General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership 13 40K
2: EX-1 Underwriting Agreement 19 60K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 11 36K
Liquidation or Succession
4: EX-3 Articles of Incorporation/Organization or By-Laws 24 78K
EX-3 — Articles of Incorporation/Organization or By-Laws
Exhibit Table of Contents
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement")
is made pursuant to the Note Purchase Agreement, dated as of
May 17, 1995 among American Shared Hospital Services, a
California corporation (the "Company"), the Holders referred
to therein (the "Note Purchase Agreement") and General
Electric Company, a New York corporation acting through GE
Medical Systems. In order to induce the Holders to enter into
the Note Purchase Agreement, the Company has agreed to provide
the registration rights set forth in this Agreement.
The parties hereby agree as follows:
1. Definitions
___________
Capitalized terms used by not otherwise defined
herein shall have the meaning given thereto in the Note
Purchase Agreement. As used in this Agreement, the following
terms shall have the following meanings:
Advice: See Section 5 hereof.
Common Stock: The common stock, no par value, of
the Company.
DTC: See Section 5 hereof.
GE Warrant: Warrants to purchase 225,000 shares of
Common Stock.
Losses: See Section 7 hereof.
NASDAQ: See Section 5 hereof.
Person: Any individual, partnership, corporation,
joint venture, association, joint stock company, trust,
unincorporated organization, government or agency or political
subdivision thereof, or other entity.
Piggyback Registration: See Section 3 hereof.
Prospectus: The prospectus included in any Regis-
tration Statement (including, without limitation, a prospectus
that discloses information previously omitted from a
prospectus filed as part of an effective registration state-
ment in reliance upon Rule 430A promulgated under the Secu-
rities Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such Regis-
tration Statement and all other amendments and supplements to
the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Registrable Securities: The Shares and Warrants,
upon the respective original issuance thereof, and at all
times subsequent thereto, until, in the case of any such secu-
rity, (i) it is effectively registered under the Securities
Act and disposed of in accordance with the Registration
Statement covering it, (ii) it is saleable by the holder
thereof pursuant to Rule 144(k) or (iii) it is distributed to
the public pursuant to Rule 144.
Registration Expenses: See Section 6 hereof.
Registration Statement: Any registration statement
of the Company that covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits,
and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 under the Securities Act, as
such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
Shareholder: Each of the shareholders party hereto
and any party who shall hereafter acquire from a Shareholder
and hold Registrable Securities.
Shares: Any shares of capital stock of the Company
owned by any Shareholder, whether owned on the date hereof or
hereafter acquired, including (without limitation) any shares
issued upon exercise of the Warrants or the GE Warrant.
Special Counsel: Any special counsel to the
Shareholders, the fees and expenses of which the Shareholders
of Registrable Securities will be reimbursed pursuant to
Section 7(b) hereof.
Underwritten registration or underwritten offering:
A registration in which securities of the Company are to be
sold to an underwriter for reoffering to the public.
Warrants: Any warrants to purchase shares of Common
Stock owned by any Shareholder, whether owned on the date
hereof or hereafter acquired.
Warrant Shares: The shares of Common Stock issued
upon exercise of the Warrants in accordance with the terms
thereof.
2. Shelf Registration
__________________
(a) The Company shall, on or prior to July 31,
1995 prepare and file with the SEC a Registration Statement
under the Securities Act for an offering to be made on a
continuous basis pursuant to Rule 415 (or any similar rule
that may be adopted by the SEC) under the Securities Act
covering all the Registrable Securities (the "Shelf
Registration").
(b) The Shelf Registration shall be on Form
S-1 or another appropriate Form (reasonably acceptable to the
holders of the Registrable Securities offered thereby)
permitting registration of such Registrable Securities for
resale by such holders in the manner or manners designated by
them (including, without limitation, one or more underwritten
offerings). The Company shall not permit any securities other
than the Registrable Securities to be included in the Shelf
Registration.
(c) The Company shall use its best efforts to
cause the Shelf Registration to become effective under the
Securities Act on or prior to 60 days after the filing thereof
and shall keep the Shelf Registration continuously effective
for a period of 36 months from the date on which the Shelf
Registration becomes effective under the Securities Act
(subject to extension pursuant to Section 4(a) and Section 5
hereof), or such shorter period that will terminate when all
Registrable Securities covered by the Shelf Registration have
been sold. The Company shall also supplement or make
amendments to the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration
form used by the Company or if required by the Securities Act
or if reasonably requested by holders of a majority of the
Registrable Securities covered by the Shelf Registration or
any underwriter of the Registrable Securities.
(d) If any of the Registrable Securities
registered pursuant to the Shelf Registration are to be sold
in one or more firm commitment underwritten offerings, and the
managing underwriter advises the Shareholders of such
securities in writing that in its opinion the total number or
dollar amount of Registrable Securities proposed to be sold in
such offering is such as to materially and adversely affect
the success of such offering, then there shall be included in
such firm commitment underwritten offering the number or
dollar amount of Registrable Securities held by the
Shareholders that in the opinion of such managing underwriter
can be sold, and such Registrable Securities shall be allo-
cated pro rata on the basis of the number or dollar amount of
securities owned by each such Shareholder participating in
such offering.
3. Piggyback Registration
______________________
(a) Right to Piggyback. If at any time the
Company proposes to file a registration statement under the
Securities Act with respect to an offering of any class of
equity securities (other than a registration statement (i) on
Form S-4 or S-8 or any successor forms thereto, or (ii) filed
in connection with an offering made solely to employees of the
Company), whether or not for its own account, then the Company
shall give written notice of such proposed filing to the Shar-
eholders of Registrable Securities at least fifteen days
before the anticipated filing date. Such notice shall offer
such Shareholders the opportunity to register such amount of
Registrable Securities as each such Shareholder may request (a
"Piggyback Registration"). Subject to Section 3(b) hereof,
the Company shall include in each such Piggyback Registration
all Registrable Securities with respect to which the Company
has received written requests for inclusion therein. The
Shareholders of Registrable Securities shall be permitted to
withdraw all or part of the Registrable Securities from a
Piggyback Registration at any time prior to the effective date
of such Piggyback Registration.
(b) Priority on Piggyback Registrations. The
Company shall cause the managing underwriter of a proposed
underwritten offering to permit Shareholders of Registrable
Securities requested to be included in the registration for
such offering to include all such Registrable Securities on
the same terms and conditions as any similar securities, if
any, of the Company included therein. Notwithstanding the
foregoing, if the managing underwriter of such offering
delivers an opinion to the holders of Registrable Securities
that the total number or dollar amount of securities that such
Shareholders, the Company and any other Persons having rights
to participate in such registration ("Other Holders"), propose
to include in such offering is such as to materially and
adversely affect the success of such offering, then:
(i) if such Piggyback Registration is a
primary registration on behalf of the Company, the amount of
securities to be offered for the account of Shareholders of
Registrable Securities and Other Holders, shall be reduced (to
zero if necessary) pro rata on the basis of the number or
dollar amounts of securities owned by each such holder
participating in such offering to the extent necessary to
reduce the total amount of securities to be included in such
offering to the amount recommended by such managing underwrit-
er or underwriters; and
(ii) if such Piggyback Registration is an
underwritten secondary registration on behalf of holders of
securities of the Company pursuant to demand registration
rights, the Company shall include in such registration: (x)
first, up to the full number or dollar amount of securities of
such Persons exercising "demand" registration rights that in
the opinion of such managing underwriter or underwriters can
be sold or allocated among such holders as they may otherwise
so determine, and (y) second, any securities to be sold for
the account of the Company and (z) third, the number or dollar
amount of Registrable Securities and securities held by Share-
holders and Other Holders in excess of the amount of securi-
ties such Persons exercising "demand" registration rights
propose to sell that, in the opinion of such managing
underwriter or underwriters, can be sold (allocated pro rata
among the Shareholders of such Registrable Securities and
Other Holders on the basis of the number or dollar amount of
securities owned by such holders).
4. Hold-Back Agreements
____________________
(a) Restrictions on Sale by Shareholders of
Registrable Securities. Each Shareholder agrees not to effect
any sale or transfer of the Registrable Securities issued to
it as part of the consideration under the Note Purchase
Agreement until the earlier to occur of (i) September 17,
1995, and (ii) the shareholder vote with respect to the
Additional Issuance. In addition, each Shareholder whose
Registrable Securities are covered by a Registration Statement
filed pursuant to Section 2 or 3 hereof, agrees that, if such
Shareholder is requested (pursuant to a timely written notice)
by the managing underwriter in an underwritten offering, not
to effect any public sale or distribution of any of the
Company's equity securities, including a sale pursuant to Rule
144 (except as part of such underwritten registration), during
the 10-day period prior to, and during the 90-day period
beginning on, the closing date of each underwritten offering
made pursuant to such Registration Statement. If a request is
made pursuant to this Section 4(a), the time period during
which a Shelf Registration is required to remain continuously
effective pursuant to Section 2(c) shall be extended by 100
days or such shorter period that will terminate when all such
Registrable Securities not so included have been sold pursuant
to such Registration Statement.
(b) Restrictions on Sale by the Company and
Others. The Company shall not effect any registration of its
securities (other than a registration statement on Form S-8 or
any successor form thereto), or effect any public or private
sale or distribution of any of its securities other than in
connection with the Additional Issuance, including a sale
pursuant to Regulation D under the Securities Act, whether on
its own behalf or at the request of any holder or holders of
such securities (other than pursuant to and in accordance with
this Agreement), (i) from the date hereof until 90 days after
the effective date of the Shelf Registration, and (ii) for a
90 day period from the date of each notice to the Company of a
Shareholder's intent to sell Registrable Securities pursuant
to an underwritten public offering, unless the Company shall
have first notified in writing the Shareholders of Registrable
Securities covered by such Registration Statement of its
intention to do so, and the Shareholders of a majority of the
Registrable Securities requested to be registered pursuant to
Section 2 shall have consented thereto in writing; provided
that the Company shall not be obligated to refrain from sales
or transfers pursuant to clause (ii) above with respect to
more than one such underwritten public offering during any 12-
month period.
The Company shall cause each holder of its equity
securities purchased from the Company at any time on or after
the date of this Agreement (other than in a registered public
offering) to agree not to effect any public sale or
distribution of any such securities during such period,
including a sale pursuant to Rule 144.
5. Registration Procedures
_______________________
In connection with the Company's registration obli-
gations pursuant to Sections 2 and 3 hereof, the Company shall
effect such registrations to permit the sale of such
Registrable Securities in accordance with the intended method
or methods of disposition thereof, and pursuant thereto the
Company shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registra-
tion Statement or Registration Statements on any appropriate
Form under the Securities Act available for the sale of the
Registrable Securities by the holders thereof in accordance
with the intended method or methods of distribution thereof,
and cause each such Registration Statement to become effective
and remain effective as provided herein; provided, however,
that before filing a Registration Statement or Prospectus or
any amendments or supplements thereto (including documents
that would be incorporated or deemed to be incorporated
therein by reference) the Company shall furnish to the
Shareholders of the Registrable Securities covered by such
Registration Statement, the Special Counsel and the managing
underwriters, if any, copies of all such documents proposed to
be filed, which documents will be subject to the review of
such Shareholders, the Special Counsel and such underwriters,
and the Company shall not file any such Registration Statement
or amendment thereto or any Prospectus or any supplement
thereto (including such documents which, upon filing, would or
would be incorporated or deemed to be incorporated by
reference therein) to which the Shareholders of a majority of
the Registrable Securities covered by such Registration
Statement, the Special Counsel or the managing underwriter, if
any, shall reasonably object to the contents thereof on a
timely basis.
(b) Prepare and file with the SEC such amend-
ments and post-effective amendments to each Registration
Statement as may be necessary to keep such Registration State-
ment continuously effective for the applicable period speci-
fied in Section 2; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act; and comply
with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set
forth in such Registration Statement as so amended or to such
Prospectus as so supplemented.
(c) Notify the selling Shareholders of Regis-
trable Securities, the Special Counsel and the managing under-
writers, if any, promptly, and (if requested by any such
Person) confirm such notice in writing, (i) when a Prospectus
or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or
any post-effective amendment, when the same has become
effective, (ii) of any request by the SEC or any other Federal
or state governmental authority for amendments or supplements
to a Registration Statement or related Prospectus or for
additional information, (iii) of the issuance by the SEC or
any other Federal or state governmental authority of any stop
order suspending the effectiveness of a Registration Statement
or the initiation of any proceedings for that purpose, (iv) if
at any time the representations and warranties of the Company
contained in any agreement contemplated by Section 5(m) below
(including any underwriting agreement) below cease to be true
and correct, (v) of the receipt by the Company of any notifi-
cation with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (vi) of the
happening of any event which makes any statement made in such
Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference
untrue or which requires the making of any changes in a
Registration Statement, Prospectus or documents so that, in
the case of the Registration Statement, it will not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading, and that in the
case of the Prospectus, it will not contain any untrue
statement of a material fact required to be stated therein is
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and
(vii) of the Company's reasonable determination that a post-
effective amendment to a Registration Statement would be
appropriate.
(d) Use every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a
Registration Statement, or the lifting of any suspension of
the qualification (or exemption from qualification) of any of
the Registrable Securities for sale in any jurisdiction, at
the earliest possible moment.
(e) If requested by the managing underwriters,
if any, or any Shareholder of Registrable Securities being
sold, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing
underwriters, if any, and such Shareholder agree should be
included therein as may be required by applicable law, (ii)
make all required filings of such Prospectus supplement or
such post-effective amendment as soon as the Company has
received notification of the matters to be incorporated in
such Prospectus supplement or post-effective amendment, and
(iii) supplement or make amendments to any Registration
Statement.
(f) Furnish to each selling Shareholder of
Registrable Securities, the Special Counsel and each managing
underwriter, if any, without charge, (i) at least one signed
copy of the Registration Statement or Statements and any post-
effective amendment thereto, including financial statements
and schedules, all documents incorporated therein by reference
or deemed incorporated therein by reference and all exhibits
(including those previously furnished or incorporated by
reference) at the earliest practicable time under the
circumstances before the filing of such documents with the SEC
and (ii) as many copies of the Prospectus or Prospectuses
relating to such Registrable Securities (including each
preliminary prospectus) and any amendment or supplement
thereto as such Persons may request. The Company hereby
consents to the use of such Prospectus or each amendment or
supplement thereto by each of the selling Shareholders of
Registrable Securities and the underwriters, if any, in con-
nection with the offering and sale of the Registrable Secu-
rities covered by such Prospectus or any amendment or sup-
plement thereto.
(g) Prior to any public offering of Registra-
ble Securities, to register or qualify or cooperate with the
selling Shareholders of Registrable Securities, the underwrit-
ers, if any, and their respective counsel in connection with
the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities
for offer and sale under the securities or Blue Sky laws of
such jurisdictions as any seller or underwriter reasonably
requests in writing; keep each such registration or
qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept
effective and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of
the Registrable Securities covered by the applicable Regis-
tration Statement; provided, however, that the Company will
not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take
any action that would subject it to taxation or general
service of process in any such jurisdiction where it is not
then so subject.
(h) Cooperate with the selling Shareholders of
Registrable Securities and the managing underwriters, if any,
to facilitate the timely preparation and delivery of certif-
icates representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends; and
enable such Registrable Securities to be registered in such
names as the managing underwriters, if any, request at least
two business days prior to any sale of Registrable Securities
to the underwriters.
(i) Cause the Registrable Securities covered
by the applicable Registration Statement to be registered with
or approved by such other governmental agencies or authorities
as may be necessary to enable the sellers thereof or the
underwriters, if any, to consummate the disposition of such
Registrable Securities.
(j) Upon the occurrence of any event contem-
plated by paragraph 5(c)(vi) or 5(c)(vii) above, prepare a
supplement or post-effective amendment to each Registration
Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereun-
der, such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
(k) Cause all Registrable Securities covered
by such Registration Statement to be (i) listed on each
securities exchange, if any, on which similar securities
issued by the Company are then listed, or (ii) authorized to
be quoted on the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") or the National Market
System of NASDAQ if the securities so qualify.
(l) Enter into such agreements (including an
underwriting agreement in form, scope and substance as is
customary in underwritten offerings) and take all such other -
actions in connection therewith (including those requested by
the managing underwriters, if any, or the Shareholders of a
majority of the Registrable Securities being sold) in order to
expedite or facilitate the disposition of such Registrable
Securities and in such connection, whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration, (i) make such
representations and warranties to the Shareholders of such
Registrable Securities and the underwriters, if any, with
respect to the business of the Company and its subsidiaries,
the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference,
if any, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten
offerings and confirm the same if and when requested; (ii)
obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters,
if any, and the Shareholders of a majority of the Registrable
Securities being sold) addressed to each selling Shareholder
of Registrable Securities and each of the underwriters, if
any, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as
may be reasonably requested by such Shareholders and
underwriters, including without limitation the matters
referred to in paragraph 5(m)(i) above; (iii) obtain "cold
comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if neces-
sary, any other certified public accountants of any subsidiary
of the Company or of any business acquired by the Company for
which financial statements and financial data is, or is
required to be, included in the Registration Statement),
addressed to each selling Shareholder of Registrable
Securities and each of the underwriters, if any, such letters
to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection
with underwritten offerings; and (iv) deliver such documents
and certificates as may be requested by the Shareholders of a
majority of the Registrable Securities being sold, the Special
Counsel and the managing underwriters, if any, to evidence the
continued validity of the representations and warranties of
the Company and its subsidiaries made pursuant to clause (i)
above and to evidence compliance with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the Company.
(m) Make available for inspection by a repre-
sentative of the Shareholders of Registrable Securities being
sold, any underwriter participating in any disposition of
Registrable Securities, if any, and any attorney or accountant
retained by such selling Shareholders or underwriter, all
financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries, and cause the
officers, directors and employees of the Company and its
subsidiaries to supply all information reasonably requested by
any such representative, underwriter, attorney or accountant
in connection with such Registration Statement; provided,
however, that any records, information or documents that are
designated by the Company in writing as confidential at the
time of delivery of such records, information or documents
shall be kept confidential by such Persons unless (i) such
records, information or documents are in the public domain or
otherwise publicly available, (ii) disclosure of such records,
information or documents is required by court or administra-
tive order or is necessary to respond to inquiries of
regulatory authorities or (iii) disclosure of such records,
information or documents, in the opinion of counsel to such
Person, is otherwise required by law (including, without
limitation, pursuant to the requirements of the Securities
Act).
(n) File any reports required to be filed by
it under the Securities Act and the Securities Exchange Act of
1934, as amended, and that it will take such further action as
any Shareholder may reasonably request, all to the extent
required from time to time to enable Shareholders to sell
Registrable Securities without registration under the Securi-
ties Act within the limitation of the exemptions provided by
(a) Rule 144 or Rule 144A under the Securities Act, as such
Rules may be amended from time to time, or (b) any similar
rule or regulation hereafter adopted by the SEC. Upon the re-
quest of any Shareholder, the Company will deliver to such
Shareholder a written statement as to whether it has complied
with such requirements.
(o) Use its best efforts to comply with all
applicable rules and regulations of the SEC, and make
available to its security holders, as soon as reasonably
practicable, an earnings statement covering a period of 12
months, beginning within three months after the effective date
of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act.
(p) Prior to the effective date of the Shelf
Registration or the first Piggy-Back Registration, whichever
shall occur first, (i) provide the transfer agent with printed
certificates for the Registrable Securities in a form eligible
for deposit with The Depository Trust Company ("DTC"), and
(ii) provide a CUSIP number for the Registrable Securities.
(q) In connection with an underwritten
offering, participate, to the extent reasonably requested by
the managing underwriter for the offering or the Holders, in
customary efforts to sell the securities under the offering,
including, without limitation, participating in "road shows";
provided that the Company shall not be obligated so to
participate in more than one such offering in any 12-month
period.
The Company may require each seller of Registrable
Securities as to which any registration is being effected to
furnish to the Company such information regarding the dis-
tribution of such Registrable Securities as the Company may,
from time to time, reasonably request in writing.
Each Shareholder of Registrable Securities agrees by
acquisition of such Registrable Securities that, upon receipt
of any notice from the Company of the happening of any event
of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(v),
5(c)(vi) or 5(c)(vii) hereof, such Shareholder will forthwith
discontinue disposition of such Registrable Securities covered
by such Registration Statement or Prospectus until such
Shareholder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(j) hereof, or
until it is advised in writing (the "Advice") by the Company
that the use of the applicable Prospectus may be resumed, and
has received copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by
reference in such Prospectus. In the event the Company shall
give any such notice, the time period mentioned in Section
2(c) hereof shall be extended by the number of days during the
time period from and including the date of the giving of such
notice to and including the date when each seller of
Registrable Securities covered by such Registration Statement
shall have received (x) the copies of the supplemented or
amended Prospectus contemplated by Section 5(j) hereof or (y)
the Advice.
6. Registration Expenses
_____________________
(a) All fees and expenses incident to the
performance of or compliance with this Agreement by the
Company shall be borne by the Company whether or not any of
the Registration Statements become effective. Such fees and
expenses shall include, without limitation, (i) all regis-
tration and filing fees (including, without limitation, fees
and expenses (x) with respect to filings required to be made
with the National Association of Securities Dealers, Inc. and
(y) of compliance with securities or "blue sky" laws
(including without limitation fees and disbursements of
counsel for the underwriters or selling holders in connection
with "blue sky" qualifications of the Registrable Securities
and determination of the eligibility of the Registrable
Securities for investment under the laws of such jurisdictions
as the managing underwriters, if any, or Shareholders of a
majority of the Registrable Securities being sold may desig-
nate)), (ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable Securities
in a form eligible for deposit with DTC and of printing
prospectuses if the printing of prospectuses is requested by
the Shareholders of a majority of the Registrable Securities
included in any Registration Statement), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements
of counsel for the Company, (v) fees and disbursements of all
independent certified public accountants referred to in
Section (5)(m)(iii) hereof (including the expenses of any
annual or special audit and "cold comfort" letters required by
or incident to such performance), and (vi) fees and expenses
of all other Persons retained by the Company.
(b) In connection with any Shelf Registration
or Piggyback Registration hereunder, the Company shall
reimburse the Shareholders of the Registrable Securities being
registered in such registration for the reasonable fees and
disbursements of not more than one counsel (or more than one
counsel if a conflict exists among such selling Shareholders
in the exercise of the reasonable judgment of counsel for the
selling Shareholders and counsel for the Company), together
with appropriate local counsel, chosen by the Shareholders of
a majority of the Registrable Securities being registered.
7. Indemnification
_______________
(a) Indemnification by the Company. The
Company shall, without limitation as to time, indemnify and
hold harmless, to the fullest extent permitted by law, each
Shareholder of Registrable Securities, the partners, officers,
directors, agents and employees of each of them, each Person
who controls such Shareholder (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act)
and the partners, officers, directors, agents and employees of
each such controlling person, from and against all losses,
claims, damages, liabilities, costs (including, without
limitation, the costs of preparation and attorneys' fees) and
expenses (collectively, "Losses") to be reimbursed promptly,
as incurred, arising out of or based upon any untrue or
alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of Prospectus or in
any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are based solely
upon information furnished in writing to the Company by such
Shareholder expressly for use therein. The Company shall also
indemnify each underwriter, selling broker, dealer manager and
similar securities industry professional participating in the
distribution, and each of their officers, directors, agents
and employees and each Person who controls such Persons
(within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) to the same extent as provided
above with respect to the indemnification of the holders of
Registrable Securities.
(b) Indemnification by Shareholder of Regis-
trable Securities. In connection with any Registration State-
ment in which a Shareholder of Registrable Securities is
participating, such Shareholder of Registrable Securities
shall furnish to the Company in writing such information as
the Company reasonably requests for use in connection with any
Registration Statement or Prospectus and agrees to indemnify,
to the fullest extent permitted by law, the Company, its
directors and officers, agents and employees, each Person who
controls the Company (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act), and the
directors, officers, agents or employees of such controlling
persons, from and against all Losses arising out of or based
upon any untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus
or arising out of or based upon any omission of a material
fact required to be stated therein or necessary to make the
statements therein not misleading, to the extent, but only to
the extent, that such untrue statement or omission is
contained in and in conformity with any information so
furnished in writing by such Shareholder to the Company ex-
pressly for use in such Registration Statement or Prospectus
and that such information was solely relied upon by the
Company in preparation of such Registration Statement,
Prospectus or preliminary prospectus. In no event shall the
liability of any selling Shareholder of Registrable Securities
hereunder be greater in amount than the dollar amount of the
proceeds (net of payment of all expenses) received by such
Shareholder upon the sale of the Registrable Securities giving
rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings.
If any Person shall be entitled to indemnity hereunder (an
"indemnified party"), such indemnified party shall give prompt
notice to the party from which such indemnity is sought (the
"indemnifying party") of any claim or of the commencement of
any Proceeding with respect to which such indemnified party
seeks indemnification or contribution pursuant hereto;
provided, however, that the failure to so notify the
indemnifying party shall not relieve the indemnifying party
from any obligation or liability except to the extent that the
indemnifying party has been prejudiced materially by such
failure. All such fees and expenses (including any fees and
expenses incurred in connection with investigating or
preparing to defend such action or proceeding) shall be paid
to the indemnified party, as incurred, within five days of
written notice thereof to the indemnifying party (regardless
of whether it is ultimately determined that an indemnified
party is not entitled to indemnification hereunder). The
indemnifying party shall not consent to entry of any judgment
or enter into any settlement or otherwise seek to terminate
any Proceeding in which any indemnified party is or could be a
party and as to which indemnification or contribution could be
sought by such indemnified party under this Section 7, unless
such judgment, settlement or other termination includes as an
unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release, in form and
substance satisfactory to the indemnified party, from all
liability in respect of such claim or litigation for which
such indemnified party would be entitled to indemnification
hereunder.
(d) Contribution. If the indemnification pro-
vided for in this Section 7 is unavailable to an indemnified
party under Section 7(a) or 7(b) hereof in respect of any
Losses or is insufficient to hold such indemnified party
harmless, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall, jointly and
severally, contribute to the amount paid or payable by such
indemnified party as a result of such Losses, in such pro-
portion as is appropriate to reflect the relative fault of the
indemnifying party or indemnifying parties, on the one hand,
and such indemnified party, on the other hand, in connection
with the actions, statements or omissions that resulted in
such Losses as well as any other relevant equitable
considerations. The relative fault of such indemnifying party
or indemnifying parties, on the one hand, and such indemnified
party, on the other hand, shall be determined by reference to,
among other things, whether any action in question, including
any untrue or alleged untrue statement of a material fact or
omission or alleged omission of a material fact, has been
taken or made by, or relates to information supplied by, such
indemnifying party or indemnified party, and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include any legal or other
fees or expenses incurred by such party in connection with any
Proceeding.
The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 7(d)
were determined by pro rata allocation or by any other method
of allocation that does not take into account the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provision of this Section
7(d), an indemnifying party that is a selling Shareholder of
Registrable Securities shall not be required to contribute any
amount in excess of the amount by which the total price at
which the Registrable Securities sold by such indemnifying
party and distributed to the public were offered to the public
exceeds the amount of any damages which such indemnifying
party has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimburse-
ment obligations of the Company hereunder shall be in addition
to any liability the Company may otherwise have hereunder or
otherwise. The provisions of this Section 7 shall survive so
long as Registrable Securities remain outstanding, not-
withstanding any transfer of the Registrable Securities by any
Shareholder or any termination of this Agreement.
8. Underwritten Registrations
__________________________
If any of the Registrable Securities covered by a
Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or
managers that will manage the offering will be selected by the
Shareholders of a majority of such Registrable Securities
included in such offering. If any Piggyback Registration is
an underwritten offering, the Company shall have the right to
select the investment banker or investment bankers and
managers to administer the offering; provided, however, that
such investment bank or manager shall be reasonably
satisfactory to the Shareholders of a majority of the
Registrable Securities included in such offering.
9. Miscellaneous
_____________
(a) Remedies. In the event of a breach by the
Company of its obligations under this Agreement, each
Shareholder of Registrable Securities, in addition to being
entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance
of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that,
in the event of any action for specific performance in respect
of such breach, it shall waive the defense that a remedy at
law would be adequate.
(b) No Inconsistent Agreements. The Company
has not, as of the date hereof, and shall not, on or after the
date of this Agreement, enter into any agreement with respect
to its securities which is inconsistent with the rights
granted to the Shareholders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof.
The Company has not entered into any agreement with respect to
its securities granting any registration rights to any Person
other than this Agreement.
(c) Amendments and Waivers. This Agreement
may be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may be
given, provided the same are in writing and signed by the
Company and each of the Shareholders of Registrable Securi-
ties. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Shareholders of
Registrable Securities whose securities are being sold
pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Shareholders
of Registrable Securities may, in lieu of complying with the
first sentence of this Section 9(c), be given by all Shar-
eholders of the Registrable Securities being sold; provided,
however, that the provisions of this sentence may not be
amended, modified, or supplemented except in accordance with
the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communica-
tions provided for or permitted hereunder shall be made in
writing and shall be deemed given (i) when made, if made by
hand delivery, (ii) upon confirmation, if made by telecopier
or (iii) one business day after being deposited with a
reputable next-day courier, postage prepaid, to the parties as
follows:
(x) if to a Shareholder of Registrable
Securities, at the most current address given by such
Shareholder to the Company in accordance with the pro-
visions of this Section 9(d), which address initially is
the address set forth on its respective signature page
attached hereto; and
(y) if to the Company, initially at Four
Embarcadero Center, Suite 3620, San Francisco, California
94111-4115, Fax: (415) 788-5660, Attention: Chief Execu-
tive Officer, and thereafter at such other address,
notice of which is given in accordance with the
provisions of this Section 9(d);
or to such other address as any party may have furnished to
the other parties in writing in accordance herewith.
(e) Owner of Registrable Securities. The
Company will maintain, or will cause its registrar and trans-
fer agent to maintain, a stock book with respect to the Common
Stock and the Warrants, in which all transfers of Registrable
Securities of which the Company has received notice will be
recorded. The Company may deem and treat the person in whose
name Registrable Securities are registered in the stock book
of the Company as the owner thereof for all purposes,
including without limitation, the giving of notices under this
Agreement.
(f) Successors and Assigns. This Agreement
shall be binding upon and shall inure to the benefit of any
and all successors and assigns of each of the parties and
shall inure to the benefit of each Shareholder of any Regis-
trable Securities. The Company may not assign its rights or
obligations hereunder without the prior written consent of
each Shareholder of any Registrable Securities. Notwith-
standing the foregoing, no transferee shall have any of the
rights granted under this Agreement (i) until such transferee
shall acknowledge its rights and obligations hereunder by a
signed written statement of such transferee's acceptance of
such rights and obligations or (ii) if the transferor notifies
the Company in writing on or prior to such transfer that the
transferee shall not have such rights.
(g) Counterparts. This Agreement may be
executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement
are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA, AS APPLIED TO CONTRACTS MADE AND PER-
FORMED WITHIN THE STATE OF CALIFORNIA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
(j) Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court
of competent jurisdiction to be invalid, void or unenforce-
able, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invali-
dated, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties
that they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such which
may be hereafter declared invalid, void or unenforceable.
(k) Attorneys' Fees. In any action or pro-
ceeding brought to enforce any provision of this Agreement, or
where any provision hereof is validly asserted as a defense,
the prevailing party, as determined by the court, shall be
entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
IN WITNESS WHEREOF, each of the parties hereto has
executed this Agreement as of the date first above written.
AMERICAN SHARED HOSPITAL SERVICES
By:_______________________________
Name:
Title:
AIF II, L.P.
By: Apollo Advisors, L.P.
Managing General Partner
By: Apollo Capital Management, Inc.
General Partner
By:___________________________
Its:__________________________
1999 Avenue of the Stars, Suite 1900
Los Angeles, California 90067
Attn: Pandora Pang
Fax: (310) 201-4198
ANCHOR NATIONAL LIFE INSURANCE COMPANY
By:_______________________________
Name:
Title:
Address for Notice:
1999 Avenue of the Stars, 38th Floor
Los Angeles, California 90067
Attn:
Fax: (310) 772-6150
GENERAL ELECTRIC COMPANY
acting through GE MEDICAL SYSTEMS
By:_______________________________
Name:
Title:
Address for Notice:
20825 Swensen Drive, Suite 100
Waukesha, Wisconsin 53186
Attn: Investment Manager
Fax: (414) 798-4528
GRACE BROTHERS, LTD.
By:_______________________________
Name:
Title:
Address for Notice:
1000 West Diversey Street, Suite 233
Chicago, Illinois 60614
Attn: Bradford Whitmore
Fax: (312) 868-0509
LION ADVISORS, L.P.
on behalf of an account under
management
By: Lion Capital Management, Inc.
General Partner
By:___________________________
Its:__________________________
Address for Notice:
1999 Avenue of the Stars, Suite 1900
Los Angeles, California 90067
Attn: Pandora Pang
Fax: (310) 201-4198
SUN LIFE INSURANCE COMPANY OF AMERICA
By:_______________________________
Name:
Title:
Address for Notice:
1999 Avenue of the Stars, 38th Floor
Los Angeles, California 90067
Attn:
Fax: (310) 772-6150
SUNAMERICA INC.
By:_______________________________
Name:
Title:
Address for Notice:
1999 Avenue of the Stars, 38th Floor
Los Angeles, California 90067
Attn:
Fax: (310) 772-6150
UPCHURCH LIVING TRUST U/A/D 12/14/90
By:_______________________________
Name:
Title:
Address for Notice:
James B. Upchurch
C/O Libra Investments, Inc.
11766 Wilshire Boulevard, Suite 870
Los Angeles, California 90025
Fax: (310) 312-5666
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘SC 13D’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 9/17/95 | | 5 | | | | | None on these Dates |
| | 7/31/95 | | 3 |
| Filed on: | | 5/23/95 |
| | 5/17/95 | | 1 |
| List all Filings |
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