Exhibit 10.4
Optionee: Xxxxxx Xxxxxxxxxx
Address : 00 Xxxxx Xxxx
Xxxxxxx, XX 00000
ADVANCED NMR SYSTEMS, INC.
OPTION AGREEMENT
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OPTION AGREEMENT, dated as of August 31, 1995, between ADVANCED
NMR SYSTEMS, INC., a Delaware corporation (the "Corporation"), and XXXXXX
XXXXXXXXXX (the "Optionee").
Pursuant to an Agreement and Plan of Merger, dated as of May 2,
1995, among the Corporation, Medical Diagnostics Inc. ("MDI") and ANMR
Acquisition Corp., the Corporation agreed that upon the merger with MDI
(the "MDI Merger") the Corporation would assume stock options previously
granted by MDI (the "MDI Options"), including those granted to the
Optionee, which were outstanding on the effective date of the MDI Merger.
The MDI Merger became effective on August 31, 1995.
IT IS AGREED as follows:
1. GRANT OF OPTION. By determination of the Option
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Committee, upon the assumption of outstanding MDI Options held by the
Optionee for the purchase of an aggregate of 12,833 shares of MDI Common
Stock as of the effective date of the Merger, the Corporation hereby grants
to the Optionee the following options (the "Options"):
(i) options for 23,840 shares of the Corporation's Common Stock
exercisable at a price of $1.75 per share, expiring August 9,
2001;
(ii) options for 4,291 shares of the Corporation's Common Stock
exercisable at a price of $1.62 per share, expiring February 24,
2003;
(iii) options for 4,291 shares of the Corporation's Common Stock
exercisable at a price of $1.58 per share, expiring February 24,
2004; and
(iv) options for 4,291 shares of the Corporation's Common Stock
exercisable at a price of $2.01 per share, expiring May 4, 2005.
plus for each one share of the Common Stock (as presently constituted)
purchased upon exercise of the Options, the Optionee will receive .35
(thirty five one-hundredths) of a Common Stock Purchase Warrant (the
"Warrants"), with respect to Options exercised prior to August 31, 2000 and
subject to adjustment upon any adjustment of the Common Stock as determined
by the Board of Directors of the Company, whose determination shall be
conclusive. Each whole Warrant receivable upon exercise of Options shall
be exercisable for the purchase of one share of the Corporation's Common
Stock at an exercise price of $3.75 per share until August 31, 2000,
pursuant to a separate Warrant Agreement. The Options are subject to
adjustment from time to time as provided for in this Option Agreement.
2. EXERCISE OF OPTIONS. The Optionee may exercise
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the Options at any time in whole or in part, and in any order, commencing
as of the date hereof and continuing through the respective option periods
described in Section 1 hereof.
3. EXERCISE PROCEDURE.
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(a) The Optionee may exercise the Options by delivering to the
Corporation a written notice duly signed by the Optionee stating the number
of shares of Common Stock that the Optionee has elected to purchase and
accompanied by payment in an amount equal to the full purchase price for
the shares of Common Stock to be purchased. The payment may be either in
cash or by certified check or shares of Common Stock with a fair market
value equal to the exercise price on the date the Option is exercised, or
through a combination of cash or shares. For purposes of the foregoing,
"fair market value" of the Common Stock shall be determined as of the last
business day for which the prices or quotes are available prior to the date
the particular Options are exercised and shall mean (i) the last reported
sale price (on that date) of the Common Stock on the Nasdaq National Market
System, if the Common Stock is then traded on such System; (ii) the last
reported sale (on that date) of the Common Stock on the principal national
securities exchange on which the Common Stock is traded, if the Common
Stock is not then traded on the Nasdaq National Market System; or (iii) the
average of the closing bid and asked prices last quoted (on that date) by
an established quotation service for over-the-counter securities, if the
Common Stock is not reported on the Nasdaq National Market System or a
national securities exchange. However, if the Common Stock is not then
publicly traded, the "fair market value" shall be deemed to be the fair
value of the Common Stock as determined by the Corporation's Board of
Directors after taking into consideration all factors which it deems
appropriate.
(b) Following receipt by the Corporation of notice of exercise
and full payment pursuant to Subsection (a) above, the Corporation shall
issue, as soon as practicable, a stock certificate for the Common Stock and
a warrant certificate for the Warrants represented by the Options exercised
in the name as designated by the Optionee and deliver the certificates to
the Optionee. The Corporation, however, shall not be required to issue or
deliver the stock certificate or the warrant certificate until it has
complied with all requirements of the Securities Act of 1933, the
Securities Exchange Act of 1934, any securities exchange or automated
quotation system on which the Corporation's Common Stock and the Warrants
may then be listed, and all applicable state laws in connection with the
issuance of the Common Stock and the Warrants represented by the Options
exercised or their listing on said securities exchange or system. Until
the issuance of the certificates for the Common Stock and the Warrants
represented by the Options, the Optionee shall have none of the rights of a
stockholder in respect to the shares of such Common Stock.
4. NON-TRANSFERABILITY OF OPTION. The Options shall
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not be transferable other than by will or by the laws of descent and
distribution, and may be exercised during the Optionee's lifetime only by
him.
5. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. If at
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any time after the date of grant of this Option, the Corporation shall, by
stock dividend, split-up, combination, reclassification or exchange, or
through merger or consolidation, or otherwise, change its shares of Common
Stock into a different number or kind or class of shares or other
securities or property, then the number of shares of Common Stock and
Warrants represented by the Options covered by this Option Agreement and
the price thereof shall be proportionately adjusted for any such change by
the Option Committee or the Board of Directors, as applicable, whose
determination shall be conclusive. If the Corporation is to be merged or
consolidated with or acquired by another entity in a merger, consolidation,
sale of all or substantially all of the Corporation's assets or otherwise
(an "Acquisition"), the Option Committee or the Board of Directors shall
give notice to the Optionee of the Acquisition and shall seek to have the
successor entity continue the Options then outstanding by substituting on
an equitable basis for such Options based upon the consideration payable
with respect to the outstanding shares of Common Stock in connection with
the Acquisition.
6. NOTICES. Any notice to be given by the Optionee
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hereunder shall be sent to the Corporation at 00 Xxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000, and any notice from the Corporation to the Optionee
shall be sent to the Optionee at his address set forth above; and shall be
in writing and shall be delivered in person or by registered or certified
mail. Either party may change the address to which notices are to be sent
by notice in writing given to the other in accordance with the terms
hereof.
7. GOVERNING LAW. This Option Agreement, as well as
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the grant of the Options and issuance of the shares of Common Stock and
Warrants hereunder, is governed by and construed in accordance with the
laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
ADVANCED NMR SYSTEMS, INC.
By: /s/ Xxxxxxx Xxxxx
_____________________________
Xxxxxxx Xxxxx, Chief Financial
Officer
Agreed to:
/s/ Xxxxxx Xxxxxxxxxx
___________________________________
Xxxxxx Xxxxxxxxxx
Exercise of Option
To Purchase Shares
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To: Advanced NMR Systems, Inc.
The undersigned hereby exercises the within Option for the
purchase of ______ shares (the "Shares") of Advanced NMR Systems, Inc.
Common Stock and corresponding number of Warrants according to the terms
and conditions thereof and herewith makes payment of the purchase price by
the delivery of _______. In the event the Shares or the Warrants are not
registered under the Securities Act of 1933, as amended, the undersigned
shall provide such representations as may be required by the Corporation to
fulfill any exemptions that may be sought under said Act. Kindly issue the
certificate for the Shares and the Warrants in accordance with the
instructions given below:
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Signature
Instructions for issuance
of stock:
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Name
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Address
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Social Security Number
