forms8.htm
As filed with the Securities and Exchange Commission on September 29, 2009

Registration No. 333-_______
UNITED STATES
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)

_________________
 
Texas
76-0083622
(State or Other Jurisdiction of Incorporation or Organization)
(I.R.S. Employer Identification No.)

7715 Loma Court, Suite A
Fishers, Indiana 46038
(Address of Principal Executive Offices, including Zip Code)

_________________
 
2009 Stock Incentive Plan
(Full Title of the Plan)

_________________
 
Patrick Rooney
Chairman
7715 Loma Court, Suite A
Fishers, Indiana 46038
 (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

 
Title Of Each Class Of Securities to be Registered
  
Amount to be Registered(1)
    
Proposed Maximum Offering Price Per Share
    
Proposed Maximum Aggregate Offering Price
    
Amount Of Registration Fee
  
Common Stock, $0.01 par value To be issued under the 2009 Stock Option Plan
     10,000,000 (2)   $ 0.075 (3)   $ 750,000     $ 41.85  
Total
     10,000,000     $ 0.075     $ 750,000     $ 41.85  
 
(1)
This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the 2009 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.
(2)
Represents shares reserved for issuance under the 2009 Stock Incentive Plan.
(3)
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 September 28, 2009.

 
 
 

TABLE OF CONTENTS

PART I: INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
 
       
 
Item 1.
  4
       
 
Item 2.
  4
   
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
  4
       
 
Item 3.
  4
       
 
Item 4.
  4
       
 
Item 5.
  4
       
 
Item 6.
  5
       
 
Item 7.
  5
       
 
Item 8.
  5
       
 
Item 9.
  5
   
  6
   
EXHIBIT INDEX
 
   
EXHIBIT 5.1
 
   
EXHIBIT 23.1
 
   
EXHIBIT 23.2
 

 

PART I
INFORMATION REQUIRED IN THE PROSPECTUS

Item 1. Plan Information.*

Item 2. Registrant Information and Employee Program Annual Information.*
_______
*
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.
 
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

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-K for the fiscal year ended December 31, 2008, filed with the Commission on April 15, 2009 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-Q for the quarterly periods ended June 30, 2009 and March 31, 2009, filed with the Commission on August 14, 2009 and May 20, 2009 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.

Item 8. Exhibits.

No.
  
Description of Exhibit
     
 
Opinion of Tarter Krinsky & Drogin LLP
     
 
2009 Stock Incentive Plan
     
 
Consent of Independent Registered Public Accounting Firm
     
23.2
  
Consent of Tarter Krinsky & Drogin LLP (included in Exhibit 5)
     
24
  
Powers of Attorney

Item 9. 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;

(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.

SIGNATURES

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 September 22, 2009.
 
 
POSITRON CORPORATION
     
 
By:
/s/ Patrick Rooney
   
Patrick Rooney
   
Chairman of the Board

 

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS that each of the undersigned officers and directors of Positron Corporation, a Texas corporation, constitutes and appoints Patrick Rooney and Corey Conn, and each of them acting individually, his true and lawful attorneys-in-fact and agents with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, 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 attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

Name
  
Title
  
Date
         
Principal Executive Officer:
        
         
/s/ Patrick Rooney
  
Chairman of the Board
    
Patrick Rooney
  
(principal executive officer)
  
September 22, 2009
         
Principal Financial Officer And Principal Accounting Officer:
        
         
/s/ Corey Conn
  
Chief Financial Officer
    
Corey Conn
  
(principal financial officer and principal accounting officer)
  
September 22, 2009
         
/s/ Joseph G. Oliverio
  
President and Director
  
September 22, 2009
Joseph G. Oliverio
        
         
/s/ Sachio Okamura
  
Director
    
Sachio Okamura
      
September 22, 2009
         
/s/ Dr. Anthony Nicholls
  
Director
    
Dr. Anthony Nicholls
      
September 22, 2009
         
/s/ Joseph C. Sardano
  
Director
  
September 22, 2009
Joseph C. Sardano
        
         
/s/ Timothy M. Gabel
  
Vice President of Operations
  
September 8, 2009
Timothy M. Gabel
        
         
/s/ Scott Stiffler
  
Director of Quality & Regulatory Affairs
  
September 8, 2009
Scott Stiffler
        
         
/s/ John Zehner
  
Executive Vice President
  
September 8, 2009
John Zehner