1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 12, 1996
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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 3620
SAN FRANCISCO, CALIFORNIA 94111-4155
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
AMERICAN SHARED HOSPITAL SERVICES 1995 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 3620
SAN FRANCISCO, CALIFORNIA 94111-4155
(NAME AND ADDRESS OF AGENT FOR SERVICE)
415-788-5300
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
WITH A COPY TO:
DANIEL G. KELLY, ESQ.
SIDLEY & AUSTIN
875 THIRD AVENUE
NEW YORK, NEW YORK 10022
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE REGISTRATION STATEMENT BECOMES EFFECTIVE.
------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE
- -------------------------------------------------------------------------------------------------
Common Shares
(without par value)........ 330,000 $1.75(2) $544,458,375 $187.75
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) Issuable upon exercise of options granted pursuant to the American Shared
Hospital Services 1995 Stock Option Plan (the "Plan"). The number of shares
issuable upon exercise of the options is subject to adjustment pursuant to
the terms of the Plan.
(2) The proposed maximum per share and aggregate offering price, calculated
solely for the purpose of calculating the registration fee pursuant to Rule
457(h)(1) and Rule 457(c) under the Securities Act of 1933, is based on the
number of Common Shares as to which options were granted under the Plan on
August 15, 1995 (239,000) and October 6, 1995 (8,000) multiplied by the
exercise price for each of such Common Shares ($1.625), plus the number of
Common Shares as to which options were granted under the Plan on February
16, 1996 (2,666) multiplied by the exercise price for each of such Common
Shares ($1.6875), plus the number of Common Shares as to which options were
granted under the Plan on June 28, 1996 (16,000) multiplied by the exercise
price for each of such Common Shares ($1.625), plus the number of additional
Common Shares registered as a part of this Registration Statement as to
which options may be granted under the Plan (64,334) by $1.75, the average
per share price of the Common Shares reported by the American Stock Exchange
on July 5, 1996.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
2
PROSPECTUS
265,666 SHARES
AMERICAN SHARED HOSPITAL SERVICES
COMMON SHARES
------------------------
This Prospectus has been prepared for American Shared Hospital Services, a
California corporation (the "Company") for use upon resale of shares of the
Company's common stock, no par value (the "Common Shares"), by certain holders
who may acquire up to 265,666 Common Shares upon exercise of options (the
"Options") granted by the Company pursuant to the American Shared Hospital
Services 1995 Stock Option Plan (the "Plan"). The maximum number of Common
Shares which may be offered or sold hereunder is subject to adjustment in the
event of stock splits, dividends, recapitalizations and other similar changes
affecting the Common Shares. Other than the proceeds received by the Company
from the exercise of the Options, the Company will not receive any proceeds from
the sale of the Common Shares offered hereby. The holders of the 265,666 Common
Shares covered in this Prospectus intend to sell the shares offered hereby from
time to time for their own respective accounts in the open market at the prices
prevailing therein or in individually negotiated transactions at such prices as
may be agreed upon. Each such holder will bear all expenses with respect to the
offering of Common Shares by such holder except the costs associated with
preparing and printing this Prospectus. See "Plan of Distribution." The Common
Shares of the Company are traded on the American Stock Exchange (the "AMEX")
under the trading symbol "AMS." The Common Shares are also listed on The Pacific
Stock Exchange. Each such exchange has commenced a review procedure to determine
whether the Common Shares will remain listed. See "Risk Factors -- Possible
Delisting of Common Shares." On July 5, 1996, the last reported sale price of
the Common Shares on the AMEX was $1.75 per share.
The Company was incorporated in the state of California in September 1983
and provides shared diagnostic imaging services and radiosurgery services to
approximately 220 hospitals, medical centers and medical offices located in 22
states and, through a wholly-owned subsidiary, provides insurance services in
two states. The four principal diagnostic imaging services provided by the
Company are Magnetic Resonance Imaging (MRI), Computed Axial Tomography
Scanning, Ultrasound and Nuclear Medicine. Radiosurgery services are performed
by the Company through a subsidiary which provides Gamma Knife units to two
major university medical centers. Its principal executive offices are located at
Four Embarcadero Center, Suite 3620, San Francisco, California 94111 and its
telephone number is (415) 788-5300.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS JULY 12, 1996
3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files periodic reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission, can
be inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's Regional Offices at 7 World Trade Center,
New York, New York 10007 and Northwestern Atrium Center, 500 Madison Street,
Suite 1400, Chicago, Illinois 60661-2511. Copies of such material can be
obtained upon written request addressed to the Commission, Public Reference
Section, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, and its public reference facilities in New York, New York and Chicago,
Illinois, at prescribed rates. The Commission also maintains a Web site that
contains reports, proxy and information statements and other information filed
electronically by the Company at the address http://www.sec.gov. The Company's
Common Shares are listed on the American Stock Exchange and The Pacific Stock
Exchange, and such reports, proxy statements, and other information concerning
the Company can also be inspected at the offices of the American Stock Exchange,
86 Trinity Place, New York, New York 10006 and at the offices of The Pacific
Stock Exchange, 301 Pine Street, San Francisco, California 94104. Statements
contained in this Prospectus as to the contents of any agreement or other
document are not necessarily complete, and in each instance reference is made to
the copy of such agreement or document filed as an exhibit to the Registration
Statement, each such statement being qualified in all respects by such
reference.
No person is authorized to give any information or to make any
representations not contained or incorporated by reference in this Prospectus,
and, if given or made, such information or representation must not be relied
upon as having been authorized by the Company. This Prospectus does not
constitute an offer to sell nor a solicitation of an offer to buy any securities
other than the registered securities to which it relates or an offer of any
securities in any jurisdiction to any person where such an offer would be
unlawful. Neither the delivery of this Prospectus nor any sale made hereunder
shall, under any circumstances create any implication that the information
contained herein is correct as of any time subsequent to the date of this
Prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission under the Securities Act of 1933, as amended, and the Exchange Act
are incorporated by reference in this Prospectus:
(1) Annual Report on Form 10-K for the year ended December 31, 1995;
(2) Quarterly Report on Form 10-Q for the quarter ended March 31,
1996; and
(3) The description of the Common Shares set forth on page 40 in the
Company's Registration Statement on Form S-1, Registration No. 33-63721,
effective as of May 13, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering made hereby shall be deemed to be incorporated
by reference herein and to be a part hereof from the respective dates those
documents are filed. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein and to be a part hereof shall be
deemed to be modified or superseded for purposes of this Prospectus 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 superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of that person, a copy of
any or all of the documents which have been or may be incorporated by reference
in this Prospectus (other than certain exhibits to those documents). Requests
2
4
should be directed to American Shared Hospital Services, Four Embarcadero
Center, Suite 3620, San Francisco, California 94111, Attention: Richard Magary
(telephone 415-788-5300).
RISK FACTORS
In addition to the other information and financial data set forth elsewhere
in this Prospectus, the following specific factors should be considered
carefully by prospective investors in evaluating the Company, its businesses and
an investment in the Common Shares.
DEFAULTS, POTENTIAL BANKRUPTCY AND RESTRUCTURING
As a result of a serious cash shortage during the second half of 1992, the
Company failed to make the required semi-annual interest payments under its
14 3/4% Senior Subordinated Notes Due 1996 and Senior Subordinated Exchangeable
Reset Notes due 1996 (collectively, the "Subordinated Notes") that were due
beginning on October 15, 1992. In addition, the Company suspended lease payments
on a significant portion of its equipment leases beginning on December 1, 1992.
The non-payment of interest and the suspension of lease payments caused defaults
under the Company's Subordinated Notes and equipment leases and gave the holders
of such obligations as well as the lender under the Company's senior secured
working capital facility the right to declare all amounts immediately due and
payable and to reclaim substantially all of the Company's diagnostic imaging
equipment and other assets. The Company stated that if any of such creditors or
lessors had exercised their rights, the Company would have been forced to seek a
liquidation under Chapter 7 or a reorganization under Chapter 11 of the United
States Bankruptcy Code.
Following lengthy negotiations, the Company restructured its debt and most
of its lease obligations (the "Restructuring"). The Restructuring had the effect
of curing all defaults under the indentures governing the Subordinated Notes and
the equipment leases. The Company nevertheless remains highly leveraged and has
substantial fixed payment obligations. If defaults occur in the future, the
Company's creditors and lessors would have the ability to accelerate the
Company's obligations and seize substantially all of its medical imaging
equipment and other assets. There can be no assurance that the Company will be
able to avoid such defaults in the future.
RECENT LOSSES; FINANCIAL CONDITION OF THE COMPANY
The Company has reported significant operating losses in each of the last
three fiscal years. The net loss of the Company (before extraordinary items) was
$15,644,000, $5,537,000, and $12,459,000 for the years ended December 31, 1993,
1994 and 1995, respectively. The Company reported net income of $7,344,000 and a
corresponding reduction of its net capital deficiency in 1995 due to an
extraordinary gain of $19,803,000 from the early extinguishment of debt at a
discount. The Company reported a net loss of $480,000 for the three months ended
March 31, 1996 and had a net capital deficiency of $11,055,000 at March 31,
1996. Unless the Company is able to increase its revenues and/or increase its
operating margins through a reduction in its cost of operations, it will be
unable to achieve profitability. There can be no assurance that the Company will
be profitable in the future.
HIGH DEBT LEVEL
Even following the Restructuring, in which the Company was able to
repurchase at a significant discount and retire $17,694,000 principal amount of
Subordinated Notes, the Company remains highly leveraged. At May 31, 1996, the
Company had approximately $13,499,000 of long-term debt, $773,000 of
Subordinated Notes and approximately $23,045,000 of obligations under capital
leases. Scheduled payments of principal and interest under debt obligations and
capital leases are $13,137,000 during 1996. In addition, scheduled payments
under operating leases and related maintenance and service agreements are
approximately $2,681,000 in 1996. The Company must increase its revenues and
reduce its cost structure and debt payment schedules in order to meet its
obligations as they become due. Despite the Company's initiation in June 1996 of
an offering of Common Shares in exchange for outstanding Subordinated Notes
intended to reduce the Company's debt repayment obligations, there can be no
assurance that the Company will be able to meet its
3
5
scheduled obligations as they become due in 1996. Further, the high debt level
may adversely affect the Company's ability to offer technologically advanced
equipment in the future to customers, which may adversely affect the Company's
ability to secure or retain profitable contracts.
LIMITED ACCESS TO CAPITAL AND FINANCING
The Company is severely limited by covenants in its credit agreements from
incurring additional indebtedness without the consent of its lenders. In
addition, the Company has pledged substantially all of its liquid assets and
substantially all of its tangible personal property to secure its existing debt.
As a result, the Company has very little financial flexibility to address
unforeseen cash needs, to fund future growth or to finance necessary equipment
purchases and upgrades.
POTENTIAL INABILITY TO REPAY MATURING INDEBTEDNESS
A substantial portion of the Company's funded debt, including the
Subordinated Notes which mature in October 1996, will mature in 6 to 33 months.
During 1996 and 1997, $9,493,000 and $8,351,000 plus the then outstanding
balance (currently approximately $3,295,000 at May 31, 1996) of the Company's
revolving credit facility will become due. The Company does not expect to have
sufficient cash resources to pay these obligations at maturity. Accordingly, the
Company will be required to seek new financing to meet its maturing obligations.
There can be no assurance that such financing will be available or that the
terms of any such financing will be acceptable to the Company.
TREND OF DECREASING REVENUES
Despite an increase in revenues for the first quarter of 1996, the
Company's revenues have decreased during the last three fiscal years. Revenues
for the three month period ended March 31, 1996 were $8,939,000 compared to
$8,672,000 for the same period in 1995. However, during each of the three years
ended December 31, 1993, 1994 and 1995, revenues were $39,485,000, $38,545,000
and $34,077,000, respectively. This decrease in revenues is a result of the sale
by the Company of various revenue-producing assets, reduced demand for certain
of the Company's imaging services and severe competition which have led to
reduced pricing for the Company's services. This trend has resulted in
significant operating losses and during the period from late 1992 until May
1995, the Company failed to meet certain of its fixed obligations. The Company
must increase its revenues or decrease its expenses in order to remain viable.
There can be no assurance that the Company will be able to increase its revenues
or decrease its expenses sufficiently to cover its fixed obligations.
POSSIBLE DELISTING OF COMMON SHARES AND LOSS OF ACTIVE TRADING MARKET
The Common Shares are currently traded on the American Stock Exchange (the
"AMEX") and The Pacific Stock Exchange ("The PSE"). The announcement by the
Company of the terms of a contemplated restructuring in early April 1994 was
followed by a significant decline in the market price of the Common Shares. The
Company's losses and net capital deficiency have caused the Company to no longer
satisfy the minimum criteria with respect to net income and net worth for
continued listing published by the AMEX. The per share trading price of the
Common Shares is also below the minimum criteria for continued listing on such
exchange. The closing per share price was $1.75 at July 5, 1996. The Company has
been advised that its net capital deficiency is inconsistent with the criteria
applied by The PSE for continued listing on such exchange. The AMEX and The PSE
are currently reviewing the Company's financial condition following the
Restructuring in order to determine whether the Common Shares will continue to
be listed on such exchanges. Accordingly, no assurances can be given that a
holder of Common Shares will be able to sell Common Shares in the future on a
national or regional securities exchange, or that there will be an active
trading market for the Common Shares or as to the price at which the Common
Shares might trade.
4
6
INABILITY OF COMPANY TO PAY DIVIDENDS
The Company is prohibited by its credit agreements from paying dividends on
the Common Shares and does not anticipate being in a position to pay dividends
for the foreseeable future.
CONTROL BY MAJOR SHAREHOLDERS; POTENTIAL CONFLICT OF SHAREHOLDER INTERESTS
As of June 28, 1996, Ernest A. Bates, M.D., the Company's Chairman and
Chief Executive Officer, owned 2,546,000 Common Shares through directly owned
shares and currently exercisable options, which represents approximately 38% of
the Company's outstanding securities. In addition, as a result of securities
issued to them pursuant to the Restructuring, certain securityholders of the
Company (the "Restructuring Holders") own directly or through immediately
exercisable Warrants, 1,732,000 Common Shares, representing approximately 26% of
the outstanding securities of the Company. Dr. Bates and certain of the
Restructuring Holders acting together will have the power to determine the
outcome of a shareholder vote with respect to any fundamental corporate
transaction, including mergers and the sale of all or substantially all of the
Company's assets. This could have the effect of blocking transactions that a
majority of the other shareholders would otherwise find attractive, or
conversely, permitting the Restructuring Holders to adopt transactions that a
majority of the other shareholders vote to reject. Accordingly, owners of Common
Shares other than Dr. Bates and the Restructuring Holders should recognize that
their interests may conflict and, as a result of the size of their
shareholdings, Dr. Bates and such Restructuring Holders will be able effectively
to determine the course of action to be taken by the Company.
DEPENDENCE ON KEY PERSONNEL
The Company's operations and business are dependent to a significant extent
upon the continued active participation of its founder, Chairman of the Board
and Chief Executive Officer, Ernest A. Bates, M.D. In the past, Dr. Bates has
personally guaranteed various financial obligations of the Company, which has
enabled the Company to obtain credit. Certain of the Company's lenders have also
sought to insure the continued involvement of Dr. Bates by requiring his
personal guarantee of a significant amount of the Company's debt. Should Dr.
Bates become unavailable to the Company for any reason, it could have a material
adverse effect on the Company's business, results of operations, financial
condition and prospects.
INABILITY OF COMPANY TO ACQUIRE ADVANCED TECHNOLOGY
Diagnostic imaging technology is subject to continuous development and
change. New technological breakthroughs may require the Company to acquire new
or technologically improved products to service its customers. There can be no
assurance that the Company's financial resources will enable it to make the
investment necessary to acquire such products. The failure to acquire or use new
technology and products could have a material adverse effect on the Company's
business and results of operations.
EXPANSION OF REIMBURSEMENT PROGRAMS
Customers to which the Company provides services generally receive payment
for patient care from governmental and private insurer reimbursement programs.
As a result, a significant adverse change in such reimbursement policies might
have a material adverse effect on the Company's business and results of
operations. As a result of federal cost-containment legislation currently in
effect, hospital in-patients covered by federally funded reimbursement programs
are classified into diagnostic related groups ("DRG") in accordance with the
patient's diagnosis, necessary medical procedures and other factors. Patient
reimbursement is limited to a predetermined amount for each DRG. Because the
reimbursement payment is predetermined, it does not necessarily cover the cost
of all medical services actually provided. Currently the DRG system is not
applicable to out-patient services, and consequently many health care providers
have an incentive to use contract shared services on an out-patient basis. If
the DRG program is at some future date expanded to include out-patient
reimbursement, such change could have a material adverse effect on the Company's
business and results of operations.
5
7
RISK OF ADVERSE HEALTHCARE REFORM LEGISLATION
In addition to extensive existing government healthcare regulation, there
are numerous initiatives at the federal and state levels for comprehensive
reforms affecting the payment for and availability of healthcare services,
including a number of proposals that would significantly limit reimbursement
under Medicare and Medicaid. It is not clear at this time what proposals, if
any, will be adopted or, if adopted, what effect such proposals would have on
the Company's business. Aspects of certain of these healthcare proposals, such
as cutbacks in the Medicare and Medicaid programs, containment of healthcare
costs on an interim basis by means that could include a short-term freeze on
prices charged by healthcare providers, and permitting greater state flexibility
in the administration of Medicaid, could adversely affect the Company. There can
be no assurance that any currently proposed or future healthcare legislation or
other changes in the administration or interpretation of governmental healthcare
programs will not have an adverse effect on the Company.
BURDEN AND COST OF GOVERNMENT REGULATION
Many aspects of the medical industry in the United States are subject to a
high degree of governmental regulation. Generally, failure to comply with any
such regulations may result in denial of the right to conduct business and
significant fines. For example, legislation in various jurisdictions requires
that health facilities obtain a Certificate of Need ("CON") prior to making
expenditures in excess of specified amounts. The CON procedure can be expensive
and time consuming, and consequently a health care facility may elect to use the
Company's services rather than purchase equipment subject to CON requirements.
CON requirements vary from state to state as they apply to the operations of
both the Company and its customers. In some jurisdictions the Company is
required to comply with CON procedures before operating its services and in
other jurisdictions customers must comply with CON procedures before using the
Company's services. An increase in the complexity or substantive requirements of
such federal, state and local laws and regulations could adversely affect the
Company's business.
LABOR SHORTAGES
Shortages of licensed technicians in the diagnostic imaging field in
certain areas of the country could adversely affect the Company's labor costs in
those areas should the shortage become acute.
COMPETITION
The Company faces severe competition from other providers of diagnostic
imaging services, some of which have greater financial resources than the
Company, and from equipment manufacturers, hospitals, imaging centers and
physician groups owning in-house diagnostic units. Significant competitive
factors in the diagnostic services market include equipment price and
availability, performance quality, ability to upgrade equipment performance and
software, service and reliability. The Company's financial problems have
adversely affected its ability to obtain and retain certain profitable customer
contracts, and its high debt burden may adversely affect its ability to offer
technologically advanced equipment in the future. There can be no assurance that
the Company will be able to retain its competitive position in the medical
imaging industry.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Common
Shares covered by this Prospectus. The Company will, however, receive proceeds
from the exercise of the Options in an amount equal to the number of Common
Shares purchased upon exercise of Options multiplied by the exercise price of
such Options ($1.625 per share for 239,000 Common Shares, $1.6875 per share for
2,666 Common Shares and $1.625 per share for 16,000 Common Shares), the closing
per share price on AMEX for the Common Shares on the respective dates of grant
of the Options. Any net proceeds to the Company resulting from the exercise of
such securities may be used for general working capital purposes.
6
8
SELLING SECURITYHOLDERS
The persons that may offer Common Shares pursuant to this Prospectus (the
"Selling Securityholders") are persons that have heretofore been granted, or may
hereafter be granted, Options pursuant to the Company's 1995 Stock Option Plan
(the "Plan"). The Selling Securityholders hold the following positions with the
Company, respectively: James A. Gordin, Vice President-Finance; Richard Magary,
Senior Vice President-Administration; David Neally, Senior Vice
President-Operations; Gregory Pape, Senior Vice President-Sales and Marketing;
and Craig K. Tagawa, Chief Financial Officer. Willie R. Barnes, John Ruffle,
Matthew Hills and Stanley Trotman are non-employee directors of the Company.
Daniel G. Kelly, Jr. is a partner at the law firm of Sidley & Austin, which
provides legal services for the Company. All of the 265,666 Common Shares of the
Company offered by this Prospectus are being offered for the account of the
Selling Securityholders. All of such Common Shares are shares that may hereafter
be acquired by Selling Securityholders upon the exercise of Options that have
heretofore been granted to Selling Securityholders pursuant to the Plan. Selling
Securityholders that are currently identifiable (i.e., that currently hold
vested options granted pursuant to the Plan), are named in the table below.
Additional Selling Securityholders may be named in one or more supplements to
this Prospectus.
The following table sets forth certain information concerning the Selling
Securityholders beneficially owning Common Shares subject to currently
exercisable Options as of June 28, 1996:
PERCENTAGE OF
COMMON SHARES OWNED
COMMON SHARES NUMBER OF SHARES ----------------------------------
NAME BENEFICIALLY OWNED(2) OFFERED FOR RESALE BEFORE OFFER(9) AFTER SALE(10)
- ----------------------------- --------------------- ------------------ --------------- --------------
James A. Gordin(1)........... 33,100(3) 4,500 * *
Daniel G. Kelly Jr........... 9,500(4) 9,500 * 0
c/o Sidley & Austin
875 Third Avenue
New York, NY 10022
Richard Magary(1)............ 83,300(5) 45,000 1.9% *
David Neally(1).............. 52,800(6) 45,000 1.2% *
Gregory Pape(1).............. 57,500(7) 45,000 1.3% *
Craig K. Tagawa(1)........... 127,600(8) 90,000 2.9% *
- ---------------
* represents less than 1%
(1) The address of each such individual is c/o American Shared Hospital
Services, Four Embarcadero Center, Suite 3620, San Francisco, California
94111.
(2) For purposes of this table, a person is deemed to have "beneficial
ownership" of any shares as of June 28, 1996 which such person has the
right to acquire within 60 days after such date.
(3) Includes 4,500 Common Shares issuable upon exercise of Options granted
pursuant to the Plan, all of which are being offered for resale pursuant to
this Prospectus, and 26,500 Common Shares issuable upon exercise of options
granted pursuant to the Company's 1984 Stock Option Plan (the "1984 Plan").
(4) Represents 9,500 Common Shares issuable upon exercise of Options granted
pursuant to the Plan, all of which are being offered for resale pursuant to
this Prospectus.
(5) Includes 45,000 Common Shares issuable upon exercise of Options granted
pursuant to the Plan, all of which are being offered for resale pursuant to
this Prospectus, and 15,000 Common Shares issuable upon exercise of options
granted pursuant to the 1984 Plan.
(6) Includes 45,000 Common Shares issuable upon exercise of Options granted
pursuant to the Plan, all of which are being offered for resale pursuant to
this Prospectus, and 6,700 Common Shares issuable upon exercise of options
pursuant to the 1984 Plan.
(7) Includes 45,000 Common Shares issuable upon exercise of Options granted
pursuant to the Plan, all of which are being offered for resale pursuant to
this Prospectus, and 12,000 Common Shares issuable upon exercise of options
pursuant to the 1984 Plan.
7
9
(8) Includes 90,000 Common Shares issuable upon exercise of Options granted
pursuant to the Plan, all of which are being offered for resale pursuant to
this Prospectus, and 35,000 Common Shares issuable upon exercise of options
pursuant to the 1984 Plan.
(9) "Before Offer" percentages are based upon 4,342,254 Common Shares issued
and outstanding as of June 28, 1996 plus the Common Shares underlying
Options held by the individual Selling Securityholder listed, and "after
sale" percentages are based upon the number of Common Shares which would be
issued and outstanding after the sale of all 265,666 Common Shares offered
hereunder plus the Common Shares underlying Options held by the individual
Selling Securityholder listed. All figures assume no exercise of any
warrants or other outstanding options, other than with respect to those set
forth for the individual Selling Securityholders listed in the above table,
pursuant to this Prospectus, pursuant to Rule 13d-3 of the Exchange Act.
(10) Does not constitute a commitment to sell any or all of the stated number of
Common Shares to be registered. The number of shares to be offered shall be
determined from time to time by each Selling Securityholder at his sole
discretion.
PLAN OF DISTRIBUTION
The Selling Securityholders are offering the Common Shares for their own
account and not for the account of the Company. The Company will not receive any
proceeds from the Sales by the Selling Securityholders. See "Use of Proceeds."
The Common Shares offered by the Selling Securityholders may be sold from
time to time by the Selling Securityholders directly to purchasers or,
alternatively, may be offered from time to time through agents, brokers, dealers
or underwriters, who may receive compensation in the form of concessions or
commissions from the Selling Securityholders or purchasers of the Common Shares
(which compensation may be in excess of customary commissions). Sales of the
Common Shares may be made in one or more transactions through the AMEX or The
PSE, otherwise in the over-the-counter market, or in privately negotiated
transactions or otherwise, and such sales may be made at the market price
prevailing at the time of sale, a price related to such prevailing market price
or a negotiated price.
Under the Exchange Act and the regulations thereunder, any person engaged
in the distribution of the Common Shares of the Company offered by this
Prospectus may not simultaneously engage in market-making activities with
respect to the Common Shares of the Company during the applicable "cooling off"
periods prior to the commencement of such distribution. In addition, and without
limiting the foregoing, such Selling Shareholder will be subject to applicable
provisions of the Exchange Act and the rules and regulations thereunder
including, without limitation, Rules 10b-6 and 10b-7, which provisions may limit
the timing of purchases and sales of Common Shares by the Selling
Securityholders. Further, the amount of securities to be reoffered or resold
under this Prospectus by any individual Selling Securityholder, and by any other
person with whom a Selling Securityholder is acting in concert in such resale,
may not exceed during any three-month period, the amount specified in Rule
144(e) under the Securities Act.
To the extent required, the Company will use its best efforts to file,
during any period in which offers or sales are being made, one or more
supplements to this Prospectus to describe any material information with respect
to the plan of distribution not previously disclosed in this Prospectus or any
material change to such information in this Prospectus.
LEGAL MATTERS
The validity of the Common Shares that may be offered hereby has been
passed upon for the Company by Sidley & Austin, 555 West Fifth Street, Los
Angeles, California 90013.
8
10
EXPERTS
The consolidated financial statements and schedule of American Shared
Hospital Services at December 31, 1995 and December 31, 1994, and for each of
the three years in the period ended December 31, 1995, appearing in American
Shared Hospital Services' Annual Report on Form 10-K for the year ended December
31, 1995 have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference, which report contains an explanatory paragraph with respect to the
substantial doubt surrounding the Company's ability to continue as a going
concern mentioned in Note 1 to the consolidated financial statements. Such
consolidated financial statements and schedule are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
9
11
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have heretofore been filed by American Shared
Hospital Services (the "Company" or the "Registrant"), with the Commission
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), and
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference herein and shall be deemed to be a part hereof:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996; and
(3) The description of the Company's Common Shares contained on page
40 of the Company's Registration Statement on Form S-1, Registration No.
33-63721, effective as of May 13, 1996.
In addition, all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and made a part hereof from their
respective dates of filing (such documents, and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents"); provided, however,
that the documents enumerated above or subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act in each year
during which the offering made by this Registration Statement is in effect prior
to the filing with the Commission of the Company's Annual Report on Form 10-K
covering such year shall not be Incorporated Documents or be incorporated by
reference in this Registration Statement or be a part hereof from and after the
filing of such Annual Report on Form 10-K.
Any statement contained in an Incorporated Document 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
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
See "Experts" in the accompanying Prospectus.
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. The
Company'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 Company's Articles of Incorporation, as amended,
10
12
provides that the Company is authorized to provide indemnification to its agents
in excess of the indemnification otherwise permitted by Section 317 of the GCL.
Article IX, Section 7, of the Bylaws of the Company contains the following
indemnification provision:
Section 7. Indemnification of Corporate Agents; Purchase of Liability
Insurance.
(a) The Corporation shall, to the maximum extent permitted by the
General Corporation Law of the state of California, and as the same may
from time to time be amended, indemnify each of its agents against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with any proceeding to which such person
was or is a party or is threatened to be made a party arising by reason of
the fact that such person is or was an agent of the Corporation. For
purposes of this Section 7, an "agent" of the Corporation includes any
person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise, or was
a director, officer, employee or agent of a foreign or domestic corporation
which was a predecessor corporation of the Corporation or of another
enterprise at the request of the such predecessor corporation; "proceeding"
means any threatened, pending or completed action or proceeding, whether
civil, criminal, administrative or investigative, and includes an action or
proceeding by or in the right of the Corporation to procure a judgment in
its favor; and "expenses" includes attorneys' fees and any expenses of
establishing a right to indemnification under this subdivision (a).
(b) The Corporation shall, if and to the extent the Board of Directors
so determines by resolution, purchase and maintain insurance in an amount
and on behalf of such agents of the Corporation as the Board may specify in
such resolution against any liability asserted against or incurred by the
agent in such capacity or arising out of the agent's status as such whether
or not the Corporation would have the capacity to indemnify the agent
against such liability under the provisions of this Section 7.
Each of the directors of the Corporation has entered into an
Indemnification Agreement with the Company pursuant to which the Company is,
subject to the limitations in the following sentence, obligated to indemnify the
directors to the fullest extent provided by law, notwithstanding such
indemnification not specifically being provided in the Company's Articles,
Bylaws or by statute. The Company 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The shares to be reoffered or resold pursuant to this Registration
Statement are to be issued by the Company upon the exercise by the Selling
Securityholders of Options to purchase Common Shares issued by the Company
pursuant to the terms of its 1995 Stock Option Plan (the "Plan"). Under the
terms of the Plan, eligible participants include only executive officers of the
Company, non-employee members of the Board of Directors and certain advisors or
consultants to the Company. Such Options were issued solely to certain executive
officers of the Company, non-employee directors and one consultant to the
Company under the exemption provided by Section 4(2) of the Securities Act. No
consideration was paid by the recipients for such Options.
11
13
ITEM 8. EXHIBITS.
The following exhibits are filed with this Registration Statement.
EXHIBIT
NUMBER DESCRIPTION
------ --------------------------------------------------------------------------
4.1* American Shared Hospital Services 1995 Stock Option Plan. (Incorporated by
reference to Exhibit A of the Company's Proxy Statement filed with the
Commission on August 31, 1995)
4.2* Indenture between American Shared Hospital Services and First Interstate
Bank of California, as Trustee, dated October 15, 1988, relating to the
Senior Subordinated Exchangeable Reset Notes Due 1996. (Incorporated by
reference to Exhibit 4.1 to the Company's Registration Statement on Form
S-2, Registration No. 33-23416)
4.3* Indenture between American Shared Hospital Services and First Interstate
Bank of California, as Trustee, dated October 15, 1988, relating to the
14 3/4% Senior Subordinated Notes Due 1996. (Incorporated by reference to
Exhibit 4.2 to the Company's Registration Statement on Form S-2,
Registration No. 33-23416)
4.4* Supplemental Indenture No. 1 dated as of October 15, 1989, to the
Indenture between American Shared Hospital Services and First Interstate
Bank of California, as Trustee, dated October 15, 1988, relating to the
Senior Subordinated Exchangeable Reset Notes Due 1996. (Incorporated by
reference to Exhibit 4.3 to the Company's Annual Report on Form 10-K for
the year ended December 31, 1989)
4.5* Supplemental Indenture No. 2 dated as of May 17, 1995 to the Indenture
between American Shared Hospital Services and First Interstate Bank of
California, as Trustee, dated October 15, 1988 relating to the Senior
Subordinated Exchangeable Reset Notes Due 1996. (Incorporated by reference
to Exhibit 4.4 to the Company's Registration Statement on Form S-1,
Registration No. 33-63721)
4.6* Supplemental Indenture No. 1 dated as of May 17, 1995, to the Indenture
between American Shared Hospital Services and First Interstate Bank of
California, as Trustee, dated October 15, 1988, relating to the 14 3/4%
Senior Subordinated Notes Due 1996. (Incorporated by reference to Exhibit
4.5 to the Company's Registration Statement on Form S-1, Registration No.
33-63721)
4.7* Form of Common Stock Purchase Warrant held by Selling Noteholders of
American Shared Hospital Services. (Incorporated by reference to Exhibit
4.6 to the Company's Registration Statement on Form S-1, Registration No.
33-63721)
4.8* Common Stock Purchase Warrant for Shares of Common Stock of American
Shared Hospital Services held by General Electric Company, acting through
GE Medical Systems. (Incorporated by reference to Exhibit 4.7 to the
Company's Registration Statement on Form S-1, Registration No. 33-63721)
4.9* Registration Rights Agreement dated as of May 17, 1995 by and among
American Shared Hospital Services, the Holders referred to in the Note
Purchase Agreement, dated as of May 12, 1995 and General Electric Company,
acting through GE Medical Systems. (Incorporated by reference to Exhibit
4.8 to the Company's Registration Statement on Form S-1, Registration No.
33-63721)
4.10* Ernest A. Bates Stock Option Agreement dated August 15, 1995.
(Incorporated by reference to Exhibit B to the Company's Proxy Statement
filed with the Commission on August 31, 1995)
5 Opinion of Sidley & Austin regarding legality of the Common Shares.
23.1* Consent of Sidley & Austin. (Incorporated by reference to Exhibit 5
hereof)
23.2 Consent of Ernst & Young LLP.
12
14
- ---------------
* Incorporated by reference as an exhibit hereto. Following the description of
such exhibit is a reference to the copy of the exhibit heretofore filed with
the Commission, to which there have been no subsequent amendments or changes.
ITEM 9. UNDERTAKINGS.
The Company 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 (the "Securities Act");
(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;
(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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, 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 hereby which remain unsold at the
termination of the offering.
(b) That, for the purposes of determining any liability under the
Securities Act, each filing of the Company's Annual Report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) That, insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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 Securities Act and will be governed by the final adjudication of such
issue.
13
15
SIGNATURES
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
of 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 the 11th day
of July, 1996.
AMERICAN SHARED HOSPITAL SERVICES
By /s/ ERNEST A. BATES, M.D.
------------------------------------
Ernest A. Bates, M.D.
Chairman of the Board and
Chief Executive Officer
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 and July 11, 1996
- ----------------------------------------------- Chief Executive Officer
Ernest A. Bates, M.D.
/s/ Willie R. Barnes Director and Secretary July 11, 1996
- -----------------------------------------------
Willie R. Barnes
/s/ Matthew Hills Director July 11, 1996
- -----------------------------------------------
Matthew Hills
/s/ John F. Ruffle Director July 11, 1996
- -----------------------------------------------
John F. Ruffle
/s/ Stanley S. Trotman, Jr. Director July 11, 1996
- -----------------------------------------------
Stanley S. Trotman, Jr.
/s/ Augustus A. White, M.D. Director July 11, 1996
- -----------------------------------------------
Augustus A. White, III, M.D.
/s/ Charles B. Wilson, M.D. Director July 11, 1996
- -----------------------------------------------
Charles B. Wilson, M.D.
/s/ Craig K. Tagawa Chief Financial Officer July 11, 1996
- ----------------------------------------------- (Principal Accounting Officer)
Craig K. Tagawa
14
16
INDEX TO EXHIBITS
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------ ---------------------------------------------------------------------- ------------
4.1 American Shared Hospital Services 1995 Stock Option Plan(1)........... *
4.2 Indenture between American Shared Hospital Services and First
Interstate Bank of California, as Trustee, dated October 15, 1988,
relating to the Senior Subordinated Exchangeable Reset Notes Due
1996(2)............................................................... *
4.3 Indenture between American Shared Hospital Services and First
Interstate Bank of California, as Trustee, dated October 15, 1988,
relating to the 14 3/4% Senior Subordinated Notes Due 1996(3)......... *
4.4 Supplemental Indenture No. 1 dated as of October 15, 1989, to the
Indenture between American Shared Hospital Services and First
Interstate Bank of California, as Trustee, dated October 15, 1988,
relating to the Senior Subordinated Exchangeable Reset Notes Due
1996(4)............................................................... *
4.5 Supplemental Indenture No. 2 dated as of May 17, 1995, to the
Indenture between American Shared Hospital Services and First
Interstate Bank of California, as Trustee, dated October 15, 1988
relating to the Senior Subordinated Exchangeable Reset Notes Due
1996(5)............................................................... *
4.6 Supplemental Indenture No. 1 dated as of May 17, 1995, to the
Indenture between American Shared Hospital Services and First
Interstate Bank of California, as Trustee, dated October 15, 1988,
relating to the 14 3/4% Senior Subordinated Notes Due 1996(6)......... *
4.7 Form of Common Stock Purchase Warrant held by Selling Noteholders of
American Shared Hospital Services(7).................................. *
4.8 Common Stock Purchase Warrant for Shares of Common Stock of American
Shared Hospital Services held by General Electric Company, acting
through GE Medical Systems(8)......................................... *
4.9 Registration Rights Agreement dated as of May 17, 1995 by and among
American Shared Hospital Services, the Holders referred to in the Note
Purchase Agreement, dated as of May 12, 1995 and General Electric
Company, acting through GE Medical Systems(9)......................... *
4.10 Ernest A. Bates Stock Option Agreement dated August 15, 1995(10)...... *
5 Opinion of Sidley & Austin regarding legality of the Common Shares....
23.1 Consent of Sidley & Austin(11)........................................ *
23.2 Consent of Ernst & Young LLP..........................................
- ---------------
* Not applicable. See the footnote below for the reference to the copy of the
Exhibit incorporated by reference as an Exhibit hereto as such Exhibit has
been heretofore filed with the Commission, to which there have been no
amendments or changes.
(1) Previously filed as Exhibit A to the Company's Proxy Statement filed with
the Commission on August 31, 1995.
(2) Previously filed as Exhibit 4.1 to the Company's Registration Statement on
Form S-2, Registration No. 33-23416.
(3) Previously filed as Exhibit 4.2 to the Company's Registration Statement on
Form S-2, Registration No. 33-23416.
(4) Previously filed as Exhibit 4.3 to the Company's Annual Report on Form 10-K
for the year ended December 31, 1989.
17
(5) Previously filed as Exhibit 4.4 to the Company's Registration Statement on
Form S-1, Registration No. 33-63721.
(6) Previously filed as Exhibit 4.5 to the Company's Registration Statement on
Form S-1, Registration No. 33-63721.
(7) Previously filed as Exhibit 4.6 to the Company's Registration Statement on
Form S-1, Registration No. 33-63721.
(8) Previously filed as Exhibit 4.7 to the Company's Registration Statement on
Form S-1, Registration No. 33-63721.
(9) Previously filed as Exhibit 4.8 to the Company's Registration Statement on
Form S-1, Registration No. 33-63721.
(10) Previously filed as Exhibit B to the Company's Proxy Statement filed with
the Commission on August 31, 1995.
(11) Incorporated by reference to Exhibit 5 of this Registration Statement.