UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
Registration Statement under the Securities Act of 1933
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MOLECULAR BIOSYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 36-3078632
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
10030 Barnes Canyon Road
San Diego, California 92121
(Address of principal executive offices)
Molecular Biosystems, Inc.
1997 Outside Directors Stock Option Plan
(Full title of the plan)
Bobba Venkatadri
President and Chief Executive Officer
Molecular Biosystems, Inc.
10030 Barnes Canyon Road
San Diego, California 92121
(619) 452-0681
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
- ------------ ------------- ----------------- ------------------ -------------
Title of Amount To Be Proposed Maximum Proposed Maximum Amount of
Securities Registered Offering Price Aggregate Registration
To Be Per Share(1) Offering Fee(1)
Registered Price(1)
- ------------ ------------- ----------------- ------------------- ------------
- ------------ ------------- ----------------- ------------------- ------------
Common Stock, 300,000 $9.06 $2,718,000.00 $823.64
par value shares
$.01 per
share
- ----------- -------------- ------------------ ------------------ ------------
(1) Computed pursuant to Rule 457(c), in accordance with Rule 457(h)(1), on the
basis of the average of the high and low sales prices of a share of the
Registrant's Common Stock reported on the New York Stock Exchange, Inc. on
September 2, 1997.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The information required by Item 1 is omitted from this Registration
Statement in accordance with the Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information
The information required by Item 2 is omitted from this Registration
Statement in accordance with the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant incorporates by reference in this Registration Statement
the following documents which the Registrant has filed with the Securities and
Exchange Commission (the "Commission"):
(a) the Annual Report on Form 10-K which the Registrant filed for the
fiscal year ended March 31, 1997;
(b) the Quarterly Report on Form 10-Q which the Registrant filed for the
quarterly period ended June 30, 1997;
(c) the Current Report on Form 8-K, dated April 21, 1997, which the
Registrant filed on May 12, 1997; and
(d) the description of the Registrant's Common Stock, par value $.01 per
share, contained in the Registration Statement on Form 8-A which the
Registrant filed on July 9, 1984 (Registration No. 2-83721), together
with any amendment or report that the Registrant may file for the
purpose of updating this description.
All documents that the Registrant files with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended, after the filing of this Registration Statement but prior to the filing
of a post-effective amendment (1) which indicates that all of the shares of the
Registrant's Common Stock covered by this Registration Statement (the "Shares")
have been sold or (2) which deregisters all of the Shares then remaining unsold,
shall be deemed to be incorporated by reference in and to be part of this
Registration Statement from their respective dates of filing.
Any statement in a document incorporated or deemed to be incorporated by
reference in this Registration Statement shall be deemed to be modified or
superseded to the extent that a statement in this Registration Statement, or in
any document filed after the filing of this Registration Statement which is
deemed to be incorporated by reference in this Registration Statement, modifies
or supersedes the earlier statement. The earlier statement shall be deemed to be
incorporated in this Registration Statement only as so modified or superseded.
Item 4. Description of Securities
This item is not applicable.
Item 5. Interests of Named Experts and Counsel
The legality of the Shares is being passed upon for the Registrant by
Johnson and Colmar, 300 South Wacker Drive, Suite 1000, Chicago, Illinois 60606,
who serve as the Registrant's outside general counsel.
Craig P. Colmar, who is a partner of Johnson and Colmar, is also the
Company's Secretary. Mr. Colmar owns of record and beneficially 1,000 shares of
Common Stock, and other partners of Johnson and Colmar own of record and
beneficially a further 1,200 shares. In addition, Mr. Colmar holds options to
purchase 35,750 shares of the Registrant's Common Stock. These stock options
were granted at option prices equal to the fair market value of the Registrant's
Common Stock on the dates of grant.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides generally
that a person sued as a director, officer, employee or agent of a corporation
may be indemnified by the corporation in non-derivative suits for expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement if
he or she acted in good faith and in a manner that he or she reasonably believed
to be in, or not opposed to, the corporation's best interests. In the case of
criminal actions and proceedings, the person must also not have had reasonable
cause to believe that his or her conduct was unlawful. Indemnification of
expenses is also authorized in stockholder derivative actions if the person
acted in good faith and in a manner that he or she reasonably believed to be in,
or not opposed to, the corporation's best interests and if he or she has not
been found liable to the corporation. Even in this latter instance, the court
may determine that in view of all of the circumstances the person is entitled to
indemnification for such expenses as the court deems proper. A person sued as a
director, officer, employee or agent of a corporation who has been successful in
defense of the action must be indemnified by the corporation against his or her
expenses.
Article 11 of the Registrant's certificate of incorporation, as amended,
requires the Registrant to indemnify its directors, officers, employees and
agents to the maximum extent permitted by Delaware law. Article 11 also requires
the Registrant to advance the litigation expenses of a director or officer upon
receipt of his or her written undertaking to repay all amounts advanced if it is
ultimately determined that he or she is not entitled to indemnification.
Section 102(b)(7) of the Delaware General Corporation Law permits a
Delaware corporation to include a provision in its certificate of incorporation
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of the director's duly of
care. Such a provision may not eliminate or limit the liability of a director
for breaching his or her duty of loyalty, failing to act in good faith, engaging
in intentional misconduct or knowingly violating a law, declaring an illegal
dividend or approving an illegal stock repurchase, or obtaining an improper
personal benefit.
Article 10 of the Registrant's certificate of incorporation, as amended,
eliminates the personal liability of the Registrant's directors to the fullest
extent permitted by Delaware law.
Through directors' and officers' liability insurance which the Registrant
maintains, the Registrant's directors and officers are also insured against
actual liabilities, including liabilities under the federal securities laws, for
acts or omissions related to the conduct of their duties.
Item 7. Exemption from Registration Claimed
This item is not applicable.
Item 8. Exhibits
4.1 Molecular Biosystems, Inc. 1997 Outside Directors Stock Option Plan
5.1 Opinion of Johnson and Colmar
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Johnson and Colmar (filed as part of Exhibit 5.1)
24.1 Power of attorney (included under the caption "Power of Attorney"
on page 7).
Item 9. Undertakings
Rule 415 Offering
The Registrant undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(a) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(b) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in this Registration Statement; and
(c) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that undertakings (1)(a) and (1)(b) shall not apply if
the information required to be included in a post-effective amendment by
those undertakings is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") which are incorporated by reference in this Registration
Statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering; and
Filings Incorporating Subsequent Exchange Act Documents by Reference
The Registrant undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act which is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Commission Position on Indemnification
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the Delaware General Corporation Law or the Registrant's
certificate of incorporation, as amended, as described in Item 6, or otherwise
permitted, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the Shares, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, State of California, on September 8,
1997.
Molecular Biosystems, Inc.
By: /s/ BOBBA VENKATADRI
Bobba Venkatadri
President and Chief
Executive Officer
Power of Attorney
Each person whose signature appears below who is then an officer or
director of the Registrant authorizes Bobba Venkatadri and Gerard A. Wills, or
either of them, with full power of substitution and resubstitution, to sign in
his name and to file any amendments (including post-effective amendments) to
this Registration Statement) and all related documents necessary or advisable to
enable the Registrant to comply with the Securities Act of 1933, as amended, in
connection with the registration of the securities which are covered by this
Registration Statement, which amendments may make such changes in this
Registration Statement (as it may be so amended) as Bobba Venkatadri or Gerard
A. Wills or either of them, may deem appropriate, and to do and perform all
other related acts and things necessary to be done.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<PAGE>
Name Title Date
/s/ BOBBA VENKATADRI President, Chief Executive September 8, 1997
Bobba Venkatadri Officer and a Director
(Principal Executive Officer)
/s/ GERARD A. WILLS Vice President, Finance and Chief September 8, 1997
Gerard A. Wills Financial Officer (Principal
Financial and Accounting Officer)
/s/ KENNETH J. WIDDER, M.D Chairman of the September 8, 1997
Kenneth J. Widder, M.D. Board of Directors
/s/ DAVID W. BARRY, M.D. Director September 8, 1997
David W. Barry, M.D.
/s/ ROBERT W. BRIGHTFELT Director September 8, 1997
Robert W. Brightfelt
/s/ CHARLES C. EDWARDS, M.D. Director September 8, 1997
Charles C. Edwards, M.D.
/s/ JERRY T. JACKSON Director September 8, 1997
Jerry T. Jackson
/s/ GORDON C. LUCE Director September 8, 1997
Gordon C. Luce
/s/ DAVID RUBINFIEN Director September 8, 1997
David Rubinfien
<PAGE>
Index to Exhibits
Exhibit Description Sequentially
Number Numbered
Page
4.1 Molecular Biosystems, Inc. 1997 Outside Directors
Stock Option Plan 9
5.1 Opinion of Johnson and Colmar 14
23.1 Consent of Arthur Andersen LLP 16
23.2 Consent of Johnson and Colmar
(filed as part of Exhibit 5.1) -
24.1 Power of Attorney (included under the caption
"Power of Attorney" on page 6) -
<PAGE>
Exhibit 4.1
MOLECULAR BIOSYSTEMS, INC.
1997 OUTSIDE DIRECTORS STOCK OPTION PLAN
Article 1
PURPOSE AND EFFECTIVE DATE
1.1 Purpose. The purpose of the Plan is to permit the Company to grant
stock options to its outside directors to reward them for their efforts on the
Company's behalf and to provide an additional incentive to contribute to the
attainment of the Company's long-term plans and objectives.
1.2 Effective Date. The Plan shall become effective if and when approved
by the Company's shareholders at the 1997 Annual Meeting of Shareholders.
1.3 Term. The Plan shall have a term of 10 years expiring on the tenth
anniversary of its effective date. No Option may be granted under the Plan after
its expiration.
Article 2
DEFINITIONS
2.1 Annual Meeting means the annual meeting of the Company's
shareholders.
2.2 Board means the Company's Board of Directors. If the Board delegates
its authority to administer the Plan to a committee of the Board in accordance
with Article 4, references to the "Board" shall be construed as references to
the committee.
2.3 Common Stock means shares of the Company's common stock, $.01 par
value.
2.4 Company means Molecular Biosystems, Inc., a Delaware corporation.
2.5 Director means a director of the Company.
2.6 Expiration Date is defined in Paragraph 5.3.
2.7 Grant Date is defined in Paragraph 5.1.
2.8 Officer means: (i) the Company's Chairman of the Board and Chief
Executive Officer; (ii) the Company's President and Chief Operating Officer;
(iii) any Vice President of the Company; and (iv) any other person who is
considered an "officer" of the Company for purposes of Rule 16a-1(f) under the
Securities Exchange Act of 1934.
<PAGE>
2.9 Option is defined in Paragraph 5.1.
2.10 Option Agreement is defined in Paragraph 5.6.
2.11 Outside Director means a Director who is neither an Officer nor an
employee of the Company or any corporation in which the Company owns stock
possessing at least 50% of the total combined voting power of all classes of
stock.
2.12 Plan means this stock option plan, as it may be amended. The
name of the Plan is the "Molecular Biosystems, Inc. 1997 Outside Directors
Stock Option Plan."
Article 3
TYPE AND NUMBER OF OPTIONS
3.1 Type of Options. The Options granted under this Plan are
nonstatutory stock options.
3.2 Maximum Number of Options. The maximum number of shares of Common
Stock for which Options may be granted is 300,000 (subject to adjustment as
provided in Paragraph 7.1). If any Option expires unexercised or is surrendered
prior to the Plan's expiration, the number of Underlying Shares in respect of
the Option shall be added back to the number of shares of Common Stock for which
Options may be granted under the Plan. The Underlying Shares to be delivered
upon the exercise of an Option may be either authorized but unissued shares or
issued shares reacquired by the Company (or any combination of the two).
Article 4
ADMINISTRATION
The Plan shall be administered by the Board. Subject to the express
provisions of the Plan, the Board may interpret the Plan, adopt and revise
policies and procedures to administer the Plan, and make all determinations
required for the Plan's administration. The actions of the Board shall be final
and binding. The Board may delegate its authority to its Executive Committee or
to another committee appointed by the Board consisting of at least two
Directors.
Article 5
STOCK OPTIONS
5.1 Option Grants.
(a) Annual Grant. On the last business day in March of each year
(beginning with March 1997) (the "Grant Date"), the Company shall
grant each incumbent Outside Director who was elected at the
preceding Annual Meeting an option for 6,500 shares of Common
Stock (an "Option"). No Option shall be granted to an incumbent
Outside Director who was not elected at the preceding Annual
Meeting but was subsequently elected or appointed by the Board to
fill a vacancy.
(b) Discretionary Grant. The Board shall have the authority to grant
options to an Outside Director in amounts greater than the annual
grant to that Outside Director set forth in the preceding
subparagraph, provided that no Outside Director shall be entitled
to receive Options for more than 21,500 shares of Common Stock in
any fiscal year. The date on which the Board acts to grant any
such options shall be the Grant Date.
5.2 Exercise Price. The exercise price of each Option shall be the
closing price of the Company's Common Stock on the New York Stock Exchange on
the Grant Date (or on the last trading day preceding the Grant Date if it is not
a trading day).
5.3 Term. Each Option shall have a 10-year term expiring on the tenth
anniversary of the Grant Date (the "Expiration Date") (subject to early
expiration as provided in Paragraph 5.4). The Board shall determine (i) whether
each Option shall be exercisable in full at one time or in installments at
different times and (ii) the time or times at which the Option or installments
shall become exercisable. No Option or installment shall be exercisable prior to
the first anniversary of the Grant Date, except as its exercisability is
accelerated by the Board. The Board may accelerate the exercisability of any
Option or installment at any time.
5.4 Death of Outside Director. The failure of the Outside Director to
whom an Option was granted to remain an Outside Director shall not cause the
Option to expire or otherwise terminate; but in the event of the death of the
Outside Director (whether or not he or she is then an incumbent Director), the
Option shall expire on the earlier of (i) the first anniversary of the Outside
Director's death or (ii) the Option's Expiration Date.
5.5 Transferability. No Option may be transferred, assigned or pledged
(whether by operation of law or otherwise), except as provided by will or the
applicable intestacy laws, and no Option shall be subject to execution,
attachment or similar process. An Option or Installment may be exercised only by
Outside Director to whom it was granted, except in the case of his or her death,
when it may be exercised by the person or persons to whom it passes by will or
inheritance.
5.6 Option Agreements. Each Option shall be evidenced by a written
agreement (an "Option Agreement"), in a form approved by the Board, entered into
by the Company and the Outside Director to whom the Option is granted.
Article 6
EXERCISE OF OPTIONS
6.1 Manner of Exercise. An exercisable Option may be exercised in full
or in part (but only in respect of a whole number of shares) by (i) written
notice to the Board (or its designee) stating the number of shares of Common
Stock in respect of which the Option is being exercised and (ii) full payment of
the exercise price of those shares.
6.2 Payment of Exercise Price. Payment of the exercise price of an
Option shall be made by certified or bank cashier's check or by wire transfer of
immediately available funds or, if permitted by the Board (either in the
applicable Option Agreement or at the time of exercise): (i) by delivering
shares of Common Stock having a fair market value on the date of exercise equal
to the exercise price; (ii) by directing the Company to withhold, from the
shares of Common Stock otherwise issuable upon exercise of the Option, shares of
Common Stock having a fair market value on the date of exercise equal to the
exercise price; (iii) by surrendering exercisable Options which have a fair
market value on the date of exercise equal to the exercise price (measuring the
fair market value of the Options surrendered by the excess of (y) the aggregate
fair market value on the date of exercise of the shares of Common Stock issuable
upon exercise of the Option over (z) the aggregate exercise price); (iv) by any
combination of the preceding methods of payment; or (v) by any other method of
payment authorized by the Board. For purposes of this Paragraph and Paragraph
6.3), "fair market value" shall be determined by the closing price of shares of
the Company's Common Stock on the date in question (or on the last trading day
preceding the date in question if it is not a trading day).
6.3 Withholding. Each Outside Director exercising an Option shall remit
to the Company an amount sufficient to satisfy the Company's federal, state and
local withholding tax obligation in connection with the exercise. Payment shall
be made by certified or bank cashier's check or by wire transfer of immediately
available funds or, if permitted by the Board (either in the applicable Option
Agreement or at the time of exercise), by either one or both of the following
methods: (i) by delivering shares of Common Stock having a fair market value on
the date of exercise equal to the Company's withholding obligation; or (ii) by
directing the Company to withhold, from the shares of Common Stock otherwise
issuable upon exercise of the Option, shares of Common Stock having a fair
market value on the date of exercise equal to the Company's withholding
obligation.
<PAGE>
Article 7
MISCELLANEOUS PROVISIONS
7.1 Capitalization Adjustments. The aggregate number of shares of
Common Stock for which Options may be granted under the Plan, the aggregate
number of Underlying Shares in respect of each outstanding Option, and the
exercise price of each such Option may be adjusted by the Board as it considers
appropriate in the event of changes in the number of outstanding shares of
Common Stock by reason of stock dividends, stock splits, recapitalizations,
reorganizations and the like. Adjustments under this Paragraph 7.1 shall be made
in the Board's discretion, and its decisions shall be final and binding.
7.2 Amendment and Termination. The Board may amend, suspend or
terminate the Plan at any time; but except to comply with changes in the
Internal Revenue Code of 1986 and the related regulation, the Board may not
amend the Plan more once every six months to change: (i) the number of shares of
Common Stock for which Options may be granted under the Plan; (ii) the benefits
under the Plan; or (iii) the eligibility requirements of the Plan. The Company's
shareholders shall be required to approve any such amendment (other than an
amendment authorized under Paragraph 7.1) that would materially increase the
number of shares, materially increase the benefits or materially change the
eligibility requirements. If the Plan is terminated, the provisions of the Plan
shall continue to apply to Options granted prior to termination, and no
amendment, suspension or termination of the Plan shall adversely affect the
rights of an Outside Director in respect of any Option held without his or her
consent.
7.3 Compliance with Section 16(b). The Plan shall be interpreted and
administered in a manner that satisfies the applicable requirements of Rule
16b-3 under the Securities Exchange Act so that Outside Directors will be
entitled to the benefits of Rule 16b-3.
7.4 No Right To Nomination. Nothing in the Plan or in any Option
Agreement shall confer on any Outside Director the right to continue to be
nominated for election as a Director.
7.5 Notices. Notices required or permitted under the Plan shall be
considered to have been duly given if sent by certified or registered mail
addressed to the Board at the Company's principal office or to any Outside
Director at his or her address as it appears on the Company's records.
7.6 Severability. If any provision of the Plan is held illegal or
invalid for any reason, the illegality or invalidity shall not affect the
remaining provisions, and the Plan shall be construed and administered as if the
illegal or invalid provision had not been included.
7.7 Governing Law. The Plan and all Option Agreements shall be governed
in accordance with the laws of the State of California.
<PAGE>
Exhibit 5.1
[Letterhead]
September 8, 1997
Board of Directors
Molecular Biosystems, Inc.
10030 Barnes Canyon Road
San Diego, California 92121
Re: Registration Statement on Form S-8 -
1997 Outside Directors Stock Option Plan
Gentlemen:
We have acted as counsel to Molecular Biosystems, Inc. (the "Company") in
connection with the preparation and filing with the Securities and Exchange
Commission of a Registration Statement on Form S-8 (the "Registration
Statement") for the registration under the Securities Act of 1933, as amended,
of 300,000 shares of the Company's Common Stock, par value $.01 per share (the
"Shares"), to be issued upon the exercise of options granted or to be granted
under the Molecular Biosystems, Inc. 1997 Outside Directors Stock Option Plan
(the "Plan").
As such counsel, we have examined the Plan, the Registration Statement,
the Company's certificate of incorporation and by-laws, each as amended to
date, minutes of meetings and records of proceedings of the Company's Board of
Directors and stockholders, and such other matters of fact and questions of
law as we have considered necessary to form the basis of our opinion. In the
course of this examination, we have assumed the genuineness of all signatures,
the authenticity of all documents and certificates submitted to us as
originals by representatives of the Company, public officials and third
parties, and the conformity to and authenticity of the originals of all
documents and certificates submitted to us as copies.
<PAGE>
Board of Directors
September 8, 1997
Page Two
On the basis of our examination, we are of the opinion that the Company
has duly authorized and reserved the Shares for issuance upon the exercise of
options granted or to be granted under the Plan and that, when issued upon the
exercise and in accordance with the terms of options granted or to be granted
under the Plan (including, but not limited to, the terms of payment of the
option price), the Shares will be will be validly issued, fully paid and
non-assessable.
We consent to the use of our opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ JOHNSON AND COLMAR
Johnson and Colmar
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated May 6, 1997
included in Molecular Biosystems, Inc.'s Form 10-K for the year ended March
31, 1997 and to all references to our Firm included in this registration
statement.
Arthur Andersen LLP
San Diego, California
September 12, 1997
