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EXHIBIT 4.13
AGREEMENT AND PROXY
This AGREEMENT AND PROXY (the "Agreement"), dated as of May 12,
1995, is made by Xxxxxx X. Xxxxx, M.D. ("Xx. Xxxxx"), in order to induce ANCHOR
NATIONAL LIFE INSURANCE COMPANY, a California corporation, SUN LIFE INSURANCE
COMPANY OF AMERICA, an Arizona corporation, and SUNAMERICA INC., a Maryland
corporation (collectively, "SunAmerica"), AIF II, L.P., a Delaware limited
partnership, LION ADVISORS, L.P., a Delaware limited partnership, on behalf of
an account under management (together with AIF II, L.P., "Apollo"), XXXXX
XXXXXXXX, LTD., an Illinois limited partnership, and XXXXXXXX LIVING TRUST U/A/D
12/14/90 (each a "Holder," and collectively the "Holders") to enter into the
Note Purchase Agreement, dated the date hereof (the "Note Purchase Agreement").
NOW THEREFORE, Xx. Xxxxx hereby agrees as follows:
1. Xx. Xxxxx shall (a) not revoke any proxy granted by him or
on his behalf in connection with the April 7, 1995 shareholders meeting of
American Shared Hospital Services, a California corporation (the "Company") or
any adjournments thereof; and (b) cause the Company to reconvene the April 7,
1995 shareholders meeting on May 18, 1995 and to take the shareholders vote and
all related actions at such meeting with respect to the matters described in the
Company's Proxy Statement dated February 14, 1995 (the "Matters") on such date.
2. Xx. Xxxxx hereby represents that he is the legal and
beneficial owner of 1,005,000 shares of Common Stock, no par value (the "Common
Stock"), of the Company and he hereby irrevocably appoints and constitutes
Apollo Advisors, L.P. and SunAmerica Inc., jointly and not severally, in
accordance with the provisions of Section 705 of the California General
Corporation Law, as his attorney and proxy, with full power of substitution, to
attend meetings, vote, give consents and to otherwise act on his behalf to (a)
cause the Company to reconvene the April 7, 1995 shareholders meeting (including
all adjournments thereof) and take the shareholders vote with respect to all
Matters, and (b) vote such shares with respect to all Matters; provided,
that this proxy shall (i) not become effective until the first to occur of a
default or other breach (x) by Xx. Xxxxx of any provision hereof, or (y) by the
Corporation of the penultimate paragraph of the Letter Agreement, dated May 5,
1995, among the Company, Apollo and SunAmerica, and (ii) terminate (x)
immediately if it is used for any purpose other than as specified herein or (y)
on May 25, 1995 if the transactions contemplated by the Exchange Agreement,
dated February 14, 1995, as amended by the Note Purchase Agreement (the
"Exchange Agreement") have not been consummated by such date.
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3. Xx. Xxxxx hereby represents that (a) this Agreement is a
valid and binding obligation of Xx. Xxxxx enforceable in accordance with its
terms, except to the extent that such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium, or other similar laws affecting
enforcement of creditor's rights generally, and by general principles of equity
(regardless of whether enforcement is considered in a proceeding at law or in
equity) and (b) the proxy granted herein is given in consideration of the
continuation of credit to the Company by the Holders.
4. Xx. Xxxxx shall use all reasonable efforts to obtain all
consents and approvals, and to do all other things, necessary for the
transactions contemplated by this Agreement and the Note Purchase Agreement and
to take such further action and to deliver or cause to be delivered to each
other at the closing and at such other times thereafter as shall be reasonably
agreed by such additional agreements or instruments as any of them may
reasonably request for the purpose of carrying out this Agreement and the
agreements and transactions contemplated hereby.
5. Xx. Xxxxx hereby acknowledges and agrees that irreparable
harm, for which there may be no adequate remedy at law and for which the
ascertainment of damages would be difficult, would occur in the event any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Consequently, Xx. Xxxxx hereby agrees
that each Holder shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically the
terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, in each instance without being required to post
bond or other security and in addition to, and without having to prove the
inadequacy of, other remedies at law.
6. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF CALIFORNIA, WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
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IN WITNESS WHEREOF, the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above written. By their
acceptance hereof, the Holders hereby agree that the exercise of the proxy
granted to them by Xx. Xxxxx pursuant to Section 2 hereof shall constitute their
agreement to waive any then remaining conditions to the Holders' performance
under the Exchange Agreement so long as the transactions contemplated by the
Exchange Agreement are consummated on or before May 25, 1995.
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Xxxxxx X. Xxxxx, M.D.
Accepted and Agreed to:
AIF II, L.P.
By: Apollo Advisors, L.P.
Managing General Partner
By: Apollo Capital Management, Inc.
General Partner
By:
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Its:
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ANCHOR NATIONAL LIFE INSURANCE
COMPANY
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By:___________________________________
Its:__________________________________
XXXXX XXXXXXXX, LTD.
By:__________________________________
Its:_________________________________
LION ADVISORS, L.P.
on behalf of an account
under management
By: Lion Capital Management, Inc.
General Partner
By:
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Its:
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SUN LIFE INSURANCE COMPANY OF
AMERICA
By:
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Its:
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SUNAMERICA INC.
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By:_______________________________
Its:______________________________
XXXXXXXX LIVING TRUST U/A/D 12/14/90
By:_______________________________
Its: Trustee
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