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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
 
FORM 8-K
 
CURRENT REPORT PURSUANT TO
SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
 
Date of report (Date of earliest event reported): October 21, 2022
 
Isoray, Inc.
(Exact Name of Registrant as Specified in Charter)
 
Delaware
(State or Other Jurisdiction
of Incorporation)
001-33407
(Commission
File Number)
41-1458152
(IRS Employer
Identification No.)
 
350 Hills Street, Suite 106, Richland, Washington 99354
(Address of Principal Executive Offices) (Zip Code)
 
(509) 375-1202
(Registrant’s telephone number, including area code)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
 
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
   
 
 
☒
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
   
 
 
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
   
 
 
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
Securities registered pursuant to Section 12(b) of the Act:
 
Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common Stock, $0.001 par value
ISR
NYSE American
 
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
 
Emerging growth company ☐
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
 
 
 
 
Item 1.01
Entry into a Material Definitive Agreement.
 
On October 21, 2022, Isoray, Inc. (the “Company”), Isoray Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of the Company, Viewpoint Molecular Targeting, Inc., a Delaware corporation, and Cameron Gray entered into a First Amendment to Agreement and Plan of Merger (the “Amendment”), which amends the Agreement and Plan of Merger entered into by the parties on September 27, 2022 and disclosed on the Form 8-K filed by the Company on September 28, 2022.
 
The Amendment changes the total number of shares of common stock referenced in the Agreement that the Company will seek approval to issue from 400,000,000 to 750,000,000 by means of an amendment to the Company’s Certificate of Incorporation, as the Board of Directors of the Company determined that the authorization of additional shares would be advantageous in order to make additional shares available for future capital raises. The Amendment also clarifies that approval of the Merger (as defined in the Agreement) by the Company’s stockholders is not required under Delaware law.
 
The above description is only a summary of the material terms of the Amendment, does not purport to be a complete description of the Amendment, and is qualified in its entirety by reference to the Amendment, a copy of which is filed as Exhibit 2.1 and incorporated herein by reference. 
 
Item 9.01
Financial Statements and Exhibits.
 
 
(d)
Exhibits.
 
 
2.1
 
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
 
SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
Dated: October 24, 2022
 
Isoray, Inc., a Delaware corporation
 
By: /s/ Lori A. Woods  
  Lori A. Woods, CEO  
 
 

Exhibit 2.1

 

FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER

 

This First Amendment to Agreement and Plan of Merger (this “Amendment”), dated October 21, 2022, is entered into by and among Isoray, Inc., a Delaware corporation (the “Acquirer”), Isoray Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of Acquirer (“Merger Sub”), Viewpoint Molecular Targeting, Inc., a Delaware corporation (the “Target Company”), and Cameron Gray, as the representative of the Owners (the “Owners’ Representative”). Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned thereto in the Merger Agreement (as defined below).

 

RECITALS

 

WHEREAS, Acquirer, Merger Sub, the target Company, and the Owners’ Representative entered into that certain Agreement and Plan of Merger, dated as of September 27, 2022 (the “Merger Agreement”);

 

WHEREAS, the Parties hereto desire to amend the Merger Agreement;

 

WHEREAS, the Board of Directors of Acquirer has determined it is in the best interests of Acquirer and its stockholders to increase the number of shares of common stock the Acquirer is authorized to issue to 750,000,000 shares instead of 400,000,000 shares as set forth in the Merger Agreement to provide the potential availability of shares for future capital raises as needed to finance the business of the combined company; and

 

WHEREAS, the Parties desire to amend the Merger Agreement further to clarify that the approval of the Merger Agreement by the stockholders of Acquirer is not required.

 

NOW, THEREFORE, in consideration of the premises, the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Acquirer, Merger Sub, Target Company, and the Owners’ Representative hereby agree as follows:

 

1.    Amendment of Recitals. Recital H of the Merger Agreement is hereby deleted in its entirety and replaced with the following:

 

“The Board of Directors of the Acquirer, having determined that the Merger is fair and advisable to, and in the best interests of Acquirer and its stockholders, has determined to recommend that the stockholders of the Acquirer adopt, authorize and approve this Agreement in accordance with the DGCL and in conjunction therewith intends to amend its Certificate of Incorporation to increase its authorized capital stock to 750,000,000 shares.”

 

2.    Amendment of Section 5.8(a). The last sentence of Section 5.8(a0 shall be deleted in its entirety and replaced with the following:

 

“Immediately prior to Closing, Acquirer will amend its Certificate of Incorporation and have not less than Seven Hundred Fifty Million (750,000,000) shares of authorized capital stock which will be a sufficient amount to consummate the Transactions.”

 

 
 

 

3.    Amendment of Section 7.2(b). Section 7.2(b) of the Merger Agreement is hereby deleted in its entirety and replaced with the following:

 

 

(b)

“Without limitation, in the Proxy Statement, the Acquirer shall seek, in accordance with the Certificate of Incorporation and applicable securities laws, rules and regulations, including the DGCL and rules and regulations of NYSE American, from the holders of the Acquirer Common Stock: (A) approval, for purposes of complying with applicable listing rules of the NYSE American, of the issuance of 136,545,112 shares of Acquirer Common Stock as provided for herein in connection with the consummation of the Transactions, (B) approval to amend the Certificate of Incorporation of Acquirer to increase the number of shares of authorized Acquirer Common Stock to 750,000,000, (C) approval to increase the number of shares reserved for issuance under the Acquirer Plan to 46,000,000, and (D) approval to obtain any and all other approvals necessary or advisable to effect the consummation of the Transactions (including a proposal to adjourn any meeting at which approval of the Acquirer Proposals (as defined below) for the purposes of soliciting additional proxies to approve the Acquirer Proposals, if necessary, the proposals set forth in the forgoing clauses (A) through (D), are referred to as the “Acquirer Proposals”)..

 

4.    Amendment to Exhibit C. Exhibit C shall be deleted in its entirety and replaced with the following:

 

ARTICLE 4 shall be amended to increase the total number of shares of all classes of stock which the Corporation shall have authority to issue from Two Hundred Seven Million (207,000,000) to Seven Hundred Fifty Seven Million (757,000,000) and increase the total number of shares of Common Stock, par value one-tenth of one cent ($0.001) per share, the Corporation is authorized to issue from Two Hundred Million (200,000,000) to Seven Hundred Fifty Million (750,000,000).

 

5.    Merger Agreement Otherwise Unchanged. Except as expressly provided herein, the Merger Agreement shall remain unchanged and in full force and effect. Each reference to “this Agreement” or “the Merger Agreement” and words of similar import in the Merger Agreement and in the agreements and other documents contemplated by the Merger Agreement shall be a reference to the Merger Agreement, as amended hereby, and as the same may be further amended, restated, supplemented and otherwise modified and in effect from time to time.

 

6.    Governing Law; Jury Trial. This Amendment shall be governed by and interpreted in accordance with the same laws and in the same manner as the Merger Agreement and Section 12.7 of the Merger Agreement is incorporated herein by reference, mutatis mutandis.

 

7.    Miscellaneous. This Amendment shall be binding upon and inure to the benefit of each party to the Merger Agreement and its successors and permitted assigns. The headings in this Amendment are for reference only and shall not affect the meaning or interpretation of this Amendment. This Amendment may be executed in counterparts, each of which is deemed an original, but all of which constitute one and the same instrument. Delivery of an executed counterpart of this Amendment electronically, via email or .pdf, or by facsimile shall be effective as delivery of an original executed counterpart of this Amendment

 

* * * * *

 

 
 

 

IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date and year first set forth above.

 

  ACQUIRER:
     
  ISORAY, INC., a Delaware corporation
     
  By: /s/ Lori A. Woods
  Name: Lori A. Woods
  Title: Chief Executive Officer
     
  MERGER SUB:
     
  ISORAY ACQUISITION CORP., a Delaware corporation
     
  By: /s/ Lori A. Woods
  Name:  Lori A. Woods
  Title:  Chief Executive Officer
     
  OWNERS’ REPRESENTATIVE:
     
  By:  /s/ Cameron Gray
  Name: Cameron Gray
     
     
  TARGET COMPANY:
   
  VIEWPOINT MOLECULAR TARGETING, INC., a Delaware corporation
     
  By:  /s/ Thijs Spoor
  Name: Thijs Spoor
  Title:  CEO