As
filed
with the Securities and Exchange Commission on June 16, 2008
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
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
(State
or other jurisdiction of incorporation or
organization)
|
20200
Sunburst Street
Chatsworth,
CA 91311
(818)
734-8600
|
55-0366422
(I.R.S.
Employer
Identification
Number)
|
(Address,
including zip code, and telephone number, including area code, of Registrant’s
principal executive offices)
2006
STOCK PLAN
2008
NON-EMPLOYEE DIRECTORS’ EQUITY COMPENSATION PLAN
(Full
title of the plan)
John
B. Rush
President
and Chief Executive Officer
North
American Scientific, Inc.
20200
Sunburst Street
Chatsworth,
CA 91311
(818)
734-8600
(Name,
address, including zip code, and telephone number, including area code, of
agent
for service)
Copy
to:
Bruce
Feuchter, Esq.
Michael
A. Hedge, Esq.
Stradling
Yocca Carlson & Rauth
a
Professional Corporation
660
Newport Center Drive, Suite 1600
Newport
Beach, CA 92660
(949)
725-4000
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company.
See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b2 of the Exchange Act.
|
Large
accelerated filer
o
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Accelerated
filer
o
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Non-accelerated
filer (Do not check if a smaller reporting company)
o
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Smaller
reporting company
x
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CALCULATION
OF REGISTRATION FEE
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Title
of Securities to
be
Registered
|
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Amount
to be
Registered
(1)
|
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Proposed Maximum
Offering Price
Per Share
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Proposed Maximum
Aggregate
Offering Price
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Amount of
Registration
Fee
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Common
Stock ($0.01 par value)
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1,679,877
shares
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(2)
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$
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1.46
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(3)
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$
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2,452,620
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$
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96.39
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Common
Stock ($0.01 par value)
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660,123
shares
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(4)
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$
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1.34
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(5)
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$
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884,565
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$
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34.76
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Common
Stock ($0.01 par value)
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295,000
shares
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(6)
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$
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1.95
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(7)
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$
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575,250
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$
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22.61
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Common
Stock ($0.01 par value)
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1,205,000
shares
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(8)
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$
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1.34
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(5)
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$
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1,614,700
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$
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63.46
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(1)
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Includes
an indeterminate number of additional shares which may be necessary
to
adjust the number of shares issued pursuant to the 2006 Stock Plan
or 2008
Non-Employee Directors’ Equity Compensation Plan as the result of any
future stock split, stock dividend or similar adjustment of the
outstanding shares of our common
stock.
|
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(2)
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For
the sole purpose of calculating the registration fee, the number
of shares
to be registered under this registration statement has been divided
into
four subtotals. This subtotal represents the sum of the shares issuable
upon exercise of presently outstanding options (options that have
been
granted as of the date of this registration statement) issued under
the
2006 Stock Plan.
|
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(3)
|
Represents
the weighted average exercise price (rounded to the nearest cent)
for
outstanding options under the 2006 Stock Plan pursuant to Rule
457(h).
|
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(4)
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Represents
shares subject to options which are available for grant, but not
yet
granted, as of the date of this registration statement, under the
2006
Stock Plan.
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(5)
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In
accordance with Rule 457(h), the aggregate offering price is estimated,
solely for the purpose of calculating the registration fee, on the
basis
of the price of securities of the same class, as determined in accordance
with Rule 457(c), using the average of the high and low prices (rounded
to
the nearest cent) reported by the Nasdaq Capital Market on June 12,
2008.
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(6)
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Represents
the shares issuable upon exercise of presently outstanding options
(options that have been granted as of the date of this registration
statement) issued under the 2008 Non-Employee Directors’ Equity
Compensation Plan.
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(7)
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Represents
the weighted average exercise price (rounded to the nearest cent)
for
outstanding options under the 2008 Non-Employee Directors’ Equity
Compensation Plan pursuant to Rule
457(h).
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(8)
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Represents
shares subject to options which are available for grant, but not
yet
granted, as of the date of this registration statement, under the
2008
Non-Employee Directors’ Equity Compensation
Plan.
|
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
In
accordance with Rule 428(b) under the Securities Act of 1933, as amended (the
“Securities Act”), the documents containing the information called for by Part I
of Form S-8 will be sent or given to individuals who participate in the 2006
Stock Plan and/or 2008 Non-Employee Directors’ Equity Compensation Plan, and are
not being filed with or included in this Form S-8.
PART II
INFORMATION
REQUIRED IN REGISTRATION STATEMENT
Item
3.
Incorporation
of Documents by Reference
.
The
following documents, which have been filed by North American Scientific, Inc.
(referred to herein as the “Company,” “our,” “we” or “us”) with the Securities
and Exchange Commission (the “Commission”), are incorporated herein by this
reference:
(a)
The
Company’s Annual Report on Form 10-K for the fiscal year ended October 31, 2007,
as filed with the Commission on January 29, 2008, and as amended on Form 10-K/A,
as filed with the Commission on February 28, 2008.
(b)
The
Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended April 30,
2008, as filed with the Commission on June 16, 2008.
(c)
All
other reports filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) since the end of the
fiscal year ended October 31, 2007.
(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.
All
documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, 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 hereof from the date
of
filing such documents. For the purposes of this registration statement, any
statement in a document incorporated by reference shall be deemed to be modified
or superseded to the extent that a statement contained in this registration
statement modifies or supersedes a statement in such document. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
Item
4.
Description
of Securities
.
Not
applicable.
Item
5.
Interests
of named Experts and Counsel
.
Not
applicable.
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, as amended (the “Certificate”),
provides that each person who is involved in any threatened, pending or
completed 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 will be indemnified by the Company, and that each person who is so
involved by reason of the fact that he or she is or was an officer, employee
or
agent of the Company, or is or was serving at the request of the Company in
any
other capacity for or on behalf of the Company, may be indemnified by the
Company, against any liability or expense actually and reasonably incurred
by
such person in respect of such threatened, pending or completed action, suit
or
proceeding. The Company shall not be obligated to indemnify any such person:
(i)
with respect to proceedings, claims or actions initiated or brought voluntarily
by such person and not by way of defense; or (ii) for any amounts paid in
settlement of an action effected without the prior written consent of the
Company to such settlement. 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, agreement or otherwise.
The
bylaws of the Company, as amended (the “Bylaws”), provide that each person who
is involved in any threatened, pending or completed 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 will be indemnified by the
Company, and that each person who is so involved by reason of the fact that
he
or she is or was an officer, employee or agent of the Company, or is or was
serving at the request of the Company in any other capacity for or on behalf
of
the Company, may be indemnified by the Company, against any liability or expense
actually and reasonably incurred by such person in respect of such threatened,
pending or completed action, suit or proceeding. Expenses may be paid in advance
by the Company upon receipt of an undertaking by or on behalf of the person
seeking indemnification to repay such amount if it shall ultimately be
determined that such person is not entitled to indemnification by the Company.
The Company shall not be obligated to indemnify any such person: (i) with
respect to proceedings, claims or actions initiated or brought voluntarily
by
such person and not by way of defense; or (ii) for any amounts paid in
settlement of an action effected without the prior written consent of the
Company to such settlement. The indemnification and advancement of expenses
provided by the Bylaws are not exclusive of any other rights to which persons
seeking indemnification or advancement of expenses may be entitled under any
law, agreement 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
.
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Exhibit
Number
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|
Description
of Document
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4.1
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Amended
and Restated Certificate of Incorporation of the Company (
incorporated
by reference to Exhibit 3.1 to the Company’s Quarterly filing on Form 10-Q
for the quarterly period ended April 30, 2008, filed on June 16,
2008)
.
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4.2
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Bylaws
of the Company, (as amended December 5, 2007), incorporated by reference
to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, as filed
with the Commission on December 11, 2007.
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5.1
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Opinion
of Stradling Yocca Carlson & Rauth, a Professional
Corporation.
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23.1
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Consent
of Singer Lewak Greenbaum & Goldstein LLP, Independent Registered
Public Accounting Firm.
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23.2
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Consent
of Stradling Yocca Carlson & Rauth (contained in Exhibit 5.1
hereto).
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24.1
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Power
of Attorney (included on the signature page hereto).
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99.1
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2006
Stock Plan (incorporated by reference to Appendix A to the Registrant’s
Proxy Statement on Schedule 14A, as filed with the Commission on
April 5,
2006).
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99.2
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Amendment
No. 1 to 2006 Stock Plan (incorporated by reference to Exhibit
10.1 to the Registrant’s Current Report on Form 8-K, as
filed with the Commission on May 5, 2008).
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99.3
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2008
Non-Employee Directors’ Equity Compensation Plan (incorporated by
reference to Appendix C to the Registrant’s Proxy Statement on
Schedule 14A, as filed with the Commission on March 31,
2008).
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Item
9.
Undertakings
.
(a)
We
hereby undertake:
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1.
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To
file, during any period in which offers or sales are being made,
a
post-effective amendment to this registration
statement:
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i.
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To
include any prospectus required by section 10(a)(3) of the Securities
Act
of 1933;
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ii.
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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. 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 20% change in the maximum aggregate offering
price
set forth in the “Calculation of Registration Fee” table in the effective
registration statement.
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iii.
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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;
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Provided
however
,
that
paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission
by
the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that
are incorporated by reference in this registration statement
.
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2.
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That,
for the purpose of determining any liability under the Securities
Act,
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.
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3.
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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.
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(b)
We
hereby undertake that, for purposes of determining any liability under the
Securities Act, each filing of our annual report pursuant to Section 13(a)
or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) 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.
(c)
Insofar as indemnification for liabilities arising under the Securities Act
may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant 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 registrant 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of 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 June 16th,
2008.
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By:
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/s/
John B. Rush
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John
B. Rush
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President
and Chief Executive Officer
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POWER
OF
ATTORNEY
We,
the
undersigned directors and officers of North American Scientific, Inc., do hereby
constitute and appoint John B. Rush our true and lawful attorney and agent,
to
do any and all acts and things in our name and behalf in our capacities as
directors and officers and to execute any and all instruments for us and in
our
names in the capacities indicated below, which said attorney and agent may
deem
necessary or advisable to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules, regulations, and requirements of the
Securities and Exchange Commission, in connection with this Registration
Statement, including specifically, but without limitation, power and authority
to sign for us or any of us in our names and in the capacities indicated below,
any and all amendments (including post-effective amendments) to this
Registration Statement and we do hereby ratify and confirm all that the said
attorney and agent shall do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement on Form S-8 has been signed by the following persons in the
capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/
Gary N. Wilner
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Director
(Chairman of the Board)
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June
16, 2008
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Dr.
Gary N. Wilner
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/s/
John B. Rush
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President,
Chief Executive Officer and Director
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June
16, 2008
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John
B. Rush
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(Principal
Executive Officer, Principal Financial
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Officer and
Principal
Accounting Officer)
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/s/
Wilfred E. Jaeger
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Director
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June
16, 2008
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Wilfred
E. Jaeger
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/s/
John M. Sabin
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Director
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June
16, 2008
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John
M. Sabin
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/s/
Richard A. Sandberg
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Director
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June
16, 2008
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Richard
A. Sandberg
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/s/
Robert V. Toni
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Director
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June
16, 2008
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Robert
V. Toni
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/s/
Roderick A. Young
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Director
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June
16, 2008
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Roderick
A. Young
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EXHIBIT
INDEX
|
Exhibit
Number
|
|
Description
of Document
|
|
|
|
|
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4.1
|
|
Amended
and Restated Certificate of Incorporation of the Company (
incorporated
by reference to Exhibit 3.1 to the Company’s Quarterly filing on Form 10-Q
for the quarterly period ended April 30, 2008, filed on June 16,
2008)
.
|
|
|
|
|
|
4.2
|
|
Bylaws
of the Company, (as amended December 5, 2007), incorporated by reference
to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, as filed
with the Commission on December 11, 2007.
|
|
|
|
|
|
5.1
|
|
Opinion
of Stradling Yocca Carlson & Rauth, a Professional
Corporation.
|
|
|
|
|
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23.1
|
|
Consent
of Singer Lewak Greenbaum & Goldstein LLP, Independent Registered
Public Accounting Firm.
|
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|
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23.2
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|
Consent
of Stradling Yocca Carlson & Rauth (contained in Exhibit 5.1
hereto).
|
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24.1
|
|
Power
of Attorney (included on the signature page hereto).
|
|
|
|
|
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99.1
|
|
2006
Stock Plan (incorporated by reference to Appendix A to the Registrant’s
Proxy Statement on Schedule 14A, as filed with the Commission on
April 5,
2006).
|
|
|
|
|
|
99.2
|
|
Amendment
No. 1 to 2006
Stock Plan (incorporated by reference to Exhibit 10.1 to the
Registrant’s Current Report on Form 8-K, as filed with the
Commission on May 5, 2008).
|
|
|
|
|
|
99.3
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|
2008
Non-Employee Directors’ Equity Compensation Plan (incorporated by
reference to Appendix C to the Registrant’s Proxy Statement on
Schedule 14A, as filed with the Commission on March 31,
2008).
|
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