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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________
FORM S-8
Registration Statement
Under
The Securities Act of 1933, as amended.
FIRST AMERICAN SCIENTIFIC CORP.
(Exact name of registrant as specified in charter.)
NEVADA 88-0338315
(State of other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
409 Granville Street
Suite 303
Vancouver, British Columbia, Canada V6C 1V2
(604) 681-8656
(Address and telephone of executive offices, including zip code.)
Gary Burnie, President
First American Scientific Corp.
409 Granville Street
Suite 303
Vancouver, British Columbia, Canada V6C 1V2
(604) 681-8656
(Name, address and telephone of agent for service)
Copies of all communications, including all communications sent to
the agent for service, should be sent to:
Conrad C. Lysiak, Esq.
601 West First Avenue
Suite 503
Spokane, Washington 99201
(509) 624-1475
In addition, pursuant to rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
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CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------
Title of Each
Aggregate
Class of Proposed Maximum Proposed Maximum Amount of
Securities to Amount to be Offering Price Aggregate Offering Registration
be Registered Registered Per Unit/Share Price [1] Fee [1]
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Common Shares,
$0.001 par value,
issuable upon
exercise of
stock options
by Grantees 33,000,000 $0.055 $ 1,815,000 $ 550.00
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Totals 33,000,000 $0.055 $ 1,815,000 $ 550
[1] Based upon the mean between the closing bid and ask prices for
common shares on September 9, 1999, in accordance with Rule
457(c).
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PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference into this
Registration Statement and made a part hereof:
(a) The Registrant's Form 10-K (File No. 0-27094) filed with the
Securities and Exchange Commission (the"Commission") for the period
ending June 30, 1998.
(b) All other reports filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934 (the "Exchange Act") since filing the
aforementioned Form 10-K.
(c) Common Stock.
The authorized Common Stock of the Company consists of 100,000,000
shares of $0.001 par value Common Stock. As of September 8, 1999,
66,146,018 shares are issued and outstanding. 60,744,018 shares are
freely tradeable without restriction or further registration under the
Securities Act of 1933, as amended (the "Act") except for shares owned
by existing "affiliates" of the Company, which may be subject to the
limitations of Reg. 144 promulgated under the Act.
In general, under Reg. 144, a person (or persons whose shares are
aggregated) who has satisfied a one (1) year holding period may sell in
ordinary market transactions through a broker or with a market maker,
within any three (3) month period a number of shares which does not
exceed the greater of one percent (1%) of the number of outstanding
shares of Common Stock or the average of the weekly trading volume of
the Common Stock during the four calendar weeks prior to such sale.
Sales under Reg. 144 require the filing of Form 144 with the Securities
and Exchange Commission. If the shares of Common Stock have been held
for more than two (2) years by a person who is not an affiliate, there
is no limitation on the manner of sale or the volume of shares that may
be sold and no Form 144 is required. Sales under Reg. 144 may have a
depressive effect on the market price of the Company's Common Stock.
All shares have equal voting rights and are not assessable.
Voting rights are not cumulative and, therefore, the holders of more
than 50% of the Common Stock could, if they chose to do so, elect all
of the directors of the Company.
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Upon liquidation, dissolution or winding up of the Company, the
assets of the Company, after the payment of liabilities, will be
distributed pro rata to the holders of the Common Stock. The holders
of the Common Stock do not have preemptive rights to subscribe for any
securities of the Company and have no right to require the Company to
redeem or purchase their shares. The shares of Common Stock presently
outstanding are fully paid and non-assessable.
Dividends
Holders of the Common Stock are entitled to share equally in
dividends when, as and if declared by the Board of Directors of the
Company, out of funds legally available therefore. No dividend has
been paid on the Common Stock since inception, and none is contemplated
in the foreseeable future.
Transfer Agent
Pacific Stock Transfer Company, 3960 South Eastern Avenue, Suite
218, Las Vegas, Nevada 89109 is the Company's transfer agent.
ITEM 4. DESCRIPTION OF SECURITIES.
The Registrant is authorized to issue only one class of
securities, being comprised of $0.001 par value common stock.
Common Stock.
The holders of the $0.001 par value common stock of the Registrant
have traditional rights as to voting, dividends and liquidation. All
shares of common Stock are entitled to one vote on all matters. There
are no pre-emptive rights and cumulative voting is not allowed. The
common stock is not subject to redemption and carries no subscription
or conversion rights. In the event of liquidation of the Registrant,
the holders of common stock are entitled to share equally in corporate
assets after satisfaction of all liabilities. Copies of the Articles
of Incorporation and Bylaws were filed as Exhibits to a Registration
Statement filed by the Registrant on Form 10, SEC File 0-27094, on
October 26, 1995, which became effective by operation of law sixty days
thereafter, are incorporated herein by reference. One amendment to the
foregoing Articles of Incorporation was approved by the shareholders of
the Company in 1998, which increased the authorized capital of the
Company to 100,000,000 shares of $0.001 par value common stock. The
amendment is incorporated by reference from the Company's Form S-8
registration statement filed with the Securities and Exchange
Commission on September 3, 1998.
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ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Nevada Revised Statutes and certain provisions of the
Company's Bylaws under certain circumstances provide for
indemnification of the Company's Officers, Directors and controlling
persons against liabilities which they may incur in such capacities.
A summary of the circumstances in which such indemnification is
provided for is contained herein, but this description is qualified in
its entirety by reference to the Company's Bylaws and to the statutory
provisions.
In general, any Officer, Director, employee or agent may be
indemnified against expenses, fines, settlements or judgments arising
in connection with a legal proceeding to which such person is a party,
if that person's actions were in good faith, were believed to be in the
Company's best interest, and were not unlawful. Unless such person is
successful upon the merits in such an action, indemnification may be
awarded only after a determination by independent decision of the Board
of Directors, by legal counsel, or by a vote of the shareholders, that
the applicable standard of conduct was met by the person to be
indemnified.
The circumstances under which indemnification is granted in
connection with an action brought on behalf of the Company is generally
the same as those set forth above; however, with respect to such
actions, indemnification is granted only with respect to expenses
actually incurred in connection with the defense or settlement of the
action. In such actions, the person to be indemnified must have acted
in good faith and in a manner believed to have been in the Company's
best interest, and have not been adjudged liable for negligence or
misconduct.
Indemnification may also be granted pursuant to the terms of
agreements which may be entered in the future or pursuant to a vote of
shareholders or Directors. The statutory provision cited above also
grants the power to the Company to purchase and maintain insurance
which protects its Officers and Directors against any liabilities
incurred in connection with their service in such a position, and such
a policy may be obtained by the Company.
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ITEM 7. EXEMPTION FROM REGISTRATION.
None; not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Document.
5 Opinion of Conrad C. Lysiak,
regarding the legality of the
securities registered under
this Registration Statement.
10.2 1999 Nonqualifying Stock Option Plan.
23.1 Consent of Williams & Webster, P.S.
independent certified public accountants.
23.2 Consent of Conrad C. Lysiak, Attorney at Law
* Filed herewith.
Exhibits 1.1 through 1.2 were filed as exhibits to the Company
Registration Statement on Form 10, SEC File No. 0-27094. Exhibits 1.3
as filed as an exhibit to the Company's Registration Statement on Form
S-8, SEC File No. 333-63041. Such exhibits are incorporated herein by
reference pursuant to Rule 12b-32.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
1. to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to
include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
2. that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and,
3. to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
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The undersigned registrant hereby undertakes that, for the
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended the Registrant certifies that it has reasonable grounds to
believe that it meets all the requirements for filing on Form S-8 and
has duly caused this Registration Statement thereto to be signed on its
behalf by the undersigned, thereunto duly authorized on the 10th day of
September, 1999.
FIRST AMERICAN SCIENTIFIC CORP.
BY: /s/ Gary Burnie
Gary Burnie, President
KNOW ALL MEN BY THESE PRESENT, that each person whose signature
appears below constitutes and appoints Gary Burnie, as true and lawful
attorney-in-fact and agent, with full power of substitution, for his
and in his name, place and stead, in any and all capacities, to sign
any and all amendments to this Registration Statement, and to file the
same, therewith, with the Securities and Exchange Commission, and to
make any and all state securities laws or blue sky filings, granting
unto said attorney-in-fact and agent, full power and authority to do
and perform each and every act and thing requisite or necessary to be
done in about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying the confirming all that
said attorney-in-fact and agent, or any substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement thereto has been signed by the
following persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Gary Burnie
Gary Burnie President, Chief September 10, 1999
Financial Officer and
a member of the Board
of Directors
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CONRAD C. LYSIAK
Attorney and Counselor at Law
601 West First Avenue
Suite 503
Spokane, Washington 99204
(509) 624-1478
FAX (509) 747-1770
September 10, 1999
First American Scientific Corp.
409 Granville Street, Suite 303
Vancouver, British Columbia, Canada V6C 1T2
RE: Registration Statement on Form S-8
(S.E.C. File No. 333- _________)
covering the Public Offering of Common
Shares
Gentlemen:
I have acted as counsel for First American Scientific Corp.
(the "Company"), in connection with registration by the Company of an
aggregate of 33,000,000 Common Shares, par value $0.001 per share,
underlying Options to be issued to employees, directors, officers
and/or others of the Company (the "Options"), all as more fully set
forth in the Registration Statement on Form
S-8 to be filed by the Company.
In such capacity, I have examined, among other documents, the
Articles of Incorporation, as amended, Bylaws and minutes of meetings
of its Board of Directors and shareholders, and the Non-Qualifying
Stock Option Plan of the Company.
Based upon the foregoing, and subject to such further
examinations as I have deemed relevant and necessary, I am of the
opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Nevada.
2. The Options and underlying Common Shares have been
legally and validly authorized under the Articles of Incorporation, as
amended, of the Company, and when issued and paid for upon exercise of
the Options, the Common Shares underlying the Options will constitute
duly and validly issued and outstanding, fully paid and nonassessable,
Common Shares of the Company.
Yours truly,
/s/ Conrad C. Lysiak
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EXHIBIT 10.1
FIRST AMERICAN SCIENTIFIC CORP.
1999 NONQUALIFYING STOCK OPTION PLAN
ARTICLE I
Purpose of Plan
This 1999 NONQUALIFYING STOCK OPTION PLAN (the "Plan") of
FIRST AMERICAN SCIENTIFIC CORP. (the "Company") for persons
employed or associated with the Company, including without
limitation any employee, director, general partner, officer,
attorney, accountant, consultant or advisor, is intended to
advance the best interests of the Company by providing additional
incentive to those persons who have a substantial responsibility
for its management, affairs, and growth by increasing their
proprietary interest in the success of the Company, thereby
encouraging them to maintain their relationships with the
Company. Further, the availability and offering of Stock Options
under the Plan supports and increases the Company's ability to
attract, engage and retain individuals of exceptional talent upon
whom, in large measure, the sustained progress growth and
profitability of the Company for the shareholders depends.
ARTICLE II
Definitions
For Plan purposes, except where the context might clearly
indicate otherwise, the following terms shall have the meanings
set forth below:
"Board" shall mean the Board of Directors of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder.
"Committee" shall mean the Compensation Committee, or such
other committee appointed by the Board, which shall be designated
by the Board to administer the Plan. The Company shall be
composed of two or more persons as from time to time are
appointed to serve by the Board and may be members of the Board
or the entire Board.
"Common Shares" shall mean the Company's Common Shares
$0.001 par value per share, or, in the event that the outstanding
Common Shares are hereafter changed into or exchanged for
different shares or securities of the Company, such other shares
or securities.
"Company" shall mean FIRST AMERICAN SCIENTIFIC CORP., a
Nevada corporation, and any parent or subsidiary corporation of
FIRST AMERICAN SCIENTIFIC CORP., as such terms are defined in
Section 425(e) and 425(f), respectively of the Code.
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"Optionee" shall mean any person employed or associated with
the affairs of the Company who has been granted one or more Stock
Options under the Plan.
"Stock Option" or "NQSO" shall mean a stock option granted
pursuant to the terms of the Plan.
"Stock Option Agreement" shall mean the agreement between
the Company and the Optionee under which the Optionee may
purchase Common Shares hereunder.
ARTICLE III
Administration of the Plan
1. The Committee shall administer the plan and
accordingly, it shall have full power to grant Stock Options,
construe and interpret the Plan, establish rules and regulations
and perform all other acts, including the delegation of
administrative responsibilities, it believes reasonable and
proper.
2. The determination of those eligible to receive Stock
Options, and the amount, price, type and timing of each Stock
Option and the terms and conditions of the respective stock
option agreements shall rest in the sole discretion of the
Committee, subject to the provisions of the Plan.
3. The Committee may cancel any Stock Options awarded
under the Plan if an Optionee conducts himself in a manner which
the Committee determines to be inimical to the best interest of
the Company and its shareholders as set forth more fully in
paragraph 8 of Article X of the Plan.
4. The Board, or the Committee, may correct any defect,
supply any omission or reconcile any inconsistency in the Plan or
in any granted Stock Option, in the manner and to the extent it
shall deem necessary to carry it into effect.
5. Any decision made, or action taken, by the Committee or
the Board arising out or in connection with the interpretation
and administration of the Plan shall be final and conclusive.
6. Meetings of the Committee shall be held at such times
and places as shall be determined by the Committee. A majority
of the members of the Committee shall constitute a quorum for the
transaction of business, and the vote of a majority of those
members present at any meeting shall decide any question brought
before that meeting. In addition, the Company may take any
action otherwise proper under the Plan by the affirmative vote,
taken without a meeting, of a majority of its members.
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7. No member of the Committee shall be liable for any act
or omission of any other member of the Committee or for any act
or omission on his own part, including, but not limited to, the
exercise of any power or discretion given to him under the Plan
except those resulting form his own gross negligence or willful
misconduct.
8. The Company, through its management, shall supply full
and timely information to the Committee on all matters relating
to the eligibility of Optionees, their duties and performance,
and current information on any Optionee's death, retirement,
disability or other termination of association with the Company,
and such other pertinent information as the Committee may
require. The Company shall furnish the Committee with such
clerical and other assistance as is necessary in the performance
of its duties hereunder.
ARTICLE IV
Shares Subject to the Plan
1. The total number of shares of the Company available for
grants of Stock Options under the Plan shall be 33,000,000 Common
Shares, subject to adjustment as herein provided, which shares
may be either authorized but unissued or reacquired Common Shares
of the Company.
2. If a Stock Option or portion thereof shall expire or
terminate for any reason without having been exercised in full,
the unpurchased shares covered by such NQSO shall be available
for future grants of Stock Options.
ARTICLE V
Stock Option Terms and Conditions
1. Consistent with the Plan's purpose, Stock Options may
be granted to any person who is performing or who has been
engaged to perform services of special importance to management
in the operation, development and growth of the Company.
2. Determination of the option price per share for any
stock option issues hereunder shall rest in the sole and
unfettered discretion of the Committee.
3. All Stock Options granted under the Plan shall be
evidenced by agreements which shall be subject to applicable
provisions of the Plan, and such other provisions as the
Committee may adopt, including the provisions set forth in
paragraphs 2 through 11 of this Article V.
4. All Stock Options granted hereunder must be granted
within ten years from the date this Plan is adopted.
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5. No Stock Option granted hereunder shall be exercisable
after the expiration of ten years from the date such NQSO is
granted. The Committee, in its discretion, may provide that an
option shall be exercisable during such ten year period or during
any lesser period of time. The Committee may establish
installment exercise terms for a Stock Option such that the NQSO
becomes fully exercisable in a series of cumulating portions. If
an Optionee shall not, in any given installment period, purchase
all the Common Shares which such Optionee is entitled to purchase
within such installment period, such Optionee's right to purchase
any Common Shares not purchased in such installment period shall
continue until the expiration or sooner termination of such NQSO.
The Committee may also accelerate the exercise of any NQSO.
6. A Stock Option, or portion thereof, shall be exercised
by deliver of (i) a written notice of exercise to the Company
specifying the number of Common Shares to be purchased, and (ii)
payment of the full price of such Common Shares, as fully set
forth in paragraph 7 of this Article V. No NQSO or installment
thereof shall be reusable except with respect to whole shares,
and fractional share interests shall be disregarded. Not less
than 100 Common Shares may be purchased at one time unless the
number purchased is the total number at the time available for
purchase under the NQSO. Until the Common Shares represented by
an exercised NQSO are issued to an Optionee, he shall have none
of the rights of a shareholder.
7. The exercise price of a Stock Option, or portion
thereof, may be paid:
A. In United States dollars, in cash or by cashier's
check, certified check, bank draft or money order, payable to the
order of the Company in an amount equal to the option price; or,
B. At the discretion of the Committee, through the
delivery of fully paid and nonassessable Common Shares, with an
aggregate fair market value (determined as the average of the
highest and lowest reported sales prices on the Common Shares as
of the date of exercise of the NQSO, as reported by such
responsible reporting service as the Committee may select, or if
there were not transactions in the Common Shares on such day,
then the last preceding day on which transactions took place), as
of the date of the NQSO exercise equal to the option price,
provided such tendered shares, or any derivative security
resulting in the issuance of Common Shares, have been owned by he
Optionee for at least 30 days prior to such exercise; or,
C. By a combination of both A and B above.
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8. The Committee shall determine acceptable methods for
tendering Common Shares as payment upon exercise of a Stock
Option and may impose such limitations and prohibitions on the
use of Common Shares to exercise an NQSO as it deems appropriate.
9. With the Optionee's consent, the Committee may cancel
any Stock Option issued under this Plan and issue a new NQSO to
such Optionee.
10. Except by will, the laws of descent and distribution,
or with the written consent of the Committee, no right or
interest in any Stock Option granted under the Plan shall be
assignable or transferable, and no right or interest of any
Optionee shall be liable for, or subject to, any lien, obligation
or liability of the Optionee. Upon petition to, and thereafter
with the written consent of the Committee, an Optionee may assign
or transfer all or a portion of the Optionee's rights and
interest in any stock option granted hereunder. Stock Options
shall be exercisable during the Optionee's lifetime only by the
Optionee or assignees, or the duly appointed legal representative
of an incompetent Optionee, including following an assignment
consented to by the Committee herein.
11. No NQSO shall be exercisable while there is outstanding
any other NQSO which was granted to the Optionee before the grant
of such option under the Plan or any other plan which gives the
right to the Optionee to purchase stock in the Company or in a
corporation which is a parent corporation (as defined in Section
425(e) of the Code) of the Company, or any predecessor
corporation of any of such corporations at the time of the grant.
An NQSO shall be treated as outstanding until it is either
exercised in full or expires by reason of lapse of time.
12. Any Optionee who disposes of Common Shares acquired on
the exercise of a NQSO by sale or exchange either (i) within two
years after the date of the grant of the NQSO under which the
stock was acquired, or (ii) within one year after the acquisition
of such Shares, shall notify the Company of such disposition and
of the amount realized upon such disposition. The transfer of
Common Shares may also be restricted by applicable provisions of
the Securities Act of 1933, as amended.
ARTICLE VI
Adjustments or Changes in Capitalization
1. In the event that the outstanding Common Shares of the
Company are hereafter changed into or exchanged for a different
number of kinds of shares or other securities of the Company by
reason of merger, consolidation, other reorganization,
recapitalization, reclassification, combination of shares, stock
split-up or stock dividend:
<PAGE> 15
A. Prompt, proportionate, equitable, lawful and adequate
adjustment shall be made of the aggregate number and kind of
shares subject to Stock Options which may be granted under the
Plan, such that the Optionee shall have the right to purchase
such Common Shares as may be issued in exchange for the Common
Shares purchasable on exercise of the NQSO had such merger,
consolidation, other reorganization, recapitalization,
reclassification, combination of shares, stock split-up or stock
dividend not taken place;
B. Rights under unexercised Stock Options or portions
thereof granted prior to any such change, both as to the number
or kind of shares and the exercise price per share, shall be
adjusted appropriately, provided that such adjustments shall be
made without change in the total exercise price applicable to the
unexercised portion of such NQSO's but by an adjustment in the
price for each share covered by such NQSO's; or,
C. Upon any dissolution or liquidation of the Company or
any merger or combination in which the Company is not a surviving
corporation, each outstanding Stock Option granted hereunder
shall terminate, but the Optionee shall have the right,
immediately prior to such dissolution, liquidation, merger or
combination, to exercise his NQSO in whole or in part, to the
extent that it shall not have been exercised, without regard to
any installment exercise provisions in such NQSO.
2. The foregoing adjustment and the manner of application
of the foregoing provisions shall be determined solely by the
Committee, whose determination as to what adjustments shall be
made and the extent thereof, shall be final, binding and
conclusive. No fractional Shares shall be issued under the Plan
on account of any such adjustments.
ARTICLE VII
Merger, Consolidation or Tender Offer
1. If the Company shall be a party to a binding agreement
to any merger, consolidation or reorganization or sale of
substantially all the assets of the Company, each outstanding
Stock Option shall pertain and apply to the securities and/or
property which a shareholder of the number of Common Shares of
the Company subject to the NQSO would be entitled to receive
pursuant to such merger, consolidation or reorganization or sale
of assets.
2. In the event that:
A. Any person other than the Company shall acquire more
than 20% of the Common Shares of the Company through a tender
offer, exchange offer or otherwise;
<PAGE> 16
B. A change in the "control" of the Company occurs, as
such term is defined in Rule 405 under the Securities Act of
1933;
C. There shall be a sale of all or substantially all of
the assets of the Company;
any then outstanding Stock Option held by an Optionee, who is
deemed by the Committee to be a statutory officer ("insider") for
purposes of Section 16 of the Securities Exchange Act of 1934
shall be entitled to receive, subject to any action by the
Committee revoking such an entitlement as provided for below, in
lieu of exercise of such Stock Option, to the extent that it is
then exercisable, a cash payment in an amount equal to the
difference between the aggregate exercise price of such NQSO, or
portion thereof, and, (i) in the event of an offer or similar
event, the final offer price per share paid for Common Shares, or
such lower price as the Committee may determine to conform an
option to preserve its Stock Option status, times the number of
Common Shares covered by the NQSO or portion thereof, or (ii) in
the case of an event covered by B or C above, the aggregate fair
market value of the Common Shares covered by the Stock Option, as
determined by the Committee at such time.
3. Any payment which the Company is required to make
pursuant to paragraph 2 of this Article VII, shall be made within
15 business days, following the event which results in the
Optionee's right to such payment. In the event of a tender offer
in which fewer than all the shares which are validity tendered in
compliance with such offer are purchased or exchanged, then only
that portion of the shares covered by an NQSO as results from
multiplying such shares by a fraction, the numerator of which is
the number of Common Shares acquired purchase to the offer and
the denominator of which is the number of Common Shares tendered
in compliance with such offer, shall be used to determine the
payment thereupon. To the extent that all or any portion of a
Stock Option shall be affected by this provision, all or such
portion of the NQSO shall be terminated.
4. Notwithstanding paragraphs 1 and 3 of this Article VII,
the Company may, by unanimous vote and resolution, unilaterally
revoke the benefits of the above provisions; provided, however,
that such vote is taken no later than ten business days following
public announcement of the intent of an offer of the change of
control, whichever occurs earlier.
<PAGE> 17
ARTICLE VIII
Amendment and Termination of Plan
1. The Board may at any time, and from time to time,
suspend or terminate the Plan in whole or in part or amend it
from time to time in such respects as the Board may deem
appropriate and in the best interest of the Company.
2. No amendment, suspension or termination of this Plan
shall, without the Optionee's consent, alter or impair any of the
rights or obligations under any Stock Option theretofore granted
to him under the Plan.
3. The Board may amend the Plan, subject to the
limitations cited above, in such manner as it deems necessary to
permit the granting of Stock Options meeting the requirements of
future amendments or issued regulations, if any, to the Code.
4. No NQSO may be granted during any suspension of the
Plan or after termination of the Plan.
ARTICLE IX
Government and Other Regulations
The obligation of the Company to issue, transfer and deliver
Common Shares for Stock Options exercised under the Plan shall be
subject to all applicable laws, regulations, rules, orders and
approval which shall then be in effect and required by the
relevant stock exchanges on which the Common Shares are traded
and by government entities as set forth below or as the Committee
in its sole discretion shall deem necessary or advisable.
Specifically, in connection with the Securities Act of 1933, as
amended, upon exercise of any Stock Option, the Company shall not
be required to issue Common Shares unless the Committee has
received evidence satisfactory to it to the effect that the
Optionee will not transfer such shares except pursuant to a
registration statement in effect under such Act or unless an
opinion of counsel satisfactory to the Company has been received
by the Company to the effect that such registration is not
required. Any determination in this connection by the Committee
shall be final, binding and conclusive. The Company may, but
shall in no event be obligated to take any other affirmative
action in order to cause the exercise of a Stock Option or the
issuance of Common Shares purchase thereto to comply with any law
or regulation of any government authority.
<PAGE> 18
ARTICLE X
Miscellaneous Provisions
1. No person shall have any claim or right to be granted a
Stock Option under the Plan, and the grant of an NQSO under the
Plan shall not be construed as giving an Optionee the right to be
retained by the Company. Furthermore, the Company expressly
reserves the right at any time to terminate its relationship with
an Optionee with or without cause, free from any liability, or
any claim under the Plan, except as provided herein, in an option
agreement, or in any agreement between the Company and the
Optionee.
2. Any expenses of administering this Plan shall be borne
by the Company.
3. The payment received from Optionee from the exercise of
Stock Options under the Plan shall be used for the general
corporate purposes of the Company.
4. The place of administration of the Plan shall be in the
State of Nevada, and the validity, contraction, interpretation,
administration and effect of the Plan and its rules and
regulations, and rights relating to the Plan, shall be determined
solely in accordance with the laws of the State of Nevada.
5. Without amending the Plan, grants may be made to
persons who are foreign nationals or employed outside the United
States, or both, on such terms and conditions, consistent with
the Plan's purpose, different from those specified in the Plan as
may, in the judgment of the Committee, be necessary or desirable
to create equitable opportunities given differences in tax laws
in other countries.
6. In addition to such other rights of indemnification as
they may have as members of the Board or Committee, the members
of the Committee shall be indemnified by the Company against all
costs and expenses reasonably incurred by them in connection with
any action, suite or proceeding to which they or any of them may
be party by reason of any action taken or failure to act under or
in connection with the Plan or any Stock Option granted
thereunder, an against all amount paid by them in settlement
thereof (provided such settlement is approved by independent
legal counsel selected by the Company) or paid by them in
satisfaction of a judgment in any such action, suit or
proceeding, except a judgment based upon a finding of bad faith;
provided that upon the institution of any such action, suit or
proceeding a Committee member shall in writing, give the Company
notice thereof and an opportunity, at its own expense, to handle
and defend the same before such Committee member undertakes to
handle and defend it on his own behalf.
<PAGE> 19
7. Stock Options may be granted under this Plan form time
to time, in substitution for stock options held by employees of
other corporations who are about to become employees of the
Company as the result of a merger or consolidation of the
employing corporation with the Company or the acquisition by the
Company of the assets of the employing corporation or the
acquisition by the Company of stock of the employing corporation
as a result of which it become a subsidiary of the Company. The
terms and conditions of such substitute stock options so granted
my vary from the terms and conditions set forth in this Plan to
such extent as the Board of Director of the Company at the time
of grant may deem appropriate to conform, in whole or in part, to
the provisions of the stock options in substitution for which
they are granted, but no such variations shall be such as to
affect the status of any such substitute stock options as a stock
option under Section 422A of the Code.
8. Notwithstanding anything to the contrary in the Plan,
if the Committee finds by a majority vote, after full
consideration of the facts presented on behalf of both the
Company the Optionee, that the Optionee has been engaged in
fraud, embezzlement, theft, commission of a felony or proven
dishonesty in the course of his association with the Company or
any subsidiary corporation which damaged the Company or any
subsidiary corporation, or for disclosing trade secrets of the
Company or any subsidiary corporation, the Optionee shall forfeit
all unexercised Stock Options and all exercised NQSO's under
which the Company has not yet delivered the certificates and
which have been earlier granted the Optionee by the Committee.
The decision of the Committee as to the case of an Optionee's
discharge and the damage done to the Company shall be final. No
decision of the Committee, however, shall affect the finality of
the discharge of such Optionee by the Company or any subsidiary
corporation in any manner. Further, if Optionee voluntarily
terminates employment with the Company, the Optionee shall
forfeit all unexercised stock options.
ARTICLE XI
Written Agreement
Each Stock Option granted hereunder shall be embodied in a
written Stock Option Agreement which shall be subject to the
terms and conditions prescribed above and shall be signed by the
Optionee and by the President or any Vice President of the
Company, for and in the name and on behalf of the Company. Such
Stock Option Agreement shall contain such other provisions as the
Committee, in its discretion shall deem advisable.
<PAGE> 20
ARTICLE XII
Effective Date
This Plan shall become unconditionally effective as of the
effective date of approval of the Plan by the Board of Directors
of the Company. No Stock Option may be granted later than ten
(10) years from the effective date of the Plan; provided,
however, that the Plan and all outstanding Stock Options shall
remain in effect until such NQSO's have expired or until such
options are cancelled.
<PAGE> 21
Number of Shares: _______________ Date of Grant: _______________
NON QUALIFYING STOCK OPTION AGREEMENT
AGREEMENT made this _____ day of __________________, 19____,
between ____________________________ (the "Optionee"), and FIRST
AMERICAN SCIENTIFIC CORP., a Nevada corporation (the "Company").
1. Grant of Option. The Company, pursuant to the
provisions of the 1999 First American Scientific Corp.
Nonqualifying Stock Option Plan (the "1999 Plan"), set forth as
Attachment A hereto, hereby grants to the Optionee, subject to
the terms and conditions set forth or incorporated herein, an
Option and Purchase from the Company all or any part of an
aggregate of _______________ Common Shares, as such Common Shares
are now constituted, at the purchase price of $ _______________
per share. The provisions of the 1999 Plan governing the terms
and conditions of the Option granted hereby are incorporated in
full herein by reference.
2. Exercise. The Option evidenced hereby shall be
exercisable in whole or in part (but only in multiples of 100
Shares unless such exercise is as to the remaining balance of
this Option) on or after __________________, 19___ and on or
before _________________, 19___, provided that the cumulative
number of Common Shares as to which this Option may be exercised
(except as provided in paragraph 1 of Article VI of this 1999
Plan) shall not exceed the following amounts:
Cumulative Number Prior to Date
of Shares (Not Inclusive of)
The Option evidenced hereby shall be exercisable by the deliver
to and receipt by the Company of (i) a written notice of election
to exercise, in the form set forth in Attachment B hereto,
specifying the number of shares to be purchased; (ii) accompanied
by payment of the full purchase price thereof in case or
certified check payable to the order of the Company, or by fully-paid
and nonassessable Common Shares of the Company properly
endorsed over to the Company, or by a combination thereof; and,
(iii) by return of this Stock Option Agreement for endorsement of
exercise by the Company on Schedule I hereof. In the event fully
paid and nonassessable Common Shares are submitted as whole or
partial payment for Shares to be purchased hereunder, such Common
Shares will be valued at their Fair Market Value (as defined in
the 1999 Plan) on the date such Shares are received by the
Company and applied to payment of the exercise price.
<PAGE> 22
3. Transferability. The Option evidenced hereby is NOT
assignable or transferable by the Optionee other than by the
Optionee's will, by the laws of descent and distribution, as
provided in paragraph 9 of Article V of the 1999 Plan. The
Option shall be exercisable only by the Optionee during his
lifetime.
FIRST AMERICAN SCIENTIFIC CORP.
BY: ______________________________
Gary Burnie, President
ATTEST:
________________________________________
Secretary
Optionee hereby acknowledges receipt of a copy of the 1999
Plan, attached hereto and accepts this Option subject to each and
every term and provision of such Plan. Optionee hereby agrees to
accept as binding, conclusive and final, all decisions or
interpretations of the Compensation Committee of the Board of
Directors administering the 1999 Plan on any questions arising
under such Plan. Optionee recognizes that if Optionee's
employment with the Company or any subsidiary thereof shall be
terminated with cause, or by the Optionee, all of the Optionee's
rights hereunder shall thereupon terminate; and that, pursuant to
paragraph 10 of Article V of the 1999 Plan, this Option may not
be exercised while there is outstanding to Optionee any
unexercised Stock Option, granted to Optionee before the date of
grant of this Option, to purchase Common Shares of the Company or
any parent or subsidiary thereof.
Dated: _________________________________
___________________________________
Optionee
___________________________________
Type or Print Name
___________________________________
Address
___________________________________
Social Security No.
<PAGE> 23
Attachment B
Date:
Secretary,
FIRST AMERICAN SCIENTIFIC CORP.
409 Granville Street
Suite 303
Vancouver, British Columbia
Canada V6C 1V2
Dear Sir:
In accordance with paragraph 2 of the Nonqualifying Stock
Option Agreement evidencing the Option granted to me on _________
____________ under the 1999 First American Scientific Corp.
Nonqualifying Stock Option Plan, I hereby elect to exercise this
Option to the extent of __________________ Common Shares.
Enclosed are (i) Certificate(s) No.(s) ____________________
representing fully-paid common shares of First American
Scientific Corp. endorsed to the Company with signature
guaranteed, and/or a certified check payable to the order of
First American Scientific Corp. in the amount of $_______________
as the balance of the purchase price of $______________ for the
Shares which I have elected to purchase and (ii) the original
Stock Option Agreement for endorsement by the Company as to
exercise on Schedule I thereof. I acknowledge that the Common
Shares (if any) submitted as part payment for the exercise price
due hereunder will be valued by the Company at their Fair Market
Value (as defined in the 1999 Plan) on the date this Option
exercise is effected by the Company. In the event I hereafter
sell any Common Shares issued pursuant to this option exercise
within one year from the date of exercise or within two years
after the date of grant of this Option, I agree to notify the
Company promptly of the amount of taxable compensation realized
by me by reason of such sale for federal income tax purposes.
When the certificate for Common Shares which I have elected
to purchase has been issued, please deliver it to me, along with
my endorsed Stock Option Agreement in the event there remains an
unexercised balance of Shares under the Option, at the following
address:
Include Optionee's address here.
__________________________________
Signature of Optionee
__________________________________
Type or Print Name
<PAGE> 24
Optionee ____________________________ Date of Grant _____________
SCHEDULE I
Unexercised Issuing
Shares Payment Shares Officer
Date Purchased Received Remaining Initials
<PAGE> 25
WILLIAMS & WEBSTER, P.S.
CERTIFIED PUBLIC ACCOUNTANTS
Seafirst Financial Center
601 W. Riverside, Suite 1940
Spokane, WA 99201
(509) 838-5111
FAX (509) 838-5114
E-mail: wwpcpas@williams - webster.com
CONSENT OF CERTIFIED PUBLIC ACCOUNTANTS
Board of Directors
First American Scientific Corp.
Vancouver, British Columbia
We consent to the use of our audit report dated February 17, 1999
on the financial statements of First American Scientific Corp. as
of June 30, 1998, for the filing with and attachment to the Form
S-8.
/s/ Williams & Webster, P.S.
Williams & Webster, P.S.
Certified Public Accountants
Spokane, Washington
September 10, 1999
<PAGE> 26
CONRAD C. LYSIAK
Attorney and Counselor at Law
601 West First Avenue
Suite 503
Spokane, Washington 99201
(509) 624-1475
FAX: (509) 747-1770
CONSENT
I HEREBY CONSENT to the inclusion of my name in
connection with the Form S-8 Registration Statement to be filed
with the Securities and Exchange Commission as attorney for the
Issuer, First American Scientific Corp. and to the reference to
my firm under the subcaption "Opinion of Counsel."
DATED this 10th day of September, 1999.
Yours truly,
/s/ Conrad C. Lysiak
Conrad C. Lysiak
