<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 18, 1996
REGISTRATION NO. 33-
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
___________________________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
___________________________________
NORTH AMERICAN SCIENTIFIC, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 51-0366422
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7435 GREENBUSH AVENUE, NORTH HOLLYWOOD, CA 91605
(Address of Principal Executive Offices) (Zip Code)
NORTH AMERICAN SCIENTIFIC, INC.
AMENDED AND RESTATED 1996 STOCK OPTION PLAN
(Full title of the plan)
L. MICHAEL CUTRER
NORTH AMERICAN SCIENTIFIC, INC.
7435 GREENBUSH AVENUE
NORTH HOLLYWOOD, CA 91605
(Name and address of agent for service)
(818) 503-9201
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
________________________________________________________________________________________________________________
PROPOSED PROPOSED
TITLE OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED(A) PER UNIT OFFERING PRICE FEE
________________________________________________________________________________________________________________
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 277,500 shares (b) $1.03(d) $285,825(d) $ 86.61
Common Stock,
$.01 par value 222,500 shares (c) $1.24(e) $275,900(e) $ 83.61
Total Registration Fee: $170.22
________________________________________________________________________________________________________________
</TABLE>
(a) Represents the maximum number of shares which could be purchased upon
exercise of all stock options which are outstanding currently or which may
hereafter be granted under the Amended and Restated 1996 Stock Option Plan.
(b) Represents the maximum number of shares which could be purchased upon
exercise of all options now outstanding under the Amended and Restated 1996
Stock Option Plan.
(c) Represents the maximum number of shares which could be purchased upon
exercise of options not yet granted but authorized under the Amended and
Restated 1996 Stock Option Plan.
(d) Represents actual average per share and aggregate exercise prices of
outstanding options under the Amended and Restated 1996 Stock Option Plan.
(e) Estimated solely for purposes of calculating the registration fee and based
on the average high and low prices of the Company's Common Stock on October
16, 1996, as reported on the Vancouver Stock Exchange.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed in (a) through (c) below are incorporated by reference
in this Registration Statement, and all documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be part thereof from the date of
filing of such documents:
(a) The Company's annual report on Form 10-KSB for the year ended October
31, 1995.
(b) The Company's quarterly reports on Form 10-QSB for the quarters ended
January 31, 1996, April 30, 1996 and July 31, 1996.
(c) The description of the Company's Common Stock which is contained in
the Registration Statement on Form 10-SB filed August 22, 1995, File
No. 0-26670, including any amendment or report filed for the purpose
of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law (the "DGCL") permits a corporation
to indemnify officers, directors, employees and agents for actions taken in good
faith and in a manner they reasonably believed to be in, or not opposed to, the
best interests of the corporation, and with respect to any criminal action,
which they had no reasonable cause to believe was unlawful. The DGCL provides
that a corporation may advance expenses of defense (upon receipt of a written
undertaking to reimburse the corporation if indemnification is not appropriate)
and must reimburse a successful defendant for expenses, including attorney's
fees, actually and reasonably incurred, and permits a corporation to purchase
and maintain liability insurance for its directors and officers. The DGCL
provides that indemnification may not be made for any claim, issue or matters as
to which a person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the corporation, unless and
only to the extent a court determines that the person is entitled to indemnity
for such expenses as the court deems proper.
The Certificate of Incorporation of the Company (the "Certificate")
provides that each person who is involved in any actual or threatened action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a director of the Company, or is or
was serving at the request of the Company as a director of another corporation
or of a partnership, joint venture, trust, or other enterprise, will be
indemnified by the corporation, and that each person who is so involved by
reason of the fact that he or she was an officer, agent of the Company, or is or
was serving at the request of the Company as an officer, agent or employee of
another corporation, or of a partnership, joint venture, trust or other
enterprise, may be indemnified by the Company in accordance with the DGCL. The
indemnification rights conferred by the Certificate are not exclusive of any
other right to which persons seeking indemnification may be entitled under any
law, bylaw, agreement, vote of stockholders or disinterested directors or
otherwise. The Company is authorized to purchase and maintain insurance on
behalf of its directors, officers, employees and agents.
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Certificate of Incorporation of the Corporation, incorporated by
reference to Exhibit 3(i) of the Registrant's Registration
Statement on Form 10-SB, filed August 22, 1995.
4.2 Bylaws of the Company, as amended.
5.1 Opinion of D'Ancona & Pflaum.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of D'Ancona & Pflaum (included in Exhibit 5.1).
24.1 Powers of Attorney (included herein).
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:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represents a fundamental change in the information set
forth in the registration statement; notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) 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;
Provided, however, that paragraphs (1)(i) and 1(ii) do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3 and
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference 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.
(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.
<PAGE>
The undersigned Company hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company'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 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of North Hollywood, State of California, on the 17th
day of October, 1996.
NORTH AMERICAN SCIENTIFIC, INC.
(Company)
By: /s/ L. Michael Cutrer
---------------------------------
L. Michael Cutrer, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned directors and
officers of North American Scientific, Inc., a Delaware corporation, which is
filing a Registration Statement on Form S-8 with the Securities and Exchange
Commission, under the provisions of the Securities Act of 1933, as amended,
hereby constitute and appoint L. Michael Cutrer their true and lawful attorney-
in-fact and agent, with full power and substitution and re-substitution, for him
or her and in his or her name, place and stead, in any and all capacities, to
sign such Registration Statement and any or all pre-effective and post-effective
amendments to the Registration Statement, and all other documents in connection
therewith to be filed with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all interests and purposes as each of them might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Irwin J. Gruverman Chairman of the Board October 16, 1996
- --------------------------- and Director
(Irwin J. Gruverman)
/s/ L. Michael Cutrer President, Chief October 17, 1996
- --------------------------- Executive Officer
(L. Michael Cutrer) and Director (Principal
Executive, Financial and
Accounting Officer)
/s/ Dr. Allan M. Green Director October 16, 1996
- ---------------------------
(Dr. Allan M. Green)
/s/ Michael C. Lee Director October 16, 1996
- ---------------------------
(Michael C. Lee)
/s/ Larry Berkin Director October 16, 1996
- ---------------------------
(Larry Berkin)
<PAGE>
BY - LAWS
OF
NORTH AMERICAN SCIENTIFIC, INC.
(as amended 4/10/96)
ARTICLE I
OFFICES
SECTION 1.1 REGISTERED OFFICE. The registered office shall be
established and maintained at the office of The Corporation Trust Company, in
the city of Wilmington, in the County of New Castle, in the State of Delaware
and said corporation shall be the registered agent of this corporation in charge
thereof.
SECTION 1.2. OTHER OFFICES. The corporation may have other offices,
either within or without the State of Delaware, at such place or places as the
Board of Directors may from time to time appoint or the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1. ANNUAL MEETINGS. Annual meetings of stockholders,
commencing with the year 1996, shall be held on the second Tuesday of April of
each year, if not a legal holiday, and if a legal holiday then on the next
secular day following, at 10:00 a.m., at the principal executive office of the
corporation or on such other day, time and place as shall be designated from
time to time by the board of directors of the corporation (the "Board of
Directors") and stated in the notice of the meeting, at which stockholders shall
elect a Board of Directors in accordance with the Certificate of Incorporation
of the corporation (the "Certificate of Incorporation") and Section 2.3 of
Article II of these by-laws and transact such other business as may properly be
brought before the meeting in accordance with Section 2.4 of Article II of these
by-laws.
SECTION 2.2. NOTICE OF ANNUAL MEETING. Except as otherwise required by
the General Corporation Act of the State of Delaware (the "DGCL"), written
notice of the annual meeting stating the place, date and hour of the meeting
shall be given to each stockholder entitled to vote at such meeting not less
than ten nor more than sixty days before the date of the meeting.
SECTION 2.3. NOMINATION OF DIRECTORS. Only persons who are nominated in
accordance with the following procedures shall be eligible to serve as
directors. Nominations of persons for election to the board of directors at a
meeting of stockholders may be made (i) by or at
<PAGE>
the direction of the Board of Directors or (ii) by any stockholder of the
corporation entitled to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this Article II, Section 2.3.
Such nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the secretary
of the corporation. To be timely, a stockholder's notice must be delivered to,
or mailed and received by, the secretary of the corporation at the principal
executive office of the corporation not less than sixty (60) or more than ninety
(90) days prior to the meeting. Such stockholder's notice shall set forth
(i)as to each person whom the stockholder proposes to nominate for election or
reelection as a director, (A) the name, age, business address and residence
address of such person, (B) the principal occupation or employment of such
person, (C) the class and number of shares of the corporation which are
beneficially owned by such person and (D) such other information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (including
such person's written consent to being named in the proxy statement as a nominee
and to serving as director if elected); and (ii) as to the stockholder giving
notice (A) the name and address, as they appear on the corporation's books, of
such stockholder, (B) the class and number of shares of the corporation which
are beneficially owned by such stockholder and (C) a representation that such
stockholder intends to appear in person or by proxy at the annual meeting to
nominate the persons named in its notice. At the request of the board of
directors, any person nominated by the board of directors for election as a
director shall furnish to the secretary of the corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. No person shall be eligible to serve as a director of the
corporation unless nominated in accordance with the procedures set forth herein.
The presiding officer shall, if the facts so warrant, determine and declare to
the meeting that a nomination was not made in accordance with the procedures
prescribed by the by-laws, and the defective nomination shall be disregarded.
SECTION 2.4. NOTICE OF BUSINESS. At an annual meeting of the
stockholders, only such business shall be conducted as shall have been
brought before the meeting (i) by or at the direction of the Board of
directors or (ii) by any stockholder of the corporation who complies with the
notice procedures set forth in this Article II, Section 2.4. For business to
be properly brought before an annual meeting by a stockholder, the
stockholders must deliver written notice to, or mail such written notice so
that it is received by the secretary of the corporation, at the principal
executive offices of the corporation, not less than one hundred and twenty
(120) or more than one hundred and fifty (150) days prior to the first
anniversary of the date of the Corporation's consent solicitation or proxy
statement released to stockholders in connection with the previous year's
election of directors or meeting of stockholders, except that if no annual
meeting of stockholders or election by consent was held in the previous year
or if the date of the annual meeting has been changed from the previous
year's meeting, a proposal shall be received by the corporation within ten
(10) days after the corporation has "publicly disclosed" the date of the
meeting. For such purposes, "publicly disclosed" shall mean disclosure in a
press release reported by Dow Jones New Service, Associated Press or a
comparable national news service or in a document publicly filed with the
Securities and Exchange Commission. The stockholder's notice to the
secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting (A) a brief description of the business desired to
be brought before the annual meeting and the reasons for conducting such
business at the
2
<PAGE>
annual meeting, (B) the name and address, as they appear on the corporation's
books, of the stockholder proposing such business, (C) the class and number of
shares of the corporation which are beneficially owned by the stockholder, (D) a
description of all arrangements or understandings between such stockholder and
any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any other material interest of
such stockholder in such business and (E) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting. At an annual meeting, the presiding officer shall,
if the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the provisions of this
Article II, Section 2.4., and such business not properly brought before the
meeting shall not be transacted. Whether or not the foregoing procedures are
followed, no matter which is not a proper matter for stockholder consideration
shall be brought before the meeting.
SECTION 2.5. SPECIAL MEETINGS. Special meetings of the stockholders for
any purpose or purposes, unless otherwise prescribed by the DGCL or by the
Certificate of Incorporation, may be called by the chairman of the board or the
president and shall be called by the chairman of the board, president or
secretary at the request in writing of a majority of the Board of Directors, or
at the request in writing of stockholders owning not less than ten percent (10%)
of the shares of any class of the capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
SECTION 2.6. NOTICE OF SPECIAL MEETINGS. Written notice of a special
meeting stating the place, date and hour of the meeting, and the purpose or
purposes for which the meeting is called, shall be given not less than ten (10)
nor more than sixty (60) days before the date of the meeting to each stockholder
entitled to vote at such meeting. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
SECTION 2.7. RECORD DATE. In order that the corporation may determine
the stockholders entitled to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date, which shall
not precede the date upon which the resolution fixing the record date is
adopted, and which date shall be (i) not more than sixty (60) nor less than ten
(10) days before the date of a meeting, and (ii) not more than sixty (60) days
prior to the other action. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for any adjourned meeting.
SECTION 2.8. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer who has
charge of the stock ledger of the corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
showing the address of each stockholder and the number of shares registered in
the name of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period
3
<PAGE>
of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION 2.9. STOCK LEDGER. The stock ledger of the corporation shall be
the only conclusive evidence as to who are the stockholders entitled to examine
the stock ledger, the list required by Section 2.8. of this Article II or the
books of the corporation, or to vote in person or by proxy at a meeting of
stockholders.
SECTION 2.10. QUORUM. The presence, whether in person or by proxy, of the
holders of such number of the shares of issued and outstanding stock as are
entitled to cast a majority of the votes at any meting of the stockholders of
the corporation, present in person or represented by proxy, shall constitute a
quorum for purposes of the transaction of business thereat, except as otherwise
provided by the DGCL or by the Certificate of Incorporation. If, however, such
quorum shall not be present or represented at any meeting of the stockholders,
the stockholders, entitled to vote thereat, present in person or represented by
proxy, by majority vote shall have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might have
been transacted at the meeting as originally notified.
SECTION 2.11. VOTING. Unless otherwise provided by the Certificate of
Incorporation, at every meeting of the stockholders, each stockholder shall be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder. When a quorum is present at any
meeting, a majority of the votes cast by holders of stock having voting power
present in person or represented by proxy shall decide any question (other than
election of directors, brought before such meeting, unless the question is one
upon which by express provision of the DGCL or of the Certificate of
Incorporation a different vote is required, in which case such express provision
shall govern and control the decision of such question. Directors shall be
elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
directors.
SECTION 2.12. PROXY. At any meeting of the stockholders, every
stockholder entitled to vote may vote in person or by proxy authorized by an
instrument in writing or by a transmission permitted by law filed in accordance
with the procedure established for the meeting, but no proxy shall be voted
after three years from its date, unless the proxy provides for a longer period.
Any copy, facsimile telecommunication or other reliable reproduction of the
writing or transmission created pursuant to this paragraph may be substituted or
used in lieu of the original writing or transmission for any and all purposes
for which the original writing or transmission could be used; provided that,
such copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission. A duly executed
proxy shall be irrevocable if it states that it is irrevocable and if, and only
as long as, it is coupled with an interest sufficient in
4
<PAGE>
law to support an irrevocable power. A stockholder may revoke any proxy which
is not irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with the secretary of the corporation. All voting, excepting where
otherwise required by law, the Certificate of Incorporation or the Board of
Directors may be by a voice vote.
SECTION 2.13. CHAIRMAN OF MEETING. The chairman of the Board of Directors
shall preside at all meetings of the stockholders. In the absence or inability
to act of the chairman, the president or a vice president (in that order) shall
preside, and in their absence or inability to act another person designated by
one of them shall preside. The secretary of the corporation shall act as
secretary of each meeting of the stockholders. In the event of his absence or
inability to act, the chairman of the meeting shall appoint a person who need
not be a stockholder to act as secretary of the meeting.
SECTION 2.14. CONDUCT OF MEETING. Meetings of the stockholders shall be
conducted in a fair manner but need not be governed by any prescribed rules of
order. The presiding officer's rulings on procedural matters shall be final.
The presiding officer is authorized to impose reasonable time limits on the
remarks of individual stockholders and may take such steps as such officer may
deem necessary or appropriate to assure that the business of the meeting is
conducted in a fair and orderly manner.
SECTION 2.15. ACTION WITHOUT A MEETING. Unless otherwise provided in the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders of the corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
SECTION 2.16. INSPECTORS. The Board of Directors, in advance of any
stockholders' meeting, may appoint one or more inspectors to act at the meeting
or any adjournment thereof. If inspectors are not so appointed, the person
presiding at the stockholders' meeting may, and on the request of any
stockholder entitled to vote thereat shall, appoint one or more inspectors. In
case any person appointed fails to appear or act, the vacancy may be filled by
appointment made by the Board of Directors in advance of the meeting or at the
meeting by the person presiding thereat. Each inspector, before entering upon
the discharge of his duties, shall take and sign an oath faithfully to execute
the duties of inspector at such meeting with strict impartiality and according
to the best of his ability.
5
<PAGE>
The inspectors shall determine the number of shares outstanding and the
voting power of each, the shares represented at the meeting, the existence of a
quorum, the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all stockholders. On request of the person presiding at
the meeting or any stockholder entitled to vote thereat, the inspectors shall
make a report in writing of any challenge, question or matter determined by them
and execute a certificate of any fact found by them. Any report or certificate
made by them shall be prima facie evidence of the facts stated and of the vote
as certified by them.
ARTICLE III
DIRECTORS
SECTION 3.1. DUTIES OF DIRECTORS. The business of the corporation shall
be managed by or under the direction of its Board of Directors which may
exercise all such powers of the corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
by-laws directed or required to be exercised or done by the stockholders.
SECTION 3.2. NUMBER OF DIRECTORS. The number of directors which shall
constitute the whole Board of Directors shall be not less than one nor more than
eleven. The first board shall consist of five (5) directors. Thereafter,
within the limits above specified, the number of directors shall be determined
by resolution of the Board of Directors or by the stockholders at the annual
meeting. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 3.3 of this Article, and each
director shall be elected to serve until his successor is elected and qualified
or until his earlier resignation or removal. Directors need not be
stockholders.
SECTION 3.3. RESIGNATION, REMOVAL AND VACANCIES. Each director shall
hold office until his successor is elected and qualified, subject, however, to
his or her prior death, resignation, retirement or removal from office. Any
director may resign at any time upon written notice to the corporation directed
to the Board of Directors or the secretary of the corporation. Such resignation
shall take effect at the time specified therein, and unless otherwise specified
therein no acceptance of such resignation shall be necessary to make it
effective. Any director or the entire Board of Directors may be removed, with
or without cause, by the vote of the holders of at least a majority of shares of
stock then entitled to vote at an election of directors. Whenever the holders
of shares of any class or series of stock are entitled to elect one or more
directors by the provisions of the Certificate of Incorporation, the provisions
of the preceding sentence shall apply, in respect to the removal with or without
cause of a director or directors so elected, to the vote of the holders of the
outstanding shares of that class or series of stock and not to the vote of the
holders of the outstanding shares of stock as a whole. Unless otherwise
provided by the Certificate of Incorporation, vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by the vote of a majority of the directors then in office provided
that a quorum is present, and any other vacancy occurring in the Board of
Directors may be filled by a
6
<PAGE>
majority of the directors then in office, even if less than a quorum, unless
otherwise provided in the Certificate of Incorporation. Any director elected to
fill a vacancy not resulting from an increase in the number of directors shall
have the same remaining term as that of his or her predecessor.
MEETINGS OF THE BOARD OF DIRECTORS
SECTION 3.4. GENERAL. The Board of Directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
SECTION 3.5. REGULAR MEETINGS. Regular meetings of the directors may be
held without notice at such time and at such place as shall from time to time be
determined by the Board of Directors.
SECTION 3.6. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the chairman of the board or the president. In
addition, special meetings shall be called by the chairman of the board or the
president in the manner set forth in Section 3.9 of Article III hereof on the
written request of one-third of the directors comprising the board stating the
purpose or purposes for which the meeting is requested. Notice of any meeting
of the Board of Directors for which a notice is required may be waived in
writing signed by the person or persons entitled to such notice, whether before
or after the time of such meeting, and such waiver shall be equivalent to the
giving of such notice. Attendance of a director at any such meeting shall
constitute a waiver of notice thereof, except where a director attends a meeting
for the express purpose of objecting to the transaction of any business because
such meeting is not lawfully convened.
SECTION 3.7. NOTICE OF MEETINGS. Except as otherwise provided herein,
notice of each meeting of the Board of Directors shall be given which shall
state the date, time and place of the meeting. The written notice of any
meeting shall be given at least twenty-four hours in advance of the meeting to
each director. Notice may be given either personally or by mail, telephone,
facsimile or telegram and shall be deemed to have been given when deposited in
the United States mail, delivered to the telegraph company or transmitted by
telex or facsimile, as the case may be.
SECTION 3.8. QUORUM. At all meetings of the Board of Directors a
majority of the then duly elected directors shall constitute a quorum for the
transaction of business and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute or by the
Certificate of Incorporation. If a quorum shall not be present at any meeting
of the Board of Directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
7
<PAGE>
SECTION 3.9. ACTION WITHOUT A MEETING. Unless otherwise restricted by
the Certificate of Incorporation or these by-laws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting, if all members of the Board
or committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of the Board or
committee.
SECTION 3.10. TELEPHONIC MEETINGS. Unless otherwise restricted by the
Certificate of Incorporation or these by-laws, members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
SECTION 3.11. GENERAL. The Board of Directors may, by resolution or
resolutions passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee.
Any such committee, to the extent provided in the resolution of the Board
of Directors, or in these by-laws, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless the resolution, these by-laws, or the
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock.
SECTION 3.12. MEETINGS. Each committee shall keep regular minutes of its
meetings, report the same to the Board of Directors, and shall file such minutes
and all written consents executed by its members with the secretary of the
corporation. Each committee may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made
for notice to members of all meetings; a majority of the members shall
constitute a quorum unless the committee shall consist of one or two members, in
which event one member shall constitute a quorum; and all matters shall be
determined by a majority vote of the members present. Action may
8
<PAGE>
be taken by any committee without a meeting if all members thereof consent
thereto in writing, and the writing or writings are filed with the minutes of
the proceedings of such committee. Members of any committee of the Board of
Directors may participate in any meeting of such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating may hear each other, and participation in a meeting by
such means shall constitute presence in person at such meeting.
COMPENSATION OF DIRECTORS
SECTION 3.13. GENERAL. Unless otherwise restricted by the Certificate of
Incorporation or these by-laws, the Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, for attendance at each meeting of the Board of Directors. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
ARTICLE IV
NOTICES
SECTION 4.1. GENERAL. Whenever, under the provisions of the DGCL or of
the Certificate of Incorporation or of these by-laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by courier or mail, addressed
to such Director or stockholder, at his address as it appears on the records of
the corporation, with postage thereon prepaid, and such notice shall be deemed
to be given at the time when the same shall be deposited with such courier or in
the United States mail. Notice to directors may also be given by telephone,
telegram or facsimile.
SECTION 4.2. WAIVER. Whenever any notice is required to be given under
the provisions of the statute or of the Certificate of Incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
SECTION 5.1. ELECTION OF OFFICERS. The officers of the corporation shall
be chosen by the Board of Directors and shall be a chairman of the board, a
president, one or more vice presidents, a secretary and a treasurer. The Board
of Directors may also choose one or more
9
<PAGE>
assistant secretaries and assistant treasurers. Any number of offices may be
held by the same person, unless the Certificate of Incorporation or these by-
laws otherwise provide. The salaries of all officers of the corporation shall
be fixed by the Board of Directors.
SECTION 5.2. RESIGNATION REMOVAL AND VACANCIES. Except as otherwise
provided by the Board of Directors when appointing any officer, each officer of
the corporation shall hold office until the first meeting of the Board of
Directors after the annual meeting of stockholders next succeeding his
appointment, or until such successor is appointed and qualified. Any officer
may resign at any time upon written notice to the corporation directed to the
Board of Directors and the secretary. Such resignation shall take effect at the
time specified therein, and unless otherwise specified therein, no acceptance of
such resignation shall be necessary to make it effective. The Board of
Directors may remove any officer or agent with or without cause at any time by
the affirmative vote of a majority of the Board of Directors. Any such removal
shall be without prejudice to the contractual rights of such officer or agent,
if any, with the corporation, but the election of an officer or agent shall not
of itself create any contractual rights. Any vacancy occurring in any office of
the corporation by death, resignation, removal or otherwise may be filled for
the unexpired portion of the term by the Board of Directors.
SECTION 5.3. CHAIRMAN OF THE BOARD. The chairman of the Board of
Directors shall preside at all meetings of stockholders and the Board of
Directors and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
SECTION 5.4. PRESIDENT. The president shall be the chief executive
officer of the corporation and in the absence of the chairman of the board or in
the event of his inability or refusal to act, shall preside at all meetings of
the stockholders and the Board of Directors. He shall have responsibility for
the general and active management of the business of the corporation and shall
see to it that all orders and resolutions of the Board of Directors are
performed and carried into effect. He shall direct the activities of the other
officers.
SECTION 5.5. VICE PRESIDENT. In the absence of the president or in the
event of his inability or refusal to act, the vice president (or in the event
there is more than one vice president, the vice presidents in the order
designated by the directors, or in the absence of any designation, then in the
order of their election) shall perform the duties of the president, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the president. The vice presidents shall perform such other duties and have
such other powers as the Board of Directors may from time to time prescribe.
SECTION 5.6. SECRETARY. The secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation and of the Board of Directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform
10
<PAGE>
such other duties as may be prescribed by the Board of Directors or president,
under whose supervision he shall be. The secretary shall have custody of the
corporate seal of the corporation, if any, and he, or an assistant secretary,
shall have authority to affix the same to any instrument requiring it and when
so affixed, it may be attested by his signature or by the signature of such
assistant secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the corporation and to attest the affixing by
his signature.
SECTION 5.7. ASSISTANT SECRETARY. The assistant secretary, or if there
is more than one, the assistant secretaries in the order determined by the Board
of Directors (or if there is no such determination, then in the order of their
election), shall, in the absence of the secretary or in the event of the
secretary's inability or refusal to act, perform the duties and exercise the
powers of the secretary and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
SECTION 5.8. TREASURER. The treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuables in the name and to the credit of the
corporation in such depositories as may be designated by the Board of Directors.
The treasurer shall have exclusive authority to open bank accounts or otherwise
transact the financial business of the corporation; provided, however, that the
president shall have complete access to the financial records of the corporation
and shall be provided unaudited quarterly financial statements of the
corporation. The treasurer shall disburse the funds of the corporation as may
be ordered by the Board of Directors, taking proper vouchers for such
disbursements and shall render to the president and the Board of Directors at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation. If required by the Board of Directors, the treasurer shall give
the corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
SECTION 5.9. ASSISTANT TREASURER. The assistant treasurer, or if there
shall be more than one, the assistant treasurers in the order determined by the
Board of Directors (or if there is no such determination, then in the order of
their election), shall, in the absence of the treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
11
<PAGE>
SECTION 5.10. OTHER OFFICERS. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the corporation the power to
choose such other officers and to prescribe their respective duties and powers.
SECTION 5.11. DUTIES OF OFFICERS. Powers of attorney, proxies, waivers of
notice of meeting, consents and other instruments relating to securities owned
by the corporation may be executed in the name of and on behalf of the
corporation by the president or any vice president and any such officer may in
the name of and on behalf of the corporation, take all such action as any such
officer may deem advisable to vote in person or by proxy at a meeting of
security holders of any corporation in which the corporation may own securities
and at any such meeting shall possess and may exercise any and all rights and
powers incident to the ownership of such securities and which, as the owner
thereof, the corporation might have exercised and possessed if present. The
Board of Directors may by resolution, from time to time, confer like powers upon
any other person or persons.
ARTICLE VI
CERTIFICATES OF STOCK
SECTION 6.1. GENERAL. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by, or in the name of the corporation by,
the chairman of the board or the president or a vice president, and the
treasurer or an assistant treasurer, or the secretary or an assistant secretary,
of the corporation, certifying the number of shares owned by him in the
corporation.
Certificates may be issued for partly paid shares and in such case upon the
face or back of the certificates issued to represent any such partly paid
shares, the total amount of the consideration to be paid therefor, and the
amount paid thereon shall be specified.
If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock; provided that, except as
otherwise provided in section 202 of the DGCL, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the corporation shall issue to represent such class or series of stock a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class or series thereof
and the qualifications, limitations or restrictions of such preferences and/or
rights.
12
<PAGE>
SECTION 6.2. SIGNATURE. Any of or all the signatures on the certificate
may be facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if such person were such officer, transfer agent or registrar at the date of
issue.
SECTION 6.3. LOST CERTIFICATES. The Board of Directors may direct a new
certificate or certificates to be issued in the place of any certificate or
certificates theretofore issued by the corporation, alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representatives, to advertise the same in such manner
as it shall require and/or to give the corporation a bond, in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
SECTION 6.4. TRANSFER OF STOCK. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books; provided, however, that such duty shall be subject
to federal and state securities and other applicable laws, the Certificate of
Incorporation, and any legends and stop transfer instructions with respect to
such old certificate.
SECTION 6.5. REGISTERED STOCKHOLDERS. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
ARTICLE VII
CONFLICTS OF INTEREST
SECTION 7.1. GENERAL. No contract or transaction between the corporation
and one or more of its directors or officers, or between the corporation and any
other corporation, partnership, association, or other organization in which one
or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the board or committee thereof which authorizes the contract or transaction, or
solely because his votes are counted for such purpose, if:
13
<PAGE>
(1) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction
by the affirmative vote of a majority of the disinterested
directors, even though the disinterested directors be less than a
quorum; or
(2) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(3) The contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof, or the stockholders.
SECTION 7.2. QUORUM OF DIRECTORS. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 8.1. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS. The
corporation shall indemnify, in accordance with and to the full extent now or
hereafter permitted by law, any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (including,
without limitation, an action by or in the right of the corporation), by reason
of his acting as a director of the corporation, and the corporation, in the
discretion of the Board of Directors, may so indemnify a person by reason of the
fact that he is or was an officer, employee or agent of the corporation or is or
was serving at the request of the corporation in any other capacity for or on
behalf of the corporation, against any liability or expense actually and
reasonably incurred by such person in respect thereof; PROVIDED, HOWEVER, that
the corporation shall not be obligated to indemnify any such person; (i) with
respect to proceedings, claims or actions initiated or brought voluntarily by
such person and not by way of defense; or (ii) for any amounts paid in
settlement of an action effected without the prior written consent of the
corporation to such settlement. Such indemnification is not exclusive of any
other right of indemnification provided by law, agreement or otherwise.
14
<PAGE>
SECTION 8.2. EXPENSES PAYABLE IN ADVANCE. Expenses (including attorney's
fees) incurred by a director, officer, incorporator, employee or agent in
defending a civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of the director, officer, employee or agent to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
corporation as authorized in this Article VIII.
SECTION 8.3. NON-EXCLUSIVITY OR INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses provided by this
Article VIII shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any by-
law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office, and shall, unless otherwise provided when authorized
or ratified, continue as to a person who has ceased to be a director, officer,
incorporator, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 8.4. INSURANCE. The corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
incorporator, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation would have the
power to indemnify him against such liability under the provisions of this
Article VIII.
SECTION 8.5. DEFINITIONS. For the purpose of this Article VIII, all
words and phrases used herein shall have the meanings ascribed to them under
Section 145 of the DGCL.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1. DIVIDENDS. Dividends upon the stock of the corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to the DGCL. Dividends may be paid in cash, in property, or in shares of the
stock, subject to the provisions of the Certificate of Incorporation.
SECTION 9.2. PAYMENT OF DIVIDENDS. Before payment of any dividend, there
may be set aside out of any funds of the corporation available for dividends
such sum or sums as the directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet
15
<PAGE>
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the corporation, or for such other purpose as the directors shall
think conducive to the interest of the corporation, and the directors may modify
or abolish any such reserve in the manner in which it was created.
SECTION 9.3. CHECKS. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers, person or persons as
the Board of Directors may from time to time designate.
SECTION 9.4. FISCAL YEAR. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
ARTICLE X
AMENDMENTS
SECTION 10. These by-laws may be altered, amended or repealed or new by-
laws may be adopted by the stockholders or by the Board of Directors, when such
power is conferred upon the Board of Directors by the Certificate of
Incorporation, at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or Board of Directors if
notice of the such alteration, amendment, repeal or adoption of new by-laws is
contained in the notice of such special meeting. If the power to adopt, amend
or repeal by-laws is conferred upon the Board of Directors by the Certificate of
Incorporation, it shall not divest or limit the power of the stockholders to
adopt, amend or repeal by-laws.
16
<PAGE>
October 17, 1996
North American Scientific, Inc.
7435 Greenbush Avenue
North Hollywood, CA 91605
Gentlemen:
In connection with the proposed registration under the Securities Act of
1933, as amended by North American Scientific, Inc., a Delaware corporation (the
"Company"), on Form S-8, of an aggregate of 500,000 shares of its Common Stock,
no par value (the "Shares"), issuable upon exercise of stock options under the
Company's Amended and Restated 1996 Stock Option Plan (the "Plan"), we hereby
advise you that as general counsel for the Company we have examined the original
or certified copies of the Certificate of Incorporation of the Company and all
amendments thereto, the By-Laws of the Company, as amended, the minute books of
the Company, and such other documents and records as we have deemed necessary
for the purposes of this opinion.
Based upon such examination, it is our opinion that:
1. The Company is a validly organized and existing corporation under the
laws of the State of Delaware.
2. The Shares are duly authorized and, when issued upon the exercise of
stock options pursuant to the terms of the Plan, will be legally
issued, fully paid and nonassessable.
Very truly yours,
D'ANCONA & PFLAUM
By: /s/ Arthur Don
-----------------------
Arthur Don
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 10, 1996, which appears on
Page 14 of the 1995 Annual Report to Shareholders of North American Scientific,
Inc. which is incorporated by reference in North American Scientific, Inc.'s
Annual Report on Form 10-KSB for the year ended October 31, 1995.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Costa Mesa, California
October 15, 1996
