As Filed With the Securities and Exchange Commission on February 29, 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)
Non-Qualified Stock Option Agreements
Employment Agreement
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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
securities to be Amount to be offering price offering
registered registered(1) per share(2) price
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Common Stock,
$.01 par value 460,316 shares $2.10 $966,663.60
Amount of
registration fee
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$333.33
(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.
ADVANCED NMR SYSTEMS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENTS
EMPLOYMENT AGREEMENT
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are 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 Annual Report on Form 10-K for the transition
period from January 1, 1995 to September 30, 1995 (Commission
File No. 0-11914);
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1995 (Commission File No. 0-11914);
(c) The Company's Current Report on Form 8-K for an event of February
4, 1996;
(d) The description of the Company's Common Stock contained in Form
8-A filed with the Commission pursuant to Section 12(g) of the
Exchange Act (Commission File No. 00011914).
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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4.1** 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)).
4.2** 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) (the "S-4")).
4.3** 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)).
4.4** 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 (the "10-
K") for the transition period from January 1,
1995 to September 30, 1995 (File No. 0-11914)).
4.5** Amended and Restated By-laws of the Company
(incorporated by reference to Exhibit 3.4 filed
with the S-4).
4.6** Specimen Certificate of Common Stock, par value
$.01 per share, of the Company (incorporated by
reference to Exhibit 4.2 filed with the S-4).
5* Opinion of Reid & Priest LLP.
10.1** Employment Agreement, dated September 17, 1995,
among the Company, Advanced Mammography
Systems, Inc. and Enrique Levy (incorporated by
reference to Exhibit 10.6 filed with the 10-K).
10.2* Stock Option Agreement, dated as of August 31,
1995, between the Company and David Billet.
10.3* Stock Option Agreement, dated as of August 31,
1995, between the Company and Steven O. Dell.
10.4* Stock Option Agreement, dated as of August 31,
1995, between the Company and Edward
Pendergast.
10.5* Stock Option Agreement, dated as of August 31,
1995, between the Company and Oleg Pohotsky.
23.1* Consent of Richard A. Eisner & Company, LLP,
independent public accountants for the Company.
23.2* 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).
__________________________
* 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.
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 27th day of February, 1996.
ADVANCED NMR SYSTEMS, INC.
By: /s/ Jack Nelson
_______________________
Jack Nelson, Chairman
POWER OF ATTORNEY
Each director and/or officer of the Company whose signature appears
below hereby appoints Jack Nelson or Charles Moche 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 February 27, 1996
Jack Nelson
/s/ Charles Moche
___________________ Chief Financial Officer February 27, 1996
Charles Moche
/s/ George Aaron
___________________ Director February 27, 1996
George Aaron
___________________ Director , 1996
Edward J. Connors -----------
/s/ Enrique Levy
___________________ Director February 27, 1996
Enrique Levy
___________________ Director , 1996
John A. Lynch -----------
___________________ Director , 1996
George A. Silver -----------
/s/ Robert S. Spira
___________________ Director February 27, 1996
Robert S. Spira
/s/ Sol Triebwasser
___________________ Director February 27, 1996
Sol Triebwasser
INDEX TO EXHIBITS
ADVANCED NMR SYSTEMS, INC.
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Exhibit
No. Description
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5 Opinion of Reid & Priest LLP.
10.2 Stock Option Agreement, dated as of August 31, 1995, between
the Company and David Billet.
10.3 Stock Option Agreement, dated as of August 31, 1995, between
the Company and Steven O. Dell.
10.4 Stock Option Agreement, dated as of August 31, 1995, between
the Company and Edward Pendergast.
10.5 Stock Option Agreement, dated as of August 31, 1995, between
the Company and Oleg Pohotsky.
23.1 Consent of Richard A. Eisner & Company, LLP, independent
public accountants for the Company.
23.2 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
40 West 57th Street
New York, NY 10019-4097
Telephone 212 603-2000
Fax 212 603-2298
(212) 603-6780
New York, New York
February 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
460,316 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 certain
Stock Option Agreements and an Employment Agreement
(collectively, the "Agreements").
For purposes of this opinion we have examined the
Registration Statement, the Certificate of Incorporation, as
amended, the By-Laws of the Registrant, as amended, the
Agreements 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 Agreements.
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 10.2
Optionee: David Billet
Address : 22 East 88th Street
New York, N.Y. 10028
ADVANCED NMR SYSTEMS, INC.
OPTION AGREEMENT
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OPTION AGREEMENT, dated as of August 31, 1995, between
ADVANCED NMR SYSTEMS, INC., a Delaware corporation (the "Corpo-
ration"), and DAVID BILLET (the "Optionee").
Pursuant to an Agreement and Plan of Merger, dated as
of May 2, 1995, among the Corporation, Medical Diagnostics Inc.
("MDI") and ANMR Acquisition Corp., the Corporation agreed that
upon the merger with MDI (the "MDI Merger") the Corporation would
assume stock options previously granted by MDI (the "MDI
Options"), including those granted to the Optionee, which were
outstanding on the effective date of the MDI Merger. The MDI
Merger became effective on August 31, 1995.
IT IS AGREED as follows:
1. GRANT OF OPTION. By determination of the Option
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Committee, upon the assumption of outstanding MDI Options held by
the Optionee for the purchase of an aggregate of 60,223 shares of
MDI Common Stock as of the effective date of the Merger, the
Corporation hereby grants to the Optionee the following options
(the "Options"):
(i) options for 23,840 shares of the Corporation's
Common Stock exercisable at a price of $1.75 per share,
expiring August 9, 2001;
(ii) options for 135,582 shares of the Corporation's
Common Stock exercisable at a price of $0.79 per share,
expiring August 9, 2001;
(iii) options for 4,291 shares of the Corporation's
Common Stock exercisable at a price of $1.62 per share,
expiring February 24, 2003;
(iv) options for 4,291 shares of the Corporation's
Common Stock exercisable at a price of $1.58 per share,
expiring February 24, 2004; and
(v) options for 4,291 shares of the Corporation's
Common Stock exercisable at a price of $2.01 per share,
expiring May 4, 2005.
plus for each one share of the Common Stock (as presently
constituted) purchased upon exercise of the Options, the Optionee
will receive .35 (thirty five one-hundredths) of a Common Stock
Purchase Warrant (the "Warrants"), with respect to Options
exercised prior to August 31, 2000 and subject to adjustment upon
any adjustment of the Common Stock as determined by the Board of
Directors of the Company, whose determination shall be
conclusive. Each whole Warrant receivable upon exercise of the
Options shall be exercisable for the purchase of one share of the
Corporation's Common Stock at an exercise price of $3.75 per
share until August 31, 2000, pursuant to a separate Warrant
Agreement. The Options are subject to adjustment from time to
time as provided for in this Option Agreement.
2. EXERCISE OF OPTIONS. The Optionee may exercise
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the Options at any time in whole or in part, and in any order,
commencing as of the date hereof and continuing through the
respective option periods described in Section 1 hereof.
3. EXERCISE PROCEDURE.
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(a) The Optionee may exercise the Options by
delivering to the Corporation a written notice duly signed by the
Optionee stating the number of shares of Common Stock that the
Optionee has elected to purchase and accompanied by payment in an
amount equal to the full purchase price for the shares of Common
Stock to be purchased. The payment may be either in cash or by
certified check or shares of Common Stock with a fair market
value equal to the exercise price on the date the Option is
exercised, or through a combination of cash or shares. For
purposes of the foregoing, "fair market value" of the Common
Stock shall be determined as of the last business day for which
the prices or quotes are available prior to the date the
particular Options are exercised and shall mean (i) the last
reported sale price (on that date) of the Common Stock on the
Nasdaq National Market System, if the Common Stock is then traded
on such System; (ii) the last reported sale (on that date) of the
Common Stock on the principal national securities exchange on
which the Common Stock is traded, if the Common Stock is not then
traded on the Nasdaq National Market System; or (iii) the average
of the closing bid and asked prices last quoted (on that date) by
an established quotation service for over-the-counter securities,
if the Common Stock is not reported on the Nasdaq National Market
System or a national securities exchange. However, if the Common
Stock is not then publicly traded, the "fair market value" shall
be deemed to be the fair value of the Common Stock as determined
by the Corporation's Board of Directors after taking into
consideration all factors which it deems appropriate.
(b) Following receipt by the Corporation of notice of
exercise and full payment pursuant to Subsection (a) above, the
Corporation shall issue, as soon as practicable, a stock
certificate for the Common Stock and a warrant certificate for
the Warrants represented by the Options exercised in the name as
designated by the Optionee and deliver the certificates to the
Optionee. The Corporation, however, shall not be required to
issue or deliver the stock certificate or the warrant certificate
until it has complied with all requirements of the Securities Act
of 1933, the Securities Exchange Act of 1934, any securities
exchange or automated quotation system on which the Corporation's
Common Stock and the Warrants may then be listed, and all
applicable state laws in connection with the issuance of the
Common Stock and the Warrants represented by the Options
exercised or their listing on said securities exchange or system.
Until the issuance of the certificates for the Common Stock and
the Warrants represented by the Options, the Optionee shall have
none of the rights of a stockholder in respect to the shares of
such Common Stock.
4. NON-TRANSFERABILITY OF OPTION. The Options shall
-----------------------------
not be transferable other than by will or by the laws of descent
and distribution, and may be exercised during the Optionee's
lifetime only by him.
5. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. If at
------------------------------------------
any time after the date of grant of this Option, the Corporation
shall, by stock dividend, split-up, combination, reclassification
or exchange, or through merger or consolidation, or otherwise,
change its shares of Common Stock into a different number or kind
or class of shares or other securities or property, then the
number of shares of Common Stock and Warrants represented by the
Options covered by this Option Agreement and the price thereof
shall be proportionately adjusted for any such change by the
Option Committee or the Board of Directors, as applicable, whose
determination shall be conclusive. If the Corporation is to be
merged or consolidated with or acquired by another entity in a
merger, consolidation, sale of all or substantially all of the
Corporation's assets or otherwise (an "Acquisition"), the Option
Committee or the Board of Directors shall give notice to the
Optionee of the Acquisition and shall seek to have the successor
entity continue the Options then outstanding by substituting on
an equitable basis for such Options based upon the consideration
payable with respect to the outstanding shares of Common Stock in
connection with the Acquisition.
6. NOTICES. Any notice to be given by the Optionee
-------
hereunder shall be sent to the Corporation at 46 Jonspin Road,
Wilmington, Massachusetts 01887, and any notice from the
Corporation to the Optionee shall be sent to the Optionee at his
address set forth above; and shall be in writing and shall be
delivered in person or by registered or certified mail. Either
party may change the address to which notices are to be sent by
notice in writing given to the other in accordance with the terms
hereof.
7. GOVERNING LAW. This Option Agreement, as well as
-------------
the grant of the Options and issuance of the shares of Common
Stock and Warrants hereunder, is governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
ADVANCED NMR SYSTEMS, INC.
By: /s/ Charles Moche
______________________________
Charles Moche, Chief Financial
Officer
Agreed to:
/s/ David Billet
___________________________________
David Billet
Exercise of Option
To Purchase Shares
------------------
To: Advanced NMR Systems, Inc.
The undersigned hereby exercises the within Option for
the purchase of ______ shares (the "Shares") of Advanced NMR
Systems, Inc. Common Stock and corresponding number of Warrants
according to the terms and conditions thereof and herewith makes
payment of the purchase price by the delivery of _______. In the
event the Shares or the Warrants are not registered under the
Securities Act of 1933, as amended, the undersigned shall provide
such representations as may be required by the Corporation to
fulfill any exemptions that may be sought under said Act. Kindly
issue the certificate for the Shares and the Warrants in
accordance with the instructions given below:
___________________________________
Signature
Instructions for issuance
of stock:
________________________________________
Name
________________________________________
________________________________________
Address
________________________________________
Social Security Number
Exhibit 10.3
Optionee: Steven O. Dell
Address : 230 Wildwood Avenue
Piedmont, CA 94611
ADVANCED NMR SYSTEMS, INC.
OPTION AGREEMENT
----------------
OPTION AGREEMENT, dated as of August 31, 1995, between ADVANCED
NMR SYSTEMS, INC., a Delaware corporation (the "Corpo-ration"), and STEVEN
O. DELL (the "Optionee").
Pursuant to an Agreement and Plan of Merger, dated as of May 2,
1995, among the Corporation, Medical Diagnostics Inc. ("MDI") and ANMR
Acquisition Corp., the Corporation agreed that upon the merger with MDI
(the "MDI Merger") the Corporation would assume stock options previously
granted by MDI (the "MDI Options"), including those granted to the
Optionee, which were outstanding on the effective date of the MDI Merger.
The MDI Merger became effective on August 31, 1995.
IT IS AGREED as follows:
1. GRANT OF OPTION. By determination of the Option Committee,
---------------
upon the assumption of outstanding MDI Options held by the Optionee for the
purchase of an aggregate of 83,341 shares of MDI Common Stock as of the
effective date of the Merger, the Corporation hereby grants to the Optionee
the following options (the "Options"):
(i) options for 23,840 shares of the Corporation's Common Stock
exercisable at a price of $1.75 per share, expiring August 9,
2001;
(ii) options for 210,306 shares of the Corporation's Common Stock
exercisable at a price of $0.79 per share, expiring August 9,
2001; and
(iii) options for 4,291 shares of the Corporation's Common Stock
exercisable at a price of $1.75 per share, expiring January 15,
2003;
plus for each one share of the Common Stock (as presently constituted)
purchased upon exercise of the Options, the Optionee will receive .35
(thirty five one-hundredths) of a Common Stock Purchase Warrant (the
"Warrants"), with respect to Options exercised prior to August 31, 2000 and
subject to adjustment upon any adjustment of the Common Stock as determined
by the Board of Directors of the Company, whose determination shall be
conclusive. Each whole Warrant receivable upon exercise of Options shall
be exercisable for the purchase of one share of the Corporation's Common
Stock at an exercise price of $3.75 per share until August 31, 2000,
pursuant to a separate Warrant Agreement. The Options are subject to
adjustment from time to time as provided for in this Option Agreement.
2. EXERCISE OF OPTIONS. The Optionee may exercise the Options
-------------------
at any time in whole or in part, and in any order, commencing as of the
date hereof and continuing through the respective option periods described
in Section 1 hereof.
3. EXERCISE PROCEDURE.
------------------
(a) The Optionee may exercise the Options by delivering to the
Corporation a written notice duly signed by the Optionee stating the number
of shares of Common Stock that the Optionee has elected to purchase and
accompanied by payment in an amount equal to the full purchase price for
the shares of Common Stock to be purchased. The payment may be either in
cash or by certified check or shares of Common Stock with a fair market
value equal to the exercise price on the date the Option is exercised, or
through a combination of cash or shares. For purposes of the foregoing,
"fair market value" of the Common Stock shall be determined as of the last
business day for which the prices or quotes are available prior to the date
the particular Options are exercised and shall mean (i) the last reported
sale price (on that date) of the Common Stock on the Nasdaq National Market
System, if the Common Stock is then traded on such System; (ii) the last
reported sale (on that date) of the Common Stock on the principal national
securities exchange on which the Common Stock is traded, if the Common
Stock is not then traded on the Nasdaq National Market System; or (iii) the
average of the closing bid and asked prices last quoted (on that date) by
an established quotation service for over-the-counter securities, if the
Common Stock is not reported on the Nasdaq National Market System or a
national securities exchange. However, if the Common Stock is not then
publicly traded, the "fair market value" shall be deemed to be the fair
value of the Common Stock as determined by the Corporation's Board of
Directors after taking into consideration all factors which it deems
appropriate.
(b) Following receipt by the Corporation of notice of exercise
and full payment pursuant to Subsection (a) above, the Corporation shall
issue, as soon as practicable, a stock certificate for the Common Stock and
a warrant certificate for the Warrants represented by the Options exercised
in the name as designated by the Optionee and deliver the certificates to
the Optionee. The Corporation, however, shall not be required to issue or
deliver the stock certificate or the warrant certificate until it has
complied with all requirements of the Securities Act of 1933, the
Securities Exchange Act of 1934, any securities exchange or automated
quotation system on which the Corporation's Common Stock and the Warrants
may then be listed, and all applicable state laws in connection with the
issuance of the Common Stock and the Warrants represented by the Options
exercised or their listing on said securities exchange or system. Until
the issuance of the certificates for the Common Stock and the Warrants
represented by the Options, the Optionee shall have none of the rights of a
stockholder in respect to the shares of such Common Stock.
4. NON-TRANSFERABILITY OF OPTION. The Options shall not be
-----------------------------
transferable other than by will or by the laws of descent and distribution,
and may be exercised during the Optionee's lifetime only by him.
5. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. If at any time
------------------------------------------
after the date of grant of this Option, the Corporation shall, by stock
dividend, split-up, combination, reclassification or exchange, or through
merger or consolidation, or otherwise, change its shares of Common Stock
into a different number or kind or class of shares or other securities or
property, then the number of shares of Common Stock and Warrants
represented by the Options covered by this Option Agreement and the price
thereof shall be proportionately adjusted for any such change by the Option
Committee or the Board of Directors, as applicable, whose determination
shall be conclusive. If the Corporation is to be merged or consolidated
with or acquired by another entity in a merger, consolidation, sale of all
or substantially all of the Corporation's assets or otherwise (an
"Acquisition"), the Option Committee or the Board of Directors shall give
notice to the Optionee of the Acquisition and shall seek to have the
successor entity continue the Options then outstanding by substituting on
an equitable basis for such Options based upon the consideration payable
with respect to the outstanding shares of Common Stock in connection with
the Acquisition.
6. NOTICES. Any notice to be given by the Optionee hereunder
-------
shall be sent to the Corporation at 46 Jonspin Road, Wilmington,
Massachusetts 01887, and any notice from the Corporation to the Optionee
shall be sent to the Optionee at his address set forth above; and shall be
in writing and shall be delivered in person or by registered or certified
mail. Either party may change the address to which notices are to be sent
by notice in writing given to the other in accordance with the terms
hereof.
7. GOVERNING LAW. This Option Agreement, as well as the grant
-------------
of the Options and issuance of the shares of Common Stock and Warrants
hereunder, is governed by and construed in accordance
with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
ADVANCED NMR SYSTEMS, INC.
By: /s/ Charles Moche
___________________________________
Charles Moche, Chief Financial
Officer
Agreed to:
/s/ Steven O. Dell
___________________________________
Steven O. Dell
Exercise of Option
To Purchase Shares
------------------
To: Advanced NMR Systems, Inc.
The undersigned hereby exercises the within Option for the
purchase of ______ shares (the "Shares") of Advanced NMR Systems, Inc.
Common Stock and corresponding number of Warrants according to the terms
and conditions thereof and herewith makes payment of the purchase price by
the delivery of _______. In the event the Shares or the Warrants are not
registered under the Securities Act of 1933, as amended, the undersigned
shall provide such representations as may be required by the Corporation to
fulfill any exemptions that may be sought under said Act. Kindly issue the
certificate for the Shares and the Warrants in accordance with the
instructions given below:
________________________________________
Signature
Instructions for issuance
of stock:
___________________________________
Name
___________________________________
___________________________________
Address
___________________________________
Social Security Number
Exhibit 10.4
Optionee: Edward Pendergast
Address : 73 Scott Road
Belmont, MA 02178
ADVANCED NMR SYSTEMS, INC.
OPTION AGREEMENT
----------------
OPTION AGREEMENT, dated as of August 31, 1995, between ADVANCED
NMR SYSTEMS, INC., a Delaware corporation (the "Corporation"), and EDWARD
PENDERGAST (the "Optionee").
Pursuant to an Agreement and Plan of Merger, dated as of May 2,
1995, among the Corporation, Medical Diagnostics Inc. ("MDI") and ANMR
Acquisition Corp., the Corporation agreed that upon the merger with MDI
(the "MDI Merger") the Corporation would assume stock options previously
granted by MDI (the "MDI Options"), including those granted to the
Optionee, which were outstanding on the effective date of the MDI Merger.
The MDI Merger became effective on August 31, 1995.
IT IS AGREED as follows:
1. GRANT OF OPTION. By determination of the Option
---------------
Committee, upon the assumption of outstanding MDI Options held by the
Optionee for the purchase of an aggregate of 12,833 shares of MDI Common
Stock as of the effective date of the Merger, the Corporation hereby grants
to the Optionee the following options (the "Options"):
(i) options for 23,840 shares of the Corporation's Common Stock
exercisable at a price of $1.75 per share, expiring August 9,
2001;
(ii) options for 4,291 shares of the Corporation's Common Stock
exercisable at a price of $1.62 per share, expiring February 24,
2003;
(iii) options for 4,291 shares of the Corporation's Common Stock
exercisable at a price of $1.58 per share, expiring February 24,
2004; and
(iv) options for 4,291 shares of the Corporation's Common Stock
exercisable at a price of $2.01 per share, expiring May 4, 2005.
plus for each one share of the Common Stock (as presently constituted)
purchased upon exercise of the Options, the Optionee will receive .35
(thirty five one-hundredths) of a Common Stock Purchase Warrant (the
"Warrants"), with respect to Options exercised prior to August 31, 2000 and
subject to adjustment upon any adjustment of the Common Stock as determined
by the Board of Directors of the Company, whose determination shall be
conclusive. Each whole Warrant receivable upon exercise of Options shall
be exercisable for the purchase of one share of the Corporation's Common
Stock at an exercise price of $3.75 per share until August 31, 2000,
pursuant to a separate Warrant Agreement. The Options are subject to
adjustment from time to time as provided for in this Option Agreement.
2. EXERCISE OF OPTIONS. The Optionee may exercise
-------------------
the Options at any time in whole or in part, and in any order, commencing
as of the date hereof and continuing through the respective option periods
described in Section 1 hereof.
3. EXERCISE PROCEDURE.
------------------
(a) The Optionee may exercise the Options by delivering to the
Corporation a written notice duly signed by the Optionee stating the number
of shares of Common Stock that the Optionee has elected to purchase and
accompanied by payment in an amount equal to the full purchase price for
the shares of Common Stock to be purchased. The payment may be either in
cash or by certified check or shares of Common Stock with a fair market
value equal to the exercise price on the date the Option is exercised, or
through a combination of cash or shares. For purposes of the foregoing,
"fair market value" of the Common Stock shall be determined as of the last
business day for which the prices or quotes are available prior to the date
the particular Options are exercised and shall mean (i) the last reported
sale price (on that date) of the Common Stock on the Nasdaq National Market
System, if the Common Stock is then traded on such System; (ii) the last
reported sale (on that date) of the Common Stock on the principal national
securities exchange on which the Common Stock is traded, if the Common
Stock is not then traded on the Nasdaq National Market System; or (iii) the
average of the closing bid and asked prices last quoted (on that date) by
an established quotation service for over-the-counter securities, if the
Common Stock is not reported on the Nasdaq National Market System or a
national securities exchange. However, if the Common Stock is not then
publicly traded, the "fair market value" shall be deemed to be the fair
value of the Common Stock as determined by the Corporation's Board of
Directors after taking into consideration all factors which it deems
appropriate.
(b) Following receipt by the Corporation of notice of exercise
and full payment pursuant to Subsection (a) above, the Corporation shall
issue, as soon as practicable, a stock certificate for the Common Stock and
a warrant certificate for the Warrants represented by the Options exercised
in the name as designated by the Optionee and deliver the certificates to
the Optionee. The Corporation, however, shall not be required to issue or
deliver the stock certificate or the warrant certificate until it has
complied with all requirements of the Securities Act of 1933, the
Securities Exchange Act of 1934, any securities exchange or automated
quotation system on which the Corporation's Common Stock and the Warrants
may then be listed, and all applicable state laws in connection with the
issuance of the Common Stock and the Warrants represented by the Options
exercised or their listing on said securities exchange or system. Until
the issuance of the certificates for the Common Stock and the Warrants
represented by the Options, the Optionee shall have none of the rights of a
stockholder in respect to the shares of such Common Stock.
4. NON-TRANSFERABILITY OF OPTION. The Options shall
-----------------------------
not be transferable other than by will or by the laws of descent and
distribution, and may be exercised during the Optionee's lifetime only by
him.
5. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. If at
------------------------------------------
any time after the date of grant of this Option, the Corporation shall, by
stock dividend, split-up, combination, reclassification or exchange, or
through merger or consolidation, or otherwise, change its shares of Common
Stock into a different number or kind or class of shares or other
securities or property, then the number of shares of Common Stock and
Warrants represented by the Options covered by this Option Agreement and
the price thereof shall be proportionately adjusted for any such change by
the Option Committee or the Board of Directors, as applicable, whose
determination shall be conclusive. If the Corporation is to be merged or
consolidated with or acquired by another entity in a merger, consolidation,
sale of all or substantially all of the Corporation's assets or otherwise
(an "Acquisition"), the Option Committee or the Board of Directors shall
give notice to the Optionee of the Acquisition and shall seek to have the
successor entity continue the Options then outstanding by substituting on
an equitable basis for such Options based upon the consideration payable
with respect to the outstanding shares of Common Stock in connection with
the Acquisition.
6. NOTICES. Any notice to be given by the Optionee
-------
hereunder shall be sent to the Corporation at 46 Jonspin Road, Wilmington,
Massachusetts 01887, and any notice from the Corporation to the Optionee
shall be sent to the Optionee at his address set forth above; and shall be
in writing and shall be delivered in person or by registered or certified
mail. Either party may change the address to which notices are to be sent
by notice in writing given to the other in accordance with the terms
hereof.
7. GOVERNING LAW. This Option Agreement, as well as
-------------
the grant of the Options and issuance of the shares of Common Stock and
Warrants hereunder, is governed by and construed in accordance with the
laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
ADVANCED NMR SYSTEMS, INC.
By: /s/ Charles Moche
_____________________________
Charles Moche, Chief Financial
Officer
Agreed to:
/s/ Edward Pendergast
___________________________________
Edward Pendergast
Exercise of Option
To Purchase Shares
------------------
To: Advanced NMR Systems, Inc.
The undersigned hereby exercises the within Option for the
purchase of ______ shares (the "Shares") of Advanced NMR Systems, Inc.
Common Stock and corresponding number of Warrants according to the terms
and conditions thereof and herewith makes payment of the purchase price by
the delivery of _______. In the event the Shares or the Warrants are not
registered under the Securities Act of 1933, as amended, the undersigned
shall provide such representations as may be required by the Corporation to
fulfill any exemptions that may be sought under said Act. Kindly issue the
certificate for the Shares and the Warrants in accordance with the
instructions given below:
-----------------------------------
Signature
Instructions for issuance
of stock:
----------------------------------------
Name
----------------------------------------
Address
----------------------------------------
Social Security Number
Exhibit 10.5
Optionee: Oleg Pohotsky
Address : 16 East Corning Street
Beverly, MA 01915
ADVANCED NMR SYSTEMS, INC.
OPTION AGREEMENT
----------------
OPTION AGREEMENT, dated as of August 31, 1995, between
ADVANCED NMR SYSTEMS, INC., a Delaware corporation (the "Corpo-
ration"), and OLEG POHOTSKY (the "Optionee").
Pursuant to an Agreement and Plan of Merger, dated as
of May 2, 1995, among the Corporation, Medical Diagnostics Inc.
("MDI") and ANMR Acquisition Corp., the Corporation agreed that
upon the merger with MDI (the "MDI Merger") the Corporation would
assume stock options previously granted by MDI (the "MDI
Options"), including those granted to the Optionee, which were
outstanding on the effective date of the MDI Merger. The MDI
Merger became effective on August 31, 1995.
IT IS AGREED as follows:
1. GRANT OF OPTION. By determination of the Option
---------------
Committee, upon the assumption of outstanding MDI Options held
by the Optionee for the purchase of an aggregate of 4,500 shares
of MDI Common Stock as of the effective date of the Merger, the
Corporation hereby grants to the Optionee the following options
(the "Options"):
(i) options for 4,291 shares of the Corporation's
Common Stock exercisable at a price of $1.62 per share,
expiring February 24, 2003;
(ii) options for 4,291 shares of the Corporation's
Common Stock exercisable at a price of $1.58 per share,
expiring February 24, 2004; and
(iii) options for 4,291 shares of the Corporation's
Common Stock exercisable at a price of $2.01 per share,
expiring May 4, 2005;
plus for each one share of the Common Stock (as presently
constituted) purchased upon exercise of the Options, the Optionee
will receive .35 (thirty five one-hundredths) of a Common Stock
Purchase Warrant (the "Warrants"), with respect to Options
exercised prior to August 31, 2000 and subject to adjustment upon
any adjustment of the Common Stock as determined by the Board of
Directors of the Company, whose determination shall be
conclusive. Each whole Warrant receivable upon exercise of
Options shall be exercisable for the purchase of one share of the
Corporation's Common Stock at an exercise price of $3.75 per
share until August 31, 2000, pursuant to a separate Warrant
Agreement. The Options are subject to adjustment from time to
time as provided for in this Option Agreement.
2. EXERCISE OF OPTIONS. The Optionee may exercise
-------------------
the Options at any time in whole or in part, and in any order,
commencing as of the date hereof and continuing through the
respective option periods described in Section 1 hereof.
3. EXERCISE PROCEDURE.
------------------
(a) The Optionee may exercise the Options by
delivering to the Corporation a written notice duly signed by the
Optionee stating the number of shares of Common Stock that the
Optionee has elected to purchase and accompanied by payment in an
amount equal to the full purchase price for the shares of Common
Stock to be purchased. The payment may be either in cash or by
certified check or shares of Common Stock with a fair market
value equal to the exercise price on the date the Option is
exercised, or through a combination of cash or shares. For
purposes of the foregoing, "fair market value" of the Common
Stock shall be determined as of the last business day for which
the prices or quotes are available prior to the date the
particular Options are exercised and shall mean (i) the last
reported sale price (on that date) of the Common Stock on the
Nasdaq National Market System, if the Common Stock is then traded
on such System; (ii) the last reported sale (on that date) of the
Common Stock on the principal national securities exchange on
which the Common Stock is traded, if the Common Stock is not then
traded on the Nasdaq National Market System; or (iii) the average
of the closing bid and asked prices last quoted (on that date) by
an established quotation service for over-the-counter securities,
if the Common Stock is not reported on the Nasdaq National Market
System or a national securities exchange. However, if the Common
Stock is not then publicly traded, the "fair market value" shall
be deemed to be the fair value of the Common Stock as determined
by the Corporation's Board of Directors after taking into
consideration all factors which it deems appropriate.
(b) Following receipt by the Corporation of notice of
exercise and full payment pursuant to Subsection (a) above, the
Corporation shall issue, as soon as practicable, a stock
certificate for the Common Stock and a warrant certificate for
the Warrants represented by the Options exercised in the name as
designated by the Optionee and deliver the certificates to the
Optionee. The Corporation, however, shall not be required to
issue or deliver the stock certificate or the warrant certificate
until it has complied with all requirements of the Securities Act
of 1933, the Securities Exchange Act of 1934, any securities
exchange or automated quotation system on which the Corporation's
Common Stock and the Warrants may then be listed, and all
applicable state laws in connection with the issuance of the
Common Stock and the Warrants represented by the Options
exercised or their listing on said securities exchange or system.
Until the issuance of the certificates for the Common Stock and
the Warrants represented by the Options, the Optionee shall have
none of the rights of a stockholder in respect to the shares of
such Common Stock.
4. NON-TRANSFERABILITY OF OPTION. The Options shall
-----------------------------
not be transferable other than by will or by the laws of descent
and distribution, and may be exercised during the Optionee's
lifetime only by him.
5. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. If at
------------------------------------------
any time after the date of grant of this Option, the Corporation
shall, by stock dividend, split-up, combination, reclassification
or exchange, or through merger or consolidation, or otherwise,
change its shares of Common Stock into a different number or kind
or class of shares or other securities or property, then the
number of shares of Common Stock and Warrants represented by the
Options covered by this Option Agreement and the price thereof
shall be proportionately adjusted for any such change by the
Option Committee or the Board of Directors, as applicable, whose
determination shall be conclusive. If the Corporation is to be
merged or consolidated with or acquired by another entity in a
merger, consolidation, sale of all or substantially all of the
Corporation's assets or otherwise (an "Acquisition"), the Option
Committee or the Board of Directors shall give notice to the
Optionee of the Acquisition and shall seek to have the successor
entity continue the Options then outstanding by substituting on
an equitable basis for such Options based upon the consideration
payable with respect to the outstanding shares of Common Stock in
connection with the Acquisition.
6. NOTICES. Any notice to be given by the Optionee
-------
hereunder shall be sent to the Corporation at 46 Jonspin Road,
Wilmington, Massachusetts 01887, and any notice from the
Corporation to the Optionee shall be sent to the Optionee at his
address set forth above; and shall be in writing and shall be
delivered in person or by registered or certified mail. Either
party may change the address to which notices are to be sent by
notice in writing given to the other in accordance with the terms
hereof.
7. GOVERNING LAW. This Option Agreement, as well as
-------------
the grant of the Options and issuance of the shares of Common
Stock and Warrants hereunder, is governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
ADVANCED NMR SYSTEMS, INC.
By: /s/ Charles Moche
______________________________
Charles Moche, Chief Financial
Officer
Agreed to:
/s/ Oleg Pohotsky
___________________________________
Oleg Pohotsky
Exercise of Option
To Purchase Shares
------------------
To: Advanced NMR Systems, Inc.
The undersigned hereby exercises the within Option for
the purchase of ______ shares (the "Shares") of Advanced NMR
Systems, Inc. Common Stock and corresponding number of Warrants
according to the terms and conditions thereof and herewith makes
payment of the purchase price by the delivery of _______. In the
event the Shares or the Warrants are not registered under the
Securities Act of 1933, as amended, the undersigned shall provide
such representations as may be required by the Corporation to
fulfill any exemptions that may be sought under said Act. Kindly
issue the certificate for the Shares and the Warrants in
accordance with the instructions given below:
___________________________________
Signature
Instructions for issuance
of stock:
________________________________________
Name
________________________________________
________________________________________
Address
________________________________________
Social Security Number
Exhibit 23.1
____________
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this
Registration Statement on Form S-8 of Advanced NMR Systems, Inc.
(the "Company") of our report dated November 29, 1995 on the
consolidated financial statements of the Company for the nine
months ended September 30, 1995 and for each of the years in the
two-year period ended December 31, 1994 appearing in the
Company's Annual Report on Form 10-K for the transition period
from January 1, 1995 to September 30, 1995.
/s/ Richard A. Eisner & Company, LLP
Cambridge, Massachusetts
February 27, 1996
