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As Filed with the Securities and Exchange Commission on September 24, 1999
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 PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-4343413
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
22026 20th Avenue S.E., Bothell, Washington 98021
(Address of Principal Executive Offices) (Zip Code)
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INCENTIVE STOCK OPTION, NONQUALIFIED STOCK OPTION
AND RESTRICTED STOCK PURCHASE PLAN - 1991
1995 STOCK OPTION PLAN FOR DIRECTORS
EMPLOYEE STOCK PURCHASE PLAN
1999 NONQUALIFIED STOCK INCENTIVE PLAN
(Full titles of the plans)
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Michael A. Martino, President and
Chief Executive Officer
Sonus Pharmaceuticals, Inc.
22026 20th Avenue S.E.
Bothell, Washington 98021
(Name and address of agent for service)
(425) 487-9500
(Telephone number, including area code, of agent for service)
Copy to:
K.C. Schaaf, Esq.
Christopher D. Ivey, Esq.
Stradling Yocca Carlson & Rauth, a Professional Corporation
660 Newport Center Drive, Suite 1600
Newport Beach, California 92660
(949) 725-4000
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount To Be Proposed Maximum Proposed Maximum Amount of
To Be Registered Registered(1) Offering Aggregate Registration Fee
Price Per Share Offering Price
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Common Stock,
$0.001 par value 1,077,863 shares (2) $5,116,384(2) $1,422.35
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(1)Includes additional shares of Common Stock that may become issuable pursuant
to the anti-dilution adjustment provisions of the Incentive Stock Option,
Nonqualified Stock Option and Restricted Stock Purchase Plan - 1991 (the
"1991 Plan") (300,000 shares), the 1995 Stock Option Plan for Directors (the
"Director Plan") (127,863 shares), the Employee Stock Purchase Plan (the
"Purchase Plan") (50,000 shares), and the 1999 Nonqualified Stock Incentive
Plan (the "1999 Plan") (600,000 shares).
Previously, 546,017 shares of Common Stock available for grant under the 1991
Plan were registered on a Registration Statement on Form S-8 on December 15,
1995 (Registration No. 33-08623), 774,810 shares of Common Stock available
for grant under the 1991 Plan were registered on a Registration Statement on
Form S-8 on September 22, 1997 (Registration No. 33-36093) and 400,000 shares
of Common Stock available for grant under the 1991 Plan were registered on a
Registration Statement on Form S-8 on June 16, 1998 (Registration No.
33-56933). 122,137 shares of Common Stock available for grant under the
Director Plan were registered on a Registration Statement on Form S-8 on
December 15, 1995 (Registration No 33-08623). 50,000 shares of Common Stock
available for grant under the Purchase Plan were registered on a Registration
Statement on Form S-8 on December 15, 1995 (Registration No. 33-08623).
(2)The aggregate offering price of 349,197 shares of Common Stock registered
hereby which could be issued upon exercise of options granted under the 1999
Plan is based upon the per share exercise price of such options, the weighted
average of which is approximately $6.06 per share. With respect to the
remaining 678,666 shares of Common Stock registered hereby which could be
issued upon exercise of the remaining options and rights to purchase which
Registrant is authorized to issue under its 1991 Plan, the Director Plan and
the 1999 Plan, the aggregate offering price is estimated solely for purposes
of calculating the registration fee, in accordance with Rule 457(h) on the
basis of the price of securities of the same class, as determined in
accordance with Rule 457(c), using the average of the high and low price
reported by the Nasdaq National Market for Common Stock on September 20,
1999, which was $4.16 per share. For purposes of the 50,000 shares of Common
Stock registered hereby to be issued under the Purchase Plan, the aggregate
offering price was estimated using a per share price of $3.54 or 85% of
$4.16, the average of the high and low price reported by the Nasdaq National
Market for Common Stock on September 20, 1999, pursuant to the terms of the
Purchase Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated herein by reference:
(a) The Registrant's Registration Statement on Form S-8 dated December
15, 1995 (Registration No. 33-80623).
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999.
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999.
(d) The Registrant's Yearly Report on Form 10-K for the year ended
December 31, 1998.
(e) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the
Annual Report on Form 10-K referred to in (c) above.
(f) The description of the Registrant's Common Stock that is contained
in the Registrant's Registration Statement on Form 8-A filed under
Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating that description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) or the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all such securities then remaining unsold, shall be
deemed to be incorporated herein by reference and to a part hereof from the date
of filing of such documents, except as to any portion of any future annual or
quarterly report to stockholders or document that is not deemed filed under such
provisions. For the purposes of this registration statement, any statement in a
document incorporated by references shall be deemed to be modified or superseded
to the extent that a statement is contained in this registration statement
modifies or supersedes a statement in such document. Any statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
Item 4. Description of Securities
Not Applicable
Item 5. Interests of Named Experts and Counsel
Not Applicable
Item 6. Indemnification of Directors and Officers
(a) As permitted by the Delaware General Corporation Law, the
Registrant's Certificate of Incorporation eliminates the liability
of directors to the Registrant or its stockholders for monetary
damages for breach of fiduciary duty as a director, except to the
extent otherwise required by the Delaware General Corporation Law.
(b) The Certificate of Incorporation provides that the Registrant will
indemnify each person who was or is made a party to any proceeding
by reason of the fact that such person is or was a director or
officer of the Registrant against all expense, liability and loss
reasonably incurred or suffered by such person in connection
therewith to the fullest extent authorized by the Delaware General
Corporation Law. The Registrant's Bylaws provide for a similar
indemnity to directors and officers of the Registrant to the fullest
extent authorized by General Corporation Law.
(c) The Certificate of Incorporation also gives the Registrant the
ability to enter into indemnification
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agreements with each of its officers and directors. The Registrant
has entered into indemnification agreements with each of its
directors and executive officers. The indemnification agreements
provide for the indemnification of directors and officers against
any and all expenses, judgements, fines, penalties and amounts paid
in settlement, to the fullest extent permitted by law.
Item 7. Exemption from Registration Claims
Not Applicable
Item 8. Exhibits
The following exhibits are filed as part of this Registration Statement:
Number Description
4.1 SONUS Pharmaceuticals, Inc. 1999 Nonqualified Stock
Incentive Plan (the "1999 Plan") (incorporated by
reference to Exhibit 10.7 to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31,
1999).
4.2 Form of Nonqualified Stock Option
Agreement pertaining to the 1999 Plan
(incorporated by reference to Exhibit
10.8 to the Company's Quarterly Report
on Form 10-Q for the quarter ended March
31, 1999).
4.3 Form of Restricted Stock Purchase
Agreement pertaining to the 1999 Plan
(incorporated by reference to Exhibit
10.9 to the Company's Quarterly Report
on Form 10-Q for the quarter ended March
31, 1999).
5.1 Opinion of Stradling, Yocca, Carlson &
Rauth, a Professional Corporation,
Counsel to the Registrant.
23.1 Consent of Stradling Yocca Carlson & Rauth, a
Professional Corporation (included in the Opinion filed
as Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, independent auditors.
24.1 Power of Attorney (included on signature
page to this Registration Statement at
page 5).
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SIGNATURES
Pursuant to 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 Bothell, State of Washington, on the 24thday of
September, 1999.
SONUS PHARMACEUTICALS, INC.
By: /s/ Gregory Sessler
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Gregory Sessler, Chief Financial Officer
(Principal Financial and Accounting Officer)
POWER OF ATTORNEY
We, the undersigned officers and directors of SONUS Pharmaceuticals,
Inc., do hereby constitute and appoint Michael A. Martino and Gregory Sessler,
or either of them, our true and lawful attorneys-in-fact and agents, each with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that each of said attorneys-in-fact and agents, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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/s/ Michael A. Martino President, Chief Executive Officer September 24, 1999
- ---------------------------------- and Director (Principle Executive
Michael A. Martino Officer)
/s/ Gregory Sessler Chief Financial Officer (Principal September 24, 1999
- ---------------------------------- Financial and Accounting Officer)
Gregory Sessler
/s/ George Dunbar, Jr. Director, Co-Chairman of the Board September 24, 1999
- ---------------------------------- of Directors
George W. Dunbar, Jr.
/s/ Christopher S. Henney Director September 24, 1999
- ----------------------------------
Christopher S. Henney, Ph.d., D.Sc.
/s/ Robert E. Ivy Director, Co-Chairman of the Board September 24, 1999
- ---------------------------------- of Directors
Robert E. Ivy
/s/ Dwight Winstead Director September 24, 1999
- ----------------------------------
Dwight Winstead
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Exhibit
Number Description
4.1 SONUS Pharmaceuticals, Inc. 1999 Nonqualified Stock
Incentive Plan (the "1999 Plan") (incorporated by reference
to Exhibit 10.7 to the Company's Quarterly Report on Form
10-Q for the quarter ended March 31, 1999).
4.2 Form of Nonqualified Stock Option Agreement pertaining to
the 1999 Plan (incorporated by reference to Exhibit 10.8 to
the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999).
4.3 Form of Restricted Stock Purchase Agreement pertaining to
the 1999 Plan (incorporated by reference to Exhibit 10.9 to
the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999).
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation, Counsel to Registrant.
23.1 Consent of Stradling, Yocca, Carlson & Rauth (included in
the Opinion filed as Exhibit 5.1).
23.2 Consent of Ernst & Young, LLP, independent auditors
24.1 Power of Attorney (included on signature page to this
Registration Statement at page 5).
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Exhibit 5.1
September 24, 1999
SONUS Pharmaceuticals, Inc.
22026 20th Avenue, S.E.
Bothell, Washington 98021
Re: Registration Statement on Form S-8
Gentlemen:
At your request, we have examined the form of Registration
Statement on Form S-8 (the "Registration Statement") being filed by SONUS
Pharmaceuticals, Inc., a Delaware corporation (the "Company"), with the
Securities and Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of an additional 1,077,863 shares of the
Company's common stock, $.001 par value ("Common Stock"), issuable under the
Company's Incentive Stock Option, Nonqualified Stock Option and Restricted Stock
Purchase Plan - 1991, 1995 Stock Option Plan for Directors, Employee Stock
Purchase Plan and 1999 Nonqualified Stock Incentive Plan (the "Plans").
We have examined the proceedings heretofore taken and are
familiar with the additional proceedings proposed to be taken by the Company in
connection with the authorization, issuance and sale of the securities referred
to above.
Based on the foregoing, it is our opinion that the 1,077,863
shares of Common Stock to be issued under the Plans against full payment in
accordance with the respective terms and conditions of the Plans will be legally
and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
STRADLING, YOCCA, CARLSON & RAUTH
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Exhibit 23.2
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to SONUS Pharmaceuticals, Inc, the Incentive Stock Option,
Non-qualified Stock Option, and Restricted Stock Purchase Plan - 1991, the 1995
Stock Option Plan for Directors, the Employee Stock Purchase Plan and the 1999
Nonqualified Stock Incentive Plan of our report dated March 25, 1999 with
respect to the financial statements of SONUS Pharmaceuticals, Inc. included in
its Annual Report (Form 10-K) for the year ended December 31, 1998 filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
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Ernst & Young LLP
Seattle, Washington
September 22, 1999
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