AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON _________ REG. NO. _____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN SHARED HOSPITAL SERVICES
(Exact name of Registrant as specified in its charter)
CALIFORNIA 94-2918118
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Four Embarcadero Center, Suite 3700
San Francisco, California 94111-4107 94111-4107
(Address of principal executive offices) (Zip Code)
AMERICAN SHARED HOSPITAL SERVICES
2001 STOCK OPTION PLAN
(Full title of the plan)
ERNEST A. BATES, M.D.
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
AMERICAN SHARED HOSPITAL SERVICES
FOUR EMBARCADERO CENTER, SUITE 3700
SAN FRANCISCO, CALIFORNIA 94111-4107
(415) 788-5300
(Name, address and telephone number, including area code, of agent for service)
Copy to:
WILLIE R. BARNES, ESQ.
MUSICK, PEELER & GARRETT LLP
ONE WILSHIRE BLVD., 21ST FLOOR
LOS ANGELES, CALIFORNIA 90017
(213) 629-7600
CALCULATION OF REGISTRATION FEE
Proposed
Maximum Proposed
Offering Price Maximum Amount of
Title of Securities Amount to be Per Aggregate Registration
to be Registered Registered Share(1) Offering Price(1) Fee
------------------- ------------ -------------- ----------------- ------------
Common Shares 250,000 Shares $3.07 $767,500 $191.88
(without par value)
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended,
based on the last reported sale price of the Registrant's Common Shares
as reported on the American Stock Exchange November 5, 2001.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE UPON FILING IN ACCORDANCE
WITH RULE 462 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by American Shared Hospital Services (the
"Registrant") with the Securities and Exchange Commission (the "Commission")
under the Securities Exchange Act of 1934 (the "Exchange Act") are incorporated
herein by reference:
(a) the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 2000;
(b) all other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year
covered by the Annual Report on Form 10-K referred to in (a) above.
(c) the description of the Registrant's Common Shares set forth
on page 40 in the Registrant's Registration Statement on Form S-1 Registration
No. 33-63721, effective as of May 13, 1996.
Each document filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Registration Statement, but prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered herein have been sold or that deregisters all such securities then
remaining unsold, will be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or amended, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
WILLIE R. BARNES, the Secretary and a Director of the Registrant, is a
partner in the law firm of Musick, Peeler & Garrett LLP, which performed legal
services for the Registrant in the past. The Registrant anticipates that Musick,
Peeler & Garrett will continue to perform legal services for the Registrant in
2001. The management of the Registrant is of the opinion that the fees paid to
Musick, Peeler & Garrett LLP are
comparable to the fees that would have been paid for comparable legal services
from a law firm not affiliated with the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 204(10) of the California General Corporation Law ("GCL")
permits the inclusion in the articles of incorporation of a California
corporation of a provision eliminating or limiting the personal liability of a
director for monetary damages in an action brought by or in the right of the
corporation for breach of a director's duties to the corporation and its
shareholders. The foregoing provision is subject to certain qualifications set
forth in the GCL including, without limitation, that such provision may not
limit or eliminate liability of directors for (i) intentional misconduct, (ii)
transactions from which a director derived an improper personal benefit, (iii)
reckless disregard of the director's duties, and (iv) an unexcused pattern of
inattention that amounts to an abdication of the director's duties. The
Registrant's Articles of Incorporation, as amended, contains an article
eliminating the liability of the directors for monetary damages to the fullest
extent permissible under California law.
Section 317 of the GCL permits the indemnification of officers,
directors, employees and agents of California corporations. Article Fifth,
Section 2, of the Registrant's Articles of Incorporation, as amended, provides
that the Registrant is authorized to provide indemnification to its agents in
excess of the indemnification otherwise permitted by Section 317 of the GCL.
Article IX, Sections 7 and 8, of the Bylaws of the Company contains the
following indemnification provisions:
Section 7. MANDATORY INDEMNIFICATION OF DIRECTORS. The corporation
shall, to the maximum extent and in the manner permitted by the
California Corporations Code ("Code"), indemnify each of its directors
against expenses (as defined in Section 317(a) of the Code), judgments,
fines, settlements, and other amounts actually and reasonably incurred
in connection with any proceeding (as defined in Section 317(a) of the
Code), arising by reason of the fact that such person is or was an agent
of the corporation. For purposes of this Article IX, a "director" of the
corporation includes any person (i) who is or was a director of the
corporation, (ii) who is or was serving at the request of the
corporation as a director of another corporation, partnership, joint
venture, trust or other enterprise, or (iii) who was a director of a
corporation which was a predecessor corporation of the corporation or of
another enterprise at the request of such predecessor corporation.
Section 8. PERMISSIVE INDEMNIFICATION. The corporation shall have the
power, to the extent and in the manner permitted by the Code, to
indemnify each of its officers, employees and agents against expenses
(as defined in Section 317(a) of the Code), judgments, fines,
settlements, and other amounts actually and reasonably incurred in
connection with
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any proceeding (as defined in Section 317(a) of the Code), arising by
reason of the fact that such person is or was an agent of the
corporation. For purposes of this Article IX, an "employee" or "agent"
of the corporation (other than a director, includes any person (i) who
is or was an employee or agent of the corporation, (ii) who is or was
serving at the request of the corporation as an employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, or (iii) who was an employee or agent of the corporation
which was a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
Each of the directors of the Registrant has entered into an
Indemnification Agreement with the Registrant pursuant to which the Registrant
is, subject to the limitations in the following sentence, obligated to indemnify
the directors to the fullest extent provided by law, notwithstanding such
indemnification is not specifically being provided in the Registrant's Articles,
Bylaws or by statute. The Registrant is not obligated under the Indemnification
Agreement to indemnify directors for the following: acts or omission or
transactions from which a director may not be relieved from liability under
Section 204 of the California General Corporation Law, a proceeding or action
instituted by an appropriate bank regulatory agency, claims initiated by such
director except with respect to proceedings to enforce a right of
indemnification unless the Board has approved the initiation or bringing of such
suit, a proceeding instituted by a director to enforce the Indemnification
Agreement which is found by a court of competent jurisdiction to be not in good
faith or frivolous, insured claims or claims under Section 16(b) of the
Securities Exchange Act of 1934.
The foregoing indemnification provisions are broad enough to encompass
certain liabilities of directors under the Securities Act of 1933, as amended.
The Bylaws authorize the Registrant to purchase and maintain insurance
on behalf of any person who is or was an agent of the Registrant against any
liability asserted against or incurred by such person in such capacity or
arising out of such person's status as such, whether or not the Registrant would
have the power to indemnify him against such liability under the provisions of
the Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following is a complete list of exhibits filed as part of this
Registration Statement.
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Exhibit
Number Description
- ------- -----------
5.01 Opinion and consent of Musick, Peeler & Garrett LLP
23.01 Consent of Counsel is contained in Opinion of Counsel filed as
Exhibit 5.01.
23.02 Consent of Moss Adams LLP.
23.03 Consent of Grant Thornton LLP
24.01 Powers of Attorney (contained within Signature Page)
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for purposes of determining any liability under the Securities
Act of 1933, as amended, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Act"), may be permitted to directors, officers and
controlling persons of
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the Registrant pursuant to the foregoing provisions or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act, and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of San Francisco, State of California, on
____________, 2001.
AMERICAN SHARED HOSPITAL SERVICES
By: /s/ ERNEST A. BATES, M.D.
-------------------------------
Ernest A. Bates, M.D.
Chairman of the Board and
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Ernest A. Bates, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place, and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
Registration Statement on Form S-8 and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, to all intent and purposes and
as full as they might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ ERNEST A. BATES, M.D. Chairman of the Board, Chief November 13, 2001
- ----------------------------- Executive Officer and Director
Ernest A. Bates, M.D.
/s/ WILLIE R. BARNES Director and Secretary November 13, 2001
- -----------------------------
Willie R. Barnes
/s/ JOHN F. RUFFLE Director November 13, 2001
- -----------------------------
John F. Ruffle
/s/ STANLEY S. TROTMAN, JR. Director November 13, 2001
- -----------------------------
Stanley S. Trotman, Jr.
/s/ CHARLES B. WILSON, M.D. Director November 13, 2001
- -----------------------------
Charles B. Wilson, M.D.
/s/ CRAIG K. TAGAWA Chief Operating Officer and November 13, 2001
- ----------------------------- Chief Financial Officer
Craig K. Tagawa
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