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EXHIBIT 4.8
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 Registration
Statement (including, without limitation, a prospectus that discloses
information previously
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omitted from a prospectus filed as part of an effective registration statement
in reliance upon Rule 430A promulgated under the Securities 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
Registration 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 and the
GE Warrant, upon the respective original issuance thereof, and at all times
subsequent thereto, until, in the case of any such security, (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
GE Medical Systems 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.
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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
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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
allocated 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 Shareholders 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
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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 underwriter 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 Shareholders
and Other Holders in excess of the amount of securities 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 continu-
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ously 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 obligations
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 Registration
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
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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 amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified 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 Registrable
Securities, the Special Counsel and the managing underwriters, 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 notification 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
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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 connection with the offering and sale of the Registrable Securities covered
by such Prospectus or any amendment or supplement thereto.
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(g) Prior to any public offering of Registrable
Securities, to register or qualify or cooperate with the selling Shareholders of
Registrable Securities, the underwriters, 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
Registration 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 certificates 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 contemplated 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 thereunder, 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
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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 necessary, 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 representative
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
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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
administrative 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 Securities 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 request 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
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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 distribution 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 registration 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 under-
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writers, if any, or Shareholders of a majority of the Registrable Securities
being sold may designate)), (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
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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 Registrable
Securities. In connection with any Registration Statement 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 expressly 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
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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 provided 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
proportion 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
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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 reimbursement
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,
notwithstanding 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.
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(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 Securities.
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 Shareholders 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 communications
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 provisions 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
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000,
Fax: (000) 000-0000, Attention: Chief Executive 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 transfer 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.
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(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 Registrable Securities. The Company may not assign its rights
or obligations hereunder without the prior written consent of each Shareholder
of any Registrable Securities. Notwithstanding 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 PERFORMED 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 unenforceable, 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 invalidated, 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 proceeding
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.
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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, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Pandora Pang
Fax: (000) 000-0000
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ANCHOR NATIONAL LIFE INSURANCE COMPANY
By:_______________________________
Name:
Title:
Address for Notice:
0000 Xxxxxx xx xxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn:
Fax: (000) 000-0000
GENERAL ELECTRIC COMPANY
acting through GE MEDICAL SYSTEMS
By:_______________________________
Name:
Title:
Address for Notice:
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
Attn: Investment Manager
Fax: (000) 000-0000
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XXXXX XXXXXXXX, LTD.
By:_______________________________
Name:
Title:
Address for Notice:
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx Xxxxxxxx
Fax: (000) 000-0000
LION ADVISORS, L.P.
on behalf of an account under
management
By: Lion Capital Management, Inc.
General Partner
By:___________________________
Its:__________________________
Address for Notice:
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Pandora Pang
Fax: (000) 000-0000
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SUN LIFE INSURANCE COMPANY OF AMERICA
By:_______________________________
Name:
Title:
Address for Notice:
0000 Xxxxxx xx xxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn:
Fax: (000) 000-0000
SUNAMERICA INC.
By:_______________________________
Name:
Title:
Address for Notice:
0000 Xxxxxx xx xxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn:
Fax: (000) 000-0000
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XXXXXXXX LIVING TRUST U/A/D 12/14/90
By:_______________________________
Name:
Title:
Address for Notice:
Xxxxx X. Xxxxxxxx
C/O Libra Investments, Inc.
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
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