THIRD AMENDMENT TO RIGHTS AGREEMENT
Exhibit
10.1
THIRD
AMENDMENT
TO
This
THIRD AMENDMENT (this “Amendment”)
dated
as of April 30, 2007 to the Rights Agreement, dated as of October 14, 1998
(the
“
Rights Agreement“)
by
and between North American Scientific, Inc., a Delaware corporation (the
“
Company“),
and
U.S. Stock Transfer Corporation, a California corporation (the “
Rights Agent“),
is
entered into between such parties. Capitalized terms used but not defined herein
are used herein as defined in the Rights Agreement.
WHEREAS,
the
Company has determined that the existing provisions of the Rights Agreement
may
be construed, contrary to the intent of the Rights Agreement, such that a Person
might be deemed to be or become an “Acquiring Person” thereunder, even though
such Person is acting inadvertently and has no intention of changing or
influencing control of the Company, and that such circumstance may adversely
affect the Company and its stockholders;
WHEREAS,
the
Company has determined that on account of the foregoing, the Rights Agreement
might be deemed to include one or more ambiguities, or might be determined
to be
defective, and in any event that it would be desirable to amend the Rights
Agreement to protect the interests of the Company and its stockholders and
to
conform to the intent of the Rights Agreement;
WHEREAS,
under
the terms of the Rights Agreement, the Board of Directors of the Company has
the
right and power to determine whether a Person is an Acquiring Person and whether
any proposed amendment to the Rights Agreement adversely affects the interests
of the holders of the Rights Certificates;
WHEREAS,
the
Board of Directors of the Company has determined that the amendment to the
Rights Agreement as set forth herein will not adversely affect the interests
of
the holders of the Rights Certificates;
WHEREAS,
pursuant to Section 26 of the Rights Agreement, under circumstances set forth
therein, (i) the Company may supplement or amend any provision of the Rights
Agreement, and (ii) upon the delivery of a certificate from an appropriate
officer of the Company which states that the proposed supplement or amendment
is
in compliance with the terms of Section 26 of the Rights Agreement, the Rights
Agent shall execute such supplement or amendment;
WHEREAS,
the
Company desires to amend the Rights Agreement as set forth herein and to direct
the Rights Agent to execute this Amendment;
WHEREAS,
this
Amendment shall become effective immediately; and
WHEREAS,
the
Board of Directors of the Company has adopted a resolution determining that
the
amendment of the Rights Agreement on the terms set forth herein is advisable
and
in the best interests of the Company and its stockholders, and that such
amendment will not adversely affect the interests of the holders of the Rights
Certificates;
NOW,
THEREFORE,
in
consideration of the premises and the mutual agreements herein set forth, the
parties agree as follows:
2. Certification
of Appropriate Officer.
The
undersigned officer of the Company, being duly authorized on behalf of the
Company, hereby certifies on behalf of the Company to the Rights Agent that
(a)
he is an “appropriate officer” as such term is used in Section 26 of the Rights
Agreement, and (b) this Amendment is in compliance with Section 26 of the Rights
Agreement.
3. Defined
Terms.
All
capitalized terms used but not defined in this Amendment shall have the meanings
assigned to them in the Rights Agreement.
4. No
Other Provisions Affected.
Except
to the extent expressly amended by this Amendment, all of the provisions of
the
Rights Agreement shall remain in full force and effect.
5. Amendment
to the Rights Agreement.
The
Rights Agreement is hereby amended as follows:
Acquiring
Person.
The
definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is
hereby amended by adding to the end thereof the following as a new
paragraph:
“Notwithstanding
the foregoing or anything to the contrary contained elsewhere in this Rights
Agreement, if the Board of Directors of the Company determines in good faith
that a Person who would otherwise be an “Acquiring Person” has become such
inadvertently (including, without limitation, because (i) such Person was
unaware that it beneficially owned a percentage of Common Shares that would
otherwise cause such Person to be an “Acquiring Person” or (ii) such Person was
aware of the extent of its Beneficial Ownership of Common Shares but had no
actual knowledge of the consequences of such Beneficial Ownership under this
Rights Agreement) and without any intention of changing or influencing control
of the Company, and such Person, as promptly as practicable divested or divests
himself or itself of Beneficial Ownership of a sufficient number of Common
Shares so that such Person would no longer be an Acquiring Person, the Board
of
Directors of the Company may determine that such Person is not an “Acquiring
Person” for any purposes of this Rights Agreement. In the event a Share
Acquisition Date or a Distribution Date would have been deemed to have occurred
on account of a Person being or becoming an Acquiring Person, and, in accordance
with the terms of this paragraph, the Board of Directors of the Company shall
have determined that such Person is not an Acquiring Person, then such Share
Acquisition Date or Distribution Date, or both, as applicable, shall be deemed
not to have occurred for any purposes of this Agreement.”
6. References
to the Rights Agreement.
All
references in the Rights Agreement, and the exhibits thereto, to the Rights
Agreement or any specific provision thereof (including references that use
the
terms “hereto” and “hereof”), as well as in the legends affixed to
certificates
issued
for Common Stock pursuant to Section 3(c) of the Rights Agreement, shall,
without any specific references expressly and individually to any of the
foregoing amendments, automatically be deemed references to the Rights Agreement
or the applicable specific provisions thereof (as the case may be) as amended
by
this Amendment, with the same force and effect as if expressly and individually
amended in that respect by this Amendment.
7. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws of
the
State of Delaware without reference to the conflicts or choice of law principles
thereof.
8. Counterparts.
This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed an original, and all of which together shall constitute one and the
same
instrument.
9. Fax
Transmission.
A
facsimile, telecopy or other reproduction of this Amendment may be executed
by
one or more parties hereto, and an executed copy of this Amendment may be
delivered by one or more parties hereto by facsimile or similar instantaneous
electronic transmission device pursuant to which the signature of or on behalf
of such party can be seen, and such execution and delivery shall be considered
valid, binding and effective for all purposes. At the request of any party
hereto, all parties hereto agree to execute an original of the Amendment as
well
as any facsimile, telecopy or other reproduction thereof.
IN
WITNESS WHEREOF,
the
Parties have caused this Amendment to be duly executed, and attested, all as
of
the date and year first above written.
| NORTH AMERICAN SCIENTIFIC, INC. | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxx | |
|
Name: Xxxxx X. Xxxx |
||
| Its: Corporate Secretary | ||
| U.S. STOCK TRANSFER CORPORATION | ||
| |
|
|
| By: | /s/ Xxxx X. Xxxxxxxx | |
|
Name: Xxxx X. Xxxxxxxx |
||
| Its: Vice President | ||
