EXHIBIT 2.2
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MOLECULAR BIOSYSTEMS, INC.
COMMON STOCK PURCHASE AGREEMENT
March 31, 1998
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TABLE OF CONTENTS
PAGE
Section 1 Authorization and Sale of Common Stock . . . . . . . . . . . . 1
1.1 Authorization. . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Sale of Common . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2 Closing Date; Delivery . . . . . . . . . . . . . . . . . . . . 1
2.1 Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 3 Representations and Warranties of the Company. . . . . . . . . 2
3.1 Organization and Standing. . . . . . . . . . . . . . . . . . . 2
3.2 Corporate Power; Authorization . . . . . . . . . . . . . . . . 2
3.3 Issuance and Delivery of the Shares. . . . . . . . . . . . . . 2
3.4 Governmental Consents. . . . . . . . . . . . . . . . . . . . . 2
3.5 SEC Documents; Financial Statements. . . . . . . . . . . . . . 2
3.6 No Material Adverse Change . . . . . . . . . . . . . . . . . . 3
Section 4 Representations, Warranties and Covenants of the Purchaser. . . 3
4.1 Authorization. . . . . . . . . . . . . . . . . . . . . . . . . 3
4.2 Investment Experience. . . . . . . . . . . . . . . . . . . . . 3
4.3 Investment Intent. . . . . . . . . . . . . . . . . . . . . . . 3
4.4 Registration or Exemption Requirements . . . . . . . . . . . . 4
4.5 Restriction on Short Sales . . . . . . . . . . . . . . . . . . 4
4.6 No Legal, Tax or Investment Advice . . . . . . . . . . . . . . 4
4.7 Legends. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 5 Conditions to Closing of Purchaser . . . . . . . . . . . . . . 5
5.1 Representations and Warranties . . . . . . . . . . . . . . . . 5
5.2 Performance. . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.3 Qualifications . . . . . . . . . . . . . . . . . . . . . . . . 5
5.4 Compliance Certificate . . . . . . . . . . . . . . . . . . . . 5
Section 6 Conditions to Closing of Company . . . . . . . . . . . . . . . 5
6.1 Representations and Warranties . . . . . . . . . . . . . . . . 5
6.2 Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6.3 Qualifications . . . . . . . . . . . . . . . . . . . . . . . . 5
6.4 Compliance Certificate . . . . . . . . . . . . . . . . . . . . 6
Section 7 Additional Covenants . . . . . . . . . . . . . . . . . . . . . 6
7.1 Standstill Provisions. . . . . . . . . . . . . . . . . . . . . 6
7.2 Market Stand-off . . . . . . . . . . . . . . . . . . . . . . . 6
-i-
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 8 Restrictions on Transferability of Shares:Compliance with
Securities Act . . . . . . . . . . . . . . . . . . . . . . . 6
8.1 Restrictions on Transferability. . . . . . . . . . . . . . . . 6
8.2 Transfer of Shares After Registration. . . . . . . . . . . . . 7
Section 9 Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . 7
9.1 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . 7
9.2 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 7
9.3 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9.4 Successors and Assigns . . . . . . . . . . . . . . . . . . . . 7
9.5 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . 7
9.6 Notices, etc . . . . . . . . . . . . . . . . . . . . . . . . . 7
9.7 Severability of this Agreement . . . . . . . . . . . . . . . . 8
9.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 8
9.9 Further Assurances . . . . . . . . . . . . . . . . . . . . . . 8
9.10 Termination. . . . . . . . . . . . . . . . . . . . . . . . . . 8
9.11 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9.12 Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Exhibit A -- Instruction Sheet for Purchaser
Exhibit B -- Form of Stock Certificate Questionnaire/Purchaser Certificate
Exhibit C -- Form of Purchaser's Certificate of Subsequent Sale
-ii-
MOLECULAR BIOSYSTEMS, INC.
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (the "Agreement") is made as of
March 31, 1998, by and among Molecular Biosystems, Inc., a Delaware corporation
(the "Company"), with its principal office at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇-▇▇▇▇, and Chugai Pharmaceutical Co., Ltd., a
Japanese corporation (the "Purchaser") with its principal office at ▇-▇-▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇.
Section 1
AUTHORIZATION AND SALE OF COMMON STOCK
1.1 AUTHORIZATION. The Company has authorized the sale and issuance
of 691,883 shares of its Common Stock pursuant to this Agreement (the "Shares").
1.2 SALE OF COMMON. Subject to the terms and conditions of this
Agreement, the Company agrees to issue and sell to Purchaser and Purchaser
agrees to purchase from the Company 691,883 shares for $12.00 per share (the
"Purchase Price").
Section 2
CLOSING DATE; DELIVERY
2.1 CLOSING DATE. The closing of the purchase and sale of the Shares
hereunder (the "Closing") shall be held at the offices of ▇▇▇▇▇▇▇, Phleger &
▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ "▇" ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at
4:30 p.m. on or before April 7, 1998, or at such other time and place upon which
the Company and the Purchaser shall agree. The date of the Closing is
hereinafter referred to as the "Closing Date."
2.2 DELIVERY. At the Closing, the Company will deliver to Purchaser
a certificate, registered in the Purchaser's name, representing the number of
Shares to be purchased by the Purchaser. Such delivery shall be against payment
of the purchase price therefor by check or wire transfer to the Company in the
amount of the Purchase Price.
Section 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Purchaser as of the Closing
Date as follows:
3.1 ORGANIZATION AND STANDING. The Company is a corporation duly
organized and validly existing under, and by virtue of, the laws of the State of
Delaware and is in good standing as a domestic corporation under the laws of
said state.
3.2 CORPORATE POWER; AUTHORIZATION. The Company has all requisite
legal and corporate power and has taken all requisite corporate action to
execute and deliver this Agreement, to sell and issue the Shares and to carry
out and perform all of its obligations under this Agreement. This Agreement
constitutes the legal, valid and binding obligation of the Company, enforceable
in accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization or similar laws relating to or affecting the
enforcement of creditors' rights generally and (ii) as limited by equitable
principles generally. The execution and delivery of this Agreement does not,
and the performance of this Agreement and the compliance with the provisions
hereof and the issuance, sale and delivery of the Shares by the Company will
not, materially conflict with, or result in a material breach or violation of
the terms, conditions or provisions of, or constitute a material default under,
or result in the creation or imposition of any material lien pursuant to the
terms of, the Certificate of Incorporation or Bylaws of the Company or any
statute, law, rule or regulation or any state or federal order, judgment or
decree or any indenture, mortgage, lease or other material agreement or
instrument to which the Company or any of its properties is subject.
3.3 ISSUANCE AND DELIVERY OF THE SHARES. The Shares, when issued in
compliance with the provisions of this Agreement, will be validly issued, fully
paid and nonassessable. The issuance and delivery of the Shares is not subject
to preemptive or any other similar rights of the stockholders of the Company or
any liens or encumbrances.
3.4 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state, or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement except for (a) such filings as have been made
prior to the Closing, except that any notices of sale required to be filed with
the SEC under Regulation D of the Securities Act, or such post-closing filings
as may be required under applicable state securities laws, which will be timely
filed within the applicable periods therefor and (b) the filing of the Listing
Application with the New York Stock Exchange.
3.5 SEC DOCUMENTS; FINANCIAL STATEMENTS. As of their respective
filing dates, all documents (the "SEC Documents") filed by the Company with the
Securities and Exchange Commission (the "SEC") complied in all material respects
with the requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or the Securities Act of 1933, as amended (the "Securities
Act"), as applicable. None of the SEC Documents as of their respective dates
2.
contained any untrue statement of material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading.
3.6 NO MATERIAL ADVERSE CHANGE. Except as otherwise disclosed
herein, since September 30, 1997, there have not been any changes in the assets,
liabilities, financial condition, business prospects or operations of the
Company from that reflected in the Financial Statements except changes in the
ordinary course of business which have not been, either individually or in the
aggregate, materially adverse.
Section 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER
Purchaser hereby represents and warrants to the Company as of the
Closing Date as follows:
4.1 AUTHORIZATION. Purchaser represents and warrants to the Company
that: (i) Purchaser has all requisite legal and corporate or other power and
capacity and has taken all requisite corporate or other action to execute and
deliver this Agreement, to purchase the Shares and to carry out and perform all
of its obligations under this Agreement; and (ii) this Agreement constitutes the
legal, valid and binding obligation of the Purchaser, enforceable in accordance
with its terms, except (a) as limited by applicable bankruptcy, insolvency,
reorganization, or similar laws relating to or affecting the enforcement of
creditors' rights generally and (b) as limited by equitable principles
generally.
4.2 INVESTMENT EXPERIENCE. Purchaser is an "accredited investor" as
defined in Rule 501(a) under the Securities Act. Purchaser is aware of the
Company's business affairs and financial condition and has had access to and has
acquired sufficient information about the Company to reach an informed and
knowledgeable decision to acquire the Shares. Purchaser has such business and
financial experience as is required to give it the capacity to protect its own
interests in connection with the purchase of the Shares.
4.3 INVESTMENT INTENT. Purchaser is purchasing the Shares for its
own account as principal, for investment purposes only, and not with a present
view to, or for, resale, distribution or fractionalization thereof, in whole or
in part, within the meaning of the Securities Act. Purchaser understands that
its acquisition of the Shares has not been registered under the Securities Act
or registered or qualified under any state securities law in reliance on
specific exemptions therefrom, which exemptions may depend upon, among other
things, the bona fide nature of Purchaser's investment intent as expressed
herein. Purchaser has completed or caused to be completed the Purchaser
Questionnaire attached hereto as EXHIBIT B, and the responses provided therein
shall be true and correct as of the Closing Date. Purchaser has, in connection
with its decision to purchase the Shares relied solely upon the SEC Documents
and the representations and warranties of the
3.
Company contained herein. Purchaser will not, directly or indirectly, offer,
sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) any of the Shares except
in compliance with the Securities Act, and the rules and regulations
promulgated thereunder.
4.4 REGISTRATION OR EXEMPTION REQUIREMENTS. Purchaser further
acknowledges and understands that the Shares may not be resold or otherwise
transferred except in a transaction registered under the Securities Act or
unless an exemption from such registration is available.
4.5 RESTRICTION ON SHORT SALES. Purchaser represents and warrants to
and covenants with the Company that Purchaser has not engaged and will not
engage in any short sales of the Company's Common Stock prior to the
effectiveness of a registration statement registering the resale of the Shares,
except to the extent that any such short sale is fully covered by shares of
Common Stock of the Company other than the Shares.
4.6 NO LEGAL, TAX OR INVESTMENT ADVICE. Purchaser understands that
nothing in this Agreement or any other materials presented to Purchaser in
connection with the purchase and sale of the Shares constitutes legal, tax or
investment advice. Purchaser has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of the Shares.
4.7 LEGENDS. To the extent applicable, each certificate or other
document evidencing any of the Shares shall be endorsed with the legends set
forth below, and the Purchaser covenants that, except to the extent such
restrictions are waived by the Company, the Purchaser shall not transfer the
shares represented by any such certificate without complying with the
restrictions on transfer described in the legends endorsed on such certificate:
(a) "THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION
THEREOF UNDER SUCH ACT OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT,
OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, SATISFACTORY TO THE
COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED."
(b) "THE SHARES REPRESENTED HEREBY ARE SUBJECT TO THE
RESTRICTIONS ON TRANSFER CONTAINED IN A CERTAIN COMMON STOCK PURCHASE AGREEMENT,
AS AMENDED FROM TIME TO TIME. THE COMPANY WILL UPON WRITTEN REQUEST FURNISH A
COPY OF SUCH AGREEMENT TO THE HOLDER HEREOF WITHOUT CHARGE."
(c) Any other legend required by law.
4.
Section 5
CONDITIONS TO CLOSING OF PURCHASER
Purchaser's obligation to purchase the Shares at the Closing is, at
the option of Purchaser, subject to the fulfillment or waiver as of the Closing
Date of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in Section 3 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of such Closing.
5.2 PERFORMANCE. The Company shall have performed and complied with
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
5.3 QUALIFICATIONS. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required as of the Closing in connection with the lawful
issuance and sale of the Shares pursuant to this Agreement shall have been duly
obtained and shall be effective as of the Closing.
5.4 COMPLIANCE CERTIFICATE. An officer of the Company shall have
delivered to Purchaser a certificate certifying that the conditions specified in
Sections 5.1 and 5.2 have been fulfilled.
Section 6
CONDITIONS TO CLOSING OF COMPANY
The Company's obligation to sell and issue the Shares at the Closing
is, at the option of the Company, subject to the fulfillment or waiver of the
following conditions:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Purchaser contained in Section 4 shall be true on and as of
the Closing with the same effect as though such representations and warranties
had been made on and as of the date of such Closing.
6.2 COVENANTS. The Purchaser shall have performed and complied with
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by the Purchaser on or before the
Closing.
6.3 QUALIFICATIONS. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required as of the Closing in connection with the lawful
issuance and sale of the Shares pursuant to this Agreement shall have been duly
obtained and shall be effective as of the Closing.
5.
6.4 COMPLIANCE CERTIFICATE. An officer of Purchaser shall have
delivered to the Company a certificate certifying that the conditions specified
in Sections 6.1 and 6.2 have been fulfilled.
Section 7
ADDITIONAL COVENANTS
7.1 STANDSTILL PROVISIONS. Commencing as of the Closing and through
the fifth anniversary of the Effective Date, Purchaser (including all affiliates
(as defined in Rule 144) of the Purchaser ("Affiliate")) shall not acquire
beneficial ownership of any shares of Common Stock of the Company, any
securities convertible into or exchangeable for Common Stock, or any other right
to acquire Common Stock, except by way of stock dividends or other distributions
or offerings made available to holders of Common Stock generally (collectively,
"Company Stock"), from the Company or any other person or entity without the
prior written consent of the Company, which consent may be withheld in its sole
discretion; PROVIDED, HOWEVER, that in no event shall (i) the original purchase
of Shares pursuant to this Agreement or (ii) the acquisition by Purchaser (or an
Affiliate) of another Company that at the time of the acquisition owns
securities of the Company constitute a violation of this Section 7.1.
7.2 MARKET STAND-OFF. The Purchaser hereby agrees that during the
period of duration not to exceed 120 days specified by the Company and an
underwriter of capital stock of the Company, following the effective date of a
registration statement pursuant to which the Company is offering securities
under the Securities Act, it shall not, to the extent requested by the Company
and such underwriter (and provided the same restriction is agreed to by the
officers and directors of the Company), directly or indirectly sell, offer to
sell, contract to sell (including, without limitation, any short sale), grant
any option to purchase or otherwise transfer or dispose of (other than to donees
who agree to be similarly bound) any securities of the Company held by it at any
time during such period except Common Stock included in such registration. In
order to enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to the Shares until the end of such period.
Section 8
RESTRICTIONS ON TRANSFERABILITY OF SHARES:
COMPLIANCE WITH SECURITIES ACT
8.1 RESTRICTIONS ON TRANSFERABILITY. The Shares shall not be
transferable in the absence of a registration under the Securities Act or an
exemption therefrom or in the absence of compliance with any term of this
Agreement. The Company shall be entitled to give stop transfer instructions to
its transfer agent with respect to the Shares in order to enforce the foregoing
restrictions.
6.
8.2 TRANSFER OF SHARES AFTER REGISTRATION. Purchaser hereby
covenants with the Company not to make any sale of the Shares except in
accordance with Section 7.2 AND either (i) in accordance with a registration
statement, in which case Purchaser covenants to comply with the requirement of
delivering a current prospectus, or (ii) in accordance with Rule 144, in which
case Purchaser covenants to comply with Rule 144. Purchaser further
acknowledges and agrees that such Shares are not transferable on the books of
the Company unless the certificate submitted to the Company's transfer agent
evidencing such Shares is accompanied by a separate certificate executed by an
officer of, or other person duly authorized by, the Purchaser in the form
attached hereto as EXHIBIT C.
Section 9
MISCELLANEOUS
9.1 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively
but only if so expressly stated), only with the written consent of the Company
and Purchaser. Any amendment or waiver effected in accordance with this Section
shall be binding upon each holder of any securities purchased under this
Agreement at the time outstanding, each future holder of all such securities,
and the Company.
9.2 GOVERNING LAW. This Agreement shall be governed in all respects
by and construed in accordance with the laws of the State of California without
any regard to conflicts of laws principles.
9.3 SURVIVAL. The representations, warranties, covenants and
agreements made in this Agreement shall survive any investigation made by the
Company or the Purchaser and the Closing.
9.4 SUCCESSORS AND ASSIGNS. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties to this Agreement. Notwithstanding the foregoing,
Purchaser shall not assign this Agreement without the prior written consent of
the Company.
9.5 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
hereof.
9.6 NOTICES, ETC. All notices and other communications required or
permitted under this Agreement shall be in writing and may be delivered in
person, by facsimile, overnight delivery service or registered or certified
mail, addressed to the Company or the Purchaser, as the case may be, at their
respective addresses set forth at the beginning of this Agreement, or at such
other address as the Company or the Purchaser shall have furnished to the other
party in writing. All notices and other communications shall be effective upon
the earlier of actual receipt thereof by
7.
the person to whom notice is directed or (i) in the case of notices and
communications sent by personal delivery or facsimile, one business day after
such notice or communication arrives at the applicable address or was
successfully sent to the applicable facsimile number, (ii) in the case of
notices and communications sent by overnight delivery service, at noon (local
time) on the second business day following the day such notice or
communication was sent, and (iii) in the case of notices and communications
sent by United States mail, seven days after such notice or communication
shall have been deposited in the United States mail.
9.7 SEVERABILITY OF THIS AGREEMENT. If any provision of this
Agreement shall be judicially determined to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
9.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
9.9 FURTHER ASSURANCES. Each party to this Agreement shall do and
perform or cause to be done and performed all such further acts and things and
shall execute and deliver all such other agreements, certificates, instruments
and documents as the other party hereto may reasonably request in order to carry
out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
9.10 TERMINATION. In the event that the Closing shall not have
occurred on or before ninety (90) days from the date hereof, this Agreement
shall terminate at the close of business on such date.
9.11 EXPENSES. The Company and Purchaser shall bear its own expenses
incurred on its behalf with respect to this Agreement and the transactions
contemplated hereby, including fees of legal counsel.
8.
9.12 CURRENCY. All references to "dollars" or "$" in this Agreement
shall be deemed to refer to United States dollars.
The foregoing agreement is hereby executed as of the date first above
written.
"COMPANY"
MOLECULAR BIOSYSTEMS, INC.,
a Delaware corporation
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Title: President and CEO
------------------------------------
"PURCHASER"
CHUGAI PHARMACEUTICAL CO., LTD.
By: /s/ ILLEGIBLE
------------------------------------
Title: President
------------------------------------
9.
Exhibit A
INSTRUCTION SHEET FOR PURCHASER
(to be read in conjunction with the entire
Common Stock Purchase Agreement)
A. Complete the following items in the Common Stock Purchase Agreement:
1. Provide the information regarding the Purchaser requested on the
signature page. The Agreement must be executed by an individual
authorized to bind the Purchaser.
2. Exhibit B-1 - Stock Certificate Questionnaire:
Provide the information requested by the Stock Certificate
Questionnaire;
3. Exhibit B-2 - Purchaser Certificate:
Provide the information requested by the Certificate for Corporate,
Partnership, Trust, Foundation and Joint Purchasers, as applicable.
4. Return the signed Purchase Agreement including the properly completed
Exhibits B-1 and B-2 to:
Molecular Biosystems, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇-▇▇▇▇
B. Instructions regarding the transfer of funds for the purchase of Shares
will be sent by facsimile to the Purchaser by the Company at a later date.
C. In the event the Purchaser elects to resell the Shares pursuant to Rule 144
of the Securities Act of 1933, as amended ("Rule 144"), the Purchaser,
(i) must comply with all of the requirements of Rule 144 for resale
of securities; and
(ii) must send a letter in the form of Exhibit C to the Company so
that the Shares may be properly transferred.
D. In the event the Purchaser elects to resell the Shares pursuant to the
Registration Statement after the Registration Statement covering the Shares
is effective, as described in the Purchase Agreement, the Purchaser:
(i) must deliver a current prospectus, and annual and quarterly
reports of the Company to the buyer (prospectuses, and annual and
quarterly reports may be obtained from the Company at the
Purchaser's request); and
(ii) must send a letter in the form of Exhibit C to the Company so
that the Shares may be properly transferred.
Exhibit B-1
MOLECULAR BIOSYSTEMS, INC.
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 4.3 of the Agreement, please provide us with the
following information:
1. The exact name that the Shares are to be
registered in (this is the name that will
appear on the stock certificate(s)). You
may use a nominee name if appropriate:
--------------------------------
2. The relationship between the Purchaser of
the Shares and the Registered Holder
listed in response to item 1 above:
--------------------------------
3. The mailing address of the Registered
Holder listed in response to item 1 above:
--------------------------------
--------------------------------
--------------------------------
--------------------------------
--------------------------------
4. The Tax Identification Number of the
Registered Holder listed in response to
item 1 above:
--------------------------------
Exhibit B-2
MOLECULAR BIOSYSTEMS, INC.
CERTIFICATE FOR CORPORATE, PARTNERSHIP,
TRUST, FOUNDATION AND JOINT PURCHASERS
If the investor is a corporation, partnership, trust, pension plan,
foundation, joint purchaser (other than a married couple) or other entity, an
authorized officer, partner, or trustee must complete, date and sign this
Certificate.
CERTIFICATE
The undersigned certifies that the representations and responses below
are true and accurate:
(a) The investor has been duly formed and is validly existing and has
full power and authority to invest in the Company. The person signing on behalf
of the undersigned has the authority to execute and deliver the Common Stock
Purchase Agreement on behalf of the Purchaser and to take other actions with
respect thereto.
(b) Indicate the form of entity of the undersigned:
___ Limited Partnership
___ General Partnership
___ Corporation
___ Revocable Trust (identify each grantor and indicate under
what circumstances the trust is revocable by the grantor:
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------------------. (Continue on a separate piece of
paper, if necessary.)
___ OTHER TYPE OF TRUST (INDICATE TYPE OF TRUST AND, FOR TRUSTS
OTHER THAN PENSION TRUSTS, NAME THE GRANTORS AND
BENEFICIARIES:
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-----------------. (Continue on a separate piece of
paper, if necessary.)
___ Other form of organization (indicate form of organization
(--------------------).
(c) Indicate the approximate date the undersigned entity was formed:
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(d) In order for the Company to offer and sell the Shares in
conformance with state and federal securities laws, the following information
must be obtained regarding your investor status. Please INITIAL EACH CATEGORY
applicable to you as an investor in the Company.
___ 1. A bank as defined in Section 3(a)(2) of the Securities Act,
or any savings and loan association or other institution as defined in
Section 3(a)(5)(A) of the Securities Act whether acting in its
individual or fiduciary capacity;
___ 2. A broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934;
___ 3. An insurance company as defined in Section 2(13) of the
securities Act;
___ 4. An investment company registered under the Investment
Company Act of 1940 or a business development company as defined in
Section 2(a)(48) of that Act;
___ 5. A Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958;
___ 6. A plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, if such plan
has total assets in excess of $5,000,000;
___ 7. An employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974, if the investment decision is
made by a plan fiduciary, as defined in Section 3(21) of such act,
which is either a bank, savings and loan association, insurance
company, or registered investment adviser, or if the employee benefit
plan has total assets in excess of $5,000,000 or, if a self-directed
plan, with investment decisions made solely by persons that are
accredited investors;
___ 8. A private business development company as defined in
Section 202(a)(22) of the Investment Advisers Act of 1940;
___ 9. An organization described in Section 501(c)(3) of the
Internal Revenue Code, a corporation, Massachusetts or similar
business trust, or partnership, not formed for the specific purpose of
acquiring the Shares, with total assets in excess of $5,000,000;
___ 10. A trust, with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the Shares, whose
purchase is directed by a sophisticated person who has such knowledge
and experience in financial and business matters that such person is
capable of evaluating the merits and risks of investing in the
Company;
___ 11. An entity in which ALL of the equity owners qualify under
any of the above subparagraphs. If the undersigned belongs to this
investor category only, list the equity owners of the undersigned, and
the investor category which each such equity owner satisfies:
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(Continue on a separate piece of paper, if necessary.)
Dated: , 19
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Name of investor
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Signature and title of authorized
officer, partner or trustee
Exhibit C
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
To: Molecular Biosystems, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
The undersigned, the Purchaser or an officer of, or other person duly
authorized by, the Purchaser, hereby certifies that
---------------------------
------------------------------------- (fill in name
of Purchaser) institution was the
Purchaser of the shares evidenced by the attached certificate, and as such,
proposes to transfer such shares on or about either (i) in
-------------------
(date)
accordance with the registration statement, file number [__________] in which
case the Purchaser certifies that the requirement of delivering a current
prospectus has been complied with or will be complied with in connection with
such sale, or (ii) in accordance with Rule 144 under the Securities Act of 1933,
as amended ("Rule 144"), in which case the Purchaser certifies that it has
complied with or will comply with the requirements of Rule 144.
Print or type:
Name of Purchaser:
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Name of Individual
representing
Purchaser (if an
Institution):
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Title of Individual
representing
Purchaser (if an
Institution):
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Signature by:
Purchaser or
Individual repre-
senting Purchaser:
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