As Filed With the Securities and Exchange Commission on January 26, 1996
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Advanced NMR Systems, Inc.
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation or organization)
22-2457487
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(I.R.S. employer identification no.)
46 Jonspin Road
Wilmington, Massachusetts 01887
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(Address of principal executive offices) (Zip code)
Advanced NMR Systems, Inc. 1993 Employee Stock Option Plan
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(Full title of the plan)
Jack Nelson
Chairman
c/o Advanced NMR Systems, Inc.
46 Jonspin Road
Wilmington, Massachusetts 01877
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(Name and address of agent for service)
(508) 657-8876
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Telephone number, including area code, of agent for service
Copy to:
Bruce A. Rich, Esq.
Reid & Priest LLP
40 W. 57th Street
New York, NY 10019
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed maximum
Proposed Title of maximum aggregate Amount of
securities to be Amount to be offering price offering registration
registered registered(1) per share(2) price fee
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Common Stock,
$.01 par value 750,000 shares $1.64 $1,230,000 $424.14
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(1) In addition, pursuant to Rule 416(a) under the Securities Act of
1933, as amended, this Registration Statement also covers any additional
securities to be offered or issued in connection with a stock split, stock
dividend or similar transaction.
(2) Estimated for the sole purpose of calculating the registration
fee in accordance with Rule 457(h) under the Securities Act of 1933, as
amended.
<PAGE>
ADVANCED NMR SYSTEMS, INC.
ADVANCED NMR SYSTEMS, INC. 1993 EMPLOYEE STOCK OPTION PLAN
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement on Form S-8 is prepared pursuant to
General Instruction E to Form S-8.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The document listed below is hereby incorporated by reference into
this Registration Statement, and all documents subsequently filed by
Advanced NMR Systems, Inc. (the "Company"), with the Securities and
Exchange Commission (the "Commission"), pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), prior to the filing of a post-effective amendment 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 to be a part hereof from the
date of filing such documents:
(a) The Company's Registration Statement on Form S-8 (File No.
33-78928), as filed with the Commission on May 13, 1994,
to register 1,500,000 shares of the Common Stock, $.01 par
value, underlying the Company's 1993 Employee Stock Option
Plan.
Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of the
Registration Statement to the extent that a statement contained herein
modifies or replaces such statement. Any such statement shall not be
deemed to constitute a part of this Registration Statement except as so
modified or replaced.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") permits
indemnification of officers, directors, employees and agents in certain
circumstances. Section 145 also provides that a corporation may maintain
insurance against liabilities for which indemnification is not expressly
provided by statute.
Article Seventh of the Company's Certificate of Incorporation, as
amended (the "Articles"), provides for indemnification of the directors,
officers, employees and agents of the Company to the full extent then
permitted by the DGCL.
Article V of the Company's Amended and Restated By-Laws (the "By-
Laws") provides for indemnification by the Company of any person (and the
heirs and legal representatives of such person) made or threatened to be
made a party to any threatened pending or completed claim, action, suit or
proceeding, by reason of the fact that he is or was a director, officer,
employee or agent of the Company or any constituent corporation absorbed in
a consolidation or merger, or serves or served with another corporation,
partnership, joint venture, trust or other enterprise at the request of the
Company or any such constituent corporation. Article V permits the Company
to provide any of the above described persons advances for expenses
incurred in defending any such action, suit or proceeding, upon receipt of
an undertaking to repay such advances if he is not entitled to
indemnification. Article V limits the personal liability of any such
person to the fullest extent permitted by the DGCL. Article V also
provides that the Company may purchase and maintain insurance, at its
expense, on behalf of any person who is or was a director, officer,
employee or agent of the Company, or is or was serving at the request of
the Company in such capacity for another corporation or other enterprise.
Under the terms of an Agreement and Plan of merger among the Company,
ANMR Acquisition Corp. and Medical Diagnostics, Inc. ("MDI"), dated as of
May 2, 1995 (the "Merger Agreement"), the Company has agreed that, to the
fullest extent permitted by the DGCL, from and after the Effective Time (as
defined in the Merger Agreement), the Company shall indemnify, defend and
hold harmless the present and former officers, directors and employees of
MDI or any of its subsidiaries (the "Indemnified Parties") against all
losses, claims, damages, costs, expenses, liabilities, or, with the
approval of the Company, amounts paid in settlement in connection with any
claim, action, suit, proceeding or investigation which is in whole or in
part based on, or arising out of the fact that such person is or was a
director, officer or employee of MDI or any of its subsidiaries
("Indemnified Liabilities"), pertaining to any matter existing or occurring
at or prior to the Effective Time and all Indemnified Liabilities which are
in whole or in part based on, or arising out of, or pertaining to the
Merger Agreement or the transactions contemplated thereby, except for a
claim arising or based upon the gross negligence or willful misconduct of
the Indemnified Party. Also, for a period of six years from the Effective
Time the Articles and the By-Laws shall contain indemnification provisions
no less favorable than those set forth in the MDI Articles and the MDI By-
Laws.
In addition, under the Merger Agreement the Company has agreed that it
will maintain for a period of six years after the Effective Time the
current policies of directors' and officers' liability insurance maintained
by MDI to the extent that such policies are available at a cost of not
greater than two times the current annual amount paid by MDI (the "Cap") so
that if comparable coverage can be obtained only by paying an annual
premium in excess of the Cap, the Company shall only be required to obtain
as much coverage as can be obtained by paying an annual premium equal to
the Cap.
ITEM 8. EXHIBITS.
Exhibit No. Description
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4(a)** Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3 filed
with the Company's Registration Statement on
Form S-2, and amendments thereto, declared
effective August 18, 1993 (File No. 2-84785)).
4(b)** Amendment to Certificate of Incorporation of the
Company, dated November 3, 1993 (incorporated by
reference to Exhibit 3.2 filed with the Company's
Registration Statement on Form S-4, and
amendments thereto (File No. 33-95320)).
4(c)** Amendment to Certificate of Incorporation, dated
August 31, 1995 (incorporated by reference to
Exhibit 3.1 to the Company's Current Report on
Form 8-K for an event of August 31, 1995 (File
No. 0-11914)).
4(d)** Amendment to Certificate of Incorporation, dated
September 21, 1995 (incorporated by reference to
Exhibit 3.4 filed with the Company's Annual
Report on Form 10-K for the transition period
from January 1, 1995 to September 30, 1995).
4(e)** Amended and Restated By-laws of the Company
(incorporated by reference to Exhibit 3.4 filed
with the Company's Registration Statement on Form
S-4, and amendments thereto (File No. 33-95320)).
4(f)** 1993 Employee Stock Option Plan (incorporated
by reference to Exhibit A to the Company's
Definitive Proxy Statement, dated October 4,
1993, for the 1993 Annual Meeting of
Stockholders).
5* Opinion of Reid & Priest LLP.
23(a)* Consent of Richard A. Eisner & Company, LLP,
independent public accountants for the Company.
23(b)* Consent of Reid & Priest LLP (included in
Exhibit 5).
24* Power of Attorney (included on signature page of
this Registration Statement on Form S-8).
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* Filed herewith.
** Exhibits followed by a parenthetical reference are incorporated by
reference herein from the document described therein.
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement;
(b) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(c) 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
Registration Statement;
(d) 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 (b) and (c) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13
or 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement;
(e) 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
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof;
(f) To remove from registration by means of a post-effective
amendment any of the securities that remain unsold at the end of the
offering;
(g) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to 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 therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant 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 registrant of expenses incurred or paid 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 Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Wilmington, State of
Massachusetts on the 25th day of January, 1996.
ADVANCED NMR SYSTEMS, INC.
By: /s/ Jack Nelson
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Jack Nelson, Chairman
POWER OF ATTORNEY
Each director and/or officer of the Company whose signature appears
below hereby appoints Jack Nelson as his attorney-in-fact to sign in his
name and behalf, in any and all capacities stated below and to file with
the Commission, any and all amendments, including post-effective
amendments, to this Registration Statement.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated.
Signature Title Date
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/s/ Jack Nelson Chairman of the Board January 25, 1996
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Jack Nelson
/s/ Charles Moche Chief Financial Officer January 25, 1996
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Charles Moche
/s/ George Aaron Director January 25, 1996
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George Aaron
Director
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Edward J. Connors
/s/ Enrique Levy Director January 25, 1996
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Enrique Levy
Director
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John A. Lynch
Director
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George A. Silver
/s/ Robert S. Spira Director January 25, 1996
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Robert S. Spira
/s/ Sol Triebwasser Director January 25, 1996
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Sol Triebwasser
<PAGE>
INDEX TO EXHIBITS
ADVANCED NMR SYSTEMS, INC.
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Sequentially
Exhibit Numbered
No. Description Page
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5 Opinion of Reid & Priest LLP.
23(a) Consent of Richard A. Eisner & Company, LLP,
independent public accountants for the Company.
23(b) Consent of Reid & Priest LLP (included in
Exhibit 5).
24 Power of Attorney (included on signature page of
this Registration Statement on Form S-8).
Exhibit 5
REID & PRIEST LLP
A New York Registered Limited Liability Partnership
40 West 57th Street
New York, NY 10019-4097
(212) 603-6780
New York, New York
January 23, 1996
Advanced NMR Systems, Inc.
46 Jonspin Road
Wilmington, MA 01887
Re: Registration Statement on Form S-8
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Gentlemen:
We have acted as counsel to Advanced NMR Systems, Inc.,
a Delaware corporation (the "Registrant"), in connection with the
preparation and filing of a Registration Statement on Form S-8
(the "Registration Statement") with the Securities and Exchange
Commission (the "Commission"), with respect to the registration
under the Securities Act of 1933, as amended (the "Act"), of
750,000 shares (the "Shares") of the Registrant's Common Stock,
$.01 par value (the "Common Stock"), issuable upon the exercise
of options (the "Options") granted or to be granted under the
Registrants 1993 Employee Stock Option Plan (the "Plan") by
reason of an amendment to the Plan which increased the authorized
shares of Common Stock thereunder by 750,000 shares.
For purposes of this opinion we have examined the
Registration Statement, the Certificate of Incorporation, as
amended, and the By-Laws of the Registrant, and such documents,
records, agreements, proceedings and legal matters as we have
deemed necessary to examine. With respect to any documents or
other corporate records which we have examined, we have assumed
the genuineness of all signatures on, and the authenticity of,
all documents submitted to us as originals, and the conformity to
the original documents submitted to us as certified or
photostatic copies.
Based upon the foregoing and subject to the
qualifications stated herein we are of the opinion that:
1. The Registrant is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware.
2. The Shares included in the Registration Statement
to be issued upon the exercise of the Options will be duly
authorized and validly issued, and fully paid and non-assessable
when the Options shall have been properly exercised and the
exercise price shall have been paid for the Shares in accordance
with the terms of the Plan.
We are members of the Bar of the State of New York and
do not hold ourselves out as experts concerning, or qualified to
render opinions with respect to any laws other than the laws of
the State of New York, the Federal laws of the United States and
the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion with
the Commission as Exhibit 5 to the Registration Statement. In
giving the foregoing consent, we do not thereby admit that we are
in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the
Commission thereunder.
Very truly yours,
/s/ Reid & Priest LLP
Reid & Priest LLP
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Advanced NMR System, Inc. (the
"Company") on Form S-8 of our report dated November 29, 1995 on
the consolidated financial statements of the Company and its
subsidiaries for the nine-month period ended September 30, 1995
and the years ended December 31, 1994 and December 31, 1993
appearing in the Annual Report on Form 10-K of the Company.
/s/ Richard A. Eisner & Company, LLP
Cambridge, Massachusetts
January 23, 1996
