LOAN AGREEMENT
Exhibit
10.45
This
Loan
Agreement (this “Agreement”) is entered into as of October 30, 2007 by and
between North American Scientific, Inc., a Delaware corporation (the “Company”),
and Xxxx X. Xxxxxx, a resident of the State of New York (the
“Lender”).
RECITAL
The
Company and the Lender are entering into this Agreement to evidence the
agreement of the Lender to loan $500,000 to the Company (the “Loan”), in two
installments of $250,000 each, and the Company’s agreement to issue promissory
notes (the “Notes”) to the Lender in the form attached hereto as Exhibit
A
to
evidence the Loan.
WHEREFORE,
the
parties hereto mutually agree as follows:
1. Recital.
The
parties hereby agree to the matters set forth in the above-stated
Recital.
2. Loan
and Note Issuance.
Subject
to the terms of this Agreement, the Lender hereby agrees to advance to the
Company installments of the Loan in the principal amount of (a) $250,000
on or
before October 31, 2007 and (b) $250,000 on or before November 14, 2007.
Such amounts shall be paid by the Lender by wire transfer of immediately
available funds to such account or accounts as may be designated by the Company.
At the time of each such advance, the Company will issue to the Lender a
Note in
a principal amount equal to the amount of such advance.
3. Loan
Fee.
At the
time of each advance pursuant to Section 2 above, the Company shall pay $10,000
to the Lender as a loan fee, which payment shall be made by reducing the
amount
of funds then being advanced by the Lender by the amount of such
fee.
4. Warrants.
At the
time of the first advance by the Lender to the Company pursuant to Section
2
above, the Company shall issue to the Lender a warrant (the “Warrant”) to
purchase shares of Common Stock of the Company (the “Warrant Shares”) in the
form set forth as Exhibit
B
hereto.
The purchase price per share for the Warrant Shares (the “Exercise Price”) shall
be equal to the per share closing price of the Common Stock on the trading
day
before the issuance of the Warrant as reported in the Wall
Street Journal.
The
number of Warrant Shares which may be purchased upon exercise of the Warrant
shall be equal to $200,000, divided by the per share Exercise Price, provided
that the Exercise Price and the number of Warrant Shares shall be subject
to
subsequent adjustment in accordance with the terms of the Warrant.
5. The
Lender’s Representations and Covenants.
The
Lender represents and warrants to the Company as follows:
(a) The
Lender is acquiring the Notes, the Warrant and the Warrant Shares for investment
for the Lender’s own account, not with a view to the public resale or
distribution thereof within the meaning of the Securities Act of 1933, as
amended (the “Securities Act”). The Lender has no present intention of selling,
granting any participation in, or otherwise distributing the Notes, the Warrant
or the Warrant Shares. No other person has a direct or indirect beneficial
interest in the Notes, the Warrant or the Warrant Shares, in whole or in
part.
The Lender understands that the Notes, the Warrant and the Warrant Shares
have
not been registered under the Securities Act with the Securities and Exchange
Commission.
(b) The
Lender is an “accredited investor” as defined in Rule 501(a) of Regulation
D promulgated under the Securities Act.
(c) By
reason
of the Lender’s business or financial experience, the Lender has the ability to
evaluate the merits and risks of the Loan and to make an informed investment
decision with respect to the Loan. The Lender is aware that the Loan is a
high
risk and speculative investment, and that there can be no assurance as to
the
ultimate success of the Company. The Lender acknowledges and represents that
he
is able to bear the risks of investing in the Company.
(d) The
Lender acknowledges and agrees that the Lender has had an opportunity to
discuss
with the Company’s executives the business and financial affairs of the Company,
and the Lender has had an opportunity to inspect and review the Company’s
facilities, financial statements, business plan and related materials. The
Lender acknowledges that the Lender has reviewed such information concerning
the
Company as the Lender deems necessary in order for the Lender to make the
investment decision to acquire the Notes, the Warrant and the Warrant
Shares.
(e) The
Lender acknowledges that there is no public market for the resale of the
Notes
or the Warrant. The Lender acknowledges and agrees that any resales of the
Notes, the Warrant and the Warrant Shares are subject to restrictions under
applicable securities laws, and the Lender agrees to comply with said
restrictions; and the Lender understands that a legend referencing said
restrictions will be placed on the Notes, the Warrant, and certificates relating
to the Warrant Shares.
6. General
Provisions.
6.1 Governing
Law.
This
Agreement (irrespective of where it is executed, delivered and/or performed)
shall be governed by and construed in accordance with the laws of the state
of
California, without giving effect to principles of conflicts of
law.
6.2 Waiver
of Jury Trial.
The
parties hereby knowingly, voluntarily and intentionally waive the right any
of
them may have to a trial by jury in respect to any litigation based hereon,
arising out of, or under or in connection with this Agreement or any course
of
conduct or course of dealing, statements (whether verbal or written), or
actions
of the parties. This provision is a material inducement for the parties to
enter
into this Agreement.
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6.3 Survival.
All of
the representations, warranties, covenants and agreements of the parties
contained in this Agreement shall survive the closing and shall survive until
they have been performed in full or until the applicable statute of limitation
has expired.
6.4 Severability.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction only, be ineffective only to
the
extent of such prohibition or unenforceability, without invalidating the
remaining provisions hereof or affecting the validity or enforceability of
all
other provisions in such jurisdiction, and without affecting the validity
or
enforceability of this Agreement and all other jurisdictions.
6.5 Entirety.
This
Agreement constitutes the full and entire understanding and agreement between
the parties with respect to the subject matters hereof.
6.6 Amendment
and Waiver.
The
terms of this Agreement may be amended and the performance or observance
of any
term of this Agreement may be waived (either generally or in a particular
instance, and either retroactively or prospectively) only with a written
consent
of both parties.
6.7 Successors
and Assigns.
Except
as otherwise provided herein, the provisions hereof shall inure to the benefit
of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties. A party shall not be entitled to assign any
of
its rights or obligations under this Agreement without the other party’s prior
written consent. Notwithstanding the foregoing, in the event that a party
is
acquired by another entity (by merger, purchase of assets, or other change
of
control), then this Agreement may be assigned to the acquiring entity, so
long
as the acquiring entity agrees in writing to be bound by the terms of this
Agreement.
6.8 Notices.
All
notices or communications required or permitted in this Agreement shall be
in
writing and may be given by any means (e.g. mail, telecopier, electronic
mail,
hand delivery, messenger, overnight courier service, etc.) addressed as set
forth on the signature page of this Agreement, or at such other address a
party
may designate in the future. All such notices and other communications will
be
deemed given upon delivery at the party’s proper address.
6.9 Counterparts.
This
Agreement may be executed in counterparts, each of which shall be enforceable
against the signing party, all of which together shall constitute one instrument
and agreement. A party may evidence its execution and delivery of this Agreement
by signing this Agreement and sending it to the other party by
telecopier/facsimile.
6.10 Attorneys’
Fees.
In the
event a party breaches its or his obligations under this Agreement, and the
other party incurs attorneys’ fees to enforce the terms of this Agreement
through legal proceedings (litigation, arbitration, mediation), the party
which
is determined in such legal proceedings to be the most prevailing party shall
be
entitled to recover from the other party the prevailing party’s reasonable
attorneys’ fees and costs incurred in said legal proceedings.
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* *
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IN
WITNESS WHEREOF, the parties have executed and delivered this Loan Agreement
as
of the date first set forth above.
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COMPANY:
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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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Xxxxx X. Xxxxxxxx
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Xx. Vice President and CFO
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Address:
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00000
Xxxxxxxx Xxxxxx
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Xxxxxxxxxx,
XX 00000
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Fax:
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(000)
000-0000
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LENDER:
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/s/Xxxx
X. Xxxxxx
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Name:
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Xxxx
X. Xxxxxx
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Address:
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Xxx Xxxxx Xxxx
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Xxx, XX 00000
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Fax:
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(000) 000-0000
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4
Exhibit
A
THIS
PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS
AMENDED (THE “ACT”),
OR UNDER THE SECURITIES OR BLUE SKY LAWS OF ANY STATE. THIS NOTE MAY NOT
BE SOLD
OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM
UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES OR BLUE SKY LAWS.
THIS
NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY IS SUBORDINATED TO THE
“SENIOR
INDEBTEDNESS”
AS DEFINED IN AND PURSUANT TO SUBORDINATION PROVISIONS CONTAINED HEREIN.
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$250,000
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October
30, 2007
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FOR
VALUE
RECEIVED, NORTH AMERICAN SCIENTIFIC, INC., a Delaware corporation (“Maker”),
hereby promises to pay to Xxxx X. Xxxxxx, an individual resident of New York,
New York (the “Holder”),
in
lawful money of the United States of America, the principal sum of Two Hundred
Fifty Thousand and No/100 Dollars ($250,000) together with interest in arrears
on the unpaid principal balance at an annual rate equal to the prime rate
in
effect from time to time (as set forth in the Wall
Street Journal),
plus
six percent (6%), in the manner provided below. Interest shall be calculated
on
the basis of a year of 365 or 366 days, as applicable, and charged for the
actual number of days elapsed.
1. Payments.
(a) Principal
and Interest.
The
principal amount of this Note shall be due and payable on November 20, 2007
(the
“Payment
Date”).
Interest on the unpaid principal balance of this Note shall be due and payable
on the Payment Date.
(b) Usurious
Interest.
Notwithstanding any other provision of this Note, the Holder does not intend
to
charge, and the Maker shall not be required to pay, any interest or other
fees
or charges in excess of the maximum permitted by applicable law; any payments
in
excess of such maximum shall be refunded to the Maker or credited to reduce
the
principal hereunder. All payments received by the Holder will be applied
first
to costs of collection, if any, then to interest and the balance to
principal.
2. Manner
of Payment.
All
payments of principal and interest on this Note shall be made by Maker’s check
to Holder at Holder’s residential address at Xxx Xxxxx Xxxx, Xxx, XX 00000 or at
such other place in the United States of America as Holder shall designate
to
Maker in writing or by wire transfer of immediately available funds to an
account designated by Holder in writing. If any payment of principal or interest
on this Note is due on a day which is not a business day, such payment shall
be
due on the next succeeding business day, and such extension of time shall
be
taken into account in calculating the amount of interest payable under this
Note.
3. Prepayment.
Maker
may, without premium or penalty, at any time and from time to time, prepay
all
or any portion of the outstanding principal balance due under this Note,
provided that each such prepayment is accompanied by accrued interest on
the
amount of principal prepaid calculated to the date of such prepayment. Any
partial prepayments shall be applied to installments of principal in inverse
order of their maturity.
4. Subordination.
By
acceptance hereof, the Holder agrees that the payment of the principal of
and
interest on this Note shall be subordinated to the prior payment of the
principal of and interest on all obligations of Maker for money borrowed
from
any bank, trust company, venture capital entity, insurance company, or other
financial institution engaged in the business of lending money (hereinafter
called “Senior
Indebtedness”).
Upon
any default or event of default under any Senior Indebtedness, (a) no amount
shall be paid by the Maker in respect of the principal of or interest on
this
Note at the time outstanding, unless and until such default or event of default
under such Senior Indebtedness shall have been cured (i) by payment in full
of
the then outstanding principal thereof and interest accrued thereon; or (ii)
otherwise, and (b) no claim or proof of claim shall be filed by or on behalf
of
the Holder of this Note which shall assert any right to receive any payment
in
respect of the principal of and interest on this Note except subject to payment
in full of the principal of and interest on all Senior Indebtedness then
outstanding. Without limitation of the foregoing, the payment of the principal
of and interest on this Note is subordinated to the obligations of the Maker
to
Silicon Valley Bank and Agility Capital LLC in accordance with subordination
agreements between each of such entities and the Holder.
5. Events
of Default.
(a) The
following shall constitute “Events
of Default”
under
this Note:
(i) failure
to pay any principal or any interest within five (5) business days following
its
due date hereunder;
(ii) default
in the performance by the Maker of any material obligation to the Holder
under
this Note, which default is not cured within thirty (30) days after written
notice of such default from the Holder;
(iii) the
filing of any petition or the commencement of any proceeding against the
Maker
or any endorser or guarantor of this Note for any relief under any bankruptcy
or
insolvency laws, or any laws relating to the relief of debtors, readjustment
of
indebtedness, reorganizations, compositions, or extensions, which proceeding
is
not dismissed within one hundred twenty (120) days.
(b) Acceleration
Upon Default; Default Rate.
Subject
to the subordination of this Note in accordance with Paragraph 4 above, if
an
Event of Default has occurred and is continuing under this Note, the entire
principal balance, interest then accrued, and all other sums due hereunder,
whether or not otherwise then due, shall, at the at option of the Holder,
become
immediately due and payable without demand or notice. Upon any Event of Default
hereunder, and during the continuation thereof, the interest rate on this
Note
will increase to one percent (1%) per annum above the interest rate otherwise
being charged hereunder.
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6. Expenses
of Collection.
The
Maker agrees to pay the Holder’s reasonable costs in collecting and enforcing
this Note, including reasonable attorney’s fees.
7. Waiver
by Holder.
No
waiver of any obligation of the Maker under this Note shall be effective
unless
it is in a writing signed by the Holder. A waiver by the Holder of any right
or
remedy under this Note on any occasion shall not be a bar to exercise of
the
same right or remedy on any subsequent occasion or of any other right or
remedy
at any time.
8. Notice.
Any
notice required or permitted under this Note shall be in writing and shall
be
deemed to have been given on the date of delivery, if personally delivered
to
the party to whom notice is to be given, or on the fifth business day after
mailing, if mailed to the party to whom notice is to be given, by certified
mail, return receipt requested, postage prepaid, or overnight courier service
with proof of receipt, and addressed as follows:
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(a)
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If
to the Maker:
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North
American Scientific, Inc.
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Attn:
Xx. Xxxxx X. Xxxxxxxx
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00000
Xxxxxxxx Xxxxxx
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Xxxxxxxxxx,
XX 00000
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Phone:
(000) 000-0000
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with
a copy to:
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Seyfarth
Xxxx LLP
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Attn:
Xxxx X. Xxxxx
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000
X. Xxxxxxxx Xxxxxx
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Xxxxx
0000
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Xxxxxxx,
XX 00000
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Phone:
(000) 000-0000
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(b)
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If
to the Holder:
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Xx.
Xxxx X. Xxxxxx
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Xxx
Xxxxx Xxxx
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Xxx,
XX 00000
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Phone:
(000) 000-0000
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9. Waiver
by Maker.
The
Maker hereby expressly waives presentment, demand and protest, notice of
demand,
dishonor and nonpayment of this Note, and all other notices or demands of
any
kind in connection with the delivery, acceptance, performance, default or
enforcement hereof, and hereby consents to any delays, extensions of time,
renewals, waivers or modifications that may be granted or consented to by
the
Holder hereof with respect to the time of payment or any other provision
hereof.
10. Severability.
In the
event any one or more of the provisions of this Note shall for any reason
be
held to be invalid, illegal or unenforceable, in whole or in part or in any
respect, or in the event that any one or more of the provisions of this Note
operate or would prospectively operate to invalidate this Note, then and
in any
such event, such provision(s) only shall be deemed null and void and shall
not
affect any other provision of this Note and the remaining provisions of this
Note shall remain operative and in full force and effect and in no way shall
be
affected, prejudiced, or disturbed thereby.
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11. Governing
Law.
This
Note shall be governed by and construed and enforced in accordance with the
laws
of the State of California without giving effect to the conflict of laws
principles thereof.
12. Parties
in Interest.
This
Note shall bind Maker and its successors and assigns. This Note shall not
be
assigned or transferred by Holder without the express prior written consent
of
Maker, except by will or, in default thereof, by operation of law.
IN
WITNESS WHEREOF, the undersigned has executed this Note as of the date first
written above.
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NORTH
AMERICAN SCIENTIFIC, INC.
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a
Delaware corporation
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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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Title:
Sr. VP & CFO
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