WARRANT AGREEMENT
Exhibit
10.2
WARRANT
AGREEMENT dated as of June 7th, 2006 between North American Scientific, Inc.,
a
Delaware corporation (the “Company”), and Western Corporate Services dba U.S.
Stock Transfer Corporation, a California corporation (the “Warrant
Agent”).
The
Company proposes to issue stock purchase warrants (hereinafter called the
“Warrants”). Each Warrant entitles the holder thereof to purchase, within seven
(7) years from the offering date, one share of common stock, par value $0.01
per
share (the “Common Stock”), at a purchase price equal to $2.08 per share. The
Warrant Agent, at the request of the Company, has agreed to act as the agent
of
the Company in connection with the issuance, registration, transfer, exchange,
and exercise of the Warrants.
NOW,
THEREFORE, in consideration of the premises and mutual agreements herein set
forth:
SECTION
1. Appointment
of Warrant Agent.
The
Company hereby appoints the Warrant Agent to act as agent for the Company in
accordance with the instructions hereinafter set forth in this Agreement, and
the Warrant Agent hereby accepts such appointment. The Company may from time
to
time appoint such Co-Warrant Agents as it may deem necessary or desirable.
The
Company shall promptly notify the Warrant Agent from time to time in writing
of
the number of Warrants to be issued and furnish written instructions in
connection therewith.
SECTION
2. Form
of Warrant Certificates.
The
Warrant Certificates (and the forms of election to purchase shares and of
assignment to be printed on the reverse thereof) shall be substantially of
the
tenor and purport recited in Exhibit
A
hereto
and may have such letters, numbers or other marks of identification or
designation and such legends, summaries or endorsements printed, lithographed
or
engraved thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Warrant Agreement, or as may be required to comply
with any law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any national security association and/or stock exchange
on
which the Warrants may from time to time be listed or quoted, or to conform
to
usage. The Warrant Certificates shall be dated as of the date of issuance
thereof by the Warrant Agent, either upon initial issuance or upon transfer
or
exchange, and initially shall entitle the holders thereof to purchase one share
of Common Stock, but the number of such shares and the purchase price per share
of Common Stock shall be subject to adjustments as provided herein.
SECTION
3. Countersignature
and Registration.
The
Warrant Certificates shall be executed on behalf of the Company by the President
and Chief Executive Officer and the Chief Financial Officer, by facsimile
signature, and shall be attested by the Secretary of the Company by facsimile
signature. The Warrant Certificates shall be manually countersigned by the
Warrant Agent and shall not be valid for any purpose unless so countersigned.
In
case any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer of the Company before
countersignature by the Warrant Agent and issuance and delivery by the Company,
such Warrant Certificates, nevertheless, may be countersigned by the Warrant
Agent, issued and delivered with the same force and effect as though the person
who signed such Warrant Certificates had not ceased to be such officer of the
Company; and any Warrant Certificates may be signed on behalf of the Company
by
any person who, at the actual date of the execution of such Warrant
Certificates, shall be a proper officer of the Company to sign such Warrant
Certificates, although at the date of the execution of this Warrant Agreement
any such person was not such an officer.
The
Warrant Agent will keep or cause to be kept, at one of its offices in the City
of Glendale, State of California, books for registration and transfer of the
Warrant Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of the Warrant Certificates, the number
of
Warrants evidenced on its face by each of the Warrant Certificates, and the
date
of each of the Warrant Certificates.
The
Warrant Agent shall countersign a Warrant Certificate only (a) upon initial
issuance of the Warrants in accordance with the written order signed by an
authorized officer of the Company or (b) upon exchange, transfer or substitution
for one or more previously countersigned Warrant Certificates as hereinafter
provided.
SECTION
4. Transfer
and Exchange.
Subject
to Section 6 hereof, the Warrant Agent shall, from time to time, register the
transfer, in whole or in part, of any outstanding Warrant Certificate upon
the
books to be maintained by the Warrant Agent for that purpose, upon surrender
thereof for transfer properly endorsed or accompanied by appropriate instruments
of transfer and written instructions for transfer. Upon any such registration
of
transfer, a new Warrant Certificate shall be issued to the transferee and the
surrendered Warrant Certificate shall be canceled by the Warrant Agent. Any
Warrant Certificate may be exchanged at the option of the holder thereof, upon
surrender at the office of the Warrant Agent specified in Section 21 hereof,
for
another Warrant Certificate, or other Warrant Certificates of different
denominations, representing in the aggregate the right to purchase a like number
of shares of Common Stock. No fractional Warrant Certificates will be issued.
The Company may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Warrant Certificates.
SECTION
5. Warrant
Common Stock.
As
hereinafter used in this Agreement, “Warrant Common Stock” shall mean only
Common Stock, and stock of any other class into which such presently authorized
Common Stock may hereafter be changed, issuable upon exercise or exchange of
the
Warrant. In case, by reason of the operation of Section 7, the Warrants shall
entitle the registered holders thereof to purchase any other shares of stock
or
other securities or property of the Company or of any other corporation, any
reference in this Agreement to the exercise of Warrants shall be deemed to
refer
to and include the purchase of such other shares of stock or other securities
or
property upon such exercise.
SECTION
6. Warrant
Price and Stock Conversion Date of Warrants.
The
registered holder of any Warrant Certificate may exercise or exchange the
Warrants evidenced thereby in whole or in part at any time 180 days after the
date hereof upon surrender of the Warrant Certificate with the form of election
to purchase on the reverse side thereof duly executed, to the Warrant Agent
at
the principal office of the Warrant Agent in the City of Glendale, State of
California, together with payment of the purchase price for each share of Common
Stock as to which the Warrants are exercised, at or prior to 12:30 p.m. Pacific
Time on June 6, 2013 (the “Exercise Date”).
The
purchase price for each share of Common Stock pursuant to the exercise of a
Warrant shall be equal to $2.08 per share (the “Warrant Price”), in each case as
adjusted pursuant to Section 7 hereof, and shall be payable in lawful money
of
the United States of America.
SECTION
7. Warrant
Adjustments.
The
Warrant Price and the number of shares purchasable upon exercise of a Warrant
shall be subject to adjustment as follows:
(a) Stock
Dividends, Subdivisions, Combinations and Reclassifications.
In case
the Company shall at any time after the date of this Agreement (i) declare
a
dividend on the Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, (iii) combine the outstanding Common Stock into
a
smaller number of shares, or (iv) issue any shares of its capital stock in
a
reorganization or reclassification of the Common Stock (including any such
reorganization or reclassification in connection with a consolidation or merger
in which the Company is the continuing corporation), the Warrant Price in effect
at the time of the record date for such dividend or of the effective date of
such subdivision, combination, reorganization or reclassification, and/or the
number and kind of shares of capital stock issuable upon exercise of the
Warrants on such date shall be proportionately adjusted so that the holder
of
any Warrant exercised after such time shall be entitled to receive the aggregate
number and kind of shares of capital stock which, if such Warrant had been
exercised immediately prior to such date and at a time when the Common Stock
transfer books of the Company were open, such holder would have owned upon
such
exercise and been entitled to receive by virtue of such dividend, subdivision,
combination, reorganization or reclassification. Such adjustment shall be made
successively whenever any event listed above shall occur.
(b) Rights
Upon Distribution of Assets or Other Property.
In case
the Company shall at any time after the date of this Agreement declare or make
any dividend or other distribution of its assets (or rights to acquire its
assets) to holders of shares of Common Stock, by way of return of capital or
otherwise (including, without limitation, any distribution of cash, stock or
other securities not addressed by Section 7(a), property or options not
addressed by Section 7(a) by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction)
(a
“Distribution”), then, in each such case:
(i) any
Warrant Price in effect immediately prior to the close of business on the record
date fixed for the determination of holders of shares of Common Stock entitled
to receive the Distribution shall be reduced, effective as of the close of
business on such record date, to a price determined by multiplying such Warrant
Price by a fraction of which (i) the numerator shall be the Closing Bid Price
(as defined below) of a share of Common Stock on the trading day immediately
preceding such record date minus the value of the Distribution (as determined
in
good faith by the Company’s Board of Directors) applicable to one share of
Common Stock, and (ii) the denominator shall be the Closing Bid Price of the
shares of Common Stock on the trading day immediately preceding such record
date; and
(ii) the
number of Warrant Shares shall be increased to a number of shares equal to
the
number of shares of Common Stock obtainable immediately prior to the close
of
business on the record date fixed for the determination of holders of shares
of
Common Stock entitled to receive the Distribution multiplied by the reciprocal
of the fraction set forth in the immediately preceding paragraph (ii); provided
that in the event that the Distribution is of shares of common stock (“Other
Shares of Common Stock”) of a company whose common shares are traded on a
national securities exchange or a national automated quotation system, then
any
holder of each Warrant may elect to receive a warrant to purchase Other Shares
of Common Stock in lieu of an increase in the number of Warrant Shares, the
terms of which shall be identical to those of this Agreement and the Warrants,
except that such warrant shall be exercisable into the number of shares of
Other
Shares of Common Stock that would have been payable to the holder of each
Warrant pursuant to the Distribution had such holder exercised its Warrant
immediately prior to such record date and with an aggregate exercise price
equal
to the product of the amount by which the exercise price of such Warrant was
decreased with respect to the Distribution pursuant to the terms of the
immediately preceding paragraph (i) and the number of Warrant Shares calculated
in accordance with the first part of this paragraph (ii).
(iii) As
used
above, “Closing Bid Price” means the last closing bid price for the Common Stock
on the Nasdaq National Market, as reported by Bloomberg Financial Markets or
its
successor (“Bloomberg”), or, if the Nasdaq National Market operates on an
extended hours basis and does not designate the closing bid price or the closing
trade price, as the case may be, then the last bid price of such security prior
to 4:00:00 p.m., New York Time, as reported by Bloomberg, or, if the Principal
Market is not the principal securities exchange or trading market for such
security, the last closing bid price of such security on the principal
securities exchange or trading market where such security is listed or traded
as
reported by Bloomberg, or if the foregoing do not apply, the last closing bid
price of such security in the over-the-counter market on the electronic bulletin
board for such security as reported by Bloomberg, or, if no closing bid price
is
reported for such security by Bloomberg, the average of the bid prices, or
the
ask prices, respectively, of any market makers for such security as reported
in
the “pink sheets” by Pink Sheets LLC (formerly the National Quotation Bureau,
Inc.). If the Closing Bid Price cannot be calculated on a particular date on
any
of the foregoing bases, the Closing Bid Price of such security on such date
shall be the fair market value as mutually determined by the Company and the
holder of the Warrant.
(c) Consolidation,
Merger or Sale of Assets.
If,
prior to the exercise of any Warrants, the Company shall at any time consolidate
with or merge into another corporation, the holder of any Warrants will
thereafter receive, upon the exercise thereof in accordance with the terms
of
this Agreement, the securities or property to which the holder of the number
of
shares of Common Stock then deliverable upon the exercise or conversion of
such
Warrants would have been entitled upon such consolidation or merger, and the
Company shall take such steps in connection with such consolidation or merger
as
may be necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to any securities or
property thereafter deliverable upon the exercise of the Warrants. The Company
or the successor corporation, as the case may be, shall execute and deliver
to
the Warrant Agent a supplemental agreement so providing, and the terms of any
agreement pursuant to which any such consolidatation or merger is effected
shall
include terms requiring the Company or the successor corporation to comply
with
the provisions of this subsection (c). A sale of all or substantially all the
assets of the Company for a consideration (apart from the assumption of
obligations) consisting primarily of securities shall be deemed a consolidation
or merger for the foregoing purposes. The provisions of this subsection (c)
shall similarly apply to successive mergers or consolidations or sales or other
transfers.
(d) Calculations
to the Nearest Cent and One-Hundredth of a Share.
No
adjustment in the Warrant Price shall be required unless such adjustment would
require an increase or decrease of at least 1% in such price; provided, however,
that any adjustments which by reason of this Section 7(d) are not required
to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 7 shall be made to the nearest
cent and to the nearest one-hundredth of a share as the case may be.
Notwithstanding the first sentence of this subsection (d), any adjustment
required by this Section 7 shall be made no later than the earlier of six months
from the date of the transaction which mandates such adjustment or the
expiration of the right to exercise any Warrant.
(e) Notice
of Warrant Adjustment.
Whenever the Warrant Price or the number of shares purchasable upon exercise
of
a Warrant shall be adjusted as provided in this Section 7, the Company shall
forthwith file with the Warrant Agent a certificate, signed by a firm of
independent public accountants, showing in detail the facts requiring such
adjustment and the Warrant Price and number of shares so purchasable that will
be effective after such adjustment. The Company shall also cause a notice
setting forth any adjustments to be sent by mailing first class, postage
prepaid, to each registered holder of a Warrant or Warrants at its address
appearing on the Warrant register and, at its option, may cause a copy of such
notice to be published once in an English language newspaper of general
circulation in the City of New York, New York. The Warrant Agent shall have
no
duty with respect to any certificate filed with it except to keep the same
on
file and available for inspection by registered holders of Warrants during
reasonable business hours. The Warrant Agent shall not at any time be under
any
duty or responsibility to any holder of a Warrant to determine whether any
facts
exist which may require any adjustment of the Warrant Price, or with respect
to
the nature of any adjustment of the Warrant Price when made, or with respect
to
the method employed in making such adjustment.
(f) Other
Notices.
In case
the Company after the date hereof shall propose to take any action of the type
described in subsections (a), (b) or (c) of this Section 7, the Company shall
file with the Warrant Agent a certificate, signed by the President and Chief
Executive Officer or the Chief Financial Officer of the Company and by its
Secretary or Assistant Secretary specifying, in the case of any action of the
type specified in subsections (a), (b) or (c), the date on which such action
shall take place and shall also set forth such facts with respect thereto as
shall be reasonably necessary to indicate the effect of such action (to the
extent such facts may be known on the date of such notice) on the Warrant Price
and the number, or kind, or class of shares or other securities or property
which shall be purchasable upon exercise of Warrants. The Company shall also
cause a notice setting forth any adjustments to be sent by mailing first class,
postage prepaid, to each registered holder of a Warrant Certificate or Warrant
Certificates at its address appearing on the Warrant register and, at its
option, may cause a copy of such notice to be published once in an English
language newspaper of general circulation in the City of New York, New York.
Failure to give such notice or any defect therein shall not affect the legality
or validity of such action.
(g) No
Change in Warrant Terms on Adjustment.
Irrespective of any of the adjustments in the Warrant Price or the number of
shares of Warrant Common Stock, Warrant Certificates theretofore or thereafter
issued may continue to express the same prices and number of shares as are
stated in a similar Warrant Certificate issuable initially, or at some
subsequent time, pursuant to this Agreement and such number of shares specified
therein shall be deemed to have been so adjusted.
(h) Treasury
Shares.
Shares
of Common Stock at any time owned by the Company shall not be deemed to be
outstanding for purposes of any computation under this Section 7.
(i) Optional
Reduction in Warrant Price.
Anything in this Section 7 to the contrary notwithstanding, the Company shall
be
entitled to make such reductions in the Warrant Price, in addition to those
adjustments required by this Section 7, as it in its sole discretion shall
determine to be necessary in order that any (1) consolidation or subdivision
of
the Common Stock, (2) issuance wholly for cash of any Common Stock at less
than
the Current Market Price, (3) issuance wholly for cash of Common Stock or
securities which by their terms are convertible into or exchangeable for Common
Stock, (4) stock dividend, or (5) issuance of rights, options or warrants
referred to hereinabove in this Section 7, hereinafter made by the Company
to
its common stockholders, shall not be taxable to them.
The
Company may, at its option, at any time during the term of the Warrants, reduce
the then current Warrant Price to any amount deemed appropriate by the Board
of
Directors of the Company, for any length of time.
Other
than with respect to clause (1) in Section7(i), the Warrant Price of the
Warrants shall not be reduced pursuant to this Section 7(i) below $1.89 (or
such
lower Warrant Price as may be applicable as a result of prior adjustment(s)
under Section 7(a), (b) or (c)).
SECTION
8. Current
Market Price.
For all
purposes of this Agreement, the Current Market Price per share of Common Stock
on any date shall be deemed to be the average of the daily closing prices for
the five consecutive business days commencing before such date. The closing
price for each day shall be the average of the closing bid and asked prices,
as
reported by the Nasdaq National Market or a similar source selected from time
to
time by the Company for the purpose. If on any such date the shares of Common
Stock are not quoted by any such source, the fair value of such shares on such
date, as determined by the Board of Directors of the Company, shall be
used.
SECTION
9. Exercise
of Warrants.
(a)
Subject to the provisions of this Agreement, each registered holder of Warrants
shall have the right, which may be exercised as in such Warrant Certificates
expressed, to purchase from the Company (and the Company shall issue and sell
to
such registered holders of Warrants) all or part of the number of fully paid
and
nonassessable shares of Warrant Common Stock specified in such Warrant
Certificates (subject to the adjustments as herein provided), upon surrender
to
the Company at the office of the Warrant Agent specified in Section 21 hereof,
of such Warrant Certificates with the exercise form on the reverse thereof
duly
filled in and signed, and upon payment to the Warrant Agent to the account
of
the Company of the Warrant Price for the number of shares of Warrant Common
Stock in respect of which such Warrants are then exercised. The date of exercise
of any Warrant shall be deemed to be the date of its receipt by the Warrant
Agent duly filled in and signed and accompanied by proper funds as hereinafter
provided. Payment of such Warrant Price may be made in wire transfer in
immediately available funds, cash, or by certified or official bank check.
No
adjustment shall be made for any cash dividends on shares of Warrant Common
Stock issuable upon exercise of a Warrant. Upon such surrender of Warrants,
and
payment of the Warrant Price as aforesaid, the Company shall issue and cause
to
be delivered with all reasonable dispatch to or upon the written order of the
registered holder of such Warrants and in such name or names as such registered
holder may designate, a certificate or certificates for the number of full
shares of Warrant Common Stock so purchased upon the exercise of such Warrants
together with cash as provided in Section 11 of this Agreement, in respect
of
any fraction of a share of such stock issuable upon such surrender.
Each
person in whose name any certificate for shares of Common Stock is issued upon
the exercise of Warrants shall for all purposes be deemed to have become the
holder of record of the Common Stock represented thereby on, and such
certificate shall be dated, the date upon which the Warrant Certificate
evidencing such Warrants was duly surrendered and payment of the Warrant Price
(and any applicable transfer taxes) was made; provided, however, that if the
date of such surrender and payment is a date upon which the Common Stock
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares on, and such certificate shall be dated,
the next succeeding business day on which the Common Stock transfer books of
the
Company are open.
(b)
In
addition to the method of payment set forth in paragraph 9(a) and in lieu of
any
cash payment required thereunder, each registered holder of the Warrants shall
have the right at any time and from time to time 180 days after the date hereof
to exercise the Warrant in full or in part by surrendering to the Company at
the
office of the Warrant Agent specified in Section 21 hereof, such Warrant
Certificates with the exercise form on the reverse thereof duly filled in and
signed. The number of shares of Warrant Common Stock to be issued pursuant
to
this paragraph (b) shall be equal to the difference between:
(i) the
number of shares of Warrant Common Stock in respect of which the Warrant
Certificate is exercised; and
(ii) a
fraction, the numerator of which shall be the number of shares of Common Stock
in respect of which the Warrant Certificate is exercised multiplied by the
Warrant Price and the denominator of which shall be the Current Market Price
(as
defined in Section 8 hereof) of the Common Stock.
(c)
19.9%
Limitations on Exercise of Warrants.
Notwithstanding anything to the contrary contained herein, the number of Warrant
Shares that may be acquired by a registered holder of Warrants upon any exercise
of Warrants (or otherwise in respect hereof) shall be limited to the extent
necessary to insure that, following such exercise (or other issuance), the
total
number of shares of Common Stock then beneficially owned by such holder and
its
affiliates for purposes of Section 13(d) of the Securities Exchange Act of
1934,
as amended (the “Exchange Act”) does not exceed 19.9% of the total number of
issued and outstanding shares of Common Stock as of the date of such exercise
(including for such purpose the shares of Common Stock issuable upon such
exercise of Warrants) unless Stockholder Approval has been obtained.
“Stockholder Approval” means the approval by a majority of the total votes cast
on the proposal, in person or by proxy, at a meeting of the stockholders of
the
Company held in accordance with the Company’s by-laws, of a change of control in
the Company, to the extent required pursuant to Rule 4350(i) of the Nasdaq
Stock
Market, as applicable. For such purposes, beneficial ownership shall be
determined in accordance with Section 13(d) of the Exchange Act and the rules
and regulations promulgated thereunder. This Section 9(c) may not be
waived.
SECTION
10. Unexercised
Warrants.
To the
extent that any Warrant Certificates remain outstanding at the expiration of
the
period during which the Warrants are exercisable, the unexercised Warrants
represented thereby shall be deemed null and void.
SECTION
11. Elimination
of Fractions.
The
Company shall not be required to issue fractional shares of stock upon any
exercise of Warrants. As to any final fraction of a share which the same
registered holder of one or more Warrants, the rights under which are exercised
in the same transaction or series of related transactions, would otherwise
be
entitled to purchase upon such exercise, the Company shall pay a cash adjustment
in respect of such final fraction in an amount equal to the same fraction of
the
Current Market Price (as determined in the manner prescribed in Section 8
hereof) on the business day which next precedes the day of
exercise.
SECTION
12. Issue
Taxes.
The
Company will pay documentary stamp taxes, if any, attributable to the initial
issuance of shares of Warrant Common Stock upon the exercise of any Warrant;
provided, however, that neither the Company nor the Warrant Agent shall be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue or delivery of any certificates for shares of Warrant
Common Stock in a name other than that of the registered holder of Warrants,
in
respect of which such shares are initially issued.
SECTION
13. Reservation
of Shares.
The
Company shall at all times reserve and keep available out of its authorized
but
unissued stock, for the purpose of effecting the issuance of stock upon exercise
of Warrants, such number of shares of its duly authorized Warrant Common Stock
as shall from time to time be sufficient to effect the issuance of shares of
Warrant Common Stock upon exercise of all Warrants at the time
outstanding.
SECTION
14. Merger
or Consolidation or Change of Name of Warrant Agent.
Any
corporation into which the Warrant Agent may be merged or with which it may
be
consolidated, or any corporation resulting from any merger or consolidation
to
which the Warrant Agent shall be a party, or any corporation succeeding to
the
corporate trust business of the Warrant Agent, shall be the successor to the
Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. In the case of Warrants which have been countersigned
by the Warrant Agent, but not delivered at the time any such successor to the
Warrant Agent succeeds to the agency created by this Agreement, any such
successor may adopt the countersignature of the original Warrant Agent and
deliver such Warrants so countersigned; and in case at that time any of the
Warrants shall not have been countersigned, any successor to the Warrant Agent
may countersign such Warrants either in the name of the predecessor Warrant
Agent or in the name of the successor Warrant Agent; and in all such cases
such
Warrants shall have the full force and effect provided in the Warrants and
in
this Agreement.
In
case
at any time the name of the Warrant Agent shall be changed and at such time
any
of the Warrants shall have been countersigned but not delivered, the Warrant
Agent may adopt the countersignature under its prior name and deliver Warrant
Certificates so countersigned, and in case at that time any of the Warrant
Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its changed
name; and in all such cases such Warrant Certificates shall have the full force
and effect provided in the Warrant Certificates and in this
Agreement.
SECTION
15. Disposition
of Proceeds on Exercise of Warrants, etc.
The
Warrant Agent shall account promptly to the Company with respect to Warrants
exercised and concurrently pay to the Company all moneys received by the Warrant
Agent for the purchase of shares of Common Stock through the exercise of such
Warrants.
The
Warrant Agent shall keep copies of this Agreement available for inspection
by
holders of Warrants during normal business hours at its office specified in
Section 21 hereof.
SECTION
16. Supplements
and Amendments.
The
parties hereto may from time to time supplement or amend this Agreement without
the approval of any holders of Warrants to cure any ambiguity or to correct
or
supplement any provision contained in this Agreement which may be defective
or
inconsistent with any other provision contained herein, or to make such other
provisions with respect to any change or any supplemental agreement as the
parties may deem necessary or desirable and which shall not materially adversely
affect the interests of the registered holders of the Warrants.
SECTION
17. Mutilated
or Missing Warrant Certificates.
If any
Warrant shall be mutilated, lost, stolen or destroyed the Warrant Agent shall
deliver a new Warrant Certificate of like tenor and denomination in exchange
and
substitution therefor upon surrender and cancellation of the mutilated Warrant
Certificate or, in the case of a lost, stolen or destroyed Warrant Certificate,
upon receipt of evidence satisfactory to the Company and the Warrant Agent
of
the loss, theft or destruction of such Warrant Certificate and, in either case,
upon receipt of such indemnity as the Company and the Warrant Agent may
reasonably require. Applicants for substitute Warrant Certificates shall also
comply with such other reasonable regulations and pay such other reasonable
charges as the Warrant Agent or the Company may prescribe. Any such new Warrant
Certificate shall constitute an original contractual obligation of the Company,
whether or not the allegedly lost, stolen, mutilated or destroyed Warrant
Certificate shall be at any time enforceable by anyone.
SECTION
18. Duties
of the Warrant Agent.
The
Warrant Agent undertakes the duties and obligations imposed by this Warrant
Agreement upon the following terms and conditions, by all of which the Company
and the holders of Warrants, by their acceptance thereof, shall be
bound:
The
Warrant Agent shall not be liable for or by reason of any of the statements
of
fact or recitals contained in this Agreement or in the Warrant Certificates
(except its countersignature thereof and except such as describes the Warrant
Agent or action taken or to be taken by it) or be required to verify the same,
but all such statements and recitals are and shall be deemed to have been made
by the Company only. The Warrant Agent shall not be under any responsibility
in
respect of the validity of this Agreement or the execution and delivery hereof
or in respect of the validity or execution of any Warrant Certificate (except
its countersignature thereof); nor shall it be responsible for any breach by
the
Company of any covenant or condition contained in this Agreement or in any
Warrant Certificate to be complied with by the Company; nor shall it be
responsible for the making of any adjustment in the Warrant Price or the number
of shares issuable upon the exercise of a Warrant required under the provisions
of Section 7 or responsible for the manner, method or amount of any such change
or the ascertaining of the existence of facts that would require any such
change; nor shall it by any act hereunder be deemed to make any representation
or warranty as to the authorization or reservation of any shares to be issued
pursuant to this Agreement or any Warrant or as to whether any shares will,
when
issued, be validly issued and fully paid and non-assessable.
The
Warrant Agent may execute and exercise any of the rights or powers hereby vested
in it or perform any duty hereunder either itself or by or through its
attorneys, agents or employees, and the Warrant Agent shall not be answerable
or
accountable for any act, default, neglect or misconduct of any such attorneys,
agents or employees or for any loss to the Company resulting from such neglect
or misconduct, provided reasonable care had been exercised in the selection
and
continued employment thereof.
The
Warrant Agent may consult at any time with legal counsel satisfactory to it
(who
may be legal counsel for the Company) and the advice of such counsel shall
be
full and complete authorization and protection to the Warrant Agent as to any
action taken or omitted by it in good faith and in accordance with such
advice.
The
Warrant Agent shall incur no liability or responsibility to the Company or
to
any holder of a Warrant Certificate for any action taken in reliance on any
notice, resolution, waiver, consent, order, certificate, or other paper,
document or instrument believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties.
The
Company agrees to pay to the Warrant Agent reasonable compensation for all
services rendered by the Warrant Agent in the execution of this Warrant
Agreement, to reimburse the Warrant Agent for all expenses (including reasonable
counsel fees), taxes and governmental charges and other charges of any kind
and
nature incurred by the Warrant Agent in the execution of this Warrant Agreement
and to indemnify the Warrant Agent and save it harmless against any and all
liabilities, including judgments, costs and reasonable counsel fees, for
anything done or omitted by the Warrant Agent in the execution of this Warrant
Agreement except as a result of the Warrant Agent's negligence, willful
misconduct or bad faith.
The
Warrant Agent and any stockholder, director, officer or employee of the Warrant
Agent may buy, sell, or deal in any of the Warrants or other securities of
the
Company or become pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company or otherwise
act as fully and freely as though it were not Warrant Agent under this Warrant
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other legal entity.
The
Warrant Agent shall act hereunder solely as agent for the Company and in a
ministerial capacity, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything which
it
may do or refrain from doing in connection with this Agreement except for its
own negligence, willful misconduct or bad faith.
SECTION
19. Change
of Warrant Agent.
The
Warrant Agent may resign and be discharged from its duties under this Agreement
upon 30 days’ notice in writing mailed to the Company by registered or certified
mail and the Company shall subsequently mail such notice to the holders of
the
Warrant Certificates by first-class mail. The Company may remove the Warrant
Agent or any successor Warrant Agent upon 30 days’ notice in writing, mailed to
the Warrant Agent or successor Warrant Agent, as the case may be, and to each
transfer agent of the Common Stock by registered or certified mail, and to
the
holders of the Warrant Certificates by first-class mail. If the Warrant Agent
shall resign or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Warrant Agent. If the Company shall
fail to make such appointment within a period of 30 days after such removal
or
after it has been notified in writing of such resignation or incapacity by
the
resigning or incapacitated Warrant Agent or by the holder of a Warrant
Certificate (who shall, with such notice, submit such holder's Warrant
Certificate for inspection by the Company), then the registered holder of any
Warrant Certificate may apply to any court of competent jurisdiction for the
appointment of a new Warrant Agent. Any successor Warrant Agent, whether
appointed by the Company or by such a court, shall be a corporation organized
and doing business under the laws of the United States or of the States of
California or New York, in good standing, having its principal office in the
City of New York, New York or the City of Los Angeles, California, which is
authorized under such laws to exercise corporate trust powers and is subject
to
supervision or examination by federal or state authority and which has at the
time of its appointment as Warrant Agent a combined capital and surplus of
at
least $5,000,000. After appointment, the successor Warrant Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named as Warrant Agent without further act or deed; but the
predecessor Warrant Agent shall deliver and transfer to the successor Warrant
Agent any property at the time held by it hereunder, and execute and deliver
any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of such appointment the Company shall file notice
thereof in writing with the predecessor Warrant Agent and each transfer agent
of
the Common Stock, and mail a notice thereof in writing to the registered holders
of the Warrant Certificates. Failure to give any notice provided for in this
Section 19, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Warrant Agent or the appointment
of the successor Warrant Agent, as the case may be.
SECTION
20. Identity
of Transfer Agent.
Forthwith upon the appointment of any subsequent Transfer Agent for shares
of
the Common Stock, the Company will file with the Warrant Agent a statement
setting forth the name and address of such Transfer Agent.
SECTION
21. Notices.
Any
notice pursuant to this Agreement to be given by the Warrant Agent or by the
registered holder of any Warrant to the Company shall be sufficiently given
if
sent by first-class mail, postage prepaid, addressed (until another address
is
filed in writing by the Company with the Warrant Agent) as follows:
North
American Scientific, Inc.
00000
Xxxxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxxxx 00000
Attention:
Xxxxx Xxxx
Telephone
No.: (000) 000-0000
Telecopy
No.: (000) 000-0000
with
a
copy to:
Seyfarth
Xxxx LLP
00
Xxxx
Xxxxxx Xxxxxx, Xxx. 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxx Xxxxx
Telephone
No.: (000) 000-0000
Telecopy
No.: (000) 000-0000
Any
notice pursuant to this Agreement to be given by the Company or by the
registered holder of any Warrant to the Warrant Agent shall be sufficiently
given if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing by the Warrant Agent with the Company) as
follows:
U.S.
Stock Transfer Corporation
0000
Xxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx
Attention:
Xxxx Xxxxxxxx
SECTION
22. Successors.
All the
covenants and provisions of this Agreement by or for the benefit of the Company
or the Warrant Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
SECTION
23. Governing
Law.
This
Agreement and each Warrant issued hereunder shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of the State of New York, without regard
to principles of conflict of laws.
SECTION
24. Benefits
of this Agreement.
Nothing
in this Agreement shall be construed to give to any person or entity other
than
the Company, the Warrant Agent and the registered holders of the Warrant
Certificates any legal or equitable right, remedy or claim under this Agreement;
but this Agreement shall be for the sole and exclusive benefit of the Company,
the Warrant Agent and the registered holders of the Warrant Certificates. This
Warrant shall not entitle the holder to any voting rights or any rights as
a
stockholder of the Company. The rights and obligations of the Company, the
Warrant Agent, the holder and any holder of shares of Common Stock issuable
hereunder shall survive the exercise of this Warrant.
SECTION
25. Counterparts.
This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
SECTION
26. Registration
of Shares of Common Stock.
The
Company will furnish to the Warrant Agent (i) if a registration statement filed
under the Securities Act of 1933, as amended, has been declared effective with
respect to the shares issuable upon exercise of the Warrant (the “Registration
Statement”), within 10 days after the Registration Statement has been declared
effective, an opinion of counsel to the effect that a Registration Statement
is
then in effect with respect to the Warrant Shares and the prospectuses
hereinafter referred to comply as to form in all material respects with the
requirements of the Securities Act of 1933, as amended, and the rules and
regulations of the Securities and Exchange Commission thereunder; or (ii) within
10 days of such time as a Registration Statement with respect to the shares
of
Warrant Common Stock issuable upon the exercise of the Warrants is not required
under the Securities Act of 1933, as amended, an opinion of counsel to the
effect that a Registration Statement is not required under the Securities Act
of
1933, as amended, and the rules and regulations of the Securities and Exchange
Commission thereunder. In the event that said opinion states that such a
Registration Statement is in effect, the Company will, within 10 days of after
the Registration Statement has been declared effective, furnish the Warrant
Agent with current prospectuses meeting the requirements of said Act and all
rules and regulations thereunder in sufficient quantity to permit the Warrant
Agent to deliver a prospectus to each transferee of a Warrant Certificate and
each holder of a Warrant Certificate upon exercise or conversion thereof. The
Company further agrees to pay all fees, costs and expenses in connection with
the preparation and delivery to the Warrant Agent of the foregoing opinions
and
prospectuses.
If
any
shares of Warrant Common Stock issuable upon the exercise of the Warrants or
the
issuance thereof requires registration or approval of any governmental
authority, including, without limitation, the filing of necessary amendments,
supplements or post-effective amendments to a Registration Statement of the
Company under the Securities Act of 1933, or the taking of any other action
under the laws of the United States of America or any political subdivision
hereof or under the laws of any state of the United States of America before
such shares may be validly and legally issued, then the Company covenants that
it will in good faith and as expeditiously as possible endeavor to secure and
keep effective such registration or approval or to take such other action,
as
the case may be.
SECTION
27. Entire
Agreement.
This
Agreement (together with the Exhibits attached hereto) and the Securities
Purchase Agreements between certain purchasers and the Company set forth the
entire agreement of the Company and the holder of the Common Stock issuable
upon
the exercise of this Warrant with respect to the rights of the holder and the
Common Stock issuable upon the exercise of this Warrant.
IN
WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement to be
executed and delivered as of the day and year first above written.
|
NORTH
AMERICAN SCIENTIFIC, INC.
By:
__________________________
Name:
Title:
U.S.
Stock Transfer Corporation
as
Warrant Agent
By:
__________________________
Name:
Title:
|
EXHIBIT
A
Form
of Warrant
EXERCISABLE
AT ANY TIME AFTER DECEMBER 3, 2006 AND AT OR PRIOR TO 12:30 P.M. PACIFIC TIME
ON
JUNE 6, 2013
WARRANT
CERTIFICATE
NORTH
AMERICAN SCIENTIFIC, INC.
|
No.
W-
|
This
certifies that _____________________________ or registered assigns is the
registered holder of the number of Warrants set forth above, and is entitled,
upon surrender of this Warrant Certificate at the office of U.S. Stock Transfer
Corporation, Warrant Agent (or any successor as such Warrant Agent), in the
City
of Glendale, California, at any time 180 after the date hereof and at or prior
to 12:30 p.m. Pacific Time on June 6, 2013, to purchase one share of Common
Stock, par value $0.01, of North American Scientific, Inc., a Delaware
corporation (the “Company”), at the price equal to $2.08 per share.
The
applicable per share purchase price shown above and the number of shares
issuable upon exercise of the Warrants represented by this Warrant Certificate
are subject to adjustment for the occurrence of certain events, including stock
dividends and split-ups, combinations, reorganizations, reclassifications,
consolidations, mergers or sales of properties and assets and upon the issuance
of certain rights or warrants to holders of Common Stock, as set forth in the
Warrant Agreement hereinafter referred to. A complete statement with respect
to
such adjustments and to other terms and conditions pertaining to the Warrants
is
contained in the Warrant Agreement, dated as of June 7, 2006, between the
Company and U.S. Stock Transfer Corporation, Warrant Agent, a copy of which
may
be examined by the registered holder hereof at the office of the Warrant
Agent.
To
exercise the Warrants represented by this Warrant Certificate the form of
election to purchase on the reverse hereof must be duly executed and the
accompanying instructions for the registration and delivery of the stock must
be
filled in.
The
Warrants represented by this Warrant Certificate are transferable (subject
to
the conditions set forth in the preceding paragraphs) at the office in the
City
of Glendale, California of the Warrant Agent (or of its successor as Warrant
Agent) by the registered holder thereof in person or by attorney duly authorized
in writing, upon surrender of this Warrant Certificate. Upon any such transfer,
a new Warrant Certificate, representing the right to purchase a like number
of
shares of the Company's Common Stock, will be issued to the transferee in
exchange for this Warrant Certificate.
This
Warrant Certificate and similar Warrant Certificates when surrendered at the
office in the City of Glendale, California of the Warrant Agent (or of its
successor as Warrant Agent) by the registered holder hereof in person or by
attorney duly authorized in writing may be exchanged for another Warrant
Certificate or Warrant Certificates, representing in the aggregate the right
to
purchase a like number of shares of the Company's Common Stock.
A-1
If
the
Warrants evidenced by this Warrant Certificate remain outstanding at the
expiration of the period during which Warrants are exercisable, as set forth
in
the first paragraph of this Warrant Certificate, such Warrants shall thereupon
be deemed null and void.
No
fractional shares of Common Stock will be issued upon the exercise of any
Warrant or Warrants evidenced hereby, but in lieu thereof, a cash payment will
be made, as provided in the Warrant Agreement.
No
holder
of this Warrant Certificate shall be entitled to vote or receive dividends
or be
deemed for any purpose the holder of Common Stock or of any other securities
of
the Company which may at any time be issuable on the exercise hereof, nor shall
anything contained in the Warrant Agreement or herein be construed to confer
upon the holder hereof, as such, any of the rights of a stockholder of the
Company or any right to vote upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action (whether
upon any recapitalization, issue of stock, reclassification of stock, change
of
par value, consolidation, merger, conveyance, or otherwise) or, except as
provided in the Warrant Agreement, to receive notice of meetings, or to receive
dividends or subscription rights or otherwise, until the Warrant or Warrants
evidenced by this Warrant Certificate shall have been exercised as provided
in
the Warrant Agreement.
|
NORTH
AMERICAN SCIENTIFIC, INC.
By:
__________________________
Its:
__________________________
|
This
Warrant Certificate is not valid until countersigned by the Warrant
Agent.
| Dated: |
Countersigned:
___________________________,
as
Warrant Agent,
By:_________________________
Authorized
Officer
|
A-2
FORM
OF EXERCISE
(Form
of exercise to be executed by the Warrant
Holder
at the time of exercise)
To
U.S.
Stock Transfer Corporation or its successor as Warrant
Agent:
The
undersigned, holder of the within Warrant Certificate, hereby (1) irrevocably
exercises the undersigned's right to purchase _________ shares of Common Stock,
par value $0.01 per share, of North American Scientific, Inc. (the “Company”)
which the undersigned is entitled to purchase under the terms of the within
Warrant Certificate, or such other securities as the undersigned shall be
entitled to purchase under the terms of the Warrant Agreement referred to in
such Warrant Certificate by reason of the occurrence of certain events specified
therein, and (2) elects to make payment in full for the number of shares of
Common Stock so purchased by payment of $______ in wire transfer in immediately
available funds, cash or by certified or official bank check.
Please
issue the certificate for shares of Common Stock in the name of, and pay any
cash for any fractional share to:
________________________________________________________________
Print
or
type name
________________________________________________________________
Social
Security or other Identifying Number
________________________________________________________________
Street
Address
________________________________________________________________
City State Zip
Code
If
such
number of shares shall not be all the shares purchasable upon the exercise
of
the Warrants evidenced by this Warrant Certificate, a new Warrant Certificate
for the balance of such Warrants remaining unexercised shall be registered
in
the name of and delivered to:
Please
insert social security or other identifying number:
___________________
_______________________________________________________________
(Please
print name and address)
_________________________________________________________________
Dated:
___________, _______ ___________________________________
Signature
(Signature
must conform in all
respects to name of holder
as
specified on the face of the
Warrant Certificate)
A-3
(Signature
Medallion Guaranteed): ___________________________ Date:
___________________
(If
the
Common Stock, cash in lieu of fractional shares, or Warrants for any unexercised
balance are to be issued or paid to a person other than the person in whose
name
the within Warrant is registered, or if otherwise requested by the Company
or
the Warrant Agent, a signature Medallion guarantee is required.)
A-4
ASSIGNMENT
(Form
of assignment to be executed if Warrant
Holder
desires to transfer Warrant)
FOR
VALUE RECEIVED,
__________________________________ hereby sells, assigns, and transfer unto
____________________ this Warrant Certificate together with all right, title
or
interest therein and does hereby irrevocably appoint ___________________
attorney to transfer the within Warrant Certificate on the books of the Warrant
Agent with full power of substitution in the premises.
| Dated: _____________ | _____________________________________ |
|
Signature
(Signature
must conform in all respects to name of holder as specified on the
face of
the Warrant Certificate)
|
(Signature
Medallion Guaranteed): ___________________________ Date:
___________________
A-5
