FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FONAR CORPORATION
...............................................................................
(Exact name of registrant as specified in its charter)
Delaware 11-2464137
...............................................................................
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
110 Marcus Drive, Melville, New York 11747
...............................................................................
(Address of Principal Executive Office) (Zip Code)
2010 STOCK BONUS PLAN
.........................................................................
(Full Title of the plans)
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Raymond V. Damadian, 110 Marcus Drive, Melville, New York 11747
.........................................................................
(Name and address of agent for service)
(631) 694-2929
.........................................................................
(Telephone number, including area code, of agent for service)
Title of securities Amt. to be Proposed Proposed Amount of
to be registered registered maximum maximum registration
offering aggregate fee
price per offering
share price
__________________________________________________________________________
Common Stock
par value $.0001 2,000,000 $ 1.59 $3,180,000 $226.73
__________________________________________________________________________
Total 2,000,000 $ 1.59 $3,180,000 $226.73
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* Pursuant to Rule 457, subsections (h) and (c) Specified Date: August 10, 2010
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following documents, filed with, or furnished to, the Commission are incorporated in this registration statement by reference:
(a) The registrant's latest annual report on Form 10-K filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(b) All other reports filed by the registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual report on Form 10-K referred to in (a) above.
(c) The description of securities which is contained in Form 8-A filed by the registrant pursuant to Section 12 of the Exchange Act including any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the registrant pursuant to Section
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which either indicates that all securities offered have been
sold or 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 such documents.
ITEM 4. Description of Securities.
The class of securities to be offered is registered under Section 12 of the Exchange Act.
ITEM 5. Interests of Named Experts and Counsel.
The validity of the securities being registered will be passed upon by Henry T. Meyer, Esq., General Counsel to the registrant, 110 Marcus Drive, Melville, New York 11747. Mr. Meyer is an employee of the registrant and eligible to receive, at the discretion of the appropriate Committee or the Board of Directors, awards of shares under the 2010 Stock Bonus Plan.
ITEM 6. Indemnification of Directors and Officers.
Article Eighth of the Certificate of Incorporation, as amended, of the registrant provides as follows:
The personal liability of directors to the Corporation or its stockholders
for monetary damages for breach of their fiduciary duties as directors is
eliminated, provided however, that this provision shall not eliminate the
liability of a director (i) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or knowing violation of the law,
(iii) under Section 174 of the Delaware General Corporation law, or (iv) for any
transaction from which the director derived an improper personal benefit.
Article V of the By-Laws of the registrant generally provides for indemnification of its officers and directors to the full extent permitted by Delaware Corporation Law.
Section 145 of the Delaware General Corporation Law permits indemnification of officers, directors and employees of the Company under certain conditions and subject to certain limitations.
ITEM 7. Exemption From Registration Claimed.
Not applicable. No restricted securities are to be reoffered or resold pursuant to this registration statement.
ITEM 8. Exhibits.
5 Opinion of Counsel re Legality.
23.1 Consent of Independent Registered Public Accounting Firm.
23.2 Consent of Counsel is included in Exhibit 5.
99.1 2010 Stock Bonus Plan.
ITEM 9. Undertakings.
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;
(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 1 (i) and 1(ii) do not apply if the information required to be included in a post-effective amendment thereby is contained in periodic reports filed by the registrant pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in 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 post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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.
The Certificate of Incorporation and By-Laws of the registrant contain various provisions for limitation of liability and indemnification of officers and directors, as described in Item 6. Section 145 of the Delaware General Corporation law permits indemnification of officers, directors and employees under certain conditions.
Insofar as indemnification for liability 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 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 Village of Melville, State of New York, on August 11, 2010.
FONAR CORPORATION
By: /s/ Raymond V. Damadian Raymond V. Damadian, President Acting Chief Financial Officer, and Acting Principal Accounting Officer, Signing in his capacities as Principal Executive Officer, Principal Financial Officer and Principal Accounting Officer |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Raymond V. Damadian Chairman of the Board August 11, 2010
Raymond V. Damadian of Directors, President
and a Director (Principal
Executive Officer, Principal
Financial Officer and Principal
Accounting Officer)
/s/ Claudette J.V. Chan Director August 11, 2010
Claudette J.V. Chan
/s/ Robert J. Janoff Director August 11, 2010
Robert J. Janoff
/s/ Charles N. O'Data Director August 11, 2010
Charles N. O'Data
Director
Robert Djerejian
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EXHIBIT 5
OPINION OF COUNSEL RE: LEGALITY
August 11, 2010
Fonar Corporation
110 Marcus Drive
Melville, NY 11747
Dear Sirs:
I refer to the Registration Statement on Form S-8 to which this opinion is an Exhibit (the "Registration Statement"), being filed by Fonar Corporation, a Delaware corporation (the "Company"), with the Securities and Exchange Commission under the Securities Act of 1933, as amended, relating to: 2,000,000 shares of the Company's Common Stock which may be issued pursuant to the Company's 2010 Stock Bonus Plan ("Bonus Common Stock").
As counsel for the Company, I have examined the originals or photostatic or certified copies of such records, certificates and instruments of the Company, certificates of officers of the Company and of public officials and such other instruments and documents as I have deemed relevant and necessary for the purposes of rendering the opinions set forth below. In such examination, I have assumed the genuineness of all signatures, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified or photostatic copies and the authenticity of the originals of such copies and the correctness of all statements of fact contained therein.
Based upon the foregoing, I am of the opinion that:
The Bonus Common Stock has been duly and validly authorized, and when issued in accordance with the terms of the Company's 2010 Stock Bonus Plan and any applicable bonus stock awards made thereunder will be legally issued, fully paid and nonassessable.
I consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to me in Item 5 of the Registration Statement.
Very truly yours,
/s/ Henry T. Meyer Henry T. Meyer, Esq. General Counsel |
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Independent Registered Public Accounting Firm's Consent
We consent to the incorporation by reference in this Registration Statement of Fonar Corporation and Subsidiaries on Form S-8 of our report which includes an explanatory paragraph as to the Company's ability to continue as a going concern, dated October 5, 2009, with respect to our audits of the consolidated financial statements of Fonar Corporation and Subsidiaries as of June 30, 2009 and 2008 and for the years ended June 30, 2009 and 2008 appearing in the Annual Report on Form 10-K of Fonar Corporation and Subsidiaries for the year ended June 30, 2009.
/s/ Marcum LLP Marcum LLP New York, New York August 11, 2010 |
EXHIBIT 23.2
(CONSENT OF COUNSEL IS INCLUDED IN EXHIBIT 5)
Consent of Counsel
The consent of Henry T. Meyer, Esq. is included in his opinion filed as Exhibit 5 to this Registration Statement.
EXHIBIT 99.1
2010 STOCK BONUS PLAN
1. PURPOSES OF THE PLAN.
The purpose of this Stock Bonus Plan (the "Plan") is to assist FONAR Corporation, a Delaware corporation (the "Corporation"), and its subsidiaries (as hereinafter defined) in attracting and retaining the services of key employees, non-employee directors, officers, advisors and consultants, and to secure for the Corporation and its subsidiaries the benefits of the incentive inherent in ownership of the Corporation's equity securities by parties who are responsible for the continuing growth and success of the Corporation and its subsidiaries.
For the purposes of this plan, the term "subsidiary" and/or "subsidiaries" shall mean any corporation of which the majority of the outstanding voting stock is owned directly or indirectly by the Corporation.
2. SHARES SUBJECT TO THE PLAN.
Subject to the provisions of Section 7 of the Plan, an aggregate of 2,000,000 shares of Common Stock, par value $.0001 per share, of the Corporation ("Common Stock"), are available for the issuance under the Plan as compensation for services to the Corporation ("Bonus Stock").
The shares to be issued as Bonus Stock under the Plan may be authorized but unissued shares of Common Stock or issued shares of Common Stock which are held in the treasury of the Corporation.
3. TERM OF THE PLAN.
Subject to the provisions of Section 8 and 10, the Plan shall commence effective as of the date the Plan is approved by the stockholders, and Bonus Stock awarded under the Plan must be issued no later than ten years thereafter.
4. ADMINISTRATION OF THE PLAN.
The Plan shall be administered by a committee which shall consist of two or such greater or lesser number of members, as determined by the Board of Directors from time to time, who shall be appointed by the Board of Directors of the Corporation (the "Committee") or, in the absence of such a Committee, by the Board of Directors of the Corporation. Directors of the Corporation who are either eligible to receive Bonus Stock, or to whom Bonus Stock has been granted, may vote on any matters affecting the administration of the plan or the granting of Bonus Stock under the Plan. Any action of the Committee may be taken by a written instrument signed by a majority of the members of the Committee then in office. Members of the Committee need not be members of the Board of Directors.
Subject to the express provisions of the Plan, the Committee or the Board
or Directors, as the case may be, shall have the authority, in its discretion:
(i) to determine the parties to receive Bonus Stock, the times when they shall
receive such awards, the number of shares to be issued, and the time, terms and
conditions of the issuance of any such shares; (ii) to construe and interpret
the terms of the Plan; (iii) to establish, amend and rescind rules and
regulations for the administration of the Plan; and (iv) to make all other
determinations necessary or advisable for administering the Plan. The
determinations of the Committee or the Board of Directors, as the case may be,
on the matters referred to in this Section 4 shall be final and conclusive.
5. ELIGIBILITY AND SELECTION.
The Committee or the Board of Directors, as the case may be, shall have sole and absolute discretion to issue Bonus Stock under the Plan to reward employees, officers, directors, advisors and consultants for services rendered or to be rendered to or for the benefit of the Corporation, or any of its subsidiaries (the grant of Bonus Stock under this Plan shall be referred to as a "Bonus Stock Award"). In determining the parties to whom Bonus Stock Awards shall be granted under the Plan and the number of shares of Common Stock which may be granted to such persons, the Committee or the Board of Directors, as the case may be, shall consider the duties of the parties, their present and potential contributions to the success of the Corporation, and such other factors as the Committee or the Board of Directors deems relevant in furthering the purposes of the granting of such Bonus Stock and the interests of the Corporation. A party may receive more than one Bonus Stock Award under the Plan.
6. BONUS STOCK AWARDS.
(a) The Committee or the Board of Directors, as the case may be, shall determine for each party chosen to participate in the Plan ("Participant") the number of shares of Common Stock to be covered by each Bonus Stock Award and the installments, if any, in which the Bonus Stock will be granted.
(b) The Committee or the Board of Directors shall determine the terms, conditions and restrictions, if any, to which such Bonus Stock or its issuance will be subject. Any restrictions imposed shall be evidenced by a written agreement executed by the Participant. Such agreement shall also include any terms and conditions required by applicable securities laws.
(c) The Corporation shall deliver to the Participant on the date specified, or as soon thereafter as is practicable, the number of shares of Common Stock specified in such Participant's Bonus Stock Award, subject to and in accordance with the Bonus Stock Award.
(d) Bonus Stock Awards shall not be transferable other than by the last will and testament of the holder of the Bonus Stock Award or the applicable laws of descent and distribution. Bonus Stock Awards may not be assigned, sold, transferred, pledged, hypothecated or disposed of in any way (whether by operation of law or otherwise) except to the extent expressly provided for in the Plan and shall not be subject to execution, attachment or similar process.
7. DILUTION AND OTHER ADJUSTMENTS.
In the event of any change in the outstanding Common Shares by reason of any stock dividend or split, recapitalization, merger, consolidation, reorganization, combination or exchange of shares of Common Stock, or other similar corporate change, the Committee or the Board of Directors, as the case may be, shall make such adjustments as it, in its absolute discretion, deems equitable in the number of kind of shares of Common Stock authorized by the Plan and, with respect to outstanding shares of Common Stock covered by Stock Bonus Awards but not yet issued, in the number of kind of stock covered by Stock Bonus Awards made under the Plan.
8. TERMINATION AND AMENDMENT OF THE PLAN.
Unless sooner terminated, as hereinafter provided, this Plan shall terminate at 11:59 p.m. on the day following ten years after the approval of the Plan by the stockholders, and no Bonus Stock shall be granted hereunder after that date. The Board of Directors may terminate or amend this Plan at any time without notice, or make such modifications of this Plan as it shall deem advisable. No termination, amendment or modification of the Plan may adversely affect the rights of any party to whom a Bonus Stock Award has been made without such party's consent.
9. INDEMNIFICATION.
In addition to such other rights of indemnification as they may have as directors or as members of the Committee, the members of the Committee and the Board of Directors shall be indemnified by the Corporation against the reasonable expenses, including attorney's fees actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan or any Bonus Stock Award granted thereunder, and against all amounts paid by them in settlement thereof (provided that such settlement is approved by the Corporation) or paid by them in satisfaction of a judgment in any such action, suit or proceeding, except in relation to matters as to which it shall be adjudicated in such action, suit or proceeding that such Committee member or director, as the case may be, is liable for negligence or misconduct in the performance of his duties; provided that within 10 days after institution of any such action, suit, or proceeding a Committee member or director, as the case may be, shall offer the Corporation in writing the opportunity, at its own expense, to handle and defend the same.
10. EFFECTIVENESS OF THE PLAN.
The Plan shall become effective on the date it is approved and ratified by the stockholders of the Corporation.