Exhibit 10.2
WARRANT TO PURCHASE STOCK
Company:
NORTH AMERICAN SCIENTIFIC, INC. ,
a Delaware corporation.
Number
of Shares: 99,337 [an
amount equal to $150,000/Warrant Price]
Class
of Stock: Common
Stock
Warrant
Price: The
lower of: (i) the closing price of the Company’s common
stock on the date the Company’s Board of Directors
approves the issuance of this Warrant or (ii) the closing
price of the Company’s common stock on the Issue
Date.
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May
28, 2008
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Expiration
Date:
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May
28, 2013
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THIS
WARRANT CERTIFIES THAT, for the agreed upon value of $1.00 and
for other good and valuable consideration, SILICON VALLEY BANK
("Holder") is entitled to purchase the number of fully paid
and nonassessable shares of the common stock, $0.01 par value
per share (the "Shares") of the company (the "Company") at the
Warrant Price, all as set forth above and as adjusted pursuant
to Article 2 of this Warrant, subject to the provisions and
upon the terms and conditions set forth in this
Warrant.
ARTICLE
1.
EXERCISE .
1.1
Method of Exercise .
Holder may exercise this Warrant by delivering a duly executed
Notice of Exercise in substantially the form attached as Appendix 1
to the principal office of the Company. Unless Holder is exercising
the conversion right set forth in Article 1.2, Holder shall also
deliver to the Company a check, wire transfer (to an account
designated by the Company), or other form of payment acceptable to
the Company for the aggregate Warrant Price for the Shares being
purchased.
1.2
Conversion Right .
In lieu of exercising this Warrant as specified in Article 1.1,
Holder may from time to time convert this Warrant, in whole or in
part, into a number of Shares determined by dividing (a) the
aggregate fair market value of the Shares or other securities
otherwise issuable upon exercise of this Warrant minus the
aggregate Warrant Price of such Shares by (b) the fair market value
of one Share. The fair market value of the Shares shall be
determined pursuant to Article 1.3.
1.3
Fair Market Value .
If the Company’s common stock is traded in a public market
and the Shares are common stock, the fair market value of each
Share shall be the closing price of a Share reported for the
business day immediately before Holder delivers its Notice of
Exercise to the Company. . If the Company’s common stock is
not traded in a public market, the Board of Directors of the
Company shall determine fair market value in its reasonable good
faith judgment.
1.4
Delivery of Certificate and New Warrant .
Promptly after Holder exercises or converts this Warrant and, if
applicable, the Company receives payment of the aggregate Warrant
Price, the Company shall deliver to Holder certificates for the
Shares acquired and, if this Warrant has not been fully exercised
or converted and has not expired, a new Warrant representing the
Shares not so acquired.
1.5
Replacement of Warrants .
On receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of this Warrant and, in
the case of loss, theft or destruction, on delivery of an indemnity
agreement reasonably satisfactory in form and amount to the Company
or, in the case of mutilation on surrender and cancellation of this
Warrant, the Company shall execute and deliver, in lieu of this
Warrant, a new warrant of like tenor.
1.6
Treatment of Warrant Upon Acquisition of Company
.
1.6.1
"
Acquisition ".
For the purpose of this Warrant, "Acquisition" means any sale,
license, or other disposition of all or substantially all of the
assets of the Company, or any reorganization, consolidation, or
merger of the Company where the holders of the Company's securities
before the transaction beneficially own less than 50% of the
outstanding voting securities of the surviving entity after the
transaction.
1.6.2
Treatment of Warrant at Acquisition .
A)
Upon
the written request of the Company, Holder agrees that, in the
event of an Acquisition that is not an asset sale and in which
the sole consideration is cash, either (a) Holder shall
exercise its conversion or purchase right under this Warrant
and such exercise will be deemed effective immediately prior
to the consummation of such Acquisition or (b) if Holder
elects not to exercise the Warrant, this Warrant will expire
upon the consummation of such Acquisition. The Company shall
provide the Holder with written notice of its request relating
to the foregoing (together with such reasonable information as
the Holder may request in connection with such contemplated
Acquisition giving rise to such notice), which is to be
delivered to Holder not less than ten (10) days prior to the
closing of the proposed Acquisition.
B)
Upon
the written request of the Company, Holder agrees that, in the
event of an Acquisition that is an “arms length”
sale of all or substantially all of the Company’s assets
(and only its assets) to a third party that is not an
Affiliate (as defined below) of the Company (a “True
Asset Sale”), either (a) Holder shall exercise its
conversion or purchase right under this Warrant and such
exercise will be deemed effective immediately prior to the
consummation of such Acquisition or (b) if Holder elects not
to exercise the Warrant, this Warrant will continue until the
Expiration Date if the Company continues as a going concern
following the closing of any such True Asset Sale. The Company
shall provide the Holder with written notice of its request
relating to the foregoing (together with such reasonable
information as the Holder may request in connection with such
contemplated Acquisition giving rise to such notice), which is
to be delivered to Holder not less than ten (10) days prior to
the closing of the proposed Acquisition.
C)
Upon
the closing of any Acquisition other than those particularly
described in subsections (A) and (B) above, the successor
entity shall assume the obligations of this Warrant, and this
Warrant shall be exercisable for the same securities, cash,
and property as would be payable for the Shares issuable upon
exercise of the unexercised portion of this Warrant as if such
Shares were outstanding on the record date for the Acquisition
and subsequent closing. The Warrant Price and/or number of
Shares shall be adjusted accordingly.
As
used herein “
Affiliate ”
shall mean any person or entity that owns or controls directly or
indirectly ten (10) percent or more of the stock of Company, any
person or entity that controls or is controlled by or is under
common control with such persons or entities, and each of such
person’s or entity’s officers, directors, joint
venturers or partners, as applicable.
ARTICLE
2.
ADJUSTMENTS TO THE SHARES .
2.1
Stock Dividends, Splits, Etc .
If the Company declares or pays a dividend on the Shares payable in
common stock, or other securities, then upon exercise of this
Warrant, for each Share acquired, Holder shall receive, without
cost to Holder, the total number and kind of securities to which
Holder would have been entitled had Holder owned the Shares of
record as of the date the dividend occurred. If the Company
subdivides the Shares by reclassification or otherwise into a
greater number of shares or takes any other action which increase
the amount of stock into which the Shares are convertible, the
number of shares purchasable hereunder shall be proportionately
increased and the Warrant Price shall be proportionately decreased,
but the aggregate purchase price payable for the total number of
shares purchasable under this Warrant (as adjusted) shall remain
the same. If the outstanding shares are combined or consolidated,
by reclassification or otherwise, into a lesser number of shares,
the Warrant Price shall be proportionately increased (but the
aggregate purchase price payable for the total number of Shares
purchasable under this Warrant, as adjusted, shall remain the
same), and the number of Shares shall be proportionately
decreased.
2.2
Reclassification, Exchange, Combinations or Substitution
.
Upon any reclassification, exchange, substitution, or other event
that results in a change of the number and/or class of the
securities issuable upon exercise or conversion of this Warrant,
Holder shall be entitled to receive, upon exercise or conversion of
this Warrant, the number and kind of securities and property that
Holder would have received for the Shares if this Warrant had been
exercised immediately before such reclassification, exchange,
substitution, or other event. The Company or its successor shall
promptly issue to Holder an amendment to this Warrant setting forth
the number and kind of such new securities or other property
issuable upon exercise or conversion of this Warrant as a result of
such reclassification, exchange, substitution or other event that
results in a change of the number and/or class of securities
issuable upon exercise or conversion of this Warrant. The amendment
to this Warrant shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided
for in this Article 2 including, without limitation, adjustments to
the Warrant Price (but not to the aggregate purchase price payable
for the total number of Shares purchasable under this Warrant (as
adjusted), which shall remain the same) and to the number of
securities or property issuable upon exercise of the new Warrant.
The provisions of this Article 2.2 shall similarly apply to
successive reclassifications, exchanges, substitutions, or other
events.
2.3
Adjustments for Diluting Issuances .
In the event the Company, within one year of the date hereof should
issue additional shares of Common Stock, or options, warrants or
other securities (including units comprising shares of Common Stock
and other securities or rights) convertible into Common Stock
(collectively, “Convertible Securities”), at a per
share Value attributable to Common Stock less than the Warrant
Price in effect immedia
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