North American Scientific Inc - Additional Proxy Soliciting Materials (definitive) (DEFA14A)
14 12월 2007 - 7:11AM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT PURSUANT TO SECTION 13 OR 15(d)
OF
THE SECURITIES EXCHANGE ACT OF 1934
December
11, 2007
Date
of
Report (Date of earliest event reported)
NORTH
AMERICAN SCIENTIFIC, INC.
(Exact
name of registrant as specified in its charter)
|
Delaware
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0-26670
|
51-0366422
|
|
(State
or other jurisdiction
of
incorporation)
|
(Commission
File Number)
|
(I.R.S.
Employer
Identification
No.)
|
20200
Sunburst Street, Chatsworth, California 91311
(Address
of principal executive offices) (Zip Code)
(818)
734-8600
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
|
□
|
Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
|
|
x
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
□
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
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|
□
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
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Item
1.01
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Entry
into a Material Definitive
Agreement.
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On
December 12, 2007, North American Scientific, Inc. (the “Company”) entered into
a Securities Purchase Agreement with Three Arch Partners IV, L.P. and affiliated
funds (“Three Arch Partners”), SF Capital Partners Ltd. (“SF Capital”) and CHL
Medical Partners III, L.P. and an affiliated fund (“CHL,” and together with
Three Arch Partners and SF Capital, the “Investors”) providing for the private
placement (the “Private Placement”) of 63,008,140 shares (the “Shares”) of
common stock of the Company, par value $0.01 per share (the “Common Stock”), and
warrants to purchase 3,150,407 shares of Common Stock (the “Warrants,” and,
together with the Shares, the “Securities”) for a total purchase price of $15.5
million.
The
purchase price is equal to $0.246 per Security, of which $0.01 is allocated
to
the Warrants. The purchase price represents a 40% discount to the volume
weighted average price of the Common Stock on the Nasdaq Global Market, as
reported by Bloomberg Financial Markets, for the 20 trading day period ending
on
the trading day immediately preceding the date of the Securities Purchase
Agreement. The Warrants have an exercise price of $0.246 per share, subject
to
certain adjustments. The Warrants may be exercised no earlier than 180 days
from
the closing date of the transaction and will expire seven years from the date
of
issuance.
In
order
to close the Private Placement, the Company must obtain stockholder approval
of
the Private Placement and the amendment of its Certificate of Incorporation
to
increase the number of shares of Common Stock it is authorized to issue. The
Securities Purchase Agreement requires that the Company file a preliminary
proxy
statement, information statement or consent statement with the Securities and
Exchange Commission (the “Commission”) to solicit stockholder approval by
December 19, 2007. The Company expects to close the Private Placement as soon
as
practicable after it obtains stockholder approval.
The
Investors have agreed to purchase the following amounts of Securities in the
offering:
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Investor
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Shares
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Warrants
(Shares issuable upon exercise)
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Three
Arch Partners
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40,650,420
|
|
2,032,521
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SF
Capital
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10,162,600
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508,130
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CHL
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12,195,120
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609,756
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Three
Arch Partners currently owns 5,121,638 shares of Common Stock. If the
transaction is consummated, Three Arch Partners’ percentage ownership of the
outstanding Common Stock will increase from approximately 17.3% to 49.4% (and
43.9% of the Common Stock on a fully diluted basis).
The
net
proceeds to the Company of the Private Placement after payment of fees and
expenses are expected to be approximately $14,115,000. The terms of the Private
Placement were approved by a committee of the Company’s Board of Directors
consisting only of disinterested directors. The Company’s directors and
executive officers have executed lock-up agreements restricting their ability
to
sell shares of the Common Stock for 180 days following the closing of the
transaction. The Investors will be required to enter into such lock-up
agreements prior to the closing of the transaction.
CIBC
World Markets Corp. is acting as sole placement agent in connection with the
Private Placement. If the Private Placement is consummated as discussed herein,
the placement agent will receive aggregate fees of approximately $1,085,000
plus
reimbursement for reasonable out-of-pocket fees and expenses.
Holders
of the Shares and the shares of Common Stock issuable upon the exercise of
the
Warrants (the “Warrant Shares” and collectively, with the Shares, the
“Registrable Securities”) are entitled to certain registration rights as set
forth in the Securities Purchase Agreement. Under the Securities Purchase
Agreement, the Company has agreed to use its reasonable best efforts to prepare
and file a registration statement on Form S-3 or other applicable form available
to the Company to register the resale of the Registrable Securities. If the
Company fails to file a registration statement or such registration statement
is
not declared effective between the time it files its next Annual Report on
Form
10-K and the 180
th
date
after the closing of the Private Placement, or, if additional registration
statements are required to be filed to register such shares because of
limitations imposed by the staff of the Commission on the number of shares
that
may be registered on behalf of selling stockholders on Form S-3, within 45
days
of filing each such additional registration statement (or 90 days if such filing
is reviewed by the Commission), the Company will be liable for certain specified
liquidated damages as set forth in the Securities Purchase Agreement. The
Company has agreed to maintain the effectiveness of the registration statement
until the earliest of (i) the second anniversary of the closing of the
Private Placement, (ii) such time as all Registrable Securities have been
sold pursuant to the registration statement or (iii) the date on which all
of the Registrable Securities may be resold by each of the Investors without
registration pursuant to Rule 144(k). The Company will pay all expenses incurred
in connection with the registration, o
ther
than fees and expenses, if any, of counsel or other advisors to the Investors
or
underwriting discounts, brokerage fees and commissions incurred by the
Investors, if any, in connection with an underwritten offering of the
Registrable Securities
.
The
Securities Purchase Agreement contains certain customary closing conditions,
as
well as the requirement that the Company decrease the number of members of
the
Board of Directors of the Company (the “Board”) from nine members to seven
members at or by the time of its next annual meeting of stockholders. Under
the
Securities Purchase Agreement, Three Arch Partners has the right to name one
member to the Board so long as Three Arch Partners beneficially owns greater
than 5,000,000 shares of Common Stock (including shares of Common Stock issuable
upon exercise of the Warrants, and as appropriately adjusted for stock splits,
stock dividends and recapitalizations). Two of the current members of the Board,
Dr. Wilfred E. Jaeger and Roderick A. Young, have been designated by Three
Arch
Partners. Under the Securities Purchase Agreement, the Company has agreed to
add
two new independent members to the Board at or before the Company’s next annual
meeting.
In
connection with the issuance of the Warrants and upon closing of the
transaction, the Company will enter into Warrant Agreements with its transfer
agent relating to the Warrants. The Warrant Agreement relating to the Warrants
to be issued to SF Capital will contain a non-waivable provision that provides
that the number of shares issuable upon exercise of the Warrants will be limited
to the extent necessary to assure that, following such exercise, the total
number of shares of Common Stock then beneficially owned by such holder and
its
affiliates does not exceed 14.9% of the total number of issued and outstanding
shares of Common Stock of the Company (including for such purpose the shares
of
Common Stock issuable upon such exercise of Warrants). The Warrant Agreement
relating to the Warrants to be issued to the other Investors will not contain
this provision.
The
sale
of the Shares, the Warrants and the Warrant Shares have not been registered
under the Securities Act of 1933, as amended (the “Securities Act”), or any
state securities laws. The Company is relying upon the exemptions from
registration provided by Section 4(2) of the Securities Act and Regulation
D
promulgated under that section. Each Investor has represented that it is an
accredited investor, as such term is defined in Regulation D under the
Securities Act, and that it was acquiring the Shares and Warrants for its own
account and not with a view to or for sale in connection with any distribution
thereof, and appropriate legends will be affixed to the Shares and
Warrants.
The
foregoing is a summary of the terms of the Private Placement and is qualified
in
its entirety by reference to the Securities Purchase Agreement and the form
of
Warrant Agreement filed as exhibits hereto. The Securities Purchase Agreement
has been included to provide information regarding its terms. It is not intended
to provide any other factual information about the Company. The Securities
Purchase Agreement contains representations and warranties that the parties
to
the Securities Purchase Agreement made to and solely for the benefit of each
other. The assertions embodied in such representations and warranties are
qualified by information contained in confidential disclosure schedules
delivered by the Company to the Investors in connection with the execution
of
the Securities Purchase Agreement. No reliance should be placed on such
representations and warranties as characterizations of the actual state of
facts
or circumstances since they were made only as of the date of the Securities
Purchase Agreement and are modified in important part by the disclosure
schedules. Information concerning the subject matter of such representations
and
warranties may change after the date of the Securities Purchase Agreement,
which
subsequent information may or may not be fully reflected in the Company’s public
disclosures. The Securities Purchase Agreement and the form of Warrant Agreement
are attached hereto as Exhibits 10.1 and 10.2, respectively.
A
press
release announcing the Private Placement is attached hereto as Exhibit 99.1
and
is incorporated herein by reference.
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Item
3.02
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Unregistered
Sale of Equity Securities.
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The
information set forth in Item 1.01 above is incorporated by reference into
this
Item 3.02.
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Item
5.02
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Departure
of Directors or Certain Officers; Election of Directors; Appointment
of
Certain Officers; Compensatory Arrangements of Certain
Officers.
|
On
December 11, 2007, John A. Friede resigned from the Board of Directors of the
Company effective immediately. Mr. Friede had been a director of the Company
since 2004.
On
December 13, 2007, the Company issued a press release announcing that it
received a letter from The Nasdaq Stock Market (“Nasdaq”) dated December 11,
2007 providing formal notice that the Nasdaq Listing Qualifications Panel (the
“Panel”) had granted the Company’s request for a transfer from the Nasdaq Global
Market to the Nasdaq Capital Market, and continued listing on the Nasdaq Capital
Market, subject to the following exceptions:
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§
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On
or before January 17, 2008, the Company shall inform the Panel that
it has
received funds sufficient to put it in compliance with the Capital
Market
shareholders’ equity requirement of $2.5 million. Within four business
days of the receipt of the funds, the Company shall make a public
disclosure of receipt of the funds and file a Form 8-K with pro forma
financial information indicating that it plans to report shareholders’
equity of $2.5 million or greater for the fiscal year ended October
31,
2007.
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§
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On
or before January 31, 2008, the Company shall file its Form 10-K
for the
fiscal year ended October 31, 2007 which shall demonstrate shareholder’s
equity of $2.5 million or greater.
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The
Company’s listing on the Nasdaq Capital Market is contingent upon the successful
completion of an application and review process. That process will require
the
Company to file an application for listing on the Nasdaq Capital Market and
pay
any applicable fees by no later than December 18, 2007. In order to fully comply
with the terms of this exception, the Company must be able to demonstrate
compliance with all requirements for continued listing on the Nasdaq Capital
Market and gain approval of its listing application. In the event the Company
is
unable to do so, its securities may be delisted from Nasdaq.
A
copy of
the press release is attached hereto as Exhibit 99.2.
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Item
9.01
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Financial
Statements and Exhibits.
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10.1
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Securities
Purchase Agreement dated December 12, 2007 between the Company and
the
Investors.
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10.2
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Form
of Warrant Agreement between the Company and the
Investors.
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99.1
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Press
release of the Company dated December 13,
2007.
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99.2
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Press
release of the Company dated December 13,
2007.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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NORTH
AMERICAN SCIENTIFIC, INC.
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Date:
December
13, 2007
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By:
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/s/ John
B.
Rush
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Name:
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John
B. Rush
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Title:
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President
and Chief Executive Officer
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EXHIBIT
INDEX
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10.1
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Securities
Purchase Agreement dated December 12, 2007 between the Company
and the
Investors.
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10.2
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Form
of Warrant Agreement between the Company and the
Investors.
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99.1
|
Press
release of the Company dated December 13,
2007.
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99.2
|
Press
release of the Company dated December 13,
2007.
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North American Scientific (MM) (NASDAQ:NASI)
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