemnification of Directors and Officers
Pursuant
to the Texas Business Corporate Act (the "BCA"), Positron's Articles of
Incorporation exclude personal liability on the part of its directors to the
Company for monetary damages based upon any violation of their fiduciary duties
as directors, provided the director acted in good faith, reasonably believed the
conduct was in the best interests of the corporation and had no reason to
believe the conduct was unlawful. Positron's Articles of Incorporation and its
By-laws require indemnification of directors and officers of the registrant to
the fullest extent permitted by the BCA for claims against them in their
official capacities, including stockholders' derivative actions.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to the foregoing provisions, or otherwise, we have been advised that in the
opinion of the SEC, such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not
applicable.
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No.
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Description
of Exhibit
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Opinion
of Tarter Krinsky & Drogin LLP
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2008
Stock Incentive Plan
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Consent
of Independent Registered Public Accounting Firm
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Consent
of Tarter Krinsky & Drogin LLP (included in Exhibit
5)
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Powers
of Attorney
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(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) to
reflect in the prospectus any facts or events arising after the effective date
of this Registration Statement (or the most recent post-effective amendment
hereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this 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 a 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 this Registration Statement or any material change to
such information in this Registration Statement; provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section15(d) of the Exchange Act) that is incorporated by reference
into this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas
on July 28,
2008.
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POSITRON
CORPORATION |
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By:
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/s/ Patrick
Rooney |
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Patrick
Rooney
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Chairman
of the Board
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6