STOCKHOLDER AGREEMENT dated
as of March 12, 1998 among EMBARCADERO
HOLDING CORP. I, a Delaware corporation
("Embarcadero I"), EMBARCADERO HOLDING
CORP. II, a Delaware corporation
("Embarcadero II" and, together with
Embarcadero I, the "Purchasers"), and
the parties listed on Schedule A
attached hereto (each, a "Stockholder"
and, collectively, the "Stockholders").
WHEREAS, the Purchasers, Alliance Imaging, Inc., a Delaware corporation,
American Shared Hospital Services, a California corporation ("Parent") and MMRI,
Inc., a California corporation and a wholly-owned subsidiary of Parent ("M Sub")
propose to enter into a Securities Purchase Agreement dated as of the date
hereof (as the same may be amended, modified or supplemented, the "Purchase
Agreement") providing for the purchase by the Purchasers of the Shares, upon the
terms and subject to the conditions set forth in the Purchase Agreement; and
WHEREAS, each Stockholder owns the number of shares of Parent Common Stock
set forth opposite his or its name on Schedule A attached hereto (such shares of
Parent Common Stock, together with any other shares of capital stock of Parent
acquired by such Stockholders after the date hereof (including, without
limitation, through the exercise of any options, warrants, rights to acquire
capital stock or similar instruments), being collectively referred to herein as
the "Subject Shares"); and
WHEREAS, as a condition to the Purchasers entering into the Purchase
Agreement, the Purchasers have requested that each Stockholder enter into this
Agreement.
NOW, THEREFORE, to induce the Purchasers to enter into, and in
consideration of its entering into, the Purchase Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows (capitalized terms used herein but not
defined herein have the meanings set forth in the Purchase Agreement):
1. Representations and Warranties of each Stockholder.
Each Stockholder hereby represents and warrants, severally and not
jointly, to each of the Purchasers as of the date hereof in respect of himself
or itself as follows:
(a) Authority. The Stockholder has all requisite power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement by the
Stockholder, and the consummation of the transactions contemplated hereby, have
been duly authorized by all necessary action on the part of the Stockholder.
This Agreement has been duly executed and delivered by the Stockholder and
constitutes a valid and binding obligation of the Stockholder enforceable
against the Stockholder in accordance with its terms. Except for informational
filings with the SEC, the execution and delivery of this Agreement does not, and
the consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, (i) conflict with, or result in any violation of, or
default (with or without notice or lapse of time or both) under any provision
of, any certificate or articles of incorporation, bylaws, certificate or
articles of limited partnership, limited partnership agreement, trust agreement,
loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license, judgment, order,
notice, decree, statute, law, ordinance, rule or regulation applicable to the
Stockholder or to the Stockholder's property or assets, including the Subject
Shares, (ii) require any filing with, or permit, authorization, consent or
approval of, or notice to, any federal, state or local government or any court,
tribunal, administrative agency or commission or other governmental or
regulatory authority or agency, domestic, foreign or supranational, or (iii)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to the Stockholder or any of the Stockholder's properties or assets,
including the Subject Shares. If the Stockholder is a natural person and is
married, and the Stockholder's Subject Shares constitute community property or
otherwise need spousal or other approval for this Agreement to be legal, valid
and binding, this Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, the Stockholder's spouse,
enforceable against such spouse in accordance with its terms. No trust of which
such Stockholder is a trustee requires the consent of any beneficiary to the
execution and delivery of this Agreement or to the consummation of the
transactions contemplated hereby.
(b) The Subject Shares. The Stockholder is the record and beneficial
owner of, and has good and marketable title to, the Subject Shares set forth
opposite his or its name on Schedule A attached hereto, free and clear of any
Encumbrances. The Stockholder does not own, of record or beneficially, any
shares of capital stock of the Parent or any Subsidiary other than the Subject
Shares set forth opposite his or its name on Schedule A attached hereto. The
Stockholder has the sole right to vote such Subject Shares, and none of such
Subject Shares is subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting of such Subject Shares, except as
contemplated by this Agreement.
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(c) Brokers. No broker, finder, investment banker or other person is
entitled to any brokerage, finder's or other fee or commission in connection
with the execution and delivery
of this Agreement by such Stockholder or the performance by such Stockholder of
its or his obligations hereunder.
2. Voting of Shares.
Each Stockholder hereby severally agrees, subject to the terms and
conditions set forth herein, to vote (or cause to be voted) the Subject Shares
in favor of (i) the Parent entering into the Purchase Agreement and the Related
Documents to be entered into by Parent, and (ii) approval of the terms thereof
and each of the transactions contemplated by the Purchase Agreement and the
Related Documents, at any meeting of stockholders of Parent called to vote upon
the Purchase Agreement and the Related Documents or at any adjournment thereof
or in any other circumstances upon which a vote, consent or other approval
(including by written consent) with respect to the foregoing is sought.
3. Covenants of Each Stockholder.
Until the earlier of the Closing Date and the termination of this
Agreement in accordance with Section 8, each Stockholder, severally and not
jointly, agrees as follows:
(a) At any meeting of stockholders of Parent or at any adjournment
thereof or in any other circumstances upon which the Stockholder's vote, consent
or other approval is sought, the Stockholder shall vote (or cause to be voted)
the Subject Shares (and each class thereof) against (i) any Alternative
Transaction, (ii) any amendment of Parent's certificate of incorporation or
by-laws or other proposal or transaction involving Parent, which amendment or
other proposal or transaction could impede, frustrate, prevent or nullify the
Purchase Agreement, the Related Documents or any of the transactions
contemplated thereby or change in any manner the voting rights of any class of
Parent's capital stock, or (iii) any action that could cause Parent to breach
any representation, warranty or covenant contained in the Purchase Agreement or
the Related Documents. The Stockholder further agrees not to enter into any
agreement or take any action inconsistent with the foregoing.
(b) The Stockholder shall not (A) sell, transfer, give, pledge,
assign or otherwise dispose of (including by gift) (collectively, "Transfer"),
or consent to any Transfer of, any or all of such Subject Shares or any interest
therein or enter into any contract, option or other arrangement (including any
profit sharing arrangement) with respect to the Transfer of, the Subject Shares
to any Person or (B) enter into any voting arrangement, directly or indirectly,
whether by proxy, voting agreement or otherwise, in respect of the Subject
Shares, and
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the Stockholder agrees not to commit or agree to take any of the foregoing
actions.
(c) The Stockholder, and any beneficiary of a revocable trust for
which such Stockholder serves as trustee, shall not take any action to revoke or
terminate such trust or take any other action which would restrict, limit or
frustrate in any way the transactions contemplated by this Agreement, the
Purchase Agreement or the Related Documents. Each such beneficiary hereby
acknowledges and agrees to be bound by the terms of this Agreement applicable to
it.
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Each Stockholder hereby irrevocably grants to, and appoints,
Embarcadero I and Xxxx Xxxxxx, in his capacity as an officer of such Purchaser,
and any individual who shall hereafter succeed to any such office of such
Purchaser, as such Stockholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such Stockholder, to vote
such Stockholder's Subject Shares, or grant a consent or approval in respect of
such Subject Shares against (i) any Alternative Transaction, (ii) any amendment
of Parent's certificate of incorporation or by-laws or other proposal or
transaction involving Parent, which amendment or other proposal or transaction
could impede, frustrate, prevent or nullify the Purchase Agreement or the
Related Documents or any of the transactions contemplated thereby or change in
any manner the voting rights of any class of Parent's capital stock, or (iii)
any action that could cause Parent to breach any representation, warranty or
covenant contained in the Purchase Agreement or the Related Documents. The proxy
granted pursuant to this Section 4(a) shall terminate upon the earlier of (i)
the Closing Date and (ii) the termination of this Agreement pursuant to Section
8.
(b) Such Stockholder represents that there are no proxies heretofore
given in respect of such Stockholder's Subject Shares. Such Stockholder further
covenants not to grant any such proxies to any Person during the term of this
Agreement.
(c) Such Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 4 is given in connection with the execution and delivery
of the Purchase Agreement, and that such irrevocable proxy is given to secure
the performance of the duties of the Stockholder under this Agreement. Such
Stockholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. Such Stockholder hereby
ratifies and confirms all that the holder of such irrevocable proxy may lawfully
do or cause to be done by virtue hereof. Such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of Section 705(e)
of California General Corporation Law.
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5. Further Assurances.
Each Stockholder will, at Purchasers' expense, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further consents, documents and other instruments as any Purchaser may
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
6. Certain Events.
Each Stockholder agrees that this Agreement and the obligations
hereunder shall attach to such Stockholder's Subject Shares (and the associated
rights in respect thereof) and shall be binding upon any Person or entity to
which legal or beneficial ownership of such Subject Shares shall pass, whether
by operation of law or otherwise, including without limitation such
Stockholder's heirs, guardians, administrators or successors. In the event of
any stock split, stock dividend, merger, reorganization, recapitalization or
other change in the capital structure of Parent affecting the Parent Common
Stock (or any other class of Parent's capital stock), or the acquisition of
additional shares of Parent Common Stock (or any other class of Parent's capital
stock) or other voting securities of Parent by any Stockholder, the number of
Subject Shares listed in Schedule A beside the name of such Stockholder shall be
deemed to be automatically adjusted appropriately and this Agreement and the
obligations hereunder shall attach to any additional shares of Parent Common
Stock or other voting securities of Parent issued to or acquired by such
Stockholder.
7. Assignment.
Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties without the prior
written consent of the other parties, except that any Purchaser may assign, in
its sole discretion, any and all of its rights, interests and obligations
hereunder to any of its Affiliates or its or its Affiliates' lenders. Subject to
the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors and
permitted assigns.
8. Termination.
This Agreement, and all rights and obligations of the parties
hereunder, shall terminate upon the earlier to occur of (i) the Closing Date and
(ii) the date upon which the Purchase Agreement is terminated in accordance with
its terms.
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9. General provisions.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) Notice. All notices and other communications hereunder shall be
in writing and shall be deemed given when delivered by facsimile (with
confirmation of delivery) or personally or sent by overnight courier (providing
proof of delivery) to the Purchasers in accordance with Section 9.7 of the
Purchase Agreement and to the Stockholders at their respective addresses and
facsimile numbers set forth on Schedule A attached hereto (or at such other
address and facsimile number for a party as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to an
Article or a Section, such reference shall be deemed made to an Article or a
Section of this Agreement, unless otherwise indicated. The headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. Unless the context otherwise
requires, words importing the singular shall include the plural, and vice versa.
Wherever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation."
(d) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
each party need not sign the same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement
(including the documents and instruments referred to herein) (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (ii) is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.
(g) Expenses. Except as otherwise provided herein, all costs and
expenses incurred in connection with the transactions contemplated by this
Agreement shall be paid by the party incurring such expenses.
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10. Stockholder Capacity.
No person executing this Agreement who is or becomes during the term
hereof a director or officer of Parent or any of its Subsidiaries makes any
agreement or understanding herein in his capacity as such director or officer.
Each Stockholder signs solely in his or its capacity as the record holder and
beneficial owner of, or the trustee of a trust whose beneficiaries are the
beneficial owners of, such Stockholder's Subject Shares and nothing herein shall
limit or affect any actions taken by a Stockholder in his or its capacity as an
officer or director of Parent.
11. Enforcement.
The parties agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in any court of the United States located in the State of New
York or in a New York state court, this being in addition to any other remedy to
which they are entitled at law or in equity. In addition, each of the parties
hereto (i) consents to submit such party to the personal jurisdiction of any
Federal court located in the State of New York or any New York state court in
the event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (ii) agrees that such party will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court, (iii) agrees that such party will not bring any action relating to
this Agreement or the transactions contemplated hereby in any court other than a
Federal court sitting in the state of New York or a New York state court and
(iv) waives any right to trial by jury with respect to any claim or proceeding
related to or arising out of this Agreement or any of the transactions
contemplated hereby.
12. Public Announcements.
No Stockholder shall issue any press release or make any public
statement without the prior written consent of the Purchasers, except as may be
required by applicable law, court process or by obligations pursuant to any
listing agreement with any national securities exchange.
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IN WITNESS WHEREOF, the Purchasers and the Stockholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
EMBARCADERO HOLDING CORP. I
By: /s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
EMBARCADERO HOLDING CORP. II
By: /s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
IN WITNESS WHEREOF, the Purchasers and the Stockholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
GENERAL ELECTRIC COMPANY
By: /s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
Title:
IN WITNESS WHEREOF, the Purchasers and the Stockholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
/s/ Xxxxxx X. Xxxxxx
------------------------------
XXXXXX X. XXXXXX
IN WITNESS WHEREOF, the Purchasers and the Stockholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
/s/ Xxxxxxx Xxxxx
------------------------------
XXXXXXX XXXXX
IN WITNESS WHEREOF, the Purchasers and the Stockholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
/s/ Xxxx X. Ruffle
------------------------------
XXXX X. RUFFLE
IN WITNESS WHEREOF, the Purchasers and the Stockholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
/s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------------
XXXXXXX X. XXXXXXX, XX.
IN WITNESS WHEREOF, the Purchasers and the Stockholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
/s/ Xxxxxxxx X. Xxxxx
---------------------------------
XXXXXXXX X. XXXXX III, M.D.
IN WITNESS WHEREOF, the Purchasers and the Stockholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
/s/ Xxxxxxx Xxxxxx
---------------------------------
XXXXXXX XXXXXX
IN WITNESS WHEREOF, the Purchasers and the Stockholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
/s/ Xxxxx X. Xxxxxx
---------------------------------
XXXXX X. XXXXXX
SCHEDULE A
Number of
Name and Address Shares of Parent
of Stockholder Common Stock Owned
-------------- ------------------
--------------------------------------------------------------------------------
General Electric Company
Crossroads Xxxxxx
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000 225,000
--------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx
c/o American Shared Hospital Services
Four Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 1,000
--------------------------------------------------------------------------------
Xxxxxxx Xxxxx
c/o American Shared Hospital Services
Four Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 1,582
--------------------------------------------------------------------------------
Xxxx X. Ruffle
c/o American Shared Hospital Services
Xxxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 76,711
--------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
c/o American Shared Hospital Services
Xxxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 103,962
--------------------------------------------------------------------------------
Xxxxxxxx X. Xxxxx, III, M.D.
c/o American Shared Hospital Services
Four Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 5,992
--------------------------------------------------------------------------------
Xxxxxxx Xxxxxx
c/o American Shared Hospital Services
Four Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 23,300
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Xxxxx X.Xxxxxx
c/o American Shared Hospital Services
Four Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 12,600
--------------------------------------------------------------------------------
