SECOND AMENDMENT TO RIGHTS AGREEMENT
Exhibit
10.4
SECOND
AMENDMENT
TO
This
SECOND AMENDMENT (this “Amendment”)
is
dated as of June 5, 2006 to the Rights Agreement, dated as of October 14,
1998 (the “Rights
Agreement”)
by and
between North American Scientific, Inc., a Delaware corporation (the
“Company”),
and
U.S. Stock Transfer Corporation, a California corporation (the “Rights
Agent”)
is
entered into between such parties. Capitalized terms used but not defined herein
are used herein as defined in the Rights Agreement.
WHEREAS,
the
Board of Directors of the Company has authorized and approved a private
placement involving the offering, sale and issuance by the Company of shares
(the “Shares”)
of the
Company’s common stock, par value $0.01 per share (“Common
Stock”),
and
warrants to purchase additional shares of Common Stock (the “Warrants”,
and
collectively with the Shares, the “Securities”)
to a
limited group of sophisticated investors (the “Investors”)
pursuant to Securities Purchase Agreements and related transaction agreements
or
instruments (the “2006
Private Placement”).
The
Securities Purchase Agreements dated as of June 5, 2006 by and among the Company
and the Investors in connection with the foregoing, and any other related
transaction agreements or instruments are referred to herein as the
“2006
Private Placement Documents”;
WHEREAS,
the
willingness of the investors to enter into the Securities Purchase Agreements
is
conditioned upon, among other things, the supplement or amendment of the Rights
Agreement on the terms set forth herein;
WHEREAS,
no
“Distribution Date”, “Share Acquisition Date”, “Redemption Date” or “Final
Expiration Date” (as such terms are defined in the Rights Agreement) has
occurred;
WHEREAS,
pursuant to Section 26 of the Rights Agreement, under circumstances set forth
therein, (i) the Company may supplement or amend any provision of the Rights
Agreement without the approval of any holders of certificates representing
shares of Common Stock of the Company, and (ii) upon the delivery of a
certificate from an appropriate officer of the Company which states that the
proposed supplement or amendment is in compliance with the terms of Section
26
of the Rights Agreement, the Rights Agent shall execute such supplement or
amendment;
WHEREAS,
the
Company desires to amend the Rights Agreement as set forth herein and to direct
the Rights Agent to execute this Amendment;
WHEREAS,
this
Amendment shall become effective immediately; and
WHEREAS,
the
Board of Directors of the Company has adopted a resolution determining that
the
amendment of the Rights Agreement on the terms set forth herein is advisable
and
in the best interests of the Company and its stockholders;
NOW,
THEREFORE,
in
consideration of the premises and the mutual agreements herein set forth, the
parties agree as follows:
1. Effectiveness
of this Amendment.
This
Amendment is executed pursuant to the first sentence of Section 26 of the
Rights Agreement. The Company, by its execution of this Amendment, hereby
directs the Rights Agent to execute this Amendment. This Amendment shall take
effect immediately upon the execution hereof by the Company and the delivery
of
the certificate required pursuant to Section 26 of the Rights Agreement;
provided,
however,
that if
the 2006 Private Placement is not closed for any reason, this Amendment shall
be
deemed rescinded and of no further force and effect.
1
2. Certification
of Appropriate Officer.
The
undersigned officer of the Company, being duly authorized on behalf of the
Company, hereby certifies on behalf of the Company to the Rights Agent that
(a)
he is an “appropriate officer” as such term is used in Section 26 of the Rights
Agreement, and (b) this Amendment is in compliance with Section 26 of the Rights
Agreement.
3. Defined
Terms.
All
capitalized terms used but not defined in this Amendment shall have the meanings
assigned to them in the Rights Agreement.
4. No
Other Provisions Affected.
Except
to the extent expressly amended by this Amendment, all of the provisions of
the
Rights Agreement shall remain in full force and effect.
5. Amendment
to the Rights Agreement.
The
Rights Agreement is hereby amended as follows:
(a) Acquiring
Person.
The
definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is
hereby amended by adding to the end thereof the following:
“;
provided
further, however,
that
the Investors in the 2006 Private Placement shall not be deemed to be an
“Acquiring Person” due to (a) the execution and delivery of the 2006 Private
Placement Documents, (b) the announcement or commencement thereof, including,
without limitation, the acquisition by the Investors of any of the Securities
pursuant to the 2006 Private Placement, and/or (c) the exercise of stock options
to purchase shares of the Company’s common stock held by the Investors or their
affiliates or the acquisition by the Investors or their affiliates of shares
of
the Company’s common stock as a result of grants made to the Investors or their
affiliates or acquisitions of shares of the Company’s common stock by the
Investors or their affiliates in connection with such Investors or their
affiliates role as a member of the board of directors of the
Company.”
(b) Distribution
Date.
Section
1(g) of the Rights Agreement is hereby amended by inserting the following
sentence at the end of such Section 1(g):
“In
addition, notwithstanding anything to the contrary contained herein, no
Distribution Date shall occur solely as a result of the execution and delivery
of the 2006 Private Placement Documents (or any amendments thereto in accordance
with the terms thereof), or any actions taken by the Investors pursuant to
the
terms of any of the 2006 Private Placement Documents or the consummation of
the
transactions contemplated by the 2006 Private Placement Documents or the
announcement or commencement thereof, including, without limitation, the
acquisition by the Investors of any of the Securities pursuant to the 2006
Private Placement Documents.”
(c) Share
Acquisition Date.
Section
1(v) of the Rights Agreement is hereby amended by inserting the following
sentence at the end of such Section 1(v):
“In
addition, notwithstanding anything to the contrary contained herein, no Share
Acquisition Date shall occur solely as a result of the execution and delivery
of
the 2006 Private Placement Documents (or any amendments thereto in accordance
with the terms thereof), or any actions taken by the Investors pursuant to
the
terms of any of the 2006 Private Placement Documents or the consummation of
the
transactions contemplated by the 2006 Private Placement Documents or the
announcement or commencement thereof, including, without limitation, the
acquisition by the Investors of any of the Securities pursuant to the 2006
Private Placement Documents.”
2
(d) Adjustment
of Purchase Price, Number and Kind of Securities or Number of
Rights.
Section
11(a)(ii)(C) of the Rights Agreement is hereby amended by adding to the end
of
the first paragraph thereof the following:
“;
provided
further, however,
that a
Person shall not be deemed to have become the Beneficial Owner of 20% or more
of
the Common Shares then outstanding for the purposes of this Section 11(a)(ii)(C)
as a result of the exercise of stock options to purchase shares of the Company’s
common stock held by the Investors or their affiliates or the acquisition by
the
Investors or their affiliates of shares of the Company’s common stock as a
result of grants made to the Investors or their affiliates or acquisitions
of
shares of the Company’s common stock by the Investors or their affiliates in
connection with such Investors or their affiliates role as a member of the
board
of directors of the Company.”
(e) Adjustment
of Purchase Price, Number and Kind of Securities or Number of
Rights.
Section
11 of the Rights Agreement is hereby amended by adding to the end thereof the
following:
“(n) Notwithstanding
anything to the contrary contained herein, the provisions of this Section 11
shall not apply to or be triggered by the execution and delivery of the of
the
2006 Private Placement Documents (or any amendments thereto in accordance with
the terms thereof), or any actions taken by the Investors pursuant to the terms
of any of the 2006 Private Placement Documents, or the consummation of the
transactions contemplated by the 2006 Private Placement Documents, or the
announcement or commencement thereof, including, without limitation, the
acquisition by the Investors of any of the Securities pursuant to the 2006
Private Placement Documents.”
(f) Consolidation,
Merger or Sale or Transfer of Assets or Earning Power.
Section
13 of the Rights Agreement is hereby amended by adding to the end thereof the
following:
“(e) Notwithstanding
anything to the contrary contained herein, the provisions of this Section 13
shall not apply to or be triggered by the execution or delivery of the of the
2006 Private Placement Documents (or any amendments thereto in accordance with
the terms thereof), or any actions taken by the Investors pursuant to the terms
of any of the 2006 Private Placement Documents, or the consummation of the
transactions contemplated by the 2006 Private Placement Documents, or the
announcement or commencement thereof, including, without limitation, the
acquisition by the Investors of any of the Securities pursuant to the 2006
Private Placement Documents.”
6. References
to the Rights Agreement.
All
references in the Rights Agreement, and the exhibits thereto, to the Rights
Agreement or any specific provision thereof (including references that use
the
terms “hereto” and “hereof”), as well as in the legends affixed to certificates
issued
for Common Stock pursuant to Section 3(c) of the Rights Agreement, shall,
without any specific references expressly and individually to any of the
foregoing amendments, automatically be deemed references to the Rights Agreement
or the applicable specific provisions thereof (as the case may be) as amended
by
this Amendment, with the same force and effect as if expressly and individually
amended in that respect by this Amendment.
3
7. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws of
the
State of Delaware without reference to the conflicts or choice of law principles
thereof.
8. Counterparts.
This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed an original, and all of which together shall constitute one and the
same
instrument.
9. Fax
Transmission.
A
facsimile, telecopy or other reproduction of this Amendment may be executed
by
one or more parties hereto, and an executed copy of this Amendment may be
delivered by one or more parties hereto by facsimile or similar instantaneous
electronic transmission device pursuant to which the signature of or on behalf
of such party can be seen, and such execution and delivery shall be considered
valid, binding and effective for all purposes. At the request of any party
hereto, all parties hereto agree to execute an original of the Amendment as
well
as any facsimile, telecopy or other reproduction thereof.
4
IN
WITNESS WHEREOF,
the
Parties have caused this Amendment to be duly executed, and attested, all as
of
the date and year first above written.
NORTH
AMERICAN SCIENTIFIC, INC.
|
By:
/s/ L. Xxxxxxx
Xxxxxx
|
Name:
L. Xxxxxxx Xxxxxx
|
Title:
President and Chief Executive Officer
|
U.S.
STOCK TRANSFER CORPORATION
|
By:
/s/ Xxxx X.
Xxxxxxxx
|
Name:
Xxxx X. Xxxxxxxx
|
Title:
Vice President
|
5