REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
SONUS CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Yukon Territory, Canada Not Applicable
(STATE OR OTHER JURISDICTION OF INCORPORATION) (IRS EMPLOYER IDENTIFICATION NO.)
111 S.W. Fifth Avenue, Suite 1620
Portland, Oregon 97204
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
SONUS CORP. SECOND AMENDED AND RESTATED STOCK AWARD PLAN
(FULL TITLE OF THE PLAN)
Brian S. Thompson
General Counsel and Secretary
Sonus Corp.
111 S.W. Fifth Avenue, Suite 1620
Portland, Oregon 97204
Telephone (503) 225-9152
(NAME, ADDRESS, AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
TITLE OF AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED OFFERING PRICE AGGREGATE REGISTRATION FEE
PER SHARE OFFERING PRICE
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Common Shares,
without nominal or par
value, and options and other 500,000 shares (1) $2,156,250(1) $600
rights related thereto
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(1) Pursuant to Rule 457(h), the proposed maximum aggregate offering price 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 July 12, 1999, $4.31.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed by the registrant with the Securities and
Exchange Commission are incorporated by reference in this registration
statement:
(a) The registrant's Annual Report on Form 10-KSB for the fiscal year
ended July 31, 1998.
(b) The registrant's Quarterly Reports on Form 10-QSB for the quarters
ended October 31, 1998, January 31, 1999, and April 30, 1999.
(c) 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.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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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 options to acquire an additional 15,000 Common Shares at an exercise price
of $3.41 per share and an additional 25,000 shares at $7.25 per share.
Item 6. Indemnification of Directors and Officers.
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Part 8 of the registrant's bylaws requires the registrant to indemnify,
in all circumstances permitted by the Business Corporations Act (Yukon) (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
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(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 126 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.
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Not applicable.
Item 8. Exhibits.
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The Index to Exhibits listing the exhibits required by Item 601 of
Regulation S-K is located at page II-5.
Item 9. Undertakings.
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(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;
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(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 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 13th day of July,
1999.
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 July 13, 1999.
Signature Title
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(1) PRINCIPAL EXECUTIVE OFFICER AND DIRECTOR:
Brandon M. Dawson* Chairman and Chief Executive Officer
and Director
(2) PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER:
/s/ Edwin J. Kawasaki Vice President, Finance and Chief
Edwin J. Kawasaki Financial Officer
(3) A MAJORITY OF THE BOARD OF DIRECTORS:
WILLIAM DeJONG* Director
HAYWOOD D.COCHRANE, JR* Director
GREGORY FRAZER, Ph.D.* 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 Quarterly Report on Form 10-QSB for
the quarter ended January 31, 1999.
4.2 Bylaws of the Registrant. Incorporated by reference to Exhibit 3.2 to
the Registrant's Quarterly Report on Form 10-QSB for the quarter ended
January 31, 1999.
5 Opinion of Ballem MacInnes as to legality of securities being
registered.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 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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1800 FIRST CANADIAN CENTRE Barristers, Solicitors & Trade Mark Agents
350 7TH AVENUE S.W.
CALGARY, ALBERTA T2P 3N9
www.ballem.com
TEL [403] 292.9800
FAX [403] 233.8979
Reply to:
KEITH J. ENGEL
Direct Line: (403) 292.9822
E-Mail: [email protected]
Our File: 11103.015
July 13, 1999
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 special Alberta counsel for Sonus Corp. ("Sonus"), a
body corporate previously organized until December 16, 1998 under the
laws of the Province of Alberta, Canada (at which time Sonus continued
into the Yukon Territory, Canada and a Certificate of Discontinuance
dated December 16, 1998 was issued by the Registrar of Corporations of
the Province of Alberta), 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
July 14, 1999, for the purpose of registering under the United States
Securities Act of 1933, as amended, 500,000 additional common shares of
Sonus without par value ("Option Shares") to be issued upon the
exercise of stock options ("Options") granted under the Sonus Second
Amended and Restated Stock Award Plan, as amended (the "Award Plan").
In our capacity as special Alberta counsel for Sonus, we have reviewed
and examined the articles and bylaws of Sonus and applicable
resolutions and minutes of meetings of directors
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and shareholders contained in its corporate minute book for the time up
to and including December 16, 1998. 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 Province of
Alberta and the federal laws of Canada applicable therein and, in
particular, we express no opinion as to any matters involving the laws
of the Yukon Territory and the federal laws of Canada applicable
therein or 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 2,300,000 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, 1,788,000
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 509,600 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,
Signed: "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 "Sonus"), DO HEREBY CERTIFY
as such and not in my personal capacity, that:
1. The corporate minute book of Sonus is complete and accurate in all
material respects and all minutes of the meetings and/or resolutions of
the shareholders and directors of Sonus are recorded therein.
2. The Sonus Second Amended and Restated Stock Award Plan, as amended (the
"Award Plan"), has been authorized and approved by the board of
directors of Sonus and the shareholders of Sonus and 2,300,000 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, 408,000 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 1,788,000 common shares are subject to options
currently outstanding (collectively, the "Outstanding Option Shares")
and 509,600 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 13th day of July,
1999.
Signed: "Brian S. Thompson"
Brian S. Thompson, Secretary
INDEPENDENT ACCOUNTANTS' CONSENT
The Board of Directors
Sonus Corp.:
We consent to incorporation by reference in the Registration Statement on Form
S-8 of Sonus Corp. to register 500,000 shares of common stock of Sonus Corp. of
our report dated October 23, 1998, relating to the consolidated balance sheets
of Sonus Corp. and subsidiaries as of July 31, 1998 and 1997, and the related
consolidated statements of operations, shareholders' equity, and cash flows for
each of the years in the two-year period ended July 31, 1998, which report
appears in the July 31, 1998 Annual Report on Form 10-KSB of Sonus Corp.
Portland, Oregon
July 8, 1999
POWER OF ATTORNEY
Each person whose signature appears below designates and appoints BRANDON M.
DAWSON, SCOTT E. KLEIN and EDWIN J. KAWASAKI, and any of them, his true and
lawful attorneys-in-fact and agents to sign a registration statement on Form S-8
to be filed by Sonus Corp., a Yukon Territory (Canada) corporation, with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
for the purpose of registering 500,000 shares of common stock of Sonus Corp.,
and options and other awards relating thereto to be issued pursuant to the Sonus
Corp. Second Amended and Restated 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 18th day of June 1999.
Signature Title
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/s/ Brandon M. Dawson Chairman and Chief Executive
Brandon M. Dawson Officer and Director
/s/ Scott E. Klein President and Chief Operating Officer
Scott E. Klein
/s/ Edwin J. Kawasaki Vice President-Finance
Edwin J. Kawasaki
- -------------------------- Director
Hugh T. Hornibrook
- -------------------------- Director
Joel Ackerman
/s/ William DeJong Director
William DeJong
/s/ Haywood D. Cochrane, Jr. Director
Haywood D. Cochrane, Jr.
/s/ Gregory J. Frazer, Ph.D Director
Gregory Frazer, Ph.D.
