UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 6)
ADVANCED MAMMOGRAPHY SYSTEMS, INC.
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(Name of Issuer)
COMMON STOCK, $0.01 PAR VALUE
-------------------------------
(Title of Class of Securities)
00753Q-101
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(CUSIP Number)
Jack Nelson, Chairman
Advanced NMR Systems, Inc.
46 Jonspin Road
Wilmington, MA 01887-1082
(508) 657 - 8876
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
June 23, 1997
----------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this Schedule because of Rule 13d-
1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement
[ ]. (A fee is not required only if the reporting person: (1)
has a previous statement on file reporting beneficial ownership
of more than five percent of the class of securities described in
Item 1; and (2) has filed no amendment subsequent thereto
reporting beneficial ownership of five percent of less of such
class.) (See Rule 13d-7.)
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934, as amended (the "Act") or
otherwise subject to the liabilities of that section of the Act
but shall be subject to all provisions of the Act (however, see
the Notes).
<PAGE>
SCHEDULE 13D
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CUSIP No. 00753Q-101 PAGE 2 OF 40 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Advanced NMR Systems, Inc.
EIN: 22-2457487
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(E) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF 7 SOLE VOTING POWER
SHARES 1,250,000
BENEFICIALLY --------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH -0-
REPORTING --------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
-0- (See Item 5)
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10 SHARED DISPOSITIVE POWER
-0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,250,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.4%
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Pursuant to Rule 13d-2 of the General Rules and Regulations
under the Act, this Amendment No. 6 amends the Schedule 13D filed
with the Commission on September 19, 1995 (the "Statement") with
respect to the common stock, $.01 par value per share, of
Advanced Mammography Systems, Inc. (the "AMS Common Stock"), as
amended by Amendment No. 1 to the Statement filed with the
Commission on February 21, 1996, Amendment No. 2 to the Statement
filed with the Commission on June 12, 1996, Amendments No. 3 and
No. 4 to the Statement, dated May 16, 1997, and Amendment No. 5,
dated May 27, 1997. Terms used and not otherwise defined herein
shall have the respective meanings set forth in the Statement.
Except as otherwise expressly indicated below, the information to
be provided in the Statement and as amended remains in effect.
ITEM 4. PURPOSE OF TRANSACTION
----------------------
On June 23, 1997, Advanced NMR and its newly formed, wholly-
owned subsidiary, ANMR/AMS Merger Corp. ("Acquisition Corp."),
entered into an Agreement and Plan of Merger (the "Merger
Agreement") with AMS. The Merger Agreement provides for the
merger (the "Merger") of Acquisition Corp. with and into AMS,
with AMS as the surviving corporation of the Merger and therefor
a wholly-owned subsidiary of Advanced NMR. A copy of the Merger
Agreement is incorporated herein as Exhibit 2 hereto. The
description of the transaction provided herein is qualified in
its entirety by reference to the Merger Agreement.
Upon effectiveness of the Merger, each share of AMS Common
Stock (except for the shares owned by Advanced NMR) shall be
converted into the right to receive four-tenths (.40) of one
fully paid and nonassessable share of Advanced NMR Common Stock.
The Merger Agreement provides that Advanced NMR will assume the
outstanding AMS options, warrants and debentures and is obligated
to issue shares of ANMR Common Stock in substitution for shares
of AMS Common Stock, as adjusted pursuant to the respective anti-
dilution provisions.
The Merger will close upon approval by holders of at least a
majority of outstanding AMS Common Stock and approval by
stockholders of Advanced NMR Common Stock of certain proposals
necessary to effect the Merger, at meetings to be called after
SEC review of proxy material and a registration statement, and
fulfillment of other closing conditions.
Items (g),(h),(i) of Item 4 shall be amended as follows to
describe results occurring upon effectiveness of the Merger:
(g) the Certificate of Incorporation of AMS shall be amended
to change the authorized capital stock of AMS to 1,000 shares of
common stock, $.01 par value per share.
(h) AMS Common Stock shall cease to be quoted on the Nasdaq
Small Cap System or any other inter-dealer quotation system of a
registered national securities association.
(i) AMS Common Stock shall be deregistered under the Act
pursuant to Section 12(g)(4) of the Act.
-3-
<PAGE>
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS, OR
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RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER
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See Item 4.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS:
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(5) Agreement and Plan of Merger, dated as of
June 23, 1997, among Advanced NMR Systems,
Inc., ANMR/AMS Merger Corporation and
Advanced Mammography Systems, Inc.
-4-
<PAGE>
SIGNATURE
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After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in the statement
is true, complete and correct.
ADVANCED NMR SYSTEMS, INC.
Date: July 1, 1997 By: /s/ Jack Nelson
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Jack Nelson, Chairman
-5-
<PAGE>
EXHIBIT INDEX
Exhibit Description
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(5) Agreement and Plan of Merger, dated as of
June 23, 1997, among Advanced NMR Systems,
Inc., ANMR/AMS Merger Corporation and
Advanced Mammography Systems, Inc.
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated June 23, 1997, by
and among ADVANCED NMR SYSTEMS, INC., a Delaware corporation
("Advanced NMR"), ANMR/AMS MERGER CORP., a Delaware corporation
("Acquisition Corp."), and ADVANCED MAMMOGRAPHY SYSTEMS, INC., a
Delaware corporation ("AMS").
W I T N E S S E T H :
WHEREAS, Acquisition Corp. is a wholly-owned subsidiary
of Advanced NMR;
WHEREAS, Advanced NMR is the owner of 1,250,000 shares
(the "AMS Shares") of common stock, $.01 par value per share
("AMS Common Stock"), of AMS;
WHEREAS, Advanced NMR desires to acquire the shares of
AMS Common Stock not owned by it through the merger of
Acquisition Corp. with and into AMS pursuant to the terms
hereinafter set forth (the "Merger");
WHEREAS, the respective Boards of Directors of Advanced
NMR and Acquisition Corp. deem it advisable and in the best
interests of Advanced NMR and Acquisition Corp. that Acquisition
Corp. be merged with and into AMS upon the terms and conditions
hereinafter specified;
WHEREAS, the Board of Directors of AMS, upon the
recommendation of a special committee of independent directors
("Special Committee") of AMS, deems it advisable and in the best
interests of AMS that Acquisition Corp. be merged with and into
AMS upon the terms and conditions hereinafter specified;
WHEREAS, for Federal income tax purposes, it is
intended that the Merger shall qualify as a reorganization within
the meaning of Section 368 of the Internal Revenue Code of 1986,
as amended (the "Code");
WHEREAS, Acquisition Corp. has an authorized capital
stock consisting of 1,000 shares of Common Stock, $.01 par value
per share (the "Acquisition Corp. Common Stock"), of which 100
shares are currently issued and outstanding and owned by Advanced
NMR; and
WHEREAS, AMS has an authorized capital stock consisting
of (i) 5,000,000 shares of preferred stock, $.01 par value per
share (the "AMS Preferred Stock"), none of which is issued and
outstanding; and (ii) 25,000,000 shares of AMS Common Stock, of
which 7,616,254 shares are currently issued and outstanding.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements hereinafter contained, the parties
hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
ADOPTION OF AGREEMENT AND PLAN OF MERGER
1.1 The Merger. At the Effective Time (as defined in
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Section 1.2 herein), in accordance with this Agreement and the
-----------
relevant provisions of the Delaware General Corporation Law (the
"DGCL"), Acquisition Corp. shall be merged with and into AMS.
AMS shall be the surviving corporation of the Merger and AMS
shall continue, and be deemed to continue, for all purposes after
the Merger, and the existence of Acquisition Corp. shall cease at
the Effective Time.
1.2 Effective Date of the Merger. This Agreement
----------------------------
shall be submitted to the stockholders of AMS as provided in
Section 5.4 hereof, and to the sole stockholder of Acquisition
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Corp., as provided in Section 5.4 hereof, for approval as soon as
-----------
practicable after the execution of this Agreement. Subject to
the terms and conditions hereof, upon the authorization, approval
and adoption hereof by (a) the affirmative vote of the holders of
at least a majority of the outstanding shares of each of AMS
Common Stock and Acquisition Corp. Common Stock entitled to vote
thereon as provided by the DGCL, and (b) the affirmative vote of
the holders of at least a majority of the outstanding shares of
common stock, $.01 par value per share, of Advanced NMR
("Advanced NMR Common Stock") of the Recapitalization
Transactions (as defined below), a Certificate of Merger (the
"Certificate of Merger") meeting the requirements of Section 251
of the DGCL shall be executed, verified and acknowledged as
required by the provisions of Sections 251 and 103 of the DGCL
and be delivered to the Secretary of State of Delaware for filing
(the time of such filing being the "Effective Time" and the date
of such filing being the "Effective Date"). The term
"Recapitalization Transactions" shall mean the following
transactions: (w) a 1 for 10 reverse stock split of the
outstanding shares of Advanced NMR Common Stock (the "Reverse
Stock Split"); (x) the amendment of Advanced NMR's Certificate of
Incorporation to reflect the Reverse Stock Split; (c) the
election of a new Board of Directors of Advanced NMR; (d) the
change of name of Advanced NMR; and (e) the number of shares of
Advanced NMR Common Stock authorized for grant under its 1993
Employee Stock Option Plan and its 1993 Directors Stock Option
Plan for Non-Employee Directors.
1.3 Surviving Corporation; Certificate of
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Incorporation of Surviving Corporation. Following the Merger,
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AMS shall continue to exist under, and be governed by, the laws
of the State of Delaware. The Certificate of Incorporation of
AMS, as in effect on the Closing Date, shall continue in full
force and effect as the Certificate of Incorporation of AMS,
except that upon the Merger the Certificate of Incorporation of
AMS shall be amended to change its authorized capital stock to
consist of only 1,000 shares of common stock, $.01 par value per
share.
1.4 Merger Consideration; Conversion of AMS Common
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Stock; Cancellation of Acquisition Corp. Common Stock. (a) At
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the Effective Time, by virtue of the Merger and without any
action on the part of Acquisition Corp., AMS or the holders of
any shares of AMS Common Stock, each share of AMS Common Stock
issued and outstanding immediately prior to the Effective Time
(other than AMS shares owned by Advanced NMR), shall be converted
into the right to receive four-tenths (.40) of one fully paid and
nonassessable share of Advanced NMR Common Stock (the "Conversion
Number"). The Conversion Number has been determined taking into
account (a) the Reverse Stock Split; and (b) the conversion of
all AMS Debentures (as defined in Section 1.8) into shares of AMS
Common Stock. The number of shares of Advanced NMR Common Stock
to be received by the AMS stockholders in exchange for each share
of AMS Common Stock pursuant to the Merger is hereinafter
referred to as the "Merger Consideration." All shares of AMS
Common Stock to be converted into shares of Advanced NMR Common
Stock pursuant to the Merger are hereinafter referred to as the
"Converted Shares."
(b) At the Effective Time, each share of Acquisition
Corp. Common Stock issued and outstanding immediately prior to
the Effective Time shall, by virtue of the Merger and without any
action on the part of Advanced NMR, be cancelled and cease to
exist.
1.5 Exchange of Certificates. (a) Prior to the
------------------------
Effective Time, Advanced NMR will select an exchange agent (the
"Exchange Agent") reasonably acceptable to AMS to effectuate the
delivery of the Merger Consideration provided for in Section 1.4
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to holders of AMS Common Stock (other than AMS shares owned by
Advanced NMR) upon surrender of certificates which immediately
prior to the Effective Time represented shares of AMS Common
Stock ("Certificates").
(b) As of the Effective Time, Advanced NMR shall
provide, or shall take all steps necessary to provide, to the
Exchange Agent, the aggregate number of shares of Advanced NMR
Common Stock post-Reverse Stock Split to be issued in the Merger
pursuant to Section 1.4(a) in exchange for the shares of AMS
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Common Stock. The Exchange Agent shall, pursuant to irrevocable
instructions, make the deliveries of the Merger Consideration
required in respect of the Merger.
(c) Promptly after the Effective Time, the Exchange
Agent shall mail to each record holder of an outstanding
Certificate, determined as of the Effective Date, a form letter
of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to Certificates shall pass,
only upon proper delivery of the Certificates to the Exchange
Agent), advising such holder of the terms of the exchange
effected by the Merger and the procedure for surrendering to the
Exchange Agent such Certificate in exchange for the Merger
Consideration.
(d) Upon surrender of a Certificate to the Exchange
Agent, together with such letter of transmittal, duly executed,
the holder of such Certificate shall be entitled to receive in
exchange therefor the Merger Consideration provided for in
Section 1.4(a) (consisting of a certificate representing that
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whole number of shares of Advanced NMR Common Stock which such
holder has the right to receive hereunder), and the Certificate
so surrendered shall forthwith be canceled. Shares of Advanced
NMR Common Stock shall be delivered to such holder as promptly as
practicable and (except as hereinafter provided) in no event
later than twenty (20) days after proper delivery of the
applicable Certificates and letters of transmittal to the
Exchange Agent.
(e) All shares of Advanced NMR Common Stock issued
upon conversion of the shares of AMS Common Stock in accordance
with the terms hereof shall be deemed to have been issued in full
satisfaction of all rights pertaining to such shares of AMS
Common Stock.
(f) Neither Acquisition Corp., Advanced NMR nor AMS
shall be liable to any holder of shares of AMS Common Stock for
any such shares of Advanced NMR Common Stock delivered to a
public official pursuant to any abandoned property, escheat or
similar law. Until surrendered in accordance with the provisions
of Section 1.5, each Certificate representing Converted Shares
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shall represent, for all purposes, only the right to receive the
Merger Consideration.
(g) Any shares of Advanced NMR Common Stock which
remain undistributed to holders of AMS Common Stock for six (6)
months after the Effective Time shall be delivered to Advanced
NMR, upon demand, and any holder of AMS Common Stock who has not
theretofore complied with this Section 1.5 shall thereafter look
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to Advanced NMR for the Merger Consideration to which he is
entitled.
1.6 No Fractional Shares. No certificates or scrip
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for fractional shares of Advanced NMR Common Stock will be issued
and no such fractional share interest shall entitle the owner
thereof to vote or to any rights of or as a stockholder of
Advanced NMR. In lieu of issuing any such fractional shares to
which a holder of AMS Common Stock would otherwise be entitled to
receive, the Exchange Agent shall round up or down to the nearest
whole share.
1.7 Certificates in Other Names. If any certificate
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evidencing shares of Advanced NMR Common Stock is to be issued in
a name other than that in which the Certificate surrendered in
exchange therefore is registered, it shall be a condition of the
issuance thereof that the Certificate so surrendered shall be
properly endorsed and otherwise in proper form for transfer and
that the person requesting such exchange pay to the Exchange
Agent or to Advanced NMR acting solely in its corporate capacity,
as the case may be, any transfer or other taxes required by
reason of the issuance of a certificate for shares of Advanced
NMR Common Stock in any name other than that of the registered
holder of the Certificate surrendered or otherwise required or
establish to the satisfaction of the Exchange Agent or of
Advanced NMR acting solely in its corporate capacity, as the case
may be, that such tax has been paid or is not payable.
1.8 Treatment of AMS Options, AMS Warrants and AMS
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Debentures. At the Effective Time, Advanced NMR shall assume all
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of the rights and obligations of AMS pursuant to the (i) AMS
Option Plans (as hereinafter defined), (ii) AMS Warrants (as
hereinafter defined) and (iii) AMS Debentures (as hereinafter
defined) except that Advanced NMR shall not be obligated to issue
AMS Common Stock upon the exercise of the Options (as hereinafter
defined) and AMS Warrants and conversion of the AMS Debentures,
but, pursuant to the terms of such Options, AMS Warrants and AMS
Debentures as modified in accordance with this Section 1.8, shall
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instead be obligated to issue, for each share of AMS Common Stock
that would have been issuable upon the exercise of such Options
and AMS Warrants and conversion of the AMS Debentures immediately
prior to the Effective Time, a number of shares of Advanced NMR
Common Stock equal to the Merger Consideration. (All such
Options, AMS Warrants and AMS Debentures are sometimes
hereinafter referred to as the "Derivative Securities".) At or
prior to the Effective Time, AMS shall make all necessary and
appropriate adjustments to the Derivative Securities to provide
that such Derivative Securities shall be amended and converted as
of the Effective Time into an option, warrant or conversion right
to acquire shares of Advanced NMR Common Stock as described in
the first sentence of this Section. No fractional shares of
Advanced NMR Common Stock shall be issued upon the exercise or
conversion of such Derivative Securities, and if the number of
shares of Advanced NMR Common Stock issuable upon exercise or
conversion of all or any portion of such Derivative Securities
shall include a fraction of a share, then the number of shares of
Advanced NMR Common Stock deliverable upon exercise shall be
rounded up or down to the nearest whole share unless otherwise
provided in the instrument governing the Derivative Security.
The term "Options," "AMS Option Plans," "AMS Warrants" and "AMS
Debentures" are defined in Schedule 1.8.
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ARTICLE II
CLOSING
2.1 Closing Date. The closing of the Merger (the
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"Closing") shall take place at the offices of Reid & Priest LLP,
40 West 57th Street, New York, New York 10019 at 10:00 a.m., New
York time, on that day on which the last of the conditions set
forth in Articles VI and VII shall have been satisfied or, if
permissible, waived (other than those conditions which by their
terms are to occur only at the Closing), or on and at such other
date, time and place as Advanced NMR, Acquisition Corp. and AMS
may agree (the date of the Closing hereinafter being referred to
as the "Closing Date").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF AMS
AMS hereby represents and warrants to Advanced NMR and
Acquisition Corp. as follows:
3.1 Due Incorporation. AMS is a corporation duly
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organized, validly existing and in good standing under the laws
of its jurisdiction of organization, with all requisite power and
authority to own, lease and operate its properties and to carry
on its business as they are now being owned, leased, operated and
conducted. AMS is qualified to do business and is in good
standing as a foreign corporation in the States of Massachusetts
and New Jersey which are the only jurisdictions where the nature
of the properties owned, leased or operated by it and the
business transacted by it require such qualification. AMS has no
direct or indirect subsidiaries, either wholly or partially
owned, and AMS does not hold any voting or management interest in
any corporation, proprietorship, firm, partnership, limited
partnership, limited liability company, trust, association,
individual or other entity (a "Person") or own any security
issued by any Person.
3.2 Due Authorization. AMS has full power and
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authority to enter into this Agreement and the Certificate of
Merger (the "Related Agreement") and, subject to obtaining the
necessary approval of this Agreement and the Merger by the
stockholders of AMS, to consummate the transactions contemplated
hereby and thereby. The execution, delivery and performance by
AMS of this Agreement and the Related Agreement have been duly
and validly approved and authorized by the Board of Directors of
AMS, and, subject to obtaining the necessary approval of the
Merger by the AMS stockholders, the Related Agreement and the
transactions contemplated hereby and thereby. AMS has duly and
validly executed and delivered this Agreement and will duly and
validly execute and deliver the Related Agreement. Subject to
obtaining the necessary approval of the AMS stockholders, this
Agreement constitutes the legal, valid and binding obligation of
AMS and the Related Agreement to which AMS is a party, will, upon
execution thereof by AMS, constitute the legal, valid and binding
obligation of AMS, in each case enforceable in accordance with
their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent
transfer, moratorium, reorganization or other laws from time to
time in effect which affect creditors' rights generally and by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
3.3 Non-Contravention; Consents and Approvals. (a)
-----------------------------------------
The execution and delivery of this Agreement by AMS does not, and
the performance by AMS of its obligations hereunder and the
consummation of the transactions contemplated hereby will not,
conflict with, result in a violation or breach of, constitute
(with or without notice or lapse of time or both) a default
under, result in or give to any person any right of payment or
reimbursement, termination, cancellation, modification or
acceleration of, or result in the creation or imposition of any
lien upon any of the assets or properties of AMS under, any of
the terms, conditions or provisions of (i) the Certificate of
Incorporation or By-Laws of AMS, or (ii) subject to obtaining the
necessary approval of this Agreement and the Merger by the AMS
stockholders and the taking of the actions described in paragraph
(b) of this Section, (x) any statute, law, rule, regulation or
ordinance (together, "Laws"), or any judgment, decree, order,
writ, permit or license, of any Governmental Entity (as defined
in paragraph (b) below), applicable to AMS or any of its assets
or properties, or (y) any contract, agreement or commitment to
which AMS is a party or by which AMS or any of its assets or
properties is bound, excluding from the foregoing clauses (x) and
(y) conflicts, violations, breaches, defaults, terminations,
modifications, accelerations and creations and impositions of
liens which would not have an AMS Material Adverse Effect (as
defined in Section 3.7) or result in the inability of AMS to
consummate the transactions contemplated by this Agreement.
(b) No consent, approval, order or authorization of,
or registration, declaration or filing with any court, admini-
strative agency or commission or other governmental authority or
instrumentality, domestic or foreign (a "Governmental Entity"),
is required by AMS in connection with the execution and delivery
of this Agreement and the Related Agreement or the consummation
by AMS or the AMS stockholders of the transactions contemplated
hereby and thereby, the failure to obtain which would have an AMS
Material Adverse Effect or result in the inability of AMS to
consummate the transactions contemplated hereby, except for:
(i) the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware in accordance with
the requirements of the DGCL and if applicable, the filing of
the appropriate documents with the relevant authorities of
other states in which AMS is qualified to transact business;
and
(ii) the filing of a proxy statement ("Proxy Statement")
with the Securities and Exchange Commission ("Commission")
pursuant to the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and the Securities Act of 1933, as amended
(the "1933 Act") and the declaration of the effectiveness of
the Registration Statement (as hereinafter defined) by the
Commission and filings with various blue sky authorities.
3.4 Capitalization. (a) The authorized capital
--------------
stock of AMS consists of 5,000,000 shares of AMS Preferred Stock
and 25,000,000 shares of AMS Common Stock. On the date hereof,
there are issued and outstanding no shares of AMS Preferred Stock
and 7,616,254 shares of AMS Common Stock. All of the issued and
outstanding shares of AMS Common Stock are validly issued, fully
paid and nonassessable and the issuance thereof was not subject
to preemptive rights.
(b) Except for shares of AMS Common Stock issuable
pursuant to the Derivative Securities, there are no shares of AMS
Common Stock or other equity securities (whether or not such
securities have voting rights) of AMS issued or outstanding or
any subscriptions, options, warrants, calls, rights, convertible
securities or other agreements or commitments of any character
obligating AMS to issue, transfer or sell any shares of capital
stock or other securities (whether or not such securities have
voting rights) of AMS. There are no outstanding contractual
obligations of AMS which relate to the purchase, sale, issuance,
repurchase, redemption, acquisition, transfer, disposition,
holding or voting of any shares of capital stock or other
securities of AMS.
3.5 Financial Statements; Undisclosed Liabilities;
----------------------------------------------
Other Documents. (a) For purposes of this Agreement, "AMS
---------------
Financial Statements" shall mean (i) the audited financial
statements of AMS as of September 30, 1996 and September 30, 1995
(including all notes thereto) which are included in the AMS SEC
Documents (as defined in Section 3.6), consisting of the balance
sheets at such dates and the related statements of income,
stockholders' equity and cash flows for the twelve month periods
ended September 30, 1996 and 1995; and (ii) the unaudited
financial statements of AMS as of March 31, 1997 and March 31,
1996 consisting of the balance sheets at such dates and the
related statements of income, and cash flows for the three and
six-month periods ended March 31, 1997 and March 31, 1996. The
AMS Financial Statements have been prepared in accordance with
GAAP consistently applied (except as may be indicated therein or
in the notes thereto) and present fairly the consolidated
financial position of AMS as at the dates thereof and the
consolidated results of operations and cash flows of AMS for the
periods covered thereby.
(b) AMS does not have any liabilities or obligations
of any nature, whether accrued, absolute, contingent or
otherwise, which individually or in the aggregate could be
reasonably expected to have an AMS Material Adverse Effect except
(i) as set forth on or reflected in the AMS Financial Statements
as of and for the period ended March 31, 1997 (the "March 1997
Financials") or (ii) liabilities and obligations incurred since
March 31, 1997 in the ordinary and usual course of its business.
3.6 Commission Filings. AMS has timely filed all
------------------
required forms, reports and other documents with the Commission
since January 1, 1995, all of which complied when filed, in all
material respects, with all applicable requirements of the 1933
Act and 1934 Act as applicable. AMS has heretofore delivered to
Acquisition Corp. complete and correct copies of (i) its Annual
Report on Form 10-K for the twelve-month period ended September
30, 1996 and its Quarterly Report on Form 10-Q for the four-month
period ended March 31, 1997, (ii) all proxy statements relating
to AMS' meetings of stockholders (whether annual or special)
since January 1, 1995, and (iii) all other reports, forms and
other documents filed by AMS with the Commission since January 1,
1995 (together, the "AMS SEC Documents"). As of their respective
dates, the AMS SEC Documents (including all exhibits and
schedules thereto and documents incorporated by reference
therein) did not contain any untrue statement of material fact or
omit to state a material fact required to be stated therein, or
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, except as
otherwise set forth on Schedule 3.6. The audited financial
------------
statements and the unaudited interim financial statements of AMS
included or incorporated by reference in the AMS SEC Documents
were prepared in accordance with GAAP consistently applied
(except as may be indicated therein or in the notes thereto) and
present fairly the consolidated financial position of AMS as at
the dates thereof and the consolidated results of operations and
cash flows of AMS for the periods covered thereby.
3.7 No Material Adverse Effects or Changes. Except
--------------------------------------
as listed on Schedule 3.7, or as disclosed in or reflected in the
------------
March 1977 Financials, or as contemplated by this Agreement or
the Related Agreement, since March 31, 1997, AMS has not
(i) suffered any damage, destruction or Loss to any of its assets
or properties (whether or not covered by insurance) which is
having or could reasonably be expected to have an AMS Material
Adverse Effect, (ii) declared, set aside or paid any dividend or
other distribution in respect of its capital stock; (iii) made
any direct or indirect redemption, purchase or other acquisition
of any shares (other than purchases in connection with the
exercise of options) of its capital stock or made any payment
(other than dividends) to any of its stockholders (in their
capacity as stockholders); (iv) issued or sold any shares of its
capital stock or any options, warrants or other rights to
purchase any such shares or any securities convertible into or
exchangeable for such shares or taken any action to reclassify or
recapitalize or split up its capital stock; (v) mortgaged,
pledged or subjected to any lien, lease, security interest,
encumbrance or other restriction, any of its material properties
or assets except in the ordinary and usual course of its business
and consistent with past practice; or (vi) except in the ordinary
and usual course of its business and consistent with its past
practice forgiven or canceled any material debt or claim, or
waived any material right. "Loss" shall mean liabilities,
losses, costs, claims, damages (including consequential damages),
penalties and expenses (including attorneys' fees and expenses
and costs of investigation and litigation). An "AMS Material
Adverse Effect" shall mean an effect on or circumstance involving
the business, operations, assets, liabilities, results of
operations, cash flows or condition (financial or otherwise) of
AMS which is materially adverse to AMS.
3.8 Intellectual Property. Schedule 3.8 is a true
--------------------- ------------
and complete list of all of the trademarks, tradenames, service
marks, and patents material to AMS' MRI technology (including any
registrations of or pending applications for any of the
foregoing) ("Intellectual Property") used by AMS in the conduct
of its business. Except as disclosed on Schedule 3.8:
------------
(a) all of such Intellectual Property is owned by AMS
free and clear of all liens, and is not subject to any license,
royalty or other agreement, except the License Agreement dated as
of July 29, 1992 ("License Agreement") between AMS and Advanced
NMR;
(b) none of such Intellectual Property has been or is
the subject of any pending or, to the best of AMS' knowledge,
threatened litigation or claim of infringement; or
(c) no license or royalty agreement to which AMS is a
party is in breach or default by any party thereto except where
such breach or default would not have an AMS Material Adverse
Effect or is the subject of any notice of termination given or,
to AMS' knowledge, threatened.
3.9 Tax Returns and Audits. AMS has duly filed all
----------------------
federal, state, local and foreign tax returns, reports and forms
required to be filed by it, except where the failure to so file
would not have an AMS Material Adverse Effect. AMS has duly paid
(except for Taxes being contested in good faith) or made adequate
provisions on its books in accordance with GAAP for the payment
of all Taxes which have been incurred or are due and payable, and
AMS will on or before the Effective Time of the Merger make
adequate provision on its books in accordance with GAAP for all
Taxes payable for any period through the Effective Time of the
Merger for which no return is required to be filed prior to the
Effective Time. The federal and state income tax returns of AMS
have never been examined by the Internal Revenue Service or state
taxing authority, respectively, nor has AMS granted or given any
extensions or waivers of the statute of limitations with respect
to any such federal and state income tax returns. AMS is not
aware of any basis for the assertion of any deficiency against it
for Taxes, which, if adversely determined, would have an AMS
Material Adverse Effect. For purposes of this Agreement, "Taxes"
shall mean all taxes, assessments and governmental charges
imposed by any federal, state, local or foreign government,
taxing authority, subdivision or agency thereof, including, but
not limited to, any withholding, payroll, employment, custom,
duty, sales, any other governmental fee or assessment, and
penalties, in addition to any liability to a third party for such
amounts.
3.10 Litigation. There are no actions, suits,
----------
arbitrations, regulatory proceedings or other litigation,
proceedings or governmental investigations pending or, to AMS'
knowledge, threatened against or affecting AMS any of its
officers or directors in their capacity as such, or any of its
property or business which could reasonably be expected to have
an AMS Material Adverse Effect. AMS is not subject to any order,
judgment, decree, injunction, stipulation or consent order of or
with any court or other Governmental Entity, other than orders of
general applicability.
3.11 Compliance with Applicable Laws. AMS holds all
-------------------------------
permits, licenses, variances, exemptions, orders and approvals of
all Governmental Entities which are required in the operation of
its business (the "AMS Permits"), except for those the failure of
which to hold would not have an AMS Material Adverse Effect. AMS
is in compliance with the terms of the AMS Permits, except where
the failure so to comply would not have an AMS Material Adverse
Effect. To AMS' knowledge, AMS is not in violation of any law,
ordinance or regulation of any Governmental Authority, including
environmental and labor laws and regulations, except for possible
violations which individually and in the aggregate do not, and,
insofar as reasonably can be foreseen by AMS, will not in the
future have an AMS Material Adverse Effect.
3.12 Medical Devices. Except as set forth on
---------------
Schedule 3.12, AMS has not applied for premarket approval of, or
-------------
510(k) notification to, the U.S. Food and Drug Administration
(the "FDA") for any products it plans to sell. Except as set
forth on Schedule 3.12, there are no products proposed to be sold
-------------
by AMS for which pre-market approval or 510(k) notification is
required.
3.13 Contracts; No Defaults. Schedule 3.13 list the
---------------------- -------------
material contracts to which AMS is a party. Except as disclosed
in the AMS SEC Documents, neither AMS, nor to AMS' knowledge any
other party thereto, is in breach or violation of, or in default
in the performance or observance of any term or provision of, and
no event has occurred or by reason of the Merger would occur
which, with notice or lapse of time or both, could be reasonably
expected to result in a default under, any contract, agreement or
commitment to which AMS is a party or by which AMS or any of its
assets or properties is bound, except for breaches, violations
and defaults which are not having and could not be reasonably
expected to have an AMS Material Adverse Effect. AMS is not is
required to give any notice to any person regarding this
Agreement or the Related Agreement or the transactions
contemplated hereby or thereby other than any notice, the failure
of which to give would not have an AMS Material Adverse Effect.
3.14 Fees of Brokers, Finders and Financial Advisors.
-----------------------------------------------
Except for the Special Committee ("Special Committee") of the AMS
Board of Directors' engagement of Valuemetrics, Inc., whose fees
and expenses shall be paid by AMS, neither AMS, nor any officer,
director, or employee of AMS, has employed any broker, finder or
investment banker or incurred any liability for any brokerage or
investment banking fees, commissions or finders' fees in
connection with the transactions contemplated by this Agreement.
3.15 Special Committee Recommendation; Board of
------------------------------------------
Directors Recommendation. The Special Committee of the Board of
------------------------
Directors of AMS has duly adopted at a special meeting duly held
on May 26, 1997 resolutions recommending to the Board approval of
this Agreement, the Related Agreement, and the Merger, and the
transactions contemplated hereby on the terms and conditions set
forth herein. Upon the recommendation of the Special Committee,
the Board of Directors of AMS has duly adopted at a special
meeting of such Board, resolutions approving this Agreement, the
Related Agreement, and the Merger, and the transactions
contemplated hereby on the terms and conditions set forth herein
and has determined to recommend that the stockholders of AMS
approve this Agreement and the Merger (subject to the fiduciary
duty of the AMS Board of Directors determined by the directors
after consultation with legal counsel).
3.16 Opinion of Financial Advisor. AMS has received
----------------------------
the opinion of Valuemetrics, Inc., to the effect that, as of May
26, 1997, the date the Board of Directors of AMS authorized the
Merger, the consideration to be received in the Merger by the
stockholders of AMS was fair from a financial point of view to
the stockholders of AMS, and a true and complete copy of such
opinion has been delivered to Advanced NMR prior to the execution
of this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
ACQUISITION CORP. AND ADVANCED NMR
Acquisition Corp. and Advanced NMR, jointly and
severally, hereby represent and warrant to AMS as follows:
4.1 Due Incorporation. Each of Advanced NMR and
-----------------
Acquisition Corp. (Advanced NMR, each subsidiary of Advanced NMR
and Acquisition Corp. are referred to collectively herein as the
"ANMR Companies") is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction
of incorporation, with all requisite power and authority to own,
lease and operate its properties and to carry on its business as
now being conducted. Each of the ANMR Companies is qualified to
do business and is in good standing as a domestic or foreign
corporation in New Jersey and Massachusetts.
4.2 Due Authorization. Each of Advanced NMR and
-----------------
Acquisition Corp. has full power and authority to enter into this
Agreement and the Related Agreement to which it is a party and to
consummate the transactions contemplated hereby and thereby. The
execution, delivery and performance by Advanced NMR of this
Agreement has been duly and validly approved by the Board of
Directors of Advanced NMR, and no other actions or proceedings on
the part of Advanced NMR are necessary to authorize this
Agreement. The execution, delivery and performance by
Acquisition Corp. of this Agreement and the Related Agreement
have been duly and validly approved by the Board of Directors and
stockholder of Acquisition Corp., and no other actions or
proceedings on the part of Acquisition Corp. or its stockholder
are necessary to authorize this Agreement and the Related
Agreement. Each of Advanced NMR and Acquisition Corp. has duly
and validly executed and delivered this Agreement and Acquisition
Corp. has duly and validly executed and delivered (or will duly
and validly execute and deliver on or prior to the Closing Date)
the Related Agreement. This Agreement constitutes the legal,
valid and binding obligations of each of Advanced NMR and
Acquisition Corp., and the Related Agreement will, upon
execution, constitute the legal, valid and binding obligation of
Acquisition Corp., in each case enforceable in accordance with
their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent
transfer, moratorium, reorganization or other laws from time to
time in effect which affect creditors' rights generally and by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
4.3 Non-Contravention; Consents and Approvals. (a)
-----------------------------------------
The execution and delivery of this Agreement by Advanced NMR and
Acquisition Corp. does not, and the performance by Advanced NMR
and Acquisition Corp. of their obligations hereunder and the
consummation of the transactions contemplated hereby will not,
conflict with, result in a violation or breach of, constitute
(with or without notice or lapse of time or both) a default
under, result in or give to any person any right of payment or
reimbursement, termination, cancellation, modification or
acceleration of, or result in the creation or imposition of any
lien upon any of the assets or properties of any of the ANMR
Companies under, any of the terms, conditions or provisions of
(i) the certificate of incorporation or bylaws of each of the
ANMR Companies, or (ii) subject to the taking of the actions
described in paragraph (b) of this Section, (x) any statute, law,
rule, regulation or ordinance (together, "Laws"), or any
judgment, decree, order, writ, permit or license, of any
Governmental Entity, or (y) any contract, agreement or commitment
to which any ANMR Company is a party or by which any ANMR Company
or any of their respective assets or properties is bound,
excluding from the foregoing clauses (x) and (y) conflicts,
violations, breaches, defaults, terminations, modifications,
accelerations and creations and impositions of liens which would
not have an ANMR Material Adverse Effect or result in the
inability of Advanced NMR or Acquisition Corp. to consummate the
transactions contemplated by this Agreement.
(b) No consent, approval, order or authorization of,
or registration, declaration or filing with any Governmental
Entity is required by Advanced NMR or Acquisition Corp. in
connection with the execution and delivery of this Agreement and
the Related Agreement or the consummation by each of Advanced NMR
and Acquisition Corp. or each of their respective stockholders of
the transactions contemplated hereby and thereby, the failure to
obtain which would have an ANMR Material Adverse Effect or result
in the inability of Advanced NMR or Acquisition Corp. to
consummate the transactions contemplated hereby, except for:
(i) the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware in accordance
with the requirements of the DGCL; and
(ii) the filing of the Proxy Statement/Prospectus with
the Commission pursuant to the 1933 Act and the declaration
of the effectiveness of the Registration Statement by the
Commission and filings with various blue sky authorities,
which shall contain the registration of the shares of
Advanced NMR Common Stock issuable pursuant to the Merger
and the Recapitalization Transactions for approval by the
stockholders of Advanced NMR.
4.4 Capitalization. (a) The authorized capital stock
--------------
of Advanced NMR consists of 1,000,000 shares of Preferred Stock,
$.01 par value per share ("Advanced NMR Preferred Stock") and
50,000,000 shares of Advanced NMR Common Stock. On the date
hereof, there are no shares of Advanced NMR Preferred Stock
issued and outstanding and 43,747,623 shares of Advanced NMR
Common Stock issued and outstanding. The authorized capital
stock of Acquisition Corp. consists of 1,000 shares of
Acquisition Corp. Common Stock, of which there are 100 shares
issued and outstanding on the date hereof. All of the issued and
outstanding shares of Advanced NMR and Acquisition Corp. Common
Stock are, and all shares of Advanced NMR Common Stock to be
issued to AMS stockholders in the Merger or upon exercise of the
Derivative Securities will be, validly issued, fully paid and
nonassessable and the issuances thereof were not and will not be
subject to preemptive rights. As of March 31, 1997, there are
_________ shares of Advanced NMR Common Stock reserved for
issuance under Advanced NMR stock option plans and warrants (the
"ANMR Derivative Securities").
(b) Schedule 4.4 lists all ANMR derivative securities.
------------
Except for the ANMR derivative securities, there are no shares of
Advanced NMR Common Stock and Acquisition Corp. Common Stock or
other equity securities (whether or not such securities have
voting rights) of Advanced NMR and Acquisition Corp. issued or
outstanding or any subscriptions, options, warrants, calls,
rights, convertible securities or other agreements or commitments
of any character obligating Advanced NMR and/or Acquisition Corp.
to issue, transfer or sell any shares of capital stock or other
securities (whether or not such securities have voting rights) of
Advanced NMR and Acquisition Corp. There are no outstanding
contractual obligations of Advanced NMR or Acquisition Corp.
which relate to the purchase, sale, issuance, repurchase,
redemption, acquisition, transfer, disposition, holding or voting
of any shares of capital stock or other securities of each of
Advanced NMR and Acquisition Corp. The Advanced NMR Common Stock
trades on the NASDAQ small cap system.
4.5 Financial Statements; Undisclosed Liabilities;
----------------------------------------------
Other Documents. (a) For purposes of this Agreement, "Advanced
---------------
NMR Financial Statements" shall mean (i) the audited financial
statements of Advanced NMR as of September 30, 1996 and September
30, 1995 (including all notes thereto) which are included in the
ANMR SEC Documents (as defined in Section 4.6), consisting of the
balance sheets at such dates and the related statements of
operations, stockholders' equity and cash flows for the twelve-
month period ended September 30, 1996 and the nine-month period
ended September 30, 1995, and (ii) the unaudited financial
statements of Advanced NMR as of March 31, 1997 and March 31,
1996 which are included in the ANMR SEC Documents, consisting of
the balance sheets at such dates and the related statements of
operations, stockholders' equity and cash flows for the three and
six-month periods ended March 31, 1997 and March 31, 1996. The
Advanced NMR Financial Statements have been prepared in
accordance with GAAP consistently applied and present fairly the
financial position, of Advanced NMR as at the dates thereof and
the results of operations and cash flows of Advanced NMR for the
periods covered thereby.
(b) Advanced NMR does not have any liabilities or
obligations of any nature, whether accrued, contingent, absolute
or otherwise, which individually or in the aggregate could be
reasonably expected to have an ANMR Material Adverse Effect
except (i) as set forth in the Advanced NMR Form 10-K for the
fiscal year ended September 30, 1996 and in the March 31, 1997
balance sheet (the "ANMR Balance Sheet") in the Advanced NMR Form
10-Q for the fiscal quarter ended March 31, 1997 ("AMNR March
1997 Financials") or (ii) liabilities or obligations incurred
since March 31, 1997 in the ordinary and usual course of its
business.
4.6 Commission Filings. Advanced NMR has in a timely
------------------
manner filed all required forms, reports and other documents with
the Commission since January 1, 1995, all of which complied when
filed, in all material respects, with all applicable requirements
of Section 12(g) of the 1934 Act. Advanced NMR has heretofore
delivered to AMS complete and correct copies of (i) its Annual
Report on Form 10-K for the twelve-month period ended September
30, 1996, as filed with the Commission, (ii) all proxy statements
relating to Advanced NMR's meetings of stockholders (whether
annual or special) since January 1, 1995, and (iii) all other
reports, forms and other documents filed by Advanced NMR with the
Commission since January 1, 1995 (together, the "ANMR SEC
Documents"). As of their respective dates, the ANMR SEC
Documents (including all exhibits and schedules thereto and
documents incorporated by reference therein) did not contain any
untrue statement of material fact or omit to state a material
fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances in which they
were made, not misleading. The audited financial statements and
the unaudited interim financial statements of Advanced NMR,
included or incorporated by reference in the ANMR SEC Documents
were prepared in accordance with GAAP consistently applied during
the periods involved (except as may be otherwise indicated in the
notes thereto and except with respect to unaudited statements as
permitted by Form 10-Q of the Commission), and fairly present the
financial position of Advanced NMR as of the dates thereof and
the results of its operations and cash flows for the periods then
ended (subject, in the case of any unaudited interim financial
statements, to normal year-end adjustments).
4.7 No Material Adverse Effects or Changes. Except as
--------------------------------------
listed on Schedule 4.7, or as disclosed in or reflected in the
------------
financial statements included in the ANMR SEC Documents, or as
contemplated by this Agreement or the Related Agreements, since
March 31, 1997, none of the ANMR Companies has (i) suffered any
damage, destruction or Loss to any of its assets or properties
(whether or not covered by insurance) which is having or could be
expected to have an ANMR Material Adverse Effect, or (ii)
increased the compensation of any executive officer of any ANMR
Company except for increases consistent with past practices. An
"ANMR Material Adverse Effect" shall mean an effect on or
circumstances involving the business, operations, assets,
liabilities, results of operations, cash flows or condition
(financial or otherwise) which is materially adverse to the ANMR
Companies, taken as a whole.
4.8 Absence of Certain Changes or Events. Except as
------------------------------------
disclosed in the ANMR March 1997 Financials or in Schedule 4.8
------------
hereto, since March 31, 1997 Advanced NMR has not (i) declared,
set aside or paid any dividend or other distribution in respect
of its capital stock; (ii) made any direct or indirect
redemption, purchase or other acquisition of any shares (other
than purchases in connection with the exercise of options) of its
capital stock or made any payment (other than dividends) to any
of their stockholders (in their capacity as stockholders); (iii)
issued or sold any shares of its capital stock or any options,
warrants or other rights to purchase any such shares or any
securities convertible into or exchangeable for such shares or
taken any action to reclassify or recapitalize or split up their
capital stock; (iv) mortgaged, pledged or subjected to any lien,
lease, security interest, encumbrance or other restriction, any
of their material properties or assets except in the ordinary and
usual course of their business and consistent with past practice;
(v) except in the ordinary and usual course of its business and
consistent with its past practices forgiven or canceled any
material debt or claim, waived any material right; or (vi)
adopted or amended any plan or arrangement (other than amendments
that are not material or that were made to comply with laws or
regulations) for the benefit of any director, officer or employee
or changed the compensation (including bonuses) to be paid to any
director, officer or employee, except for changes made consistent
with the prior practice of Advanced NMR.
4.9 Intellectual Property. Schedule 4.9 is a true and
--------------------- ------------
complete list of all of Intellectual Property used by Advanced
NMR in the conduct of its business. Except as disclosed on
Schedule 4.9:
------------
(a) all of the Intellectual Property is owned by
Advanced NMR free and clear of all liens, and is not subject to
any license, royalty or other agreement, other than the License
Agreement;
(b) none of the Intellectual Property has been or is
the subject of any pending or, to the best of Advanced NMR's
knowledge, threatened litigation or claim of infringement; or
(c) no license or royalty agreement to which Advanced
NMR is a party is in breach or default by any party thereto or
the subject of any notice of termination given or threatened.
4.10 Insurance. Advanced NMR is insured with
---------
reputable insurers against all risks and in such amounts normally
insured against by companies of the same type and in the same
line of business as Advanced NMR.
4.11 Employee Benefit Plans and Employment Agreements.
------------------------------------------------
(a) For purposes of this Agreement, the term "Advanced NMR
Employee Plan" shall mean any pension, profit sharing,
retirement, deferred compensation, bonus or other incentive plan,
any other employee program, arrangement, agreement or
understanding, any medical, vision, dental or other health plan,
any life insurance plan, or any other employee benefit plan,
including, without limitation, any "employee benefit plan" as
defined in Section 3(3) of ERISA to which Advanced NMR
contributes or is a party or is bound or under which it may have
a liability and under which its employees or retirees (or their
beneficiaries) are eligible to participate or derive a benefit.
(b) The only Advanced NMR Employee Plan which is
intended to be qualified under Section 401(a) of the Code is the
Advanced NMR Systems, Inc. 401(k) Retirement Plan (the "Advanced
NMR Qualified Plan"). The Advanced NMR Qualified Plan has
received a favorable determination letter from the Internal
Revenue Service. During the six year period preceding the
Closing Date, neither Advanced NMR nor any other entity with
which Advanced NMR is in any way affiliated has sponsored or
otherwise had an obligation to contribute to any "defined benefit
plan" (within the meaning of the Section 3(35) of ERISA).
(c) The Advanced NMR Employee Plan has been maintained
in substantial compliance with its terms and in all material
respects with the applicable requirements of law (including,
without limitation, ERISA and the Code) and, other than claims
for benefits submitted by participants or beneficiaries in the
ordinary course, there is no legal action, investigation, claim
or proceeding pending or, to the knowledge of Advanced NMR,
threatened against or affecting any Advanced NMR Employee Plan
which would have an ANMR Material Adverse Effect.
(d) There is no employment contract or agreement
covering any employee of Advanced NMR that could give rise to the
payment of any amount that would not be deductible by reason of
Section 280G of the Code.
4.12 Labor Matters. Each of the ANMR Companies has
-------------
conducted and currently is conducting, its business in full
compliance with all laws relating to employment and employment
practices, terms and conditions of employment, wages and hours
and nondiscrimination in employment except where such failure to
be in compliance would not have an ANMR Material Adverse Effect.
The relationship of the ANMR Companies with its respective
employees is generally satisfactory, and there is, and during the
past three years there has been, no labor strike, dispute,
slow-down, work stoppage or other labor difficulty pending or, to
Advanced NMR's knowledge, threatened against or involving the
ANMR Companies. None of the employees of the ANMR Companies are
covered by any collective bargaining agreement, no collective
bargaining agreement is currently being negotiated by the ANMR
Companies and to Advanced NMR's knowledge, no attempt is
currently being made or during the past three years has been made
to organize any employees of the ANMR Companies to form or enter
a labor union or similar organization.
4.13 Tax Returns and Audits. Except as set forth on
----------------------
Schedule 4.13, Advanced NMR has duly filed all federal, state,
-------------
local and foreign tax returns, reports and forms required to be
filed by it, except where the failure to so file would not have
an ANMR Material Adverse Effect. Advanced NMR has duly paid
(except for Taxes being contested in good faith) or made adequate
provisions on their books in accordance with GAAP for the payment
of all Taxes which have been incurred or are due and payable, and
Advanced NMR will on or before the Effective Time of the Merger
make adequate provision on its books in accordance with GAAP for
all Taxes payable for any period through the Effective Time of
the Merger for which no return is required to be filed prior to
the Effective Time. Except as set forth on Schedule 4.13, the
-------------
federal and state income tax returns of Advanced NMR have never
been examined by the Internal Revenue Service or state taxing
authority, respectively, nor has Advanced NMR granted or given
any extensions or waivers of the statute of limitations with
respect to any such federal and state income tax returns.
Advanced NMR is not aware of any basis for the assertion of any
deficiency against Advanced NMR for Taxes, which, if adversely
determined, would have an ANMR Material Adverse Effect.
4.14 Litigation. (a) Except as disclosed in
----------
Schedule 4.14, there are no actions, suits, arbitrations,
-------------
regulatory proceedings or other litigation, proceedings or
governmental investigations pending or, to Advanced NMR's
knowledge, threatened against or affecting any ANMR Company or
any of its respective officers or directors in their capacity as
such, or any of its respective properties or businesses which
could reasonably be expected to have an ANMR Material Adverse
Effect. Except as set forth on Schedule 4.14, all of the
-------------
proceedings pending against any ANMR Company is covered and being
defended by insurers (subject to such deductibles as are set
forth in such Schedule). Except as disclosed in Schedule 4.14,
-------------
no ANMR Company is subject to any order, judgment, decree,
injunction, stipulation or consent order of or with any court or
other Governmental Entity, other than orders of general
applicability. Since January 1, 1995, none of the ANMR Companies
has entered into any agreement to settle or compromise any
proceeding pending or threatened against it which has involved
any obligation other than the payment of money or for which it
has any continuing obligation.
(b) There are no claims, actions, suits, proceedings,
or investigations pending or, to Advanced NMR's knowledge,
threatened by or against any of the ANMR Companies with respect
to this Agreement or the Related Agreement, or in connection with
the transactions contemplated hereby or thereby.
(c) Except as set forth on Schedule 4.14, there are no
-------------
pending or, to Advanced NMR's knowledge, threatened claims
against any director, officer, employee or agent of any ANMR
Company or any other Person which could give rise to any claim
for indemnification against any ANMR Company.
4.15 Compliance with Applicable Laws. Each of the
-------------------------------
ANMR Companies holds all permits, licenses, variances,
exemptions, orders and approvals of all Governmental Entities
which are required in the operation of its respective business
(the "ANMR Permits") except for those the failure of which to
hold would have an ANMR Material Adverse Effect. The ANMR
Companies are in compliance with the terms of the ANMR Permits,
except where the failure so to comply would not have an ANMR
Material Adverse Effect. Except as disclosed in Schedule 4.15,
-------------
to Advanced NMR's knowledge, none of the ANMR Companies is in
violation of any law, ordinance or regulation of any Governmental
Authority, including environmental laws and regulations, except
for possible violations which individually and in the aggregate
do not, and, insofar as reasonably can be foreseen by Advanced
NMR, will not in the future have an ANMR Material Adverse Effect.
4.16 Medical Devices. Except for the products set
---------------
forth on Schedule 4.16, Advanced NMR sells no products for which
-------------
a premarket approval of, or 510(k) notification to, the FDA or
other Governmental Authority is required, and Advanced NMR is
not, as to any other product, otherwise subject to the
jurisdiction of the FDA or any similar state, local or foreign
Governmental Authority. There are no products sold by Advanced
NMR for which a new or modified pre-market approval or 510(k)
notification is required and for which such approval has not been
issued or clearance has not been made by the FDA.
4.17 Contracts; No Defaults. Schedule 4.17 lists all
---------------------- -------------
material contracts to which any of the ANMR Companies is a party.
Except as disclosed in the ANMR SEC Documents, neither any ANMR
Company nor to Advanced NMR's knowledge, any other party thereto,
is in breach or violation of, or in default in the performance or
observance of any term or provision of, and no event has occurred
or by reason of the Merger would occur which, with notice or
lapse of time or both, could be reasonably expected to result in
a default under, any contract, agreement or commitment to which
any ANMR Company is a party or by which any ANMR Company or any
of its assets or properties is bound, except for breaches,
violations and defaults which are not having and could not be
reasonably expected to have an ANMR Material Adverse Effect.
Except as described in Schedule 4.17, none of the ANMR Companies
-------------
is required to give any notice to any person regarding this
Agreement or the Related Agreement or the transactions
contemplated hereby or thereby.
4.18 Fees of Brokers, Finders and Investment Bankers.
-----------------------------------------------
Neither Advanced NMR nor any officer, director, or employee of
Advanced NMR has employed any brokers, finder or investment
banker (except for Houlihan Lokey Howard & Zukin) or incurred any
liability for any brokerage or investment banking fees,
commissions or finders' fees in connection with the transactions
contemplated by this Agreement.
4.19 Opinion of Financial Advisor. Advanced NMR has
----------------------------
received the opinion of Houlihan Lokey Howard & Zukin, to the
effect that, as of May 26, 1997, the date the Board of Directors
of Advanced NMR authorized the Merger, the consideration to be
paid in the Merger by Advanced NMR was fair from a financial
point of view to the stockholders of Advanced NMR, and a true and
complete copy of such opinion has been delivered to AMS prior to
execution of this Agreement.
ARTICLE V
COVENANTS
5.1 Implementing Agreement. Subject to the terms and
----------------------
conditions hereof, each party hereto shall use its best efforts
to take all action required of it to fulfill its obligations
under the terms of this Agreement and to facilitate the
consummation of the transactions contemplated hereby.
5.2 Access to Information and Facilities. From and
------------------------------------
after the date of this Agreement, AMS shall give Advanced NMR and
Acquisition Corp. and their representatives access during normal
business hours and upon reasonable notice to all of the
facilities, properties, books, contracts, commitments and records
of AMS and shall make the officers and employees of AMS available
to Advanced NMR and Acquisition Corp. and their representatives
as Advanced NMR or Acquisition Corp. or their representatives
shall from time to time reasonably request. Advanced NMR and
Acquisition Corp. and their representatives will be furnished
with any and all information concerning AMS which Advanced NMR or
Acquisition Corp. or their representatives reasonably request.
The obligations set forth in this Section 5.2 shall also apply to
-----------
Advanced NMR and Acquisition Corp., mutatis mutandis.
------- --------
5.3 Preservation of Business. From the date of this
------------------------
Agreement until the Closing Date, each of AMS and Advanced NMR
shall operate only in the ordinary and usual course of business
consistent with past practice, and shall use reasonable
commercial efforts to (a) preserve intact its respective business
organization, (b) preserve the good will and advantageous
relationships with customers, suppliers, independent contractors,
employees and other Persons material to the operation of its
business, and (c) not permit any action or omission which would
cause any of the representations or warranties contained herein
to become inaccurate or any of the covenants to be breached in
any material respect.
5.4 Proxy Materials; AMS and Advanced NMR Stockholder
-------------------------------------------------
Approval. (a) As soon as practicable after the date hereof,
--------
Advanced NMR and AMS will prepare and file the Proxy
Statement/Prospectus that will be included in the Registration
Statement containing (i) the Proxy Statement relating to the AMS
Stockholders' Meeting at which this Agreement and the Merger will
be voted upon, (ii) a prospectus relating to the shares of
Advanced NMR Common Stock to be issued by Advanced NMR in
connection with the Merger, and (iii) the Proxy Statement
relating to the Advanced NMR stockholders' meeting ("Advanced NMR
Stockholders' Meeting") at which the Recapitalization
Transactions will be voted upon, and each of Advanced NMR and AMS
shall use all reasonable efforts to have the Registration
Statement declared effective as promptly as practicable. AMS
will convene the AMS Stockholders' Meeting as promptly as
practicable after the Registration Statement is declared
effective to consider and vote upon the approval of this
Agreement and the Merger. Subject to fiduciary obligations of
the AMS Board of Directors or the members of the Special
Committee under applicable law as determined by such AMS Board
members or Special Committee members in good faith after
consultation with legal counsel, the board of directors of AMS
shall recommend such approval to its stockholders and use its
best efforts to obtain such approval. Advanced NMR will convene
the Advanced NMR Stockholders' Meeting as promptly as practicable
after the Registration Statement is declared effective to
consider and vote upon the approval of the Recapitalization
Transactions. The board of directors of Advanced NMR shall
recommend such approval to its stockholders and use its best
efforts to obtain such approval.
(b) The information supplied by AMS for inclusion in
the Proxy Statement/Prospectus shall not, at the time the Proxy
Statement/Prospectus is declared effective, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading. The information supplied by
AMS for inclusion in the Proxy Statement/Prospectus to be sent to
the stockholders of AMS in connection with the AMS Stockholders'
Meeting shall not, at the date the Proxy Statement/Prospectus (or
any amendment thereof or supplement thereto) is first mailed to
stockholders, at the time of the AMS Stockholders' Meeting or at
the Effective Time, contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in
the light of the circumstances under which they are made, not
misleading. If at any time prior to the Effective Time any event
or circumstance relating to AMS, or its officers or directors,
should be discovered by AMS which should be set forth in an
amendment to the Proxy Statement/Prospectus, AMS shall promptly
inform Advanced NMR. All documents that AMS is responsible for
filing with the Commission in connection with the transactions
contemplated herein will comply as to form and substance in all
material respects with the applicable requirements of the 1933
Act and the rules and regulations thereunder, and the 1934 Act
and the rules and regulations thereunder.
(c) The information supplied by Advanced NMR and
Acquisition Corp. for inclusion in the Proxy Statement/Prospectus
shall not, at the time the Proxy Statement/Prospectus is declared
effective, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
The information supplied by Advanced NMR and Acquisition Corp.
for inclusion in the Proxy Statement/Prospectus to be sent to AMS
and Advanced NMR stockholders in connection with the AMS
Stockholders' Meeting and Advanced NMR Stockholders' Meeting,
respectively, shall not at the date the Proxy
Statement/Prospectus (or any amendment thereof or supplement
thereto) is first mailed to AMS and Advanced NMR stockholders, at
the time of the AMS Stockholders' Meeting and the Advanced NMR
Stockholders' Meeting or at the Effective Time, contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which
they are made, not misleading. If at any time prior to the
Effective Time any event or circumstance relating to Advanced NMR
or Acquisition Corp., or to their respective officers or
directors, should be discovered by Advanced NMR which should be
set forth in an amendment to the Proxy Statement/Prospectus or a
supplement thereto, Advanced NMR shall promptly inform AMS. All
documents that Advanced NMR is responsible for filing with the
Commission in connection with the transactions contemplated
herein will comply as to form and substance in all material
respects with the applicable requirements of the 1933 Act and the
rules and regulations thereunder and the 1934 Act and the rules
and regulations thereunder.
5.5 Consents and Approvals. Subject to the terms and
----------------------
conditions provided herein, each of the parties hereto shall use
reasonable commercial efforts to obtain all consents, approvals,
certificates and other documents required in connection with the
performance by it of this Agreement and the consummation of the
transactions contemplated hereby. As soon as practicable after
the date hereof, each of the parties hereto shall make all
filings, applications, statements and reports to all Governmental
Authorities and other Persons which are required to be made prior
to the Closing Date pursuant to any applicable law or contract in
connection with this Agreement and the transactions contemplated
hereby.
5.6 Periodic Reports. Until the Effective Time,
----------------
Advanced NMR and AMS each will, subject to the requirements of
applicable laws, furnish to the other all filings to be made with
the Commission and will solicit comments with respect thereto
from the other, in each case at least 48 hours (or as soon
thereafter as is practicable) prior to the time of such filings
and the time of such mailings.
5.7 Publicity. Prior to issuing any public
---------
announcement or statement with respect to the transactions
contemplated hereby and prior to making any filing with any
Federal or state governmental or regulatory agency or with any
securities exchange with respect thereto, Advanced NMR and AMS
will, subject to their respective legal obligations, consult with
each other and will allow each other to review the contents of
any such public announcement or statement and any such filing.
Subject to the preceding sentence, Advanced NMR and AMS each
agree to furnish to the other copies of all other public
announcements they may make concerning their respective business
and operations promptly after such public announcements are made.
5.8 Listing of Common Stock. Advanced NMR will use
-----------------------
its best efforts to cause to be prepared and submitted to NASDAQ
an application covering the listing of the shares of Advanced NMR
Common Stock on NASDAQ Small Cap or OTC Bulletin Board issuable
in connection with the Merger and will use its reasonable best
efforts to obtain, prior to the Closing, approval for the listing
of such shares.
5.9 Blue Sky Approvals. Advanced NMR and AMS will
------------------
obtain, prior to the effective date of the Registration
Statement, all necessary state securities law or "Blue Sky"
permits and approvals required to carry out the transactions
contemplated by this Agreement and the Merger.
5.10 Rule 145 Affiliates. Prior to the Closing Date,
-------------------
AMS shall deliver to Advanced NMR a letter representing that
other than Advanced NMR, and to its best knowledge AMS has no
"affiliates" for purposes of Rule 145 under the 1933 Act.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS
OF ACQUISITION CORP. AND ADVANCED NMR
The obligations of Acquisition Corp. and Advanced NMR
to consummate the Merger are subject to the fulfillment at or
before the Closing, or waiver thereof by Advanced NMR, of each of
the following conditions:
6.1 Warranties True as of Closing Date. The
----------------------------------
representations and warranties of AMS contained herein shall be
true and correct in all material respects on and as of the
Closing Date with the same force and effect as though made on and
as of the Closing Date.
6.2 Compliance With Agreements and Covenants. AMS
----------------------------------------
shall have performed and complied with in all material respects
all of its covenants, obligations and agreements contained in
this Agreement to be performed and complied with by AMS on or
prior to the Closing Date.
6.3 Consents and Approvals. Advanced NMR shall have
----------------------
received written evidence satisfactory to it that all consents
and approvals required for the consummation of the transactions
contemplated hereby have been obtained, and all required filings
have been made, except where the failure to obtain any such
consent or approval or to make any such filing would not have an
AMS Material Adverse Effect or an ANMR Material Adverse Effect.
6.4 Actions or Proceedings. No preliminary or
----------------------
permanent injunction or other order by any federal or state court
preventing consummation of the Merger shall have been issued and
shall be continuing in effect, and the Merger and the other
transactions contemplated hereby shall not be prohibited under
any applicable federal or state law or regulation.
6.5 Approval of Merger. The stockholders of AMS shall
------------------
have approved this Agreement and the Merger contemplated hereby
in accordance with its certificate of incorporation and by-laws
and the DGCL.
6.6 Approval of Recapitalization Transactions. The
-----------------------------------------
stockholders of Advanced NMR shall have approved the
Recapitalization Transactions in accordance with its certificate
of incorporation and by-laws and the DGCL.
6.7 Registration Statement. The Registration
----------------------
Statement shall have become effective, and no stop order
suspending the effectiveness of the Registration Statement shall
have been issued and remain in effect.
6.8 Listing of Common Stock. NASDAQ shall have
-----------------------
approved the listing of all shares of Advanced NMR Common Stock
to be issued in the Merger in accordance with Section 5.08
hereof.
6.9 Other Closing Documents. Advanced NMR shall have
-----------------------
received the executed Certificate of Merger and such other
agreements and instruments as Advanced NMR shall reasonably
request, in each case in form and substance reasonably
satisfactory to Advanced NMR.
6.10 Dissenters' Rights. There shall not be holders
------------------
of more than three percent (3%) of the issued and outstanding
shares of AMS Common Stock who exercise dissenters' rights under
the DGCL.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF AMS
The obligations of AMS to consummate the Merger are
subject to the satisfaction or waiver by AMS of the following
conditions precedent on or before the Closing Date:
7.1 Warranties True as of Closing Date. The
----------------------------------
representations and warranties of Acquisition Corp. and Advanced
NMR contained herein shall be true and correct in all material
respects on and as of the Closing Date with the same force and
effect as though made by Acquisition Corp. and Advanced NMR on
and as of the Closing Date.
7.2 Compliance with Agreements and Covenants.
----------------------------------------
Acquisition Corp. and Advanced NMR shall have performed and
complied with in all material respects all of their covenants,
obligations and agreements contained in this Agreement, to be
performed and complied with by them on or prior to the Closing
Date.
7.3 Consents and Approvals. AMS shall have received
----------------------
written evidence satisfactory to it that all consents and
approvals required for the consummation of the transactions
contemplated hereby have been obtained, and all required filings
have been made, except where the failure to obtain any such
consent or approval or to make any such filing would not have an
AMS Material Adverse Effect or an ANMR Material Adverse Effect.
7.4 Actions or Proceedings. No preliminary or
----------------------
permanent injunction or other order by any federal or state court
preventing consummation of the Merger shall have been issued and
shall be continuing in effect, and the Merger and the other
transactions contemplated hereby shall not be prohibited under
any applicable federal or state law or regulation.
7.5 Approval of Recapitalization Transactions. The
-----------------------------------------
stockholders of Advanced NMR shall have approved the
Recapitalization Transactions in accordance with its certificate
of incorporation and by-laws and the DGCL.
7.6 Approval of Merger. The stockholders of AMS shall
------------------
have approved this Agreement and the Merger contemplated hereby
in accordance with its certificate of incorporation and by-laws
and the DGCL.
7.7 Registration Statement. The Registration
----------------------
Statement shall have become effective, and no stop order
suspending the effectiveness of the Registration Statement shall
have been issued and remain in effect.
7.8 Listing of Common Stock. NASDAQ shall have
-----------------------
approved the listing of all shares of Advanced NMR Common Stock
to be issued in the Merger.
7.9 Other Closing Documents. AMS shall have received
-----------------------
such other agreements and instruments as AMS shall reasonably
request, in each case in form and substance reasonably
satisfactory to AMS.
7.10 Board Appointment. The Advanced NMR Board shall
-----------------
recommend the appointment of Bernard Weiner, M.D. to serve on the
Advanced NMR Board subsequent to the Merger.
ARTICLE VIII
TERMINATION AND INDEMNIFICATION
8.1 Termination. This Agreement may be terminated and
-----------
the Merger may be abandoned at any time prior to the Effective
Time, whether before or after approval by the stockholders of
AMS:
(a) by mutual written consent of the Board of
Directors of Advanced NMR and the Board of Directors of AMS;
(b) by either Advanced NMR or AMS, by written notice
to the other, if (i) the Effective Time shall not have occurred
on or before October 31, 1997, (ii) the requisite vote of the
stockholders of AMS to approve this Agreement shall not be
obtained at the AMS Stockholders' Meeting, or any adjournments or
postponements thereof, called therefor, (iii) the requisite vote
of the stockholders of Advanced NMR to approve the
Recapitalization Transactions shall not be obtained at the
Advanced NMR Stockholders' Meeting, or any adjournments or
postponements thereof, called therefor, (iv) a bona fide
acquisition proposal is made by a third party to acquire all or
substantially all of the outstanding shares of AMS Common Stock
or a similar acquisition proposal for AMS or its assets is made
which in either case the Board of Directors of AMS determines in
good faith is more favorable to the AMS stockholders from a
financial point of view than the Merger; or (v) any court of
competent jurisdiction in the United States or any state shall
have issued an order, judgment or decree (other than a temporary
restraining order) restraining, enjoining or otherwise
prohibiting the Merger and such order, judgment or decree shall
have become final and non-appealable; provided, however, that the
right to terminate this Agreement under clause (v) shall not be
available to any party whose failure to fulfill any obligation
under this Agreement has been the cause of, or resulted in, the
failure of the Effective Time to occur on or before such date;
(c) by Advanced NMR, by written notice to AMS, if:
(i) there shall have been any breach of any
representation, warranty, covenant or agreement of AMS
hereunder which, if not remedied prior to the Closing
Date, would have an AMS Material Adverse Effect and
such breach shall not have been remedied, or AMS shall
not have provided Advanced NMR with reasonable
assurance that such breach will be remedied prior to
the Closing Date, within ten days after receipt by AMS
of notice in writing from Advanced NMR, specifying the
nature of such breach and requesting that it be
remedied; or
(ii) the Special Committee of the Board of
Directors and/or the Board of Directors of AMS shall
withdraw or modify in any manner adverse to Advanced
NMR its approval or recommendation of this Agreement or
the Merger.
(d) by AMS, by written notice to Advanced NMR, if:
(i) there shall have been any breach of any
representation, warranty, covenant or agreement of
Advanced NMR hereunder which, if not remedied prior to
the Closing Date, would have an ANMR Material Adverse
Effect and such breach shall not have been remedied or
Advanced NMR shall not have provided AMS with
reasonable assurance that such breach will be remedied
prior to the Closing Date, within ten days after
receipt by Advanced NMR of notice in writing from AMS,
specifying the nature of such breach and requesting
that it be remedied; or
(ii) the Board of Directors of Advanced NMR or
any committee thereof shall withdraw or modify in any
manner adverse to AMS its approval or recommendation of
this Agreement or the Merger or the Recapitalization
Transactions.
8.2 Effect of Termination and Abandonment. In the
-------------------------------------
event of termination of this Agreement and abandonment of the
Merger pursuant to this Article VIII, no party hereto (or any of
------------
its directors or officers) shall have any liability or further
obligation to any other party to this Agreement, except for the
termination payments provided in Section 8.3 and except that
nothing herein will relieve any party from liability for any
willful breach of this Agreement.
8.3 Termination Payments. If Advanced NMR shall
--------------------
terminate this Agreement pursuant to Sections 8.1(b)(iv) or
8.1(c)(i), AMS shall pay $500,000 to Advanced NMR not later than
ten days after notice from Advanced NMR to AMS. If AMS shall
terminate this Agreement pursuant to Section 8.1(d)(i), Advanced
NMR shall pay $500,000 to AMS not later than ten days after
notice from AMS to Advanced NMR.
8.4 Indemnification by Advanced NMR.
-------------------------------
(a) For a period of six years after the Effective
Time, Advanced NMR shall indemnify, defend and hold harmless the
present and former officers, directors and employees of AMS (the
"Indemnified Parties") against all losses, claims, damages,
costs, expenses, obligations, liabilities or judgments, or
amounts that are paid in settlement with the approval of Advanced
NMR (which approval shall not be unreasonably withheld) resulting
from or arising out of actions or omissions occurring on or prior
to the Effective Time (including, without limitation, the
transactions contemplated by this Agreement) to the same extent
as presently provided to the officers and directors of Advanced
NMR.
(b) In the event that Advanced NMR or any of its
successors or assigns (i) consolidates with or merges into any
other person and shall not be the continuing or surviving
corporation or entity of such consolidation or merger, or (ii)
transfers all or substantially all of its properties and assets
to any person, then and in each such case, proper provisions
shall be made so that the successors and assigns of Advanced NMR
shall assume the obligations set forth in paragraph (a) above.
(c) Advanced NMR shall pay all expenses, including
reasonable attorneys' fees, that may be incurred by any
Indemnified Party in enforcing the indemnity and other
obligations provided for in this Section 8.4.
(d) This Section 8.4 is intended for the benefit of
and to grant third party rights to the Indemnified Parties and
each of the Indemnified Parties is entitled to enforce the rights
contained herein.
ARTICLE IX
MISCELLANEOUS
9.1 Expenses. Except as otherwise provided in Section
--------
8.3 of this Agreement, each party hereto shall bear its own
expenses with respect to the transactions contemplated hereby.
9.2 Amendment. This Agreement may be amended,
---------
modified or supplemented but only in writing signed by
Acquisition Corp., Advanced NMR and AMS.
9.3 Non-Survival of Representations, Warranties,
--------------------------------------------
Covenants and Agreements. All representations, warranties,
------------------------
covenants and agreements contained in this Agreement or in any
instrument delivered in connection herewith shall not survive the
Merger, except as otherwise specifically provided in this
Agreement and except for the agreements contained in this Section
-------
9.3 and in Articles I and IX and in Sections 8.3 and 8.4.
--- ---------- --
9.4 Notices. Any notice, request, instruction or
-------
other document to be given hereunder by a party hereto shall be
in writing and shall be deemed to have been given, (a) when
received if given in person, (b) on the date of transmission if
sent by telex, facsimile or other wire transmission or (c) three
Business Days after being deposited in the U.S. mail, certified
or registered mail, postage prepaid:
(a) If to AMS:
Advanced Mammography Systems, Inc.
46 Jonspin Road
Wilmington, Massachusetts 01187
Attention: Jack Nelson,
Chairman of the Board
Facsimile No.: (508) 658-8876
with a copy to:
Noah Klarish, Esq.
Noah Klarish & Associates, P.C.
230 Park Avenue
32nd Floor
New York, New York 10169
Facsimile No.: (212) 973-1112
(b) If to Advanced NMR or Acquisition Corp.:
Advanced NMR Systems, Inc.
46 Jonspin Road
Wilmington, Massachusetts 01887
Attention: Jack Nelson
Chairman of the Board
Facsimile No.: (508) 658-8876
with a copy to:
Reid & Priest LLP
40 West 57th Street
New York, NY 10019
Attention: Bruce A. Rich, Esq.
Facsimile No.: (212) 603-2001
or to such other individual or address as a party hereto may
designate for itself by notice given as herein provided.
9.5 Waivers. The failure of a party hereto at any
-------
time or times to require performance of any provision hereof
shall in no manner affect its right at a later time to enforce
the same. No waiver by a party of any condition or of any breach
of any term, covenant, representation or warranty contained in
this Agreement shall be effective unless in writing, and no
waiver in any one or more instances shall be deemed to be a
further or continuing waiver of any such condition or breach in
other instances or a waiver of any other condition or breach of
any other term, covenant, representation or warranty.
9.6 Interpretation. The headings preceding the text
--------------
of Articles and Sections included in this Agreement and the
headings to Schedules attached to this Agreement are for
convenience only and shall not be deemed part of this Agreement
or be given any effect in interpreting this Agreement. The use
of the masculine, feminine or neuter gender herein shall not
limit any provision of this Agreement. The use of the terms
"including" or "include" shall in all cases herein mean
"including, without limitation" or "include, without limitation,"
respectively. Underscored references to Articles, Sections,
Paragraphs, Subsections, Subparagraphs, Schedules or Exhibits
shall refer to those portions of this Agreement.
9.7 Applicable Law. This Agreement shall be governed
--------------
by and construed and enforced in accordance with the internal
laws of the State of Delaware without giving effect to the
principles of conflicts of law thereof.
9.8 Assignment. This Agreement shall be binding upon
----------
and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that no
assignment of any rights or obligations shall be made by any
party without the prior written consent of all the other parties
hereto.
9.9 No Third Party Beneficiaries. This Agreement is
----------------------------
solely for the benefit of the parties hereto and, to the extent
provided herein, and their respective directors, officers,
employees, agents and representatives, and no provision of this
Agreement shall be deemed to confer upon other third parties any
remedy, claim, liability, reimbursement, cause of action or other
right.
9.10 Enforcement of the Agreement. The parties hereto
----------------------------
agree that irreparable damage would result in the event that any
provision of this Agreement is not performed in accordance with
specific terms or is otherwise breached. It is accordingly
agreed that the parties hereto will be entitled to equitable
relief including an injunction or injunctions to prevent breaches
of this Agreement and to enforce specifically the terms and
provisions hereof.
9.11 Further Assurances. Upon the request of Advanced
------------------
NMR or Acquisition Corp., AMS will on and after the Closing Date
execute and deliver to Acquisition Corp. such other documents,
releases, assignments and other instruments as may be required to
effectuate completely the transactions contemplated by this
Agreement.
9.12 Severability. If any provision of this Agreement
------------
shall be held invalid, illegal or unenforceable, the validity,
legality or enforceability of the other provisions hereof shall
not be affected thereby, and there shall be deemed substituted
for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
9.13 Remedies Cumulative. The remedies provided in
-------------------
this Agreement shall be cumulative and shall not preclude the
assertion or exercise of any other rights or remedies available
by law, in equity or otherwise.
9.14 Entire Understanding. This Agreement and the
--------------------
Related Agreements set forth the entire agreement and
understanding of the parties hereto and supersede all prior
agreements, arrangements and understandings among the parties
hereto.
9.15 Waiver of Jury Trial. Each party hereto waives
--------------------
the right to a trial by jury in any dispute in connection with
the transactions contemplated by this Agreement and the Related
Agreements, and agrees to take any and all action necessary or
appropriate to effect such waiver.
9.16 Counterparts. This Agreement may be executed in
------------
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
[Signature Page Appears On Next Page]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered on the date first above
written.
ADVANCED NMR SYSTEMS, INC.
By: /s/ Jack Nelson
-----------------------------
Name: Jack Nelson
Title: Chairman
ANMR/AMS MERGER CORP.
By: /s/ Jack Nelson
-----------------------------
Name: Jack Nelson
Title: President
ADVANCED MAMMOGRAPHY SYSTEMS,
INC.
By: /s/ Enrique Levy
-----------------------------
Name: Enrique Levy
Title: President
