NORTH AMERICAN SCIENTIFIC,
INC.
STOCK OPTION
AGREEMENT
Type
of Option (check one):
x
Incentive o
Nonstatutory
This Stock Option Agreement (the
“Agreement”) is entered into as of August 11 ,
2008, by and between North American Scientific, Inc., a Delaware
corporation (the “Company”), and Brett Scott (the
“Optionee”) pursuant to the Company’s 2006 Stock
Plan, as amended (the “Plan”). Any capitalized term not
defined herein shall have the same meaning ascribed to it in the
Plan.
1.
Grant of
Option . The
Company hereby grants to Optionee an option (the
“Option”) to purchase all or any portion of a total of
two hundred three thousand three hundred fifty-nine (
203,359 ) shares (the “Shares”) of the Common
Stock of the Company at a purchase price of zero and 69/100
dollars ($ 0.69 ) per share (the “Exercise
Price”), subject to the terms and conditions set forth herein
and the provisions of the Plan. If the box marked
“Incentive” above is checked, then this Option is
intended to qualify as an “incentive stock option” as
defined in Section 422 of the Internal Revenue Code of 1986,
as amended (the “Code”). If this Option fails in whole
or in part to qualify as an incentive stock option, or if the box
marked “Nonstatutory” is checked, then this Option
shall to that extent constitute a nonqualified stock
option.
(a) The right to exercise this Option shall vest in
installments, and this Option shall be exercisable from time to
time in whole or in part as to any vested installment
(“Vested Shares”). Commencing on the first anniversary
of the “Vesting Commencement Date” 25% of the Shares
shall become Vested Shares and thereafter the remaining Shares
shall become Vested Shares in a series of thirty-six (36)
successive equal monthly installments for each full month of
Continuous Service provided by the Optionee, such that 100% of the
Shares shall become Vested Shares on the fourth (4th) anniversary
of the “Vesting Commencement Date.” For these purposes,
the Vesting Commencement Date shall be the date hereof. No
additional Shares shall vest after the date of termination of
Optionee’s “Continuous Service” (as defined
below), but this Option shall continue to be exercisable in
accordance with Section 3 below with respect to that number of
shares that have vested as of the date of termination of
Optionee’s Continuous Service. For purposes of this
Agreement, the term “Continuous Service” means such
period of time during which Optionee first establishes, and
thereafter continuously maintains, his status as an Awardee
Eligible to Vest, as set forth in Section 2(g) of the
Plan.
(b) Notwithstanding the foregoing subsection (a) of
this Section 2, if the Optionee’s Continuous Service ceases
as a result of the Optionee’s death, permanent and total
disability or retirement due to age, in accordance with the
Company’s or its Subsidiary’s or Affiliate’s
retirement policy, any portion of this Option that does not
constitute Vested Shares, shall immediately vest and become Vested
Shares effective upon the date of Optionee’s death,
disability or retirement, as the case may be.
3.
Term of
Option . The
right of the Optionee to exercise this Option shall terminate upon
the first to occur of the following:
(a) The expiration of seven (7) years from the date
of this Agreement;
(b) The date on which the Administrator offers to
purchase this Option in accordance with the Buyout Provisions set
forth in Section 10(e) of the Plan;
(c) In the case of a Nonstatutory Stock
Option:
(i) if Optionee’s Continuous Service ceases
due to the Optionee’s permanent and total disability, the
expiration of one (1) year from the date of such
disability;
(ii) if Optionee’s Continuous Service ceases
due to the Optionee’s retirement due to age, in accordance
with the Company’s or its Subsidiary’s or
Affiliate’s retirement policy, the expiration of one (1) year
from the date of such retirement;
(iii) if Optionee’s Continuous Service ceases
due to the Optionee’s death, the expiration of one (1) year
from the date of death; or
(iv) if Optionee’s Continuous Service ceases
other than as a result of the circumstances set forth in paragraphs
(i)-(iii) of this subsection (c), the expiration of three (3)
months after Optionee’s cessation of Continuous
Service.
(d) In the case of an Incentive Stock
Option:
(i) if Optionee’s Continuous Service ceases
due to the Optionee’s permanent and total disability, the
expiration of one (1) year from the date of such
disability;
(ii) if Optionee’s Continuous Service ceases
due to the Optionee’s retirement due to age, in accordance
with the Company’s or its Subsidiary’s or
Affiliate’s retirement policy, the expiration of three (3)
months from the date of such retirement;
(iii) if Optionee’s Continuous Service ceases
due to the Optionee’s death, or if death occurs during the
three-month period set forth in paragraph (ii) of this subsection
(d), the expiration of one (1) year from the date of death;
or
(iv) the expiration of three (3) months from the date
of termination of Optionee’s Continuous Service if such
termination occurs for any reason other than permanent disability,
death, voluntary resignation or cause; provided, however, that if
Optionee dies during such three-month period the provisions of
Section 3(c) above shall apply;
(v) the expiration of one (1) month from the date of
termination of Optionee’s Continuous Service if such
termination occurs due to voluntary resignation; provided, however,
that if Optionee dies during such one-month period the provisions
of Section 3(d)(iii) above shall apply;
(vi) the termination of Optionee’s Continuous
Service, if such termination is for “Cause” (as defined
below); or
(vii) upon the consummation of a Dissolution or
Liquidation or a “Change in Control” (as defined in
Section 16(c) of the Plan), unless otherwise provided pursuant
to Sections 8 or 9 below.
For purposes of this Agreement,
“Cause” shall mean (A) the commission of any act of
fraud, embezzlement or dishonesty by Optionee which materially and
adversely affects the business of the Company, the acquiring or
successor entity (or parent or any subsidiary thereof), (B) any
unauthorized use or disclosure by Optionee of confidential
information or trade secrets of the Company, the acquiring or
successor entity (or parent or any subsidiary thereof), (C) the
continued refusal or omission by the Optionee to perform any
material duties required of him if such duties are consistent with
duties customary for the position held with the Company, the
acquiring or successor entity (or parent or any subsidiary
thereof), (D) any material act or omission by the Optionee
involving malfeasance or gross negligence in the performance of
Optionee’s duties to, or material deviation from any of the
policies or directives of, the Company or the acquiring or
successor entity (or parent or any subsidiary thereof), (E) conduct
on the part of Optionee which constitutes the breach of any
statutory or common law duty of loyalty to the Company, the
acquiring or successor entity (or parent or any subsidiary
thereof), or (F) any illegal act by Optionee which materially and
adversely affects the business of the Company, the acquiring or
successor entity (or parent or any subsidiary thereof), or any
felony committed by Optionee, as evidenced by conviction thereof.
The provisions of this Section shall not limit the grounds for the
dismissal or discharge of Optionee or any other individual in the
service of the Company, the acquiring or successor entity (or
parent or any subsidiary thereof).
4.
Exercise of
Option . On or after the vesting of any portion of this
Option in accordance with Sections 2, 8 or 9 hereof, and until
termination of the right to exercise this Option in accordance with
Section 3 above, the portion of this Option that has vested
may be exercised in whole or in part by the Optionee (or, after his
or her death, by the person designated in Section 5 below)
upon delivery of the following to the Company at its principal
executive offices:
(a) a written notice of exercise which identifies
this Agreement and states the number of Shares then being purchased
(but no fractional Shares may be purchased), with any partial
exercise being deemed to cover first vested Shares and then the
earliest vesting installments of unvested Shares;
(b) a check or cash (denominated in currency of the
United States) in the amount of the Exercise Price (or payment of
the Exercise Price in such other form of lawful consideration as
the Administrator may approve from time to time under the
provisions of Section 10 of the Plan);
(c) in the case of a Nonstatutory Stock Option, a
check or cash (denominated in currency of the United States) in the
amount reasonably requested by the Company to satisfy the
Company’s withholding obligations under Federal, state or
other applicable tax laws with respect to the taxabl
