EXECUTION
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT dated as of August 18, 1997
between ADVANCED NMR SYSTEMS, INC., a Delaware corporation (the
"Company"), and GENERAL ELECTRIC COMPANY, a New York corporation
(the "Purchaser").
Terms not otherwise defined herein have the meanings
stated in the Purchase Agreement (as defined below).
RECITALS
A. The parties have entered into the Purchase
Agreement dated as of August 18, 1997 (the "Purchase Agreement"),
pursuant to which, among other things, on the date hereof the
Purchaser is purchasing the Preferred Shares and may, upon the
conversion of the Preferred Shares, hereafter acquire the
Preferred Conversion Shares. The Preferred Shares and the
Preferred Conversion Shares are collectively referred to as the
"Purchaser Shares".
B. The Company and the Purchaser desire to enter into
this Agreement to provide for certain restrictions on the
ownership, voting and disposition of the Purchaser Shares by the
Purchaser and certain other matters.
C. Pursuant to the Purchase Agreement, on the date
hereof the Company and the Purchaser are entering into a
Registration Rights Agreements pursuant to which the Company is
granting to the Purchaser and certain other persons certain
rights with respect to the registration under the Securities Act
of the disposition of the Preferred Conversion Shares.
AGREEMENT
The parties agree as follows:
ARTICLE I
RESTRICTIONS
SECTION 1.1 VOTING RESTRICTIONS.
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(a) In connection with each matter on or in
respect of which the holders of shares of the Common Stock and/or
the Preferred Stock, par value $.01 per share, of the Company, or
any series thereof, are required or permitted to vote or consent
or dissent in writing the Purchaser and its Affiliates shall
vote, or consent or dissent in writing with respect to, and cause
each of its Affiliates, to vote or consent or dissent in writing
with respect to, all Purchaser Shares in respect of the matters
subject to such vote or consent or dissent in writing, at the
election of the Board of Directors of the Company, either (1) as
directed by the affirmative vote or written consent of not less
than a majority of a quorum of the Board of Directors of the
Company (the "Board"), or of a duly designated constituted, and
empowered committee of the Board, which majority, in any case,
must include a majority of the Independent Directors, or (2) in
the same proportion that all other Equity Securities of the
Company entitled to vote thereon (other than Equity Securities of
the Company owned by the Purchaser or any of its Affiliates) are
voted or in the same proportion as written consent is provided by
the holders thereof with respect to such Equity Securities with
respect to such matter; it being understood that the Purchaser
and its Affiliates shall have no obligation under this Section
1.1(a) with respect to matters subject to vote or consent of
holders of Series B Convertible Redeemable Preferred Stock, par
value $.01 per share, of the Company prior to any conversion
thereof.
(b) Notwithstanding anything contained in this
Agreement, the Purchaser and its Affiliates shall not be
restricted in any manner whatsoever from voting, or consenting
with respect to, Equity Securities of the Company owned by any of
them that are not Purchaser Shares with respect to the matter
subject to such vote or consent.
SECTION 1.2 TRANSFER RESTRICTIONS.
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(a) Except in connection with an Offer (as defined in
Section 5 of the Company's Certificate of Designations set forth
as Exhibit A to the Purchase Agreement ("Certificate")) with
respect to a Change of Control (as defined in the Certificate)
made by or to the Company, or a Change of Control shall have
occurred or been agreed to by the Company, the Purchaser shall
not, and shall not cause or permit its Affiliates to, transfer
the record or beneficial ownership of any or all of the Purchaser
Shares to any person for a period of one year following the date
of this Agreement except in one or more of the following
transactions:
(i) each transfer pursuant to a public offering
of shares of Common Stock pursuant to a registration statement
effective under the Securities Act; and
(ii) each transfer to any person or Group that
represents in writing to the Purchaser that, after giving effect
to such transfer and to each Related Transaction, it will
beneficially own less than 5% of the sum of the total number of
shares of Common Stock that are then issued and outstanding plus
the total number of shares of Common Stock that are then subject
to acquisition upon the conversion, exercise or exchange of
Equity Securities of the Company (whether or not the conversion,
exercise or exchange thereof is subject to any condition or
restriction); and
(iii) each transfer to any person or Group
that (1) represents in writing to the Purchaser that, after
giving effect to such transfer and to each Related Transaction,
it will beneficially own more than 5% and less than 10% of the
sum of the total number of shares of Common Stock that are then
issued and outstanding plus the total number of shares of Common
Stock that are then subject to acquisition upon the conversion,
exercise or exchange of Equity Securities of the Company (whether
or not the conversion, exercise or exchange thereof is subject to
any condition or restriction) and (2) assumes by written
instrument satisfactory to each of the Company and the Purchaser
the obligations and restrictions contained in this Section 1.2 to
which such Purchaser Shares were subject immediately prior to
such transfer; and
(iv) each transfer approved by the Board of
Directors of the Company, which approval shall not be
unreasonably withheld, to any person or Group that represents in
writing to Purchaser that, after giving effect to such transfer
and to each Related Transaction, it will beneficially own more
than 9.9% and less than 15% of the sum of the total number of
shares of Common Stock that are then issued and outstanding plus
the total number of shares of Common Stock that are then subject
to acquisition upon the conversion, exercise or exchange of
Equity Securities of the Company (whether or not the conversion,
exercise or exchange thereof is subject to any condition or
restriction); and
(v) each transfer approved by the Board of
Directors of the Company; and
(vi) each transfer in a Business Combination
Transaction approved by the Board of Directors of the Company or
by the majority of Common Stock voted with respect to the
transaction (in which the Purchaser Shares are voted in
accordance with the restrictions contained in Section 1.1, if
applicable); and
(vii) each transfer pursuant to a tender or
exchange offer for outstanding shares of Common Stock by any
person other than Purchaser, any of its Affiliates or any Group
including the Purchaser or any of its Affiliates (1) which the
Board of Directors of the Company does not oppose, or (2) which
the Board of Directors of the Company opposes if after completion
of such tender or exchange offer securities not tendered or
exchanged may be treated less favorably than securities tendered,
provided that no tender, indication or arrangement to tender
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shares of Common Stock may be made in the case of the preceding
clause (2) until forty-eight hours prior to the expiration of any
time after which securities tendered may be treated less favorably
than securities tendered prior thereto; and
(viii) each bona fide pledge of or the granting
of a security interest or any other lien in the Purchaser Shares
to secure a bona fide loan, guarantee or other financial support,
each foreclosure of such pledge or security interest or any other
lien that may be placed involuntarily upon any Purchaser Shares,
and each subsequent sale or other disposition of such Purchaser
Shares by the lender (or other secured party or lien creditor) or
its agent, provided that, with respect to each such bona fide loan,
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guarantee or other financial support, (x) such lender is not a
member of a Group with respect to Common Stock which Group
includes the Purchaser or Affiliates of the Purchaser and (y) the
Purchaser shall retain the right to vote, or consent with respect
to, the Purchaser Shares in accordance with Section 1.1(a) so
long as no default shall have occurred and be continuing under
such bona fide loan, guarantee or other financial support; and
(ix) each transfer of Purchaser Shares to any
Affiliate of the Purchaser, including GE Capital Corporation, GE
Investment Management, Employers Reinsurance Corporation or any
other financial services affiliate of the Purchaser or a bona
fide pledge of or the granting of a security interest or any
other Lien in such Purchaser Shares to an Affiliate of the
Purchaser, provided in each case that such Affiliate or GE Capital
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Corporation, GE Investment Management or Employers Reinsurance
Corporation or GEIC or other financial services affiliate shall
expressly assume by written instrument satisfactory to the
Company and the Purchaser all of the obligations and restrictions
contained in this Stockholder Agreement to which such Purchaser
Shares were subject immediately before such transfer; and
(x) each transfer of Purchaser Shares to a
charitable organization (as defined in the Investment Company Act
of 1940), provided in each case that such charitable organization
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shall expressly assume by written instrument reasonably
satisfactory to Company and Purchaser all of the obligations and
restrictions contained in this Stockholder Agreement to which
such Purchaser Shares were subject immediately before such
transfer; and
(xi) a transfer upon the liquidation or
dissolution of the Company or a transfer that is effected by
operation of law; and
(xii) a transfer pursuant to and in
compliance with Rule 144 of the Securities Act.
(b) Following the first anniversary of the date of
this Agreement, except in connection with an Offer with respect
to a Change of Control made to or by the Company, the Purchaser
shall not, and shall not cause or permit its Affiliates to
transfer the beneficial or record ownership of any or all of the
Purchaser Shares to any person except in a transaction described
in Section 1.2 (a) or upon complying with the following;
(i) The Purchaser or its Affiliate shall deliver to
the Company written notice (the "Offer Notice") of its desire to
sell or transfer the beneficial or record ownership of some or
all of the Purchaser Shares. The Offer Notice shall specify the
number of Purchaser Shares the Purchaser desires to sell or
transfer (the "Offered Shares");
(ii) The Company shall have the right (the "Right of
First Offer") to offer, or to designate a party of its choice to
offer, in writing to purchase not less than all of the Offered
Shares for a consideration per share in cash determined by the
Company (a "Transaction Offer"), which written Transaction Offer
shall be delivered to Purchaser or its Affiliate within ninety
(90) days of receipt of the Offer Notice ("Right of First Offer
Period"), shall include the consideration per Purchaser Share to
be paid for the Offered Shares, and all other material terms and
conditions of the Transaction Offer;
(iii) In the event the Purchaser accepts the
Transaction Offer, the closing of any such purchase of Offered
Shares by the Company or its designee shall take place no later
than ten (10) days after the expiration of the Right of First
Offer Period or twenty (20) days after acceptance (whichever is
earlier), at the place and on the date specified by the
Purchaser; and
(iv) The Purchaser shall have the right to reject the
Transaction Offer and sell or transfer, within ninety (90) days
of expiration of the Right of First Offer Period, the Offered
Shares to a third party or parties (a "Third Party Purchaser") at
a price no less than and on other terms no more beneficial in all
material respects to such Third Party Purchaser than those
contained in the Transaction Offer. If such a sale or transfer
to a Third Party Purchaser is not so consummated within ninety
(90) days of the expiration of the Right of First Offer Period,
any sale or transfer of Purchaser Shares shall be deemed to be in
violation of the provisions of this Agreement unless the Company
is once again afforded the Right of First Offer provided for
herein or such Purchaser Shares are sold or transferred in a
transaction described in Section 1.2(a).
SECTION 1.3 PURCHASE RESTRICTIONS.
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(a) The Purchaser shall not, and shall not cause
or permit its Affiliates or any Group including the Purchaser or
any of its Affiliates to, acquire shares of Common Stock other
than the Preferred Conversion Shares, which when combined with
shares of Common Stock then owned beneficially or of record by
the Purchaser and its Affiliates or any such Group, after giving
effect to the acquisition and each Related Transaction, would
result in the Purchaser, its Affiliates, or any such Group
beneficially owning 15% or more of the shares of Common Stock
then issued and outstanding, except that such restriction shall
not be applicable to each of the following acquisitions:
(1) each acquisition following a Business Combination
Transaction that (A) shall have been approved by the Board
of Directors of the Company, including a majority of
Independent Directors, or by two-thirds of the shares of
Common Stock voted with respect to the transaction (in which
the Purchaser Shares are voted in accordance with the
restrictions contained in Section 1.1, if applicable) and
(B) would, if completed on the terms so approved, result in
the beneficial ownership by any person or Group (other than
and not including the Purchaser or an Affiliate of, or any
person acting in concert with the Purchaser) of 30% or more
of the shares of Common Stock then issued and outstanding
or, if all or any part of the shares of Common Stock shall
be changed into or exchanged for shares of any class of
capital stock or ownership interests of any other person
(which class has the right to vote generally for the
election of directors), 30% or more of the shares of such
class of capital stock or such ownership interests; and
(2) each acquisition following the commencement of a
tender or exchange offer made by any person or Group (other
than and not including the Purchaser or an Affiliate of, or
any person acting in concert with, the Purchaser) to acquire
beneficial ownership of 50% or more of the shares of Common
Stock then issued and outstanding; and
(3) each acquisition after any person or Group (other
than and not including the Purchaser or an Affiliate of the
Purchaser) shall beneficially own 30% or more of the shares
of Common Stock then issued and outstanding;
(4) each acquisition approved by the Board of
Directors of the Company;
(5) any acquisition pursuant to the Certificate of
Designations pertaining to the Preferred Shares, or any
exercise of rights or receipt of a distribution as a holder
of Purchaser Shares, and
(6) any acquisition by any financial services
affiliate of the Purchaser in the ordinary course of its
business, including GE Capital Corporation, GE Investment
Management, Employers Reinsurance Corporation and their
subsidiaries.
(b) The Purchaser and its Affiliates shall have
no obligation under this Agreement or otherwise to transfer
shares of Common Stock, which, when such shares were acquired,
after giving effect to such transaction and any Related
Transaction, did not, when combined with other shares of Common
Stock then owned by the Purchaser and its Affiliates and any
Group including the Purchaser or any of its Affiliates,
constitute 15% or more of the shares of Common Stock then issued
and outstanding. Without limiting the generality of the
foregoing, the Purchaser and its Affiliates shall not be required
to transfer any shares of Common Stock if the aggregate
percentage ownership of the Purchaser and its Affiliates is
increased as a result of any action taken by the Company or its
Affiliates including, without limitation, by reverse stock split,
reclassification, recapitalization, reorganization, combination,
redemption, repurchase or cancellation of shares or Business
Combination Transaction.
SECTION 1.4 OTHER RESTRICTIONS. The Purchaser shall
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not, and shall not cause or permit its Affiliates to, enter into
any transaction (including, without limitation, the purchase,
sale or exchange of property or the rendering of any service)
with the Company or any of its Subsidiaries that shall not have
been approved by the Board of Directors of the Company, except in
the ordinary course of business.
SECTION 1.5 TERMINATION. The provisions of this
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Article I shall terminate on the date that is the earlier of
(a) the date that is the tenth anniversary of the date hereof and
(b) such time that the Purchaser, any Affiliate of the Purchaser
or any Group in which it is a member beneficially owns, and
continues to beneficially own, less than 5% of the shares of
Common Stock then issued and outstanding plus the sum of the
shares of Common Stock that are then subject to acquisition upon
conversion, exercise or exchange of Equity Securities of the
Company, it being understood that if the Purchaser at any time
thereafter, and before such tenth anniversary, beneficially owns
5% or more of the shares of Common Stock then issued and
outstanding plus the sum of the shares of Common Stock that are
subject to acquisition upon conversion, exercise or exchange of
Equity Securities of the Company, the provisions of Article I
shall be effective and in full force again as if no termination
had occurred.
SECTION 1.6 LEGENDS.
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(a) Except as provided to the contrary in this
Section 1.6, each certificate for Purchaser Shares, and any
certificate issued in exchange therefor or upon conversion,
exchange or transfer thereof, shall bear a legend to the
following effect:
"The shares represented by this
certificate are subject to the restrictions
contained in the Stockholders Agreement dated
as of August 18, 1997, a copy of which is on
file at the office of the Secretary of the
Company."
(b) At the written request and expense of the
Purchaser, the legend stated in Section 1.6(a) shall be removed
from certificates for Purchaser Shares by delivery of one or more
substitute certificates without such legend upon the earlier of
(1) the transfer of the related securities in one or more of the
transactions specified in clauses (a)(i), (a)(ii), (a)(iv),
(a)(v), (a)(vi), (a)(vii), (a)(xi) or (a)(xii) of Section 1.2,
and (2) the termination of the provisions of Article I pursuant
to Section 1.5(a);
SECTION 1.7 DEFINITIONS. The following terms have
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the following meanings:
"AFFILIATE" of a person means any other persons that
directly or indirectly controls, is controlled by or is under
common control with, the person or any of its Subsidiaries. The
term "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting
securities, by contract or otherwise.
"BENEFICIAL OWNERSHIP" has the meaning assigned to the
term "beneficial ownership" in Section 13(d) of the Exchange Act.
The term "beneficially own" used as verb has a correlative
meaning. For the purpose of determining the beneficial ownership
by any person of shares of capital stock of an issuer, such
person shall be deemed to beneficially own that number of shares
subject to acquisition upon the conversion, exercise or exchange
by such person and its Affiliates of Equity Securities of such
issuer, whether or not the conversion, exercise or exchange
thereof is then subject to any condition (including, without
limitation, the passage of time or the occurrence of any event)
or restriction.
"BUSINESS COMBINATION TRANSACTION" means a merger,
consolidation or similar transaction.
"EQUITY SECURITIES" of a person means the capital stock
of the person and all other securities convertible into or
exchangeable or exercisable for any shares of its capital stock,
all rights to subscribe for or to purchase, all options for the
purchase of, and all calls, commitments or claims of any
character relating to, any shares of its capital stock and any
securities convertible into or exchangeable or exercisable for
any of the foregoing.
"EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended, and the related rules and regulations
thereunder.
"GROUP" has the meaning given such term in Section
13(d)(3) of the Exchange Act.
"INDEPENDENT DIRECTORS" means, as of any date of
determination, directors of the Company who are not then and have
not been at any time during the preceding three years a director,
officer or employee of a beneficial owner of 5% or more of the
shares of Common Stock then issued and outstanding or any
Affiliate of such beneficial owner.
"RELATED TRANSACTION" means, with respect to any
acquisition or disposition, or deemed acquisition or disposition,
of any securities, a transaction that (1) has been disclosed in a
document filed with the Securities and Exchange Commission with
respect to the Company (that is then available for inspection at
the offices of the Securities and Exchange Commission) or has
been otherwise publicly announced and (2) by its terms is
effective upon, or immediately before or after giving effect to,
the occurrence of such acquisition or disposition or deemed
acquisition or disposition.
"SECURITIES ACT" means the Securities Act of 1933, as
amended, and the related rules and regulations thereunder.
"SUBSIDIARY" of a person means (1) any person of which
securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other
persons performing similar functions are at the time directly or
indirectly owned by the person or (2) a partnership in which the
person or a Subsidiary of the person is, at the date of
determination, a general or limited partner, but only if the
person or its Subsidiary is entitled to receive more than fifty
percent of the assets of such partnership upon its dissolution.
"TRANSFER" means a sale, an assignment, a lease, a
license, a grant, a transfer or other disposition of an asset or
any interest of any nature in an asset. The term "transfer" used
as a verb has a correlative meaning.
ARTICLE II
MISCELLANEOUS
SECTION 2.1 NOTICES. All notices, requests and
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other communications to any party or under this Agreement shall
be in writing. Communications may be made by telecopy or similar
writing. Each communication shall be given to such party at its
address stated on the signature pages of this Agreement or at any
other address as such party may from time to time specify in
writing to all other parties. Each communication shall be
effective (1) if given by telecopy, when the telecopy is
transmitted to the proper address and the receipt of the
transmission is confirmed, (2) if given by mail, 72 hours after
the communication is deposited in the mails properly addressed
with first class postage prepaid or (3) if given by any other
means, when delivered to the proper address and a written
acknowledgement of delivery is received.
SECTION 2.2 NO WAIVERS; REMEDIES; SPECIFIC
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PERFORMANCE.
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(a) No failure or delay by any party in
exercising any right, power or privilege under this Agreement
shall operate as a waiver of such right, power or privilege. A
single or partial exercise of any right, power or privilege shall
not preclude any other or further exercise of such right, power
or privilege or the exercise of any other right, power or
privilege. The rights and remedies provided in this Agreement
shall be cumulative and not exclusive of any rights or remedies
available at law or in equity.
(b) In view of the uniqueness of the agreements
contained in this Agreement and the transactions contemplated
hereby and the fact that each party would not have an adequate
remedy at law for money damages in the event that any obligations
under this Agreement is not performed in accordance with its
terms, each party therefore agrees that the other parties to this
Agreement shall be entitled to specific enforcement of the terms
of this Agreement in addition to any other remedy to which any of
them may be entitled, at law or in equity.
SECTION 2.3 AMENDMENTS, ETC. No amendment,
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modification, termination, or waiver of any provision of this
Agreement, and no consent to any departure by a party from any
provision of this Agreement, shall be effective unless it shall
be in writing and signed and delivered by the other parties to
this Agreement, and then it shall be effective only in the
specific instance and for the specific purpose for which it is
given.
SECTION 2.4 SUCCESSORS AND ASSIGNS.
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(a) Except as expressly contemplated by this
Agreement, no party may assign its rights or delegate its
obligations under this Agreement without the prior written
consent of the other parties; provided, that the Purchaser may
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assign its rights and delegate its responsibilities under this
Agreement pursuant to Sections 1.2(a)(iii), 1.2(a)(ix) or
1.2(a)(x), as the case may be, without the consent of the
Company. Any assignment or delegation in contravention of this
Section 2.4 shall be void ab initio and shall not relieve the
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delegating party of any of its obligations under this Agreement.
(b) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties to this
Agreement and their respective permitted successors and assigns.
(c) Notwithstanding anything herein to the
contrary, each transferee of Purchaser Shares transferred in one
or more of the transactions specified in clauses (a)(i), (a)(ii),
(a)(iv) through (a)(viii) and (a)(xi) through (a)(xii),
inclusive, of Section 1.2 shall acquire such Purchaser Shares
free and clear of any restrictions or obligations contained in
this Agreement.
SECTION 2.5 GOVERNING LAW. This Agreement shall be
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governed by and construed in accordance with the internal laws of
the State of Delaware.
SECTION 2.6 COUNTERPARTS; EFFECTIVENESS. This
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Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if all
signatures were on the same instrument.
SECTION 2.7 SEVERABILITY OF PROVISIONS. Any
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provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of the prohibition or unenforceability
without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of the provision in
any other jurisdiction.
SECTION 2.8 HEADINGS AND REFERENCES. Article and
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section headings in this Agreement are included for the
convenience of reference only and do not constitute a part of
this Agreement for any other purpose. References to parties and
articles and sections in this Agreement are references to the
parties to or the articles and sections of this Agreement, as the
case may be, unless the context shall require otherwise.
SECTION 2.9 ENTIRE AGREEMENT. Except as otherwise
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specifically provided in the Purchase Agreement, this Agreement
embodies the entire agreement and understanding of the parties
and supersedes all prior agreements or understandings and all
contemporaneous agreements or understandings, with respect to the
subject matters of this Agreement.
SECTION 2.10 SURVIVAL. Except as otherwise
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specifically provided in this Agreement, each representation,
warranty or covenant of each party contained in this Agreement
shall remain in full force and effect, notwithstanding any
investigation or notice to the contrary or any waiver by any
other party of a related condition precedent to the performance
by such other party of an obligation under this Agreement.
SECTION 2.11 DISPUTE RESOLUTION. (a) General
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Provisions. (i) Any dispute, controversy or claim arising out of
or relating to this Agreement or any related agreement or the
validity, interpretation, breach or termination thereof (a
"Dispute"), including claims seeking redress or asserting rights
under applicable law, shall be resolved in accordance with the
procedures set forth herein. Until completion of such
procedures, no party may take any action not contemplated herein
to force a resolution of the Dispute by any judicial, arbitral or
similar process, except to the limited extent necessary to (1)
avoid expiration of a claim that might eventually be permitted
hereby or (2) obtain interim relief, including injunctive relief,
to preserve the status quo or prevent irreparable harm.
(ii) All communications between the parties or their
representatives in connection with the attempted resolution
of any Dispute shall be deemed to have been delivered in
furtherance of a Dispute settlement and shall be exempt from
discovery and production, and shall not be admissible in
evidence (whether as an admission or otherwise), in any
arbitral or other proceeding for the resolution of the
Dispute.
(iii) In connection with any Dispute, the parties
expressly waive and forego any right to trial by jury.
(b) Consideration by Senior Executives. If a Dispute
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cannot be resolved at an operational level, either party may, by
notice to the other, request referral to the President and CEO of
the General Electric Medical Services Division and the Chairman
of the Company (or comparable officers of any permitted successor
or assignee) for their consideration. Such request shall be
accompanied by a written statement of the Dispute and of each
party's position. Within 30 days after the request, the other
party will either concur in such statement or prepare its own,
and such statement(s) will be delivered to the officers named
above. Such officers will meet in person or by telephone within
30 days thereafter to seek a resolution. If no resolution is
reached by the expiration of 60 days from the referral request,
then either party may submit the Dispute to resolution as further
provided herein by notice to the other party.
(c) Mediation. After completion of any prior procedures
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required hereby, either party may submit the Dispute for
resolution by mediation pursuant to the Center for Public
Resources Model Procedure for Mediation of Business Disputes as
then in effect. Mediation will continue for at least 60 days
unless the mediator chooses to withdraw sooner. At the request
of either party at commencement of the mediation, the mediator
will be asked to provide an evaluation of the Dispute and the
parties' relative positions.
(d) Arbitration. (i) After completion of any prior
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procedures required hereby, either party may submit the Dispute
for resolution by arbitration pursuant to the Rules of the Center
for Public Resources ("CPR") for Non-Administered Arbitration of
Business Disputes as in effect at the time of the arbitration.
The parties consent to a single, consolidated arbitration for all
Disputes for which arbitration is permitted.
(ii) The neutral organization for purposes of the
CPR rules will be the CPR. The arbitral tribunal shall be
composed of one arbitrator selected by agreement of the
parties or, in the absence of such agreement within 60 days
after either party first proposes an arbitrator, by the CPR.
The arbitration shall be conducted in the City of New York.
Each party shall be permitted to present its case, witnesses
and evidence, if any, in the presence of the other party. A
written transcript of the proceedings shall be made and
furnished to the parties. The arbitrators shall determine
the Dispute in accordance with the law of the State of
Delaware, without giving effect to any conflict of law rules
or other rules that might render such law inapplicable or
unavailable, and shall apply this Agreement according to its
terms.
(iii) The parties agree to be bound by any award
or order resulting from any arbitration conducted hereunder
and further agree that:
(1) any monetary award shall include pre-award interest,
to the extent appropriate, and shall be made and
payable in U.S. dollars through a bank selected by
the recipient of such award, free of any withholding
tax or other deduction, together with interest
thereon at the prime rate in effect at such bank on
the date of the award, from the date the award is
granted to the date it is paid in full.
(2) in the context of an attempt by either party to
enforce an arbitral award or order, any defenses
relating to the parties' capacity or the validity of
this Agreement or the Transaction Documents under any
law are hereby waived; and
(3) judgement on any award or order resulting from an
arbitration conducted under this Section may be
entered and enforced in any court, in any country,
having jurisdiction thereof or having jurisdiction
over any of the parties or any of their assets.
(iv) Except as expressly permitted by this
Agreement, no party will commence or voluntarily participate
in any court action or proceeding concerning a Dispute,
except (A) for enforcement as contemplated by paragraph
(iii)(3) above, (B) to restrict or vacate an arbitral
decision based on the grounds specified under applicable law
and not waived in paragraph (iii)(2) above, or (C) for
interim relief as provided in paragraph (v) below. For
purposes of the foregoing or enforcement of any undisputed
obligation, the parties hereto submit to the non-exclusive
jurisdiction of the courts of the State of New York.
(v) In addition to the authority otherwise
conferred on the arbitral tribunal, the tribunal shall have
the authority to make such orders for interim relief,
including injunctive relief, as it may deem just and
equitable. If the tribunal shall not have been appointed,
either party may seek interim relief from a court having
jurisdiction if the award to which the applicant may be
entitled may be rendered ineffectual without such interim
relief. Upon appointment of the tribunal following any
grant of interim relief by a court, the tribunal may affirm
or disaffirm such relief, and the parties will seek
modification or rescission of the court action as necessary
to accord with the tribunal's decision.
(vi) The prevailing party in any arbitration
conducted under this Section shall be entitled to recover
from the other party (as part of the arbitral award or
order) its reasonable attorneys' fees and other costs of
arbitration.
SECTION 2.12 AFFILIATE. Nothing contained in this
---------
Agreement shall cause the Purchaser or any other party to be or
be deemed an "affiliate" of any of the Company and its
Subsidiaries within the Securities Act or the Exchange Act.
____________________________
[Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have executed
and delivered this Agreement as of the date first written above.
ADVANCED NMR SYSTEMS, INC.
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: Chairman and CEO
Address: Advanced NMR Systems, Inc.
00 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
GENERAL ELECTRIC COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President of GE Medical
Systems
Address: General Electric Company
Medical Services Division
0000 Xxxxx Xxxxxxxxx Xxxx.
(P.O. Box 414)
Xxxxxxxx, Xxxxxxxxx 00000
Telecopy: (000) 000-0000
