<PAGE>
As filed with the Securities and Exchange Commission on August 31, 1998
Registration No. 333-
_______________________________________________________________________________
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)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
_______________________________________________________________________________________________
PROPOSED PROPOSED
TITLE OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
_______________________________________________________________________________________________
<S> <C> <C> <C> <C>
COMMON STOCK,
$.01 PAR VALUE 750,000 SHARES (1) $8.140625 (2) $6,105,468.75 (2) $1,801.11
_______________________________________________________________________________________________
</TABLE>
(1) Represents the maximum number of shares which could be purchased upon
exercise of all such options which may hereafter be granted under the
provisions of the amendment to the Plan, increasing by 750,000 shares the
number of shares which can be issued under the Plan.
(2) 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 August
27, 1998, as reported on the NASDAQ National Market.
<PAGE>
EXPLANATORY NOTE
The prospectus which will be part of this Registration Statement is a
combined prospectus under SEC Rule 429 intended to be used for the offering
of (i) the shares of registrant's Common Stock registered hereunder, and (ii)
the shares of registrant's Common Stock remaining to be issued under the
Amended and Restated 1996 Stock Option Plan (prior to the amendment to said
Plan increasing by 750,000 the number of shares that can be issued under said
Plan), which remaining shares have been previously registered by registrant's
registration statements on Form S-8, File Nos. 333-14373 and 333-25973. The
amount of the filing fees that were previously paid, with the earlier
registration statements was $170.22 and $494.14, respectively.
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, 1997.
(b) The Company's quarterly reports on Form 10-QSB for the quarters ended
January 31, 1998, April 30, 1998 and July 31, 1998.
(c) The Company's current reports on Form 8-K as filed on February 9, 1998
and February 19, 1998.
(d) 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.
The validity of the shares of Common Stock offered hereby will be passed
upon by D'Ancona & Pflaum, Chicago, Illinois. Allan J. Reich, a partner of
D'Ancona & Pflaum, beneficially owns 72,750 shares of Common Stock. Other
partners at D'Ancona & Pflaum beneficially own additional shares of the
Company's Common Stock, which ownership is not material.
2
<PAGE>
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.
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 Certificate of Amendment to Certificate of Incorporation of the
Registrant, incorporated by reference to Exhibit 3.1 of the
Registrant's quarterly report on Form 10-QSB for the fiscal quarter
ended July 31, 1998.
4.3 Bylaws of the Company, as amended, incorporated by reference to
Exhibit 4.2 of the Registrant's Registration Statement on Form S-8,
filed October 18, 1996.
4.4 The Company's Amended and Restated 1996 Stock Option Plan.
5.1 Opinion of D'Ancona & Pflaum.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of D'Ancona & Pflaum (included in Exhibit 5.1).
24.1 Powers of Attorney (included herein).
3
<PAGE>
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 ACalculation 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.
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
4
<PAGE>
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.
5
<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 on 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 __th day of August, 1998.
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 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ------ -----
<S> <C> <C>
/s/ Irwin J. Gruverman Chairman of the Board August 27, 1998
- ------------------------------ and Director
Irwin J. Gruverman
/s/ L. Michael Cutrer President, Chief August 26, 1998
- ------------------------------ Executive Officer
L. Michael Cutrer and Director (Principal
Executive Officer)
/s/ Dr. Allan M. Green Director August 28, 1998
- ------------------------------
Dr. Allan M. Green
/s/ Michael C. Lee Director August 31, 1998
- ------------------------------
Michael C. Lee
/s/ Larry Berkin Director August 26, 1998
- ------------------------------
Larry Berkin
/s/ Alan Edrick Chief Financial Officer August 27, 1998
- ------------------------------ (Principal Financial and
Alan I. Edrick Accounting Officer)
</TABLE>
<PAGE>
NORTH AMERICAN SCIENTIFIC, INC.
AMENDED AND RESTATED
1996 STOCK OPTION PLAN
(AS AMENDED THROUGH APRIL 1998)
1. PURPOSE OF THE PLAN. Under this 1996 Stock Option Plan (the
"Plan") of North American Scientific, Inc. (the "Company") options may be
granted to eligible employees, directors and consultants to purchase shares
of the Company's capital stock. The Plan is designed to enable the Company
to attract, retain, and motivate its employees, directors and consultants by
providing for or increasing the proprietary interests of such individuals in
the Company. The Plan provides for options which qualify as incentive stock
options ("Incentive Options") under Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code"), as well as options which do not so qualify
("Nonstatutory Options"). Any option granted under this Plan shall be
clearly identified as either an Incentive Option or a Nonstatutory Option.
2. STOCK SUBJECT TO PLAN. The aggregate number of shares which may be
issued under options is 1,500,000 shares of the Company's Common Stock, $0.01
par value ("Common Stock"), subject to the adjustments hereinafter provided.
Such number of shares shall be reserved by the Company for options granted
under this Plan. The shares which may be issued or delivered under the Plan
may be either authorized but unissued shares or treasury shares or partly
each. Shares of stock subject to the unexercised portions of any options
granted under this Plan which expire or terminate or are canceled may again
be subject to options under the Plan.
3. ELIGIBILITY. The employees eligible to be considered for the grant
of Incentive Options hereunder are all employees (including directors)
regularly employed by the Company. All such employees and all nonemployed
directors or consultants to the Company shall also be eligible to receive
Nonstatutory Options hereunder. The Committee referred to in Section 13 will
designate, from among the eligible employees, those who will be granted
Options and will specify: (i) the number of shares of the Company's common
stock each such employee will be entitled to purchase pursuant to the option;
and (ii) the nature of an Option as an Incentive Option, a Nonstatutory
Option or partly each type of Option. The Committee may make such grants at
any time and in any amounts that it, in its discretion, may designate,
subject to the other relevant limitations set out in this Plan.
The number of Option shares granted in a fiscal year to each executive
officer whose compensation is subject to reporting on the Company's annual
proxy statement (an "Executive Officer") shall not exceed 300,000 shares for
any fiscal year during which he or she serves as an Executive Officer.
4. $100,000 INCENTIVE OPTION EXERCISE LIMITATION. The aggregate fair
market value of the stock for which Incentive Options granted to any one
eligible employee under this Plan and under all incentive stock option plans
of the Company, its parent(s) and any subsidiaries, may by their terms
<PAGE>
first become exercisable during any calendar year shall not exceed $100,000,
determining fair market value of the stock subject to any option as of the
time that option is granted. If the date on which one or more Incentive
Options could be first exercised would be accelerated pursuant to any other
provision of the Plan or any stock option agreement referred to in Section
10, or an amendment thereto, and the acceleration of such exercise date would
result in a violation of the restriction set forth in the preceding sentence,
then notwithstanding any such other provision the exercise date of such
Incentive Options shall be accelerated only to the extent, if any, that is
permitted under Section 422 of the Code and the exercise date of the
Incentive Options with the lowest option prices shall be accelerated first.
Any exercise date which cannot be accelerated without violating the $100,000
restriction of this section shall nevertheless be accelerated, and the
portion of the option becoming exercisable thereby shall be treated as a
nonstatutory option.
5. OPTION PRICE. The purchase price at which each stock option may be
exercised (the "Option Price") shall be such price as the Board of Directors, in
its discretion, shall determine, and, in the case of Incentive Options, shall
not be less than one hundred percent (100%) of the fair market value per share
of the Common Stock covered by the Incentive Option on the date of grant, except
that in the case of an Incentive Option granted to an employee who, immediately
prior to such grant, owns stock possessing more than ten percent (10%) of the
total combined voting power of all classes of stock of the Company or any
subsidiary (a "Ten Percent Employee"), the Option Price shall not be less than
one hundred ten percent (110%) of such fair market value on the date of grant.
For purposes of this Section 5, the fair market value of the Common Stock shall
be determined as provided in Section 11. For purposes of this Section 5, an
individual (a) shall be considered as owning not only shares of the Common Stock
owned individually but also all shares that are at the time owned, directly or
indirectly, by or for the spouse, ancestors, lineal descendants and brothers and
sisters (whether by the whole or half blood) of such individual, and (b) shall
be considered as owning proportionately any shares owned, directly or indirectly
by or for any corporation, partnership, estate or trust in which such individual
shall be a shareholder, partner or beneficiary.
6. EXERCISE OF OPTION. The option agreement may provide for partial
exercise in installments. Exercisable options may be exercisable in full or in
part. The period of time in which an option may be exercised shall be the
period designated in the option. In the case of an Incentive Option such period
shall not exceed ten (10) years from the date the option is granted and with
respect to a Ten Percent Employee, such period of time shall not exceed five (5)
years from the date the Incentive Option is granted. No Nonstatutory Option
shall be exercisable after the expiration of ten years from the date of grant.
An option to the extent exercisable at any time may be exercised in whole or in
part.
7. PAYMENT OF OPTION PRICE. Payment for stock purchased under any
exercise of an option granted under this Plan shall be made in full in cash
concurrently with such exercise. Alternatively, such payment may be made in
whole or in part with shares of the same class of stock as that then subject to
the option, delivered in lieu of cash concurrently with such exercise, the
shares so delivered to be valued on the basis of the fair market value of stock
(determined in a manner
-2-
<PAGE>
provided in Section 11 hereof) provided that the Company is not then
prohibited from purchasing or acquiring shares of such stock.
Notwithstanding the foregoing, the Company shall not be obligated to
accept payment of the exercise price pursuant to this Section 7 unless the
stock tendered as payment for the exercise price has been held by the
optionee for at least six months. The Company also has the discretion to
refuse any other method of payment that would cause the Plan or the option
agreements issued thereunder to be treated for accounting purposes as
creating stock appreciation rights or other "variable stock plan"
characteristics which would cause the Company to recognize a charge to
earnings.
8. NONTRANSFERABILITY. Any option granted under this Plan shall by its
terms be nontransferable by the optionee other than by will or the laws of
descent and distribution and is exercisable during the optionee's lifetime only
by him or by his guardian or legal representative.
9. TERMINATION OF OPTION. In the case of Incentive Options:
a. If the employment or other service to the Company or a subsidiary
of an optionee (whether employee, nonemployed director, or consultant) who
is not disabled within the meaning of Section 422(c)(6) of the Code (a
"Disabled Optionee") is terminated without cause, quits or retires under
any retirement plan of the Company or a subsidiary, any then outstanding
and exercisable stock option held by such an optionee shall be exercisable,
in accordance with the provisions of the stock option agreement referred
to in Section 10, by such optionee at any time prior to the expiration date
of such stock option or within three months after the date of termination
of employment or service, whichever is the shorter period;
b. If the employment of an optionee who is a Disabled Optionee is
terminated without cause or if the service of a nonemployed director or
consultant terminates because such individual becomes a Disabled Optionee,
any then outstanding and exercisable stock option held by such an optionee
shall be exercisable, in accordance with the provisions of the stock option
agreement referred to in Section 10, by such an optionee at any time prior
to the expiration date of such stock option or within one year after the
date of such termination of employment or service, whichever is the shorter
period;
c. Following the death of an optionee during employment or of a
nonemployed director or consultant while serving as a director or
consultant of the Company or a subsidiary, any outstanding and exercisable
stock option held by such an optionee at the time of death shall be
exercisable, in accordance with the provisions of the stock option
agreement referred to in Section 10, by the person or persons entitled to
do so under the will of the optionee, or, if the optionee shall fail to
make testamentary disposition of the stock option or shall die intestate,
by the legal representative of the optionee at any time prior to the
expiration date of such stock option or within one year after the date of
death, whichever is the shorter period.
With respect to Nonstatutory Options:
-3-
<PAGE>
The Committee may specify in the option agreement what restrictions
will apply in the event of termination of employment.
For all options issued hereunder, if the Company terminates the
employment of an optionee for cause, all outstanding stock options held by
the optionee at the time of such termination shall automatically terminate
unless the Board of Directors notifies the optionee that his options will not
terminate. A termination "for cause" shall be defined under each written
option agreement issued pursuant to Section 10.
Whether termination of employment or other service is a termination "for
cause" and whether an optionee is disabled within the meaning of Section
422(c)(6) of the Code shall be determined in each case, in its discretion, by
the Board of Directors and any such determination by the Board of Directors
shall be final and binding.
10. WRITTEN OPTION AGREEMENT. All options granted pursuant to the Plan
shall be evidenced by written option agreements. Such option agreements shall
comply with and be subject to all of the terms, conditions, and limitations set
forth in this Plan and such further provisions, not inconsistent with this Plan,
as the Board of Directors shall deem appropriate.
11. DETERMINATION OF FAIR MARKET VALUE. Fair market value of the Common
Stock shall be the closing price of the Common Stock on the NASDAQ National
Market (or such successor exchange or automated quotation system upon which the
Common Stock becomes listed) on the day prior to the grant.
12. ADJUSTMENTS. If the outstanding shares of stock of the class then
subject to this Plan are increased or decreased, or are changed into or
exchanged for a different number or kind of shares or securities, as a result of
one or more reorganizations, recapitalization, stock splits, reverse stock
splits, stock dividends or the like, appropriate adjustments shall be made in
the number and/or kind of shares or securities for which options may thereafter
be granted under this Plan and for which options then outstanding under this
Plan may thereafter be exercised. The Board of Directors shall make such
adjustments as it may deem fair, just and equitable to prevent substantial
dilution or enlargement of the rights granted to or available for optionees. No
adjustment provided for in this Section 12 shall require the Company to issue or
sell a fraction of a share or other security.
If any such adjustment provided for in this Section 12 requires the
approval of stockholders in order to enable the Company to grant Incentive
Options, then no such adjustment shall be made without the required stockholder
approval. Notwithstanding the foregoing, in the case of Incentive Options, if
the effect of any such adjustment would be to cause the stock option to fail to
continue to qualify as an Incentive Option or to cause a modification, extension
or renewal of such stock option within the meaning of Section 424 of the Code,
the Board of Directors may elect that such adjustment not be made but rather
shall use reasonable efforts to effect such other adjustment of each then
outstanding stock option as the Board of Directors, in its sole discretion,
shall deem equitable and which will not result in any disqualification,
modification, extension or renewal (within the meaning of Section 424 of the
Code) of such Incentive Option.
-4-
<PAGE>
13. ADMINISTRATION. The Plan shall be administered by a committee
appointed by the Board of Directors of the Company (the "Committee") which shall
be comprised of not less than two members who are "Non-Employee Directors" as
defined in Rule 16b-3(b)(3)(i), promulgated under the Securities Exchange Act of
1934, as amended, and who shall each also qualify as an "outside director" for
purposes of Section 162(m) of the Code. An individual shall not be a member of
the Committee if he has received any options under this Plan during the one year
period preceding his proposed appointment to the Committee. Members of the
Committee shall not be eligible to receive options granted hereunder at any
time. Any vacancy on the Committee shall be filled by appointment by the Board
of Directors.
The Committee may interpret the Plan, prescribe, amend and rescind any
rules or regulations necessary or appropriate for the administration of the
Plan, and make all determinations, in its discretion, as to which eligible
employees will receive options, the number of shares subject to the options and
the exercise price. The Committee may make such other determination and take
such other action it deems necessary or advisable. Without limiting the
generality of the foregoing, the Committee may, in its discretion, treat all or
any portion of any period during which a participant is on military or other
approved leave of absence from the Company or a subsidiary as a period of
employment of such participant by the Company or such subsidiary, as the case
may be, for purposes of accrual of his rights under his awards; provided,
however, that no Incentive Option may be awarded to an employee while he is on
leave of absence.
14. LIMITATIONS RESPECTING INCENTIVE OPTIONS. It is the intent of the
Company to conform strictly to the requirements of Code Section 422 with regard
to Incentive Options granted pursuant to this Plan. Therefore, notwithstanding
any other provision of this Plan, nothing herein with regard to Incentive
Options shall contravene any requirement set forth in Code Section 422 and if
inconsistent provisions are otherwise found herein, they shall be deemed void
and unenforceable or automatically amended to conform, as the case may be.
15. RIGHTS AS A STOCKHOLDER. An optionee, or his executor, administrator
or legatee if he be deceased, shall have no rights as a stockholder with respect
to any stock covered by his option under the date of issuance of the stock
certificate to him or such stock after receipt of the consideration in full set
forth in the option agreement or as may be approved by the Board of Directors.
Except as provided in Section 12 hereof, no adjustments shall be made for
dividends, whether ordinary or extraordinary, whether in cash, securities, or
other property, for distributions in which the record date is prior to the date
for which the stock certificate is issued.
16. MODIFICATION, EXTENSION AND RENEWAL. Subject to the conditions of,
and within the limitations prescribed in, Section 14, hereof, the Board of
Directors may modify, extend or renew options which are outstanding as granted
under the Plan if otherwise consistent herewith. Notwithstanding the foregoing,
no modification shall, without the prior written consent of the optionee, alter,
impair or waive any rights or obligations of any option theretofore granted
under the Plan.
-5-
<PAGE>
17. INVESTMENT PURPOSES, ETC. Prior to the issuance or delivery of any
shares of the common stock under the Plan, the person exercising the stock
option may be required to (a) represent and warrant that the shares of the
Common Stock to be acquired upon exercise of the stock option are being acquired
for investment for the account of such person and not with a view to resale or
other distribution thereof, (b) represent and warrant that such person will not,
directly or indirectly, transfer, sell, assign, pledge, hypothecate or otherwise
dispose of any such shares unless the transfer, sale, assignment, pledge,
hypothecation or other disposition of the shares is pursuant to effective
registrations under the 1933 Act and applicable state or foreign securities laws
or pursuant to appropriate exemptions from any such registrations, (c) execute
such further documents as may be reasonably required by the Board of Directors
upon exercise of the option or any part thereof, including but not limited to
stock transfer restrictions. The certificate or certificates representing the
shares of the common stock to be issued or delivered upon exercise of a stock
option may bear a legend evidencing the foregoing and other legends required by
any applicable securities laws. Furthermore, nothing herein or any option
granted hereunder shall require the Company or any subsidiary to issue any stock
upon exercise of any option if the issuance would, in the opinion of counsel for
the Company, constitute a violation of the Securities Act of 1933, as amended,
the California securities laws, or any other applicable rule or regulation then
in effect.
18. NO RIGHT TO CONTINUED EMPLOYMENT. This Plan, and any option granted
under this Plan, shall not confer upon any optionee any right with respect to
continued employment by or service to the Company or any subsidiary, nor shall
they alter, modify, limit or interfere with any right or privilege of the
Company or any subsidiary under any employment or service contract heretofore or
hereinafter executed with any optionee, including the right to terminate any
optionee's employment, directorship, or consultancy service, at any time for or
without cause.
19. DISPOSITION OF INCENTIVE OPTION SHARES. Except (a) as provided in
options to the Company and other holders of the stock contained in stock
transfer restriction agreements to which the Company is a party, or (b) in
connection with reorganizations or other transactions described in Section 12
hereof, no stock acquired by the exercise of an Incentive Option granted under
the Plan shall be transferable, otherwise than by will or the laws of descent
and distribution, within two (2) years after the date the option was granted or
within one (1) year after the transfer of such share of stock to the optionee
pursuant to the exercise of the option. Each certificate representing the
acquired shares shall bear a legend to this effect.
20. COMPLIANCE WITH OTHER LAWS AND REGULATIONS. The Plan, the options
granted hereunder and the obligation of the Company to sell and deliver stock
under such options, shall be subject to all applicable federal and state laws,
rules, regulations and to such approvals by any government or regulatory
authority or investigative agency as may be required. The Company shall not be
required to issue or deliver any certificates for shares of stock prior to (a)
the listing of any such stock to be acquired pursuant to the exercise of any
option on any stock exchange on which the stock may then be listed, and (b) the
compliance with any registration requirements or qualification of such shares
under any federal or state securities laws, or obtaining any ruling or waiver
from any
-6-
<PAGE>
government body which the Company or it subsidiaries shall, in their sole
discretion, determine to be necessary or advisable, or which, in the opinion
of counsel to the Company or its subsidiaries, is otherwise required.
21. CORPORATE REORGANIZATIONS. Upon the dissolution or liquidation of
the Company, or upon a reorganization, merger or consolidation of the Company
as a result of which the outstanding securities of the class then subject to
options hereunder are changed into or exchanged for cash or property or
securities not of the Company's issue, or upon a sale of substantially all
the property of the Company to, or the acquisition of stock representing more
than eighty percent (80%) of the voting power of the stock of the Company
then outstanding by another corporation or person, the Plan shall terminate,
and all options theretofore granted hereunder shall terminate, unless
provision be made in writing in connection with such transaction for the
continuance of the Plan and/or for the assumption of options theretofore
granted, or the substitution for such options of options covering the stock
of a successor employer corporation, or a parent or a subsidiary thereof,
with appropriate adjustments as to the number and kind of shares and prices,
in which event the Plan and options theretofore granted shall continue in the
manner and under the terms so provided. If the Plan and unexercised options
shall terminate pursuant to the foregoing sentence, all persons entitled to
exercise any unexercised portions of options then outstanding shall have the
right, at such time prior to the consummation of the transaction causing such
termination as the Company shall designate, to exercise the unexercised
portions of their options, including the portions thereof which would, but
for this Section 21, not yet be exercisable.
22. WITHHOLDING. If, upon exercise of any Nonstatutory Option (or any
Incentive Option which is treated as a Nonstatutory Option because it fails to
meet the requirements set forth herein for Incentive Options), the optionee
fails to tender payment to the Company for any federal income tax withholding,
the Board of Directors shall withhold from the optionee sufficient shares or
fractional shares having a fair market value (determined under Section 11) equal
to any amount which the Company is required to withhold under the Code.
23. AMENDMENT AND TERMINATION. The Company may alter, amend, suspend or
terminate this Plan, provided that no such action shall deprive an optionee,
without his consent, of any option granted to the optionee pursuant to this Plan
or of any of such optionee's rights under such option. Except as herein
provided no such action of the Company, unless approved by the shareholders of
the Company within twelve months prior or twelve months after such action, may:
a. increase the maximum number of shares for which options granted
under this plan may be exercised;
b. reduce the minimum permissible exercise price;
c. extend the ten-year duration of this Plan set forth herein; or
d. alter the class of employees eligible to receive options under
the Plan.
-7-
<PAGE>
24. PLAN DATE AND DURATION. The Plan shall take effect on the date it is
adopted by the Board of Directors of the Company. Options may not be granted
under this Plan more than ten years after the date of the adoption of this Plan,
or of shareholder approval thereof, whichever is earlier.
25. GOVERNING LAW. All questions arising with respect to the provisions
of the Plan shall be determined by application of the laws of the state of
Delaware except to the extent that Delaware laws are preempted by any federal
statute, regulation, judgement or court order, including but not limited to, the
Code.
<PAGE>
EXHIBIT 5.1
August 28, 1998
North American Scientific, Inc.
7435 Greenbush Avenue
North Hollywood, CA 91605
Dear 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 750,000 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 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.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in such Registration
Statement.
Very truly yours,
D'ANCONA & PFLAUM
By: /s/ Steve Curtis
-----------------------------
Steve Curtis
SC/mhg
<PAGE>
EXHIBIT 23.1
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 19, 1998 appearing on Page F-1
of North American Scientific, Inc.'s Annual Report on Form 10-KSB for the year
ended October 31, 1997.
PRICEWATERHOUSECOOPERS LLP
Costa Mesa, California
August 27, 1998
