FOURTH AMENDMENT TO RIGHTS AGREEMENT
Exhibit
10.1
FOURTH
AMENDMENT
TO
This
FOURTH AMENDMENT (this “Amendment”)
dated
as of January 14, 2008 to the Rights Agreement, dated as of October 14, 1998
(the “
Rights Agreement“),
as
previously amended, by and between North American Scientific, Inc., a Delaware
corporation (the “Company“),
and
Computershare Trust Company, N.A., a federally chartered trust company
(successor Rights Agent to U.S. Stock Transfer 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
willingness of the investors to enter into the Securities Purchase Agreements
is
conditioned upon, among other things, the supplement or amendment of the Rights
Agreement on the terms set forth herein;
WHEREAS,
no
“Distribution Date,” “Share Acquisition Date,” “Redemption Date” or “Final
Expiration Date” (as such terms are defined in the Rights Agreement) has
occurred;
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 without the approval of any holders of certificates representing
shares of Common Stock of the Company, 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
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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;
NOW,
THEREFORE,
in consideration of the premises and the mutual agreements herein set forth,
the
parties agree as follows:
1. Effectiveness
of this Amendment.
This Amendment is executed pursuant to the first sentence of Section 26 of
the Rights Agreement. The Company, by its execution of this Amendment, hereby
directs the Rights Agent to execute this Amendment. This Amendment shall take
effect immediately upon the execution hereof by the Company and the delivery
of
the certificate required pursuant to Section 26 of the Rights Agreement;
provided,
however,
that if the 2008 Private Placement is not closed for any reason, this Amendment
shall be deemed rescinded and of no further force and effect.
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:
(a) Acquiring
Person.
The definition of “Acquiring Person” in Section 1(a) of the Rights
Agreement is hereby amended by adding to the end of the first paragraph thereof
the following:
“;
provided
further, however,
that the investors in the 2008 Private Placement (the “2008
Investors”)
shall not be deemed to be an “Acquiring Person” due to (a) the execution and
delivery of the 2008 Private Placement Documents, (b) the announcement or
commencement thereof, including, without limitation, the acquisition by the
2008
Investors of any of the Securities issued or issuable pursuant to the 2008
Private Placement, and/or (c) the exercise of stock options to purchase shares
of the Company’s common stock held by the 2008 Investors or their affiliates or
the acquisition by the 2008 Investors or their affiliates of shares of the
Company’s common stock as a result of grants made to the 2008 Investors or their
affiliates or acquisitions of shares of the Company’s common stock by the 2008
Investors or their affiliates in connection with such 2008 Investors’ or their
affiliates’ role as a member of the board of directors of the
Company.”
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(b) Distribution
Date.
Section 1(g) of the Rights Agreement is hereby amended by inserting the
following sentence at the end of such Section 1(g):
“In
addition, notwithstanding anything to the contrary contained herein, no
Distribution Date shall occur solely as a result of the execution and delivery
of the 2008 Private Placement Documents (or any amendments thereto in accordance
with the terms thereof), or any actions taken by the 2008 Investors pursuant
to
the terms of any of the 2008 Private Placement Documents or the consummation
of
the transactions contemplated by the 2008 Private Placement Documents or the
announcement or commencement thereof, including, without limitation, the
acquisition by the 2008 Investors of any of the Securities issued or issuable
pursuant to the 2008 Private Placement Documents.”
(c) Share
Acquisition Date.
Section 1(v) of the Rights Agreement is hereby amended by inserting the
following sentence at the end of such Section 1(v):
“In
addition, notwithstanding anything to the contrary contained herein, no Share
Acquisition Date shall occur solely as a result of the execution and delivery
of
the 2008 Private Placement Documents (or any amendments thereto in accordance
with the terms thereof), or any actions taken by the 2008 Investors pursuant
to
the terms of any of the 2008 Private Placement Documents or the consummation
of
the transactions contemplated by the 2008 Private Placement Documents or the
announcement or commencement thereof, including, without limitation, the
acquisition by the 2008 Investors of any of the Securities issued or issuable
pursuant to the 2008 Private Placement Documents.”
(d) Adjustment
of Purchase Price, Number and Kind of Securities or Number of
Rights.
Section 11(a)(ii)(C) of the Rights Agreement is hereby amended by adding to
the
end of the first paragraph thereof the following:
“;
provided
further, however,
that a Person shall not be deemed to have become the Beneficial Owner of 20%
or
more of the Common Shares then outstanding for the purposes of this Section
11(a)(ii)(C) as a result of the exercise of stock options to purchase shares
of
the Company’s common stock held by the 2008 Investors or their affiliates or the
acquisition by the 2008 Investors or their affiliates of shares of the Company’s
common stock as a result of grants made to the 2008 Investors or their
affiliates or acquisitions of shares of the Company’s common stock by the 2008
Investors or their affiliates in connection with such 2008 Investors’ or their
affiliates’ role as a member of the board of directors of the
Company.”
(e) Adjustment
of Purchase Price, Number and Kind of Securities or Number of
Rights.
Section 11 of the Rights Agreement is hereby amended by adding to the end
thereof the following:
“(o) Notwithstanding
anything to the contrary contained herein, the provisions of this Section 11
shall not apply to or be triggered by the execution and delivery of the of
the
2008 Private Placement Documents (or any amendments thereto in accordance with
the terms thereof), or any actions taken by the 2008 Investors pursuant to
the
terms of any of the 2008 Private Placement Documents, or the consummation of
the
transactions contemplated by the 2008 Private Placement Documents, or the
announcement or commencement thereof, including, without limitation, the
acquisition by the 2008 Investors of any of the Securities issued or issuable
pursuant to the 2008 Private Placement Documents.”
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(f) Consolidation,
Merger or Sale or Transfer of Assets or Earning Power.
Section 13 of the Rights Agreement is hereby amended by adding to the end
thereof the following:
“(f) Notwithstanding
anything to the contrary contained herein, the provisions of this Section 13
shall not apply to or be triggered by the execution or delivery of the of the
2008 Private Placement Documents (or any amendments thereto in accordance with
the terms thereof), or any actions taken by the 2008 Investors pursuant to
the
terms of any of the 2008 Private Placement Documents, or the consummation of
the
transactions contemplated by the 2008 Private Placement Documents, or the
announcement or commencement thereof, including, without limitation, the
acquisition by the 2008 Investors of any of the Securities issued or issuable
pursuant to the 2008 Private Placement Documents.”
(g) References
to Rights Agent.
All references in the Rights Agreement to “U.S. Stock Transfer Corporation”
shall for all purposes be deemed to refer to “Computershare Trust Company,
N.A.”
(h)
Amendment
to Section 1(c) of the Rights Agreement.
Section 1(c) of the Rights Agreement is hereby amended by deleting the phrase
“State of California” and replacing it with the phrase “Commonwealth of
Massachusetts”.
(i) Amendment
to Section 1(d) of the Agreement.
Section 1(d) of the Rights Agreement is hereby amended by deleting the term
“Pacific” in both instances and replacing each with the term “Eastern”.
(j) Amendment
to Section 2 of the Agreement.
Section 2 of the Agreement is hereby amended by (i) adding the following
language to the end of the second sentence: “; upon ten (10) days’ prior written
notice to the Rights Agent.”; and (ii) adding the following language after the
last sentence: “The Rights Agent shall have no duty to supervise, and shall in
no event be liable for, the acts or omissions of any such Co-Rights Agent.”
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(k) Amendment
to Section 21 of the Agreement. Section 21 of the Agreement is hereby amended
and replaced in its entirety as follows:
“Change
of Rights Agent. The Rights Agent or any successor Rights Agent may resign
and
be discharged from its duties under this Agreement upon 30 calendar days’ notice
in writing mailed to the Company and to each transfer agent of the Common Shares
by registered or certified mail, and to the holders of the Right Certificates
by
first-class mail. In the event the transfer agency relationship in effect
between the Company and the Rights Agent terminates, the Rights Agent will
be
deemed to have resigned automatically and be discharged from its duties under
this Agreement as of the effective date of such termination, and the Company
shall be responsible for sending any required notice. The Company may remove
the
Rights Agent or any successor Rights Agent upon 30 calendar days’ notice in
writing, mailed to the Rights Agent or successor Rights Agent, as the case
may
be, and to each transfer agent of the Common Shares by registered or certified
mail, and to the holders of the Right Certificates by first-class mail. If
the
Rights Agent shall resign or be removed or shall otherwise become incapable
of
acting, the Company shall appoint a successor to the Rights Agent. If the
Company shall fail to make such appointment within a period of 30 calendar
days
after giving notice of such removal or after it has been notified in writing
of
such resignation or incapacity by the resigning or incapacitated Rights Agent
or
by the holder of a Right Certificate (who shall, with such notice, submit his
Right Certificate for inspection by the Company), then the registered holder
of
any Right Certificate may apply to any court of competent jurisdiction for
the
appointment of a new Rights Agent. Any successor Rights 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 any state of the United
States, in good standing, which is authorized under such laws to exercise
corporate trust or stockholder services powers and is subject to supervision
or
examination by federal or state authority and which has at the time of its
appointment as Rights Agent, along with its Affiliates, a combined capital
and
surplus of at least $50 million. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and responsibilities as
if
it had been originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer to the successor Rights
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 any such appointment, the Company shall file notice
thereof in writing with the predecessor Rights Agent and each transfer agent
of
the Common Shares, and mail a notice thereof in writing to the registered
holders of the Right Certificates. Failure to give any notice provided for
in
this Section 21, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Rights Agent or the appointment
of the successor Rights Agent, as the case may be.”
(l) Amendment
to Section 26 of the Agreement. Section 26 of the Agreement is hereby amended
to
add the following phrase at the end of the next to last sentence thereof: “so
long as such supplement or amendment shall not adversely affect the rights,
duties or obligations of the Rights Agent under this Agreement.”
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(m) Amendment
to the Agreement.
The
Rights Agreement is hereby amended to add the following new
section:
“Section
35. Force
Majeure.
Notwithstanding anything to the contrary contained herein, the Rights Agent
shall not be liable for any delays or failures in performance resulting from
acts beyond its reasonable control including, without limitation, acts of God,
terrorist acts, shortage of supply, breakdowns or malfunctions, interruptions
or
malfunction of computer facilities, or loss of data due to power failures or
mechanical difficulties with information storage or retrieval systems, labor
difficulties, war, or civil unrest.”
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.
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NORTH
AMERICAN SCIENTIFIC, INC.
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By:
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/s/
Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Its:
Sr.V.P. & Chief Financial
Officer
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COMPUTERSHARE
TRUST COMPANY, N.A.
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By:
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/s/
Xxxxxx Xxxxx
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Name:
Xxxxxx Xxxxx
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Its:Vice
President
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