REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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SONUS CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Alberta, Canada Not Applicable
(STATE OR OTHER JURISDICTION OF INCORPORATION) (IRS EMPLOYER IDENTIFICATION NO.)
111 S.W. Fifth Avenue, Suite 2390
Portland, Oregon 97204
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
SONUS CORP. SECOND AMENDED AND RESTATED STOCK AWARD PLAN
(FULL TITLE OF THE PLAN)
Brandon M. Dawson
President
Sonus Corp.
111 S.W. Fifth Avenue, Suite 2390
Portland, Oregon 97204
Telephone (503) 225-9152
(NAME, ADDRESS, AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
<TABLE>
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TITLE OF AMOUNT TO BE PROPOSED PROPOSED AMOUNT OF
SECURITIES TO BE REGISTERED MAXIMUM MAXIMUM REGISTRATION FEE
REGISTERED OFFERING PRICE AGGREGATE
PER SHARE OFFERING PRICE
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Common Shares,
without nominal or par
<S> <C> <C> <C> <C>
value, and options and 1,797,600 (1) $13,753,292(1) $4,058
other rights related shares
thereto
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</TABLE>
(1) Pursuant to Rule 457(h), the proposed maximum aggregate offering price for
813,600 shares available for option grants in the future of $5,670,792 and
the corresponding registration fee has been computed based upon the average
of the high and low sales prices of the Common Shares reported by the
American Stock Exchange on June 19, 1998, $6.97. The aggregate offering
price for the balance of 984,000 Common Shares of $8,082,500 is based on
the aggregate exercise price of outstanding options.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the registrant with the Securities and
Exchange Commission are incorporated by reference in this registration
statement:
(a) Prospectus dated June 9, 1998 (the "Prospectus"), filed pursuant to
Rule 424(b)(3) relating to the registrant's Registration Statement on Form SB-2
(No. 333-23137).
(b) The registrant's Annual Report on Form 10-KSB for the fiscal year
ended July 31, 1997, as amended by Amendment No. 1 on Form 10-KSB/A (with
respect to Item 7 thereof), filed on October 30, 1997, other than the financial
statements and auditors' reports included therein, which have been superseded by
the financial statements and auditors' reports included in the Prospectus.
(c) The registrant's Quarterly Reports on Form 10-QSB for the quarters
ended October 31, 1997, and January 31, 1998.
(d) The registrant's Quarterly Report on Form 10-QSB for the fiscal
quarter ended April 30, 1998, as amended by Amendment No. 1 on Form 10-QSB/A
(with respect to Item 1 thereof) filed on June 17, 1998.
(e) The registrant's Current Report on Form 8-K dated November 21, 1997,
reporting that a definitive securities purchase agreement had been reached
between the registrant and Warburg, Pincus Ventures, L.P., a Delaware
partnership ("Warburg"), pursuant to which the registrant agreed to the sale to
Warburg of 13,333,333 Series A Convertible Preferred Shares (the "Convertible
Shares"), together with Warrants to purchase 2,000,000 Common Shares (the
"Warrants") at a purchase price of $12.00 per share, for an aggregate price of
$18,000,000.
(f) The registrant's Current Report on Form 8-K dated December 24, 1997,
reporting consummation of the sale to Warburg of the Convertible Shares,
together with the Warrants, for $18,000,000.
(g) The description of the registrant's Common Shares included as
Exhibit 99 to the registrant's Quarterly Report on Form 10-QSB for the quarter
ended January 31, 1998.
All documents filed by the registrant subsequent to those listed above
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement in a subsequently filed document
modifies or supersedes such statement.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
William DeJong is a director of the registrant and is a partner in the
Calgary, Alberta law firm, Ballem MacInnes. Ballem MacInnes is Canadian counsel
to the registrant and has given an opinion as to the validity of the securities
being registered. Mr. DeJong owns 16,440 Common Shares of the registrant and
holds an option to acquire an additional 15,000 Common Shares at an exercise
price of $3.48 per share.
Item 6. Indemnification of Directors and Officers.
Part 8 of the registrant's bylaws requires the registrant to indemnify,
in all circumstances permitted by the Business Corporations Act (Alberta) (the
"Act"), directors and officers, former directors and officers, and any person
who acts or acted at the registrant's request as a director or officer of a body
corporate of which the registrant is or was a shareholder or a creditor, and his
heirs and legal representatives, from and against:
(a) all costs, charges, and expenses, including any amount to settle an
action or satisfy a judgment reasonably incurred by him in respect of any civil,
criminal, or administrative action or proceeding to which he is made a party by
reason of being or having been a director or officer of the registrant or such
body corporate; and
(b) all other costs, charges, and expenses reasonably incurred in
connection with the defense of any civil, criminal, or administrative action or
proceeding to which he is made a party by reason of being or having been a
director or officer of the registrant or such body corporate.
The effect of this provision of the registrant's bylaws, when considered
in light of Part 9, Section 119 of the Act, is to grant a right of
indemnification to the above referenced individuals against all expenses
(including attorney fees and settlement costs) reasonably incurred in each of
the following circumstances:
(a) the individual (i) acted honestly and in good faith with a view to
the best interests of the registrant and (ii) in the case of a criminal or
administrative action or proceeding that is enforced by a monetary penalty, had
reasonable grounds to believe that his conduct was lawful;
(b) the individual was substantially successful on the merits on his
defense of the action or proceeding and acted honestly and in good faith with a
view to the best interests of the registrant and, in the case of a criminal or
administrative action, had reasonable grounds for believing his conduct was
lawful; and
(c) in the case of an action on behalf of the registrant to procure a
judgment in its favor, to which the individual is made a party by reason of
being or having been a director or officer of the registrant, the individual
acted honestly and in good faith with a view to the best interests of the
registrant, and the court approves such indemnification.
As permitted by the Act, the registrant also maintains insurance for the
protection of its directors and officers against liabilities incurred in such
person's capacity as a director or officer of the registrant or of such other
body corporate, except when such liability relates to such person's failure to
act honestly and in good faith with a view to the best interests of the
registrant or such other body corporate.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
The Index to Exhibits listing the exhibits required by Item 601 of
Regulation S-K is located at page II-6.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 ("Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement; Provided, however,
that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 ("Exchange Act") that are
incorporated by reference in the 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.
(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.
(b) The undersigned registrant hereby 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 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the 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.
(h) 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 provisions described in Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange 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
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person in connection with the securities being registered, 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. The
undertaking of the registrant in the preceding sentence does not apply to
insurance against liability arising under the Securities Act.
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SIGNATURES
In accordance with the requirements of the Securities Act of 1933, 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 Portland, state of Oregon, on the 22nd day of June,
1998.
SONUS CORP.
By /s/ Edwin J. Kawasaki
Edwin J. Kawasaki
Vice President-Finance and Chief Financial
Officer
In accordance with the requirements of the Securities Act of 1933, this
registration statement on Form S-8 has been signed by the following persons in
the capacities indicated as of June 22, 1998.
Signature Title
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(1) PRINCIPAL EXECUTIVE OFFICER AND DIRECTOR:
Brandon M. Dawson* President, Chief Executive Officer and
Director
(2) PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER:
/s/ Edwin J. Kawasaki Vice President, Finance and Chief Financial
Edwin J. Kawasaki Officer
(3) A MAJORITY OF THE BOARD OF DIRECTORS:
HUGH T. HORNIBROOK* Director
WILLIAM DeJONG* Director
DOUGLAS F. GOOD* Director
GREGORY FRAZER, Ph.D.* Director
JOEL ACKERMAN* Director
*By /s/ Edwin J. Kawasaki
Edwin J. Kawasaki
Attorney-in-fact
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EXHIBIT INDEX
EXHIBIT DESCRIPTION OF EXHIBIT
4.1 Articles of Incorporation of the Registrant. Incorporated by
reference to Exhibit 3.1 to the Registrant's Post-Effective
Amendment No. 1 to Registration Statement on Form SB-2 (File No.
333-23137) (the "Amendment").
4.2 Bylaws of the Registrant. Incorporated by reference to Exhibit
3.2 to the Amendment.
5 Opinion of Ballem MacInnes as to legality of securities being
registered.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Shikaze Ralston, Chartered Accountants.
23.3 Consent of Ballem MacInnes (included in Exhibit 5).
24 Power of Attorney of certain officers and directors.
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Other exhibits listed in Item 601 to Regulation S-K are not applicable.
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Our File: 11103.014
June 19, 1998
Sonus Corp.
111 SW 5th Avenue
Suite 2390
Portland, Oregon
U.S.A. 97204
Attn: Board of Directors
Gentlemen:
RE: SONUS CORP. - REGISTRATION STATEMENT ON FORM S-8
We have acted as Alberta counsel for Sonus Corp. ("Sonus"), a body corporate
organized under the laws of the Province of Alberta, Canada, in connection with
the preparation of a registration statement on Form S-8 (the "Registration
Statement") to be filed by Sonus with the Securities and Exchange Commission on
or about June 19, 1998, for the purpose of registering under the United States
Securities Act of 1933, as amended, 1,797,600 common shares of Sonus without par
value ("Option Shares") to be issued upon the exercise of stock options
("Options") granted under the Sonus Corp. Second Amended and Restated Stock
Award Plan, as amended (the "Award Plan").
In our capacity as Alberta counsel for Sonus, we have reviewed and examined the
articles and bylaws of Sonus and applicable resolutions and minutes of meetings
of directors and shareholders contained in its corporate minute book. For
purposes of this opinion, we have assumed such minute book is complete and
accurate in all material respects. In addition, we have reviewed all such other
documents and have made such further investigations as we have considered
appropriate and necessary in order to enable us to give the opinions expressed
herein and have made such examinations of law as we have deemed appropriate for
the purpose of giving the opinions expressed herein.
As to various questions of fact, we have relied upon a certificate of an officer
of Sonus (the "Certificate"), a copy of which is attached hereto. Insofar as the
opinions herein relate to the number of Options exercised, the numbers of Option
Shares reserved for issuance, the number of Options currently issued and
outstanding and the issuance of such outstanding Options as being in accordance
with the terms of the Award Plan, we have relied exclusively upon the
Certificate.
We are solicitors qualified to carry on the practice of law in the Province of
Alberta only and we express no opinion as to any laws or matters governed by any
laws other than the laws of the
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Province of Alberta and the federal laws of Canada applicable therein and, in
particular, we express no opinion as to any matters involving the federal or
state laws of the United States.
Based upon the foregoing, it is our opinion that:
1. The Award Plan has been duly adopted and approved by all necessary
corporate action on the part of Sonus, including the approvals by the
Board of Directors of Sonus and the shareholders of Sonus.
2. A total of 1,800,000 Option Shares have been duly authorized and
reserved for issuance in accordance with the terms of the Award Plan, of
which, 2,400 Option Shares have been issued pursuant to the exercise of
Options granted under the Award Plan, 1,125,000 Option Shares are
reserved for issuance pursuant to Options granted and currently
outstanding which have been issued in accordance with the terms of the
Award Plan, and 672,600 Option Shares are reserved for issuance pursuant
to Options to be granted under the Award Plan.
3. When the Options have been duly exercised and the Option Shares have
been duly delivered against payment being made therefor to Sonus
pursuant to the terms of the Award Plan, the Option Shares will be
validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion in the Registration Statement and
in any amendments thereof.
Yours very truly,
/s/ Ballem MacInnes
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CERTIFICATE
TO: Ballem MacInnes
Re: Registration Statement on Form S-8 ("Form S-8") to register shares
issuable under Stock Award Plan.
I, Brian S. Thompson, secretary of Sonus Corp. (the "Company"), DO HEREBY
CERTIFY in my capacity as such and not in my personal capacity, that:
1. The corporate minute book of the Company is complete and accurate in all
material respects and all minutes of the meetings and/or resolutions of
the shareholders and directors of the Company are recorded therein, and
no steps have been taken or are pending to cancel the Company's
incorporation, to strike the Company from the register or to dissolve or
wind up the company.
2. The Sonus Corp. Second Amended and Restated Stock Award Plan, as amended
(the "Award Plan"), has been authorized and approved by the Company's
shareholders and board of directors and 1,800,000 common shares have
been reserved for issuance thereunder. Of the common shares reserved for
issuance under the Award Plan, 2,400 common shares have been issued
pursuant to the exercise of options granted under the Award Plan,
177,000 common shares are subject to options issued prior to the
effectiveness of the Company's registration statement on Form SB-2 on
June 13, 1997 and 948,000 common shares are subject to options currently
outstanding (collectively, the "Outstanding Option Shares") and 672,600
common shares are reserved for future awards (the "Reserved Shares") in
connection with the Award Plan. Only the Outstanding Option Shares and
the Reserved Shares are being registered on Form S-8. All stock options
exercisable for Outstanding Option Shares have been issued in accordance
with the terms of the Award Plan.
THIS CERTIFICATE is delivered to you in order to confirm certain facts to enable
you to render your legal opinion respecting the registration of common shares of
the Company on Form S-8 with the Securities and Exchange Commission and, in that
regard, you and the Securities and Exchange Commission are entitled to rely upon
same.
DATED at the city of Portland, in the state of Oregon, this 19th day of June,
1998.
/s/ Brian S. Thompson
Brian S. Thompson, Secretary
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Sonus Corp.:
We consent to the incorporation by reference in this Registration Statement of
Sonus Corp. on Form S-8 of our report dated October 24, 1997, except for note
15, as to which the date is February 9, 1998, and except for note 16, as to
which the date is December 24, 1997, appearing on page F-2 of Sonus Corp.'s
Prospectus dated June 19, 1998 (the "Prospectus"), relating to its Registration
Statement on Form SB-2 (No. 333-23137).
We also consent to the incorporation by reference of our report dated February
14, 1997, relating to the financial statements of Hearing Care Associates Group
appearing on page F-23 of the Prospectus and our report dated January 16, 1997,
relating to the financial statements of the Midwest Division of Hearing Health
Services, Inc., appearing on page F-32 of the Prospectus.
/s/ KPMG Peat Marwick LLP
Portland, Oregon
June 19, 1998
June 18, 1998
The Board of Directors
Sonus Corp.
RE: REGISTRATION STATEMENT ON FORM S-8
Dear Sirs:
We hereby consent to the incorporation by reference in this Registration
Statement of Sonus Corp. on Form S-8 of our report dated October 8, 1996,
appearing on page F-3 of Sonus Corp.'s Prospectus dated June 9, 1998, relating
to its Registration Statement on Form SB-2 (No. 333-23137).
Yours very truly,
/s/ Shikaze Ralston
Shikaze Ralston
Chartered Accountants
POWER OF ATTORNEY
Each person whose signature appears below designates and
appoints BRANDON M. DAWSON, and EDWIN J. KAWASAKI, and both of them, his true
and lawful attorneys-in-fact and agents to sign a registration statement on Form
S-8 to be filed by HealthCare Capital Corp., an Alberta (Canada) corporation,
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, for the purpose of registering 8,083,000 shares of common stock of
HealthCare Capital Corp., and options and other awards relating thereto to be
issued pursuant to the HealthCare Capital Corp. 1996 Stock Award Plan, together
with any and all amendments (including post-effective amendments) to the
registration statement. Each person whose signature appears below also grants
full power and authority to these attorneys-in-fact and agents to take any
action and execute any instruments that they deem necessary or desirable in
connection with the preparation and filing of the registration statement, as
fully as he could do in person, hereby ratifying and confirming all that the
attorneys-in-fact and agents or their substitutes may lawfully do or cause to be
done.
IN WITNESS WHEREOF, this power of attorney has been executed
by each of the undersigned as of the 16th day of January, 1998.
Signature Title
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/s/ Brandon M. Dawson President and Director
Brandon M. Dawson
/s/ Edwin J. Kawasaki Vice President-Finance
Edwin J. Kawasaki
/s/ Hugh T. Hornibrook Director
Hugh T. Hornibrook
/s/ Joel Ackerman Director
Joel Ackerman
/s/ William DeJong Director
William DeJong
/s/ Douglas F. Good Director
Douglas F. Good
/s/ Gregory Frazer Director
Gregory Frazer, Ph.D.
