As Filed with the Securities and Exchange Commission on March 8, 2001
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 PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-4343413
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
22026 20th Avenue S.E., Bothell, Washington 98021
(Address of Principal Executive Offices) (Zip Code)
2000 STOCK INCENTIVE PLAN
401(k) PROFIT SHARING PLAN AND TRUST
(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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Proposed Maximum
Title of Securities Amount To Be Offering Proposed Maximum Amount of Registration
To Be Registered Registered(1)(2) Price Per Share Aggregate Offering Price Fee
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Common Stock,
$0.001 par value 484,141 shares $1.72(3) $832,722.52(3) $208.18
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(1) Includes additional shares of Common Stock that may become issuable pursuant
to the anti-dilution provisions of the 2000 Stock Incentive Plan (the "2000
Plan") (384,141 shares) and the 401(K) Profit Sharing Plan and Trust (the
"401(k) Plan") (100,000 shares).
(2) Previously, 500,000 shares of Common Stock available for grant under the
2000 Plan were registered on a Registration Statement on Form S-8 on
November 14, 2000 (Registration No. 333-49892).
(3) With respect to the 484,141 shares of Common Stock registered hereby which
could be issued upon exercise of the options and rights to purchase which
Registrant is authorized to issue under the 2000 Plan and the 401(k) 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 March 5, 2001, which was $1.72 per
share.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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The following documents are incorporated herein by reference:
(a) The Registrant's Registration Statement on Form S-8 dated
November 14, 2000 (Registration No. 333-49892).
(b) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 2000.
(c) 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 (b)
above.
(d) 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
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Not Applicable
Item 5. Interests of Named Experts and Counsel
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Not Applicable
Item 6. Indemnification of Directors and Officers
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(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 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
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Not Applicable
Item 8. Exhibits
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The following exhibits are filed as part of this Registration Statement:
Number Description
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4.1 Sonus Pharmaceuticals, Inc. 2000 Stock Incentive
Plan (the "2000 Plan") (incorporated by reference
to Exhibit 10.41 to the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 2000).
4.2 Form of Stock Option Agreement pertaining to the
2000 Plan (incorporated by reference to Exhibit
10.42 to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 2000).
4.3 Form of Restricted Stock Purchase Agreement
pertaining to the 2000 Plan (incorporated by
reference to Exhibit 4.6 to the Company's
Registration Statement on Form S-8 for November
14, 2000).
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).
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 (the
"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 registration statement is on Form S-3 or Form S-8, and 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 Section 15(d) of the 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 Section 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.
(c) 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 foregoing
provisions, 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 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 Act and will be governed by the final adjudication of such
issue.
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 8th day of
March, 2001.
SONUS PHARMACEUTICALS, INC.
By: /s/ Richard J. Klein
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Richard J. Klein
Vice President of Finance and
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 Richard J. Klein,
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.
/s/ Michael A. Martino President, Chief Executive Officer and Director March 8, 2001
- ---------------------------------------- (Principal Executive Officer)
Michael A. Martino
/s/ Richard J. Klein Vice President of Finance and Chief Financial March 8, 2001
- ---------------------------------------- Officer (Principal Financial and Accounting
Richard J. Klein Officer)
/s/ George W. Dunbar, Jr. Director, Co-Chairman of the Board of Directors March 8, 2001
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George W. Dunbar, Jr.
/s/ Christopher S. Henney Director March 8, 2001
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Christopher S. Henney, Ph.d., D.Sc.
/s/ Robert E. Ivy Director, Co-Chairman of the Board of Directors March 8, 2001
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Robert E. Ivy
/s/ Dwight Winstead Director March 8, 2001
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Dwight Winstead
Exhibit
Number Description
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4.1 Sonus Pharmaceuticals, Inc. 2000 Stock Incentive
Plan (the "2000 Plan") (incorporated by reference
to Exhibit 10.41 to the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 2000).
4.2 Form of Stock Option Agreement pertaining to the
2000 Plan (incorporated by reference to Exhibit
10.42 to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 2000).
4.3 Form of Restricted Stock Purchase Agreement
pertaining to the 2000 Plan (incorporated by
reference to Exhibit 4.6 to the Company's
Registration Statement on Form S-8 for November
14, 2000).
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).