<PAGE>
As filed with the Securities and Exchange Commission on April 6, 2000
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.)
20200 SUNBURST STREET, CHATSWORTH, CA 91311
(Address of Principal Executive Offices) (Zip Code)
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
L. MICHAEL CUTRER
NORTH AMERICAN SCIENTIFIC, INC.
20200 SUNBURST STREET
CHATSWORTH, CALIFORNIA 91311
(Name and address of agent for service)
(818) 734-8600
(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 share offering price fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.01 par value 300,000 shares (a) $14.6893 (b) $4,406,790 (b) $1,368.69 (c)
- ------------------------------------------------------------------------------------------------------------
</TABLE>
(a) Represents the maximum number of shares which could be purchased upon
exercise of all options which may be hereafter granted under the provisions
of the 2000 Employee Stock Purchase Plan.
(b) Estimated in accordance with Rule 457(h)(1) under the Securities Act, based
on 85% of the average of the high and low prices of the Common Stock
reported on April 5, 2000 on the Nasdaq National Market.
(c) Registration Fee computed pursuant to Rule 457(h)(1).
<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 North
American Scientific, Inc. (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-K for the year ended October
31, 1999.
(b) The Company's quarterly report on Form 10-Q for the quarter ended
January 31, 2000.
(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.
The validity of the shares of Common Stock offered hereby will be passed
upon by D'Ancona & Pflaum LLC, Chicago, Illinois. Mr. Allan J. Reich, a managing
member of D'Ancona & Pflaum LLC, beneficially owns 58,250 shares of the
Company's Common Stock. Other members of D'Ancona & Pflaum LLC beneficially own
additional shares of the Company's Common Stock, which ownership is not
material.
<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 Company, 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 has purchased and maintains 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 Company's Registration Statement on
Form 10-SB, filed August 22, 1995.
4.2 Certificate of Amendment to Certificate of Incorporation of the
Company, incorporated by reference to Exhibit 3.1 of the Company'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 3(ii) the Company's Registration Statement on Form S-8, filed
October 18, 1996.
4.4 The North American Scientific, Inc. 2000 Employee Stock Purchase Plan.
5.1 Opinion of D'Ancona & Pflaum LLC.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of D'Ancona & Pflaum LLC (included in Exhibit 5.1).
<PAGE>
24.1 Power of Attorney (included herein on the signature page).
ITEM 9. UNDERTAKINGS.
The Company 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, represent a
fundamental change in the information set forth in the
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 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 Company, 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 Company 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
<PAGE>
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
THE REGISTRANT. 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 Chatsworth, State of California, on the 6th day
of April, 2000.
NORTH AMERICAN SCIENTIFIC, INC.
(Registrant)
By: /s/ L. Michael Cutrer
-------------------------
L. Michael Cutrer, President
and Chief Executive Officer
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 of
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 April 6, 2000
- ------------------------------------ and Director
Irwin J. Gruverman
/s/ L. Michael Cutrer President, Chief April 6, 2000
- ------------------------------------ Executive Officer
L. Michael Cutrer and Director (Principal
Executive Officer)
/s/ Alan I. Edrick Chief Financial Officer April 6, 2000
- ------------------------------------ and Chief Accounting Officer
Alan I. Edrick
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Dr. Allan M. Green Director April 6, 2000
- ------------------------------------
Dr. Allan M. Green
/s/ Michael C. Lee Director April 6, 2000
- ------------------------------------
Michael C. Lee
/s/ Larry Berkin Director April 6, 2000
- ------------------------------------
Larry Berkin
</TABLE>
<PAGE>
EXHIBIT 4.4
NORTH AMERICAN SCIENTIFIC, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
INTRODUCTION
1.01 PURPOSE OF THE PLAN. The North American Scientific, Inc. Employee Stock
Purchase Plan (the "Plan") is intended to provide a method whereby
employees of North American Scientific, Inc. (the "Company") and its
Eligible Subsidiary Corporations (as defined below) will have an
opportunity to acquire a proprietary interest in the Company through the
purchase of shares of the Common Stock of the Company. It is the
intention of the Company to have the Plan qualify as an "employee stock
purchase plan" under Section 423 of the Internal Revenue Code of 1986, as
amended (the "Code"). The provisions of the Plan shall be construed in a
manner consistent with the requirements of that section of the Code.
ARTICLE II
DEFINITIONS
2.01 "COMPENSATION" shall mean the gross cash compensation (including wage,
salary and overtime earnings) paid by the Company or any Eligible
Subsidiary Corporation to a participant in accordance with the terms of
employment, but excluding all bonus payments, expense allowances,
nonqualified deferred compensation and compensation paid in a form other
than cash.
2.02 "COMMITTEE" shall mean the individuals described in Article XI.
2.03 "ELIGIBLE SUBSIDIARY CORPORATION" shall mean any present or future
corporation which (i) is or becomes a "subsidiary corporation" of North
American Scientific Inc., as that term is defined in Section 424 of the
Code, and (ii) is designated as a participating employer in the Plan by
the Committee on Schedule 2.03 hereto.
2.04 "EMPLOYEE" shall mean any person, including an officer, who is
customarily employed by the Company or any Eligible Subsidiary
Corporation for at least twenty (20) hours per week and more than five
(5) months in a calendar year.
2.05 "OPTION" shall mean the right to purchase shares of Common Stock from the
Company at a price per share equal to the option price, as determined
under Section 6.02 below.
<PAGE>
2.06 "PLAN REPRESENTATIVE" shall mean any person designated from time to time
by the Committee to receive certain notices and take certain other
administrative actions relating to participation in the Plan.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.01 INITIAL ELIGIBILITY. Each Employee who shall have completed six
consecutive months of employment with the Company or any corporation or
entity acquired by the Company or any Eligible Subsidiary Corporation and
shall be employed by the Company or any Eligible Subsidiary Corporation
on the date his or her participation in the Plan is to become effective
shall be eligible to participate in Offerings (as defined below) under
the Plan which commence after such six-month period has concluded.
Persons who are not Employees shall not be eligible to participate in the
Plan.
3.02 RESTRICTIONS ON PARTICIPATION. Notwithstanding any provision of the Plan
to the contrary, no Employee shall be granted an option to purchase
shares of Common Stock under the Plan:
(a) if, immediately after the grant, such Employee would own stock
and/or hold outstanding options to purchase stock possessing 5% or
more of the total combined voting power or value of all classes of
stock of the Company (for purposes of this paragraph, the rules of
Section 424(d) of the Code shall apply in determining stock
ownership of any Employee); or
(b) which permits such Employee's rights to purchase stock under all
Employee stock purchase plans of the Company to accrue at a rate
which exceeds $25,000 of fair market value of the stock
(determined at the time such option is granted) for each calendar
year in which such Option is outstanding at any time.
3.03 COMMENCEMENT OF PARTICIPATION. An eligible Employee may become a
participant by completing an authorization for payroll deductions on the
form provided by the Company and filing the completed form with the Plan
Representative on or before the filing date set therefor by the
Committee, which date shall be prior to the Offering Commencement Date
(as defined below) for the next following Offering. Payroll deductions
for a participant shall commence on the next following Offering
Commencement Date after the Employee's authorization for payroll
deductions becomes effective and shall continue until termination of the
Plan or the participant's earlier termination of participation in the
Plan. Each participant in the Plan shall be deemed to continue
participation until termination of the Plan or such participant's earlier
termination of participation in the Plan pursuant to Article VIII below.
<PAGE>
ARTICLE IV
STOCK SUBJECT TO THE PLAN AND OFFERINGS
4.01 STOCK SUBJECT TO THE PLAN. Subject to the provision of Section 12.04 of
the Plan, the Company's Board of Directors shall reserve initially for
issuance under the Plan an aggregate of three hundred thousand shares
(300,000) shares of the Company's common stock (the "Common Stock"),
which shares shall be authorized but unissued shares of Common Stock. The
Company's Board of Directors may from time to time reserve additional
shares of authorized and unissued Common Stock for issuance pursuant to
the Plan; provided, however, that at no time shall the number of shares
of Common Stock reserved be greater than permitted by applicable law.
Shares of Common Stock subject to the Plan may be newly issued shares or
shares reacquired in private transactions or open market purchases.
4.02 OFFERINGS. Except as described below with respect to the first year the
Plan is in effect, the Plan will be implemented by two annual offerings
of the Company's Common Stock each calendar year (the "Offerings"). In
each year that the Plan is in effect, the first Offering will begin on
January 1 and end on June 30, the second Offering will begin on July 1
and end on December 31. The first day of each Offering shall be deemed
the "Offering Commencement Date" and the last day the "Offering
Termination Date" for such Offering. The Committee reserves the right to
change the duration and frequency of offering periods without prior
shareholder approval.
ARTICLE V
PAYROLL DEDUCTIONS
5.01 AMOUNT OF DEDUCTION. The form described in Section 2.03 will permit a
participant to elect payroll deductions (after tax withholding) of zero
percent (0%) or any whole percentage from one percent (1%) through
fifteen percent (15%) of such participant's Compensation for each pay
period during an Offering.
5.02 PARTICIPANT'S ACCOUNT. All payroll deductions made for a participant
shall be credited to an account established for such participant under
the Plan. A participant may not make any separate cash payment into such
account.
5.03 CHANGES IN PAYROLL DEDUCTIONS. A participant may reduce or increase
future payroll deductions (within the limits described in Section 5.01)
by filing with the Plan Representative a form provided by the Company for
such purpose. Such a reduction or increase in future payroll deductions
may only be performed once per participant during an Offering. The
effective date of any increase or reduction in future payroll deductions
will be the first day of the next pay period succeeding processing of the
change form.
<PAGE>
5.04 WITHHOLDING. At the time the option is exercised, in whole or in part, or
at the time some or all of the Company's Common Stock issued under the
Plan is disposed of, the participant must make adequate provision for the
Company's federal, state, or other tax withholding obligations, if any,
which arise upon the exercise of the option or the disposition of the
Common Stock. At any time, the Company may, but shall not be obligated
to, withhold from the participant's compensation the amount necessary for
the Company to meet applicable withholding obligations, including any
withholding required to make available to the Company any tax deduction
or benefits attributable to sale or early disposition of Common Stock by
the Employee.
ARTICLE VI
GRANTING OF OPTION
6.01 NUMBER OF OPTION SHARES. On the Offering Commencement Date, each
participating Employee shall be deemed to have been granted an option to
purchase a maximum number of shares of Common Stock on the Offering
Termination Date equal to (i) that percentage of the Employee's
Compensation which the Employee has elected to have withheld (but not in
any case in excess of 15%) multiplied by (ii) the Employee's Compensation
during the Offering then divided by (iii) the applicable Option Price
determined as provided in Section 6.02 below.
6.02 OPTION PRICE. The option price of stock purchased with payroll deductions
made during any Offering (the "Offering Price") for a participant therein
shall be the lesser of:
(a) 85% of the closing price of the stock on the Offering Commencement
Date for such Offering or the nearest prior business day on which
trading occurred on the NASDAQ National Market System; or
(b) 85% of the closing price on the Offering Termination Date for such
Offering or the nearest prior business day on which trading
occurred on the NASDAQ National Market System. If the Common Stock
of the Company is not admitted to trading on any of the aforesaid
dates for which closing prices of the stock are to be determined,
then reference shall be made to the fair market value of the stock
on each such date, as determined on such basis as shall be
established or specified for the purpose by the Committee.
ARTICLE VII
EXERCISE OF OPTION
7.01 AUTOMATIC EXERCISE. Each Plan participant's option for the purchase of
stock with payroll deductions made during any Offering will be deemed to
have been exercised automatically on the applicable Offering Termination
Date for the purchase of the number of full shares of Common Stock which
the accumulated payroll deductions in the participant's account at the
time will purchase at the applicable Option Price (but not in excess of
the number of
<PAGE>
shares for which outstanding options have been granted to the participant
pursuant to Section 6.01).
7.02 FRACTIONAL SHARES. Fractional shares of Common Stock will not be issued
under the Plan. Any accumulated payroll deductions which would have been
used to purchase fractional shares, unless refunded pursuant to Section
8.01, will be held for the purchase of Common Stock in the next following
Offering, without interest.
7.03 EXERCISE OF OPTIONS. During a participant's lifetime, options held by
such participant shall be exercisable only by such participant and is not
transferable by such participant.
7.04 DELIVERY OF STOCK. As promptly as practicable after the Offering
Termination Date of each Offering, the Company will deliver to each
participant in such Offering, as appropriate, the shares of Common Stock
purchased therein upon exercise of such participant's option. The Company
may deliver such shares in certificated or book entry form, at the
Company's sole election.
7.05 STOCK TRANSFER RESTRICTIONS. The Plan is intended to satisfy the
requirements of Section 423 of the Code. A participant will not obtain
the tax benefits of Section 423 of the Code if such participant disposes
of shares of Common Stock acquired pursuant to the Plan within two (2)
years from the Offering Commencement Date or within one (1) year from the
date such Common Stock is purchased by the participant, whichever is
later (the "Notice Period."). Each participant shall notify the Committee
if the participant disposes of any of the shares purchased during an
Offering pursuant to this Plan if such disposition occurs within the
Notice Period. Unless such participant is disposing of any of such shares
during the Notice Period, such participant shall keep the certificates
representing such shares in his or her name (and not in the name of a
nominee) during the Notice Period. The Company may, at any time during
the Notice Period, place a legend or legends or any certificate
representing shares acquired pursuant to this Plan requesting the
Company's transfer agent to notify the Company of any transfer of the
shares. The obligation of the participant to provide such notice shall
continue notwithstanding the placement of any such legend on the
certificates.
ARTICLE VIII
WITHDRAWAL/TERMINATION OF PARTICIPATION
8.01 IN GENERAL. A participant may stop participating in the Plan at any time
by giving written notice to the Plan Representative. Upon processing of
any such written notice, no further payroll deductions will be made from
the participant's Compensation during such Offering or thereafter, unless
and until such participant elects to resume participation in the Plan by
providing written notice to the Plan Representative pursuant to Section
3.03, above. A participant may withdraw all but not less than all of the
payroll deductions credited to his or her account and not yet used to
exercise his or her option under the Plan at any time by giving written
notice to the Company in the form of Schedule 8.01 to this Plan. If the
participant elects not to withdraw all (but not less than all) of his or
her payroll deductions
<PAGE>
credited to his or her account, the Employee's funds in his or her
account will be considered suspended and will be used to purchase the
Company's Common Stock on the next Offering Termination Date and no
further payroll deductions will be made under the Plan. If the
participant elects to withdraw all (but not less than all) of his or her
payroll deductions credited to his or her account, all of the
participant's payroll deductions credited to his or her account shall be
paid to such participant promptly after receipt of notice of withdrawal
and such participant's option for the current Offering shall be
automatically terminated, and no further payroll deductions for the
purchase of shares shall be made for such Offering. If a participant
withdraws from an Offering, payroll deductions shall not resume at the
beginning of the succeeding Offering unless the participant delivers to
the Company a new subscription agreement.
8.02 EFFECT ON SUBSEQUENT PARTICIPATION. A participant's withdrawal from any
Offering will not have any effect upon such participant's eligibility to
participate in any succeeding Offering or in any similar plan which may
hereafter be adopted by the Company and for which such participant is
otherwise eligible. An approved leave of absence of less than ninety days
shall not be treated as a termination of employment.
8.03 TERMINATION OF EMPLOYMENT. Upon a participant's ceasing to be an Employee
for any reason, he or she shall be deemed to have elected to withdraw
from the Plan and the payroll deductions credited to such participant's
account during the Offering but not yet used to exercise the option shall
be returned to such participant, or, in the case of his or her death, to
the person or persons entitled thereto under Section 12.01, and his or
her participation in the Plan shall be deemed to be terminated.
ARTICLE IX
INTEREST
9.01 PAYMENT OF INTEREST. No interest will be paid or allowed on any money
paid into the Plan or credited to the account of or distributed to any
participant Employee.
ARTICLE X
STOCK
10.01 PARTICIPANT'S INTEREST IN OPTION STOCK. No participant will have any
interest in shares of Common Stock covered by any option held by such
participant until such option has been exercised as provided in Section
7.01 above.
10.02 REGISTRATION OF STOCK. Shares of Common Stock purchased by a participant
under the Plan will be registered in the name of the participant, or, if
the participant so directs by written notice to the Plan Representative
prior to the Offering Termination Date applicable thereto, in the names
of the participant and one such other person as may be designated by the
participant, as joint tenants with rights of survivorship or as tenants
by the entireties, to the extent permitted by applicable law.
<PAGE>
10.03 RESTRICTIONS ON EXERCISE. The Board of Directors may, in its discretion,
require as condition to the exercise of any option that the shares of
Common Stock reserved for issuance upon the exercise of such option shall
have been duly listed, upon official notice of issuance, upon a stock
exchange or market, and that either:
(a) a registration statement under the Securities Act of 1933, as
amended, with respect to said shares shall be effective, or
(b) the participant shall have represented at the time of purchase, in
form and substance satisfactory to the Company, that it is his or
her intention to purchase the shares for investment and not for
resale or distribution.
ARTICLE XI
ADMINISTRATION
11.01 APPOINTMENT OF COMMITTEE. The Plan shall be administered by the Board of
Directors of the Company (the "Board") and/or by a duly appointed
committee of the Board having such powers as shall be specified by the
Board. Any subsequent references to the Board shall also mean the
committee if a committee has been appointed.
11.02 AUTHORITY OF BOARD. Subject to the express provisions of the Plan, the
Board shall have plenary authority in its discretion to interpret and
construe any and all provisions of the Plan, to adopt rules and
regulations for administering the Plan, and to make all other
determinations deemed necessary or advisable for administering the Plan.
The Board's determination of the foregoing matters shall be conclusive.
The Board may request advice or assistance or employ such other persons
as it in its absolute discretion deems necessary or appropriate for the
proper administration of the Plan, including but not limited to employing
a brokerage firm, bank, or other financial institution to assist in the
purchase of shares, delivery of reports, or other administrative aspects
of the Plan. All expenses incurred in connection with the administration
of the Plan shall be paid by the Company.
ARTICLE XII
MISCELLANEOUS
12.01 DESIGNATION OF BENEFICIARY. A participant may file with the Plan
Representative a written designation of a beneficiary who is to receive
any shares of Common Stock and/or cash under the Plan upon the
participant's death. Such designation of beneficiary may be changed by
the participant at any time by written notice to the Plan Representative.
Upon the death of a participant and receipt by the Company of proof of
identity and existence at the participant's death of a beneficiary
validly designated by the participant under the Plan, and subject to
Article VIII, above, concerning withdrawal from the Plan, the Company
shall deliver such shares of Common Stock and/or cash to such
beneficiary. In the event
<PAGE>
of the death of a participant lacking a beneficiary validly designated
under the Plan who is living at the time of such participant's death, the
Company shall deliver such shares of Common Stock and/or cash to the
executor or administrator of the estate of the participant, or if no such
executor or administrator has been appointed (to the knowledge of the
Company), the Company, in its discretion, may deliver such shares of
Common Stock and/or cash to the spouse or to any one or more dependents
of the participant, in each case without any further liability of the
Company whatsoever under or relating to the Plan. No beneficiary shall,
prior to the death of the participant by whom he or she has been
designated, acquire any interest in the shares of Common Stock and/or
cash credited to the participant under the Plan.
12.02 TRANSFERABILITY. Neither payroll deductions credited to any participant's
account nor any option or rights with regard to the exercise of an option
or to receive Common Stock under the Plan may be assigned, transferred,
pledged, or otherwise disposed of in any way by the participant other
than by will or the laws of descent and distribution. Any such attempted
assignment, transfer, pledge or other disposition shall be without
effect, except that the Company may, in its discretion, treat such act as
an election to withdraw from participation in the Plan in accordance with
Section 8.01.
12.03 USE OF FUNDS. All payroll deductions received or held by the Company
under the Plan may be used by the Company for any corporate purpose. The
Company shall not be obligated to segregate such payroll deductions.
12.04 ADJUSTMENT UPON CHANGES IN CAPITALIZATION.
(a) If, while any options are outstanding under the Plan, the
outstanding shares of Common Stock of the Company have increased,
decreased, changed into, or been exchanged for a different number
or kind of shares or securities of the Company through any
reorganization, merger, recapitalization, reclassification, stock
split, reverse stock split or similar transaction, appropriate and
proportionate adjustments may be made by the Committee in the
number and/or kind of shares which are subject to purchase under
outstanding options and in the Option Price or Prices applicable
to such outstanding options. In addition, in any such event, the
number and/or kind of shares which may be offered in the Offerings
described in Article IV hereof shall also be proportionately
adjusted. No such adjustments shall be made for or in respect of
stock dividends. For purposes of this paragraph, any distribution
of shares of Common Stock to shareholders in an amount aggregating
20% or more of the outstanding shares of Common Stock shall be
deemed a stock split, and any distribution of shares aggregating
less than 20% of the outstanding shares of Common Stock shall be
deemed a stock dividend.
(b) Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company with one or
more corporation as a result of which the Company is not the
surviving corporation, or upon a sale of substantially all of the
property or capital stock of the Company to another corporation,
the holder of each option then outstanding under the Plan will
thereafter be entitled to receive at the next Offering Termination
Date, upon the exercise of such option, for each share as to which
such option
<PAGE>
shall be exercised, as nearly as reasonably may be determined, the cash,
securities and/or property which a holder of one share of the Common
Stock was entitled to receive upon and at the time of such transaction.
The Board of Directors shall take such steps in connection with such
transactions as the Board shall deem necessary to assure that the
provisions of this Section 12.04 shall thereafter be applicable, as
nearly as reasonably may be determined, in relation to the said cash,
securities and/or property as to which each such holder of any such
option might hereafter be entitled to receive.
12.05 AMENDMENT AND TERMINATION. The Board of Directors shall have complete
power and authority to terminate or amend the Plan; provided, however,
that the Board of Directors shall not, without the approval of the
shareholders of the Company, alter (i) the aggregate number of shares of
Common Stock which may be issued under the Plan (except pursuant to
Section 12.04 above) or (ii) the class of employees eligible to receive
options under the Plan, other than to designate additional Eligible
Subsidiary Corporations; and provided further, however, that no
termination, modification, or amendment of the Plan may, without the
consent of an Employee then having an option under the Plan to purchase
shares of Common Stock, adversely affect the rights of such Employee
under such option.
12.06 TERM OF PLAN. The Plan shall become effective upon the earlier to occur
of its adoption by the Board of Directors or its approval by the
stockholders of the Company, provided that stockholder approval occurs
within one year of the adoption of this Plan. It shall continue in effect
for a term of ten (10) years unless sooner terminated under Section 12.05
herein.
12.07 NO EMPLOYMENT RIGHTS. The Plan does not, directly or indirectly, create
in any person any right with respect to continuation of employment by the
Company or any Subsidiary Corporation, and it shall not be deemed to
interfere in any way with the Company's or any Subsidiary Corporation's
right to terminate, or otherwise modify, any employee's employment at any
time.
12.08 REPORTS. Individual accounts shall be maintained for each participant in
the Plan. Statements of account shall be given to participating Employees
at least annually, which statements shall set forth the amounts of
payroll deductions, the purchase price, the number of shares purchased
and the remaining cash balance, if any.
12.09 COMPANY POLICY PROHIBITING INSIDER TRADING. Nothing in this Plan shall be
construed to replace, supersede, nullify, amend, or eliminate the
Company's "Statement of Policy Requiring Confidentiality and Prohibiting
`Insider Trading.'" Accordingly, all participants in the Plan shall be
prohibited from trading in Company Common Stock during the period
commencing on the twenty-fifth day of the last month of each calendar
quarter and through the second business day following the public release
of such prior quarter's earnings results.
12.10 EFFECT OF PLAN. The provisions of the Plan shall, in accordance with its
terms, be binding upon, and inure to the benefit of, all successors of
each Employee participating in the Plan, including, without limitation,
such Employee's estate and the executors, administrators or
<PAGE>
trustees thereof, heirs and legatees, and any receiver, trustee in
bankruptcy or representative of creditors of such Employee.
12.11 GOVERNING LAW. The law of the State of California will govern all matters
relating to this Plan except to the extent superseded by the federal laws
of the United States.
<PAGE>
EXHIBIT 5.1
April 6, 2000
North American Scientific, Inc.
20200 Sunburst Street
Chatsworth, CA 91311
Ladies & Gentlemen:
We have acted as counsel for North American Scientific, Inc. (the
"Company") in connection with the filing with the Securities and Exchange
Commission of a Registration Statement on Form S-8 (the "Registration
Statement") relating to the offer and proposed registration of 300,000 shares of
the Company's common stock, $.01 par value ("Common Stock"), under the terms of
the Company's 2000 Employee Stock Purchase Plan (the "Stock Purchase Plan"),
described in the Registration Statement.
In arriving at this opinion, we have examined the Company's Certificate
of Incorporation and all amendments thereto, its Bylaws, as amended, the records
of the corporate proceedings of the Company authorizing the issuance and sale of
the shares of Common Stock covered by the Registration Statement, the Stock
Purchase Plan and such other instruments and documents as we have deemed
appropriate.
Based upon the foregoing, we are of the opinion that said shares of
Common Stock are duly authorized, and upon delivery of same to the participants
under the Stock Purchase Plan against payment therefor upon the terms set forth
in the Stock Purchase Plan, said shares of Common Stock will be validly issued,
fully paid and non-assessable shares of Common Stock of the Company.
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 LLC
By: /s/ Steve Curtis
-------------------------
Steve Curtis, Member
<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 December 21, 1999 relating to the
financial statements and financial statement schedule of North American
Scientific, Inc., which appears in North American Scientific, Inc.'s Annual
Report on Form 10-K for the year ended October 31, 1999.
/s/ PricewaterhouseCoopers LLP
Costa Mesa, California
April 6, 2000
