As Filed with the Securities and Exchange
Commission on March 16, 2006
Registration No. 333-123763
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
SONUS PHARMACEUTICALS, INC.
(Exact name of registrant as
specified in its charter)
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Delaware
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95-4343413
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(State or other jurisdiction
of incorporation or organization)
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(I.R.S. Employer
Identification No.)
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22026 20th Avenue S.E., Bothell, Washington
98021
(425) 487-9500
(Address, including zip code,
and telephone number, including area code of registrant’s principal executive
offices)
Alan Fuhrman
Chief Financial Officer
Sonus Pharmaceuticals, Inc.
22026 20th Avenue S.E.
Bothell, Washington 98021
(425) 487-9500
(Name, address, including zip
code, and 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
Approximate date
of commencement of proposed sale to public: From
time to time after the effective date of this Registration Statement.
If the only
securities being registered on this form are being offered pursuant to dividend
or interest reinvestment plans, please check the following box. o
If any of the
securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. ý
If this Form is
filed to register additional securities for an offering pursuant to Rule 462(b)
under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If this Form is a
post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. o
If this Form is a
registration statement pursuant to General Instruction I.D. or a post-effective
amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a
post-effective amendment to a registration statement filed pursuant to General
Instruction I.D. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act check the
following box. o
The Registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date
until the Registrant shall file a further amendment which specifically states
that this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until the
Registration Statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell securities, and we are not soliciting an offer to buy these
securities, in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MARCH 16, 2006
PROSPECTUS
$50,000,000
SONUS PHARMACEUTICALS, INC.
COMMON
STOCK
This prospectus and the accompanying prospectus supplement will allow
us to sell common stock over time in one or more offerings up to a maximum
aggregate initial offering price of $50,000,000. This means:
• we will provide
this prospectus and a prospectus supplement each time we sell the common stock;
• the prospectus
supplement will inform you about the specific terms of that offering and may
also add, update or change information contained in this prospectus; and
• you should read
this prospectus and the prospectus supplement carefully before you invest in
our common stock.
The common stock may be sold directly by us to purchasers, to or
through underwriters or dealers designated from time to time, or through agents
designated from time to time. For additional information on the methods of
sale, you should refer to “Plan of Distribution” in this prospectus and to the
accompanying prospectus supplement. If any underwriters are involved in a sale
of the common stock, their names and any applicable commissions or discounts
will be set forth in a prospectus supplement. The net proceeds we expect to
receive from the sale will also be set forth in a prospectus supplement.
Our common stock is quoted on the Nasdaq National Market under the
symbol “SNUS.” On March 13, 2006, the
last reported sale price of our common stock on the Nasdaq National Market was
$5.92 per share.
INVESTING IN OUR COMMON STOCK INVOLVES RISKS.
YOU SHOULD CAREFULLY CONSIDER THE “RISK FACTORS” CONTAINED IN OUR ANNUAL REPORT
ON FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 2005, AND IN OUR FUTURE
FILINGS MADE WITH THE SECURITIES AND EXCHANGE COMMISSION, WHICH ARE
INCORPORATED BY REFERENCE IN THIS PROSPECTUS.
Neither the Securities and Exchange
Commission nor any State securities commission has approved or disapproved of
these securities or determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The date of this Prospectus is March 16, 2006
TABLE OF CONTENTS
We have not authorized any dealer, salesman
or other person to give any information or to make any representation other
than those contained or incorporated by reference in this prospectus and the
accompanying supplement to this prospectus. You must not rely upon any
information or representation not contained or incorporated by reference in
this prospectus or the accompanying prospectus supplement. This prospectus and
the accompanying supplement to this prospectus do not constitute an offer to
sell or the solicitation of an offer to buy common stock, nor do this
prospectus and the accompanying supplement to this prospectus constitute an
offer to sell or the solicitation of an offer to buy common stock in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. You should not assume that the information
contained in this prospectus and the accompanying prospectus supplement is
accurate on any date subsequent to the date set forth on the front of the
document or that any information we have incorporated by reference is correct
on any date subsequent to the date of the document incorporated by reference,
even though this prospectus and any accompanying prospectus supplement is
delivered or common stock sold on a later date.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, or SEC, using a “shelf “ registration
process. Under this shelf registration process, we may sell common stock over
time in one or more offerings up to a total dollar amount of $50,000,000. Each
time we sell the common stock, we will provide a prospectus supplement that
will contain more specific information about the terms of the offering. We may
also add, update or change in the prospectus supplement any of the information
contained in this prospectus. This prospectus may not be used to sell any of
the common stock unless accompanied by a prospectus supplement. You should
carefully read this prospectus and the prospectus supplement, together with the
documents to which we refer you under “Where You Can Find Additional
Information” in this prospectus, before you invest in our common stock.
ABOUT SONUS PHARMACEUTICALS
In this prospectus, the terms “Sonus”, the “Company”, “we”, “us”, and “our”
refer to Sonus Pharmaceuticals, Inc.
Sonus
Pharmaceuticals is focused on the development of oncology drugs that provide
better therapeutic alternatives for cancer patients, including improved
efficacy, safety, tolerability and are more convenient to use. Our business
strategy is as follows:
• Develop
proprietary formulations of therapeutic drugs utilizing our proprietary
TOCOSOL® technology; and
• Identify and
acquire products/technologies that are complementary to our focus in oncology
in order to broaden our business and market opportunities.
Proprietary
Technology
Our vitamin
E-based emulsion technology has been designed to address the challenges of
hard-to-formulate cancer drugs. Our technology uses vitamin E oil (
-tocopherol) and
tocopherol derivatives to create, solubilize and stabilize drugs, making them
easier to formulate and deliver into the body. Development of drugs with our
proprietary technology may result in products with equivalent or better
efficacy, decreased incidences of side effects and improved dosing convenience.
TOCOSOL
Paclitaxel
Our lead oncology
product candidate, TOCOSOL Paclitaxel, is a novel formulation of paclitaxel, one
of the world’s most widely prescribed anti-cancer drugs. Paclitaxel, a member
of the taxane family of cancer drugs, is the active ingredient in Taxol®, which
is approved in the U.S. for the treatment of breast, ovarian and non-small cell
lung cancers and Kaposi’s sarcoma. Our product, TOCOSOL Paclitaxel, is a
ready-to-use, injectable paclitaxel emulsion formulation. We believe that data
from clinical trials conducted to date suggest that TOCOSOL Paclitaxel:
• compares
favorably with approved taxane products and other new paclitaxel formulations
under development (safety and efficacy remain to be proven in Phase 3 testing
of TOCOSOL Paclitaxel);
• offers
the convenience of a ready-to-use formulation that does not require preparation
prior to administration; can be administered to patients by a short 15-minute
infusion, compared to the one- to three-hour infusion that is typically
required with Taxotere® and Taxol or generic versions of paclitaxel;
• does
not require any special intravenous, or (IV) tubing, filters or other
apparatus; and
• can
be administered in small volumes of 15 to 35 milliliters compared to volumes of
several hundred milliliters of i.v. solution that are required for dosing of
Taxol, Taxotere, or ABRAXANE®.
Schering
Collaboration
On October 17, 2005, the Company entered into a Collaboration and
License Agreement with Schering AG, a German corporation, pursuant to which,
among other things, we granted Schering an exclusive, worldwide license to
TOCOSOL Paclitaxel. Under the Agreement, Schering will pay Sonus:
• an upfront
license fee of $20 million;
• product
milestone payments of up to $132 million upon the achievement of certain U.S.,
European Union and Japanese clinical and regulatory milestones;
1
• sales milestone
payments of up to $35 million upon the achievement of certain annual worldwide
net sales; and
• upon
commercialization, royalties ranging between 15-30% of annual net sales in the
U.S., with the exact percentage to be determined based on the achievement of
certain annual net sales thresholds, and royalties equal to 15% of the annual
net sales outside the U.S.
We have agreed with Schering to a core development program consisting
of the ongoing initial pivotal trial in metastatic breast cancer, planned
trials for additional indications and trials to support launch of the Product,
and have agreed to share equally in the costs of this core development program.
We have retained co-promotion rights in the U.S. and have also granted Schering
a right of first negotiation on the Campothecin molecule we are currently
developing.
In connection with
the Collaboration and License Agreement, we entered into a Securities Purchase
Agreement with Schering and Schering Berlin Venture Corporation, a Delaware
corporation, pursuant to which we sold an aggregate of 3,900,000 shares of
common stock (Common Shares) and a warrant to purchase an aggregate of up to
975,000 shares of common stock (Warrant Shares and collectively with the Common
Shares, the Shares), resulting in aggregate consideration of approximately
$15.8 million. The Common Shares were sold at $4.02 per share, which was equal
to the per share closing price of our common stock as reported on Nasdaq on
October 14, 2005, the trading day immediately preceding the date of the
Securities Purchase Agreement. The corresponding warrant was sold at a purchase
price of $0.125 multiplied by the number of Warrant Shares. The warrant has a
five-year term and entitles its holder to purchase the Warrant Shares at an
exercise price of $4.42 per share, which is equal to 110% of the purchase price
per share of the common stock paid by the investors under the Securities
Purchase Agreement.
More comprehensive
information about our products and us is available through our World Wide Web
site at www.sonuspharma.com. The information on our Web site is not
incorporated by reference into this prospectus. Our executive offices are
located at 22026 20th Avenue S.E., Bothell, Washington 98021; telephone (425)
487-9500. “TOCOSOL” is our proprietary mark. All other product names,
trademarks and trade names referred to in this prospectus are the property of
their respective owners.
FORWARD-LOOKING STATEMENTS
Some of the statements contained in this
prospectus and the accompanying prospectus supplement or incorporated by
reference into this prospectus are forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended, or the
Securities Act, and Section 21E of the Securities Exchange Act of 1934, as
amended, or the Exchange Act, and are subject to the safe harbor created by the
Securities Litigation Reform Act of 1995. Examples of these forward-looking
statements include, but are not limited to:
• our anticipated
future capital requirements and the terms of any capital financing agreements;
• timing and
amount of future contractual payments, product revenue and operating expenses;
• progress and
preliminary results of clinical trials;
• anticipated
regulatory filings, requirements and future clinical trials; and
• market
acceptance of our products and the estimated potential size of these markets.
While these forward-looking statements made
by us are based on our current beliefs and judgments, they are subject to risks
and uncertainties that could cause actual results to vary from the projections
in the forward-looking statements. You should consider the risks below
carefully in addition to other information contained in this report before
engaging in any transaction involving shares of our common stock. If any of
these risks occur, they could seriously harm our business, financial condition
or results of operations. In such case, the trading price of our common stock
could decline, and you may lose all or part of your investment.
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The discussion and analysis set forth in this
document contains trend analysis, discussions of regulatory status and other
forward-looking statements. Actual results could differ materially from those
projected in the forward-looking statement as a result of the following
factors, among others:
• future capital requirements
and uncertainty of payments under corporate partnerships or additional funding
through either debt or equity financings;
• uncertainty of governmental
regulatory requirements and lengthy approval process;
• dependence on the
development and commercialization of products;
• future prospects heavily
dependent on Phase 3 trial for TOCOSOL Paclitaxel and subsequent commercialization
should the product be approved by the FDA;
• history of operating losses
and uncertainty of future financial results;
• dependence on third parties
for funding, clinical development, manufacturing and distribution;
• dependence on key employees;
• uncertainty of U.S. or
international legislative or administrative actions;
• competition and risk of
competitive new products;
• limited manufacturing
experience and dependence on a limited number of contract manufacturers and
suppliers;
• ability to obtain and defend
patents, protect trade secrets and avoid infringing patents held by third
parties;
• limitations on third-party
reimbursement for medical and pharmaceutical products;
• acceptance of our products
by the medical community;
• potential for product
liability issues and related litigation;
• potential for claims arising
from the use of hazardous materials in our business;
• continued listing on the
Nasdaq National Market;
• volatility in the value of
our common stock; and
• other factors set forth
under “Certain Factors That May Affect Our Business and Future Results”
contained in our Annual Report on Form 10-K for the fiscal year ended December
31, 2005 filed with the Securities and Exchange Commission on March 16, 2006,
and in our future filings made with the Securities and Exchange Commission,
which are incorporated by reference in this prospectus, and any risk factors
set forth in the accompanying prospectus supplement.
In addition, in this prospectus and the prospectus supplement and the
documents incorporated by reference into this prospectus, the words “believe,” “may,”
“will,” “estimate,” “continue,” “anticipate,” “intend,” “plan,” “expect,” “potential,”
“continue,” or “opportunity,” the negative of these words or similar expressions,
as they relate to us, our business, future financial or operating performance
or our management, are intended to identify forward-looking statements. We do
not intend to update or revise any forward-looking statements, whether as a
result of new information, future events or otherwise. Past financial or
operating performance is not necessarily a reliable indicator of future
performance and you should not use our historical performance to anticipate
results or future period trends.
3
USE OF PROCEEDS
Unless the applicable prospectus supplement states otherwise, the net
proceeds we receive from the sale of the securities offered by this prospectus
will be used for general corporate purposes, which may include:
• funding clinical
trials and regulatory submissions;
• funding the
development and growth of our product offerings and business;
• repaying
indebtedness that we may incur from time to time;
• financing
potential acquisitions of complementary businesses, assets, technologies and
products that we may consider from time to time;
• future costs
associated with developing a sales and marketing function; and
• general working
capital.
Although we currently have no plans to acquire any complementary businesses,
our management has broad discretion as to the allocation of the net proceeds
received in this offering and may use these proceeds for that purpose in the
future. Pending these uses, we may temporarily use the net proceeds to make
short-term investments or reduce short-term borrowings, if any.
PLAN OF DISTRIBUTION
We may sell common stock to one or more underwriters for public
offering and sale by them and may also sell common stock to investors directly
or through agents. We will name any underwriter or agent involved in the offer
and sale of common stock in the applicable prospectus supplement. We have
reserved the right to sell common stock directly to investors on our own behalf
in those jurisdictions where we are authorized to do so.
We may distribute common stock from time to time in one or more
transactions:
• at a fixed price or prices, which may be
changed;
• at market prices prevailing at the time of
sale;
• at prices related to such prevailing
market prices; or
• at negotiated prices.
We may also, from time to time, authorize dealers, acting as our
agents, to offer and sell common stock upon the terms and conditions set forth
in the applicable prospectus supplement. In connection with the sale of common
stock, we, or the purchasers of common stock for whom the underwriters may act
as agents, may compensate underwriters in the form of underwriting discounts or
commissions. Underwriters may sell common stock to or through dealers, and
those dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agent. Unless otherwise indicated in a prospectus
supplement, an agent will be acting on a best efforts basis and a dealer will purchase
common stock as a principal, and may then resell the common stock at varying
prices to be determined by the dealer.
We will describe in the applicable prospectus supplement any
compensation we pay to underwriters or agents in connection with the offering
of common stock, and any discounts, concessions or commissions allowed by
underwriters to participating dealers. Dealers and agents participating in the
distribution of common stock may be deemed to be underwriters, and any
discounts and commissions received by them and any profit realized by them on
4
resale of common stock may be
deemed to be underwriting discounts and commissions. We may enter into
agreements to indemnify underwriters, dealers and agents against certain civil
liabilities, including liabilities under the Securities Act, and to reimburse
these persons for certain expenses.
To facilitate the offering of common stock, certain persons
participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the price of our common stock. This may include
over-allotments or short sales of common stock, which involve the sale by
persons participating in the offering of more common stock than we sold to them.
In these circumstances, these persons would cover such over-allotments or short
positions by making purchases in the open market or by exercising their
over-allotment option, if any. In addition, these persons may stabilize or
maintain the price of our common stock by bidding for or purchasing our common
stock in the open market or by imposing penalty bids, whereby selling
concessions allowed to dealers participating in the offering may be reclaimed
if shares sold by them are repurchased in connection with stabilization
transactions. The effect of these transactions may be to stabilize or maintain
the market price of our common stock at a level above that which might
otherwise prevail in the open market. These transactions may be discontinued at
any time.
Certain of the underwriters, dealers or agents and their associates may
engage in transactions with and perform services for us in the ordinary course
of our business.
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be
passed on by Stradling Yocca Carlson & Rauth, a Professional Corporation,
Newport Beach, California.
EXPERTS
The financial statements of Sonus Pharmaceuticals, Inc. included in
Sonus Pharmaceuticals, Inc.’s Annual Report (Form 10-K) for the year ended
December 31, 2005, and Sonus Pharmaceuticals, Inc. management’s assessment of
the effectiveness of internal control over financial reporting as of December
31, 2005 included therein, have been audited by Ernst & Young
LLP, independent registered public accounting firm, as set forth in their
reports thereon, included therein, and incorporated herein by reference. Such
financial statements and management’s assessment are, and audited financial
statements and Sonus Pharmaceuticals, Inc. management’s assessments of the effectiveness
of internal control over financial reporting to be included in subsequently
filed documents will be, incorporated herein in reliance upon the reports of
Ernst & Young LLP pertaining to such financial statements and management’s
assessments (to the extent covered by consents filed with the Securities and
Exchange Commission) given on the authority of such firm as experts in
accounting and auditing.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We have filed a registration statement on Form S-3 with the Securities
and Exchange Commission relating to the common stock offered by this
prospectus. This prospectus does not contain all of the information set forth
in the registration statement and the exhibits and schedules thereto.
Statements contained in this prospectus as to the contents of any contract or
other document referred to are not necessarily complete and in each instance
reference is made to the copy of such contract or other document filed as an
exhibit to the registration statement, each such statement being qualified in
all respects by such reference. For further information with respect to us and
the common stock offered hereby, reference is made to such registration
statement, exhibits and schedules.
We are subject to the information and periodic reporting requirements
of the Securities Exchange Act of 1934, as amended, and in accordance therewith
file reports, proxy statements and other information with the Securities and
Exchange Commission. Such reports, proxy statements, other information and a
copy of the registration statement may be inspected by anyone without charge
and copies of these materials may be obtained upon the payment of the fees
prescribed by the Securities and Exchange Commission, at the Public Reference
Room maintained by the Securities and Exchange Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549. The public may obtain information on the
operation of the Public Reference Room by calling the Securities and Exchange
Commission at
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1-800-SEC-0330. The
registration statement and the reports, proxy statements and other information
filed by us are also available through the Securities and Exchange Commission’s
Web site on the World Wide Web at the following address: http://www.sec.gov.
INCORPORATION BY
REFERENCE
The Securities and Exchange Commission allows us to “incorporate by
reference” the information we file with the Securities and Exchange Commission,
which means that we can disclose important information to you by referring to
those documents. We incorporate by reference the documents listed below and any
additional documents filed by us with the Securities and Exchange Commission
under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until this offering of securities is terminated. The information we incorporate
by reference is an important part of this prospectus, and any information that
we file later with the Securities and Exchange Commission will automatically
update and supersede this information.
We hereby incorporate by reference the following documents:
1. Our Annual Report on Form 10-K for the
fiscal year ended December 31, 2005 filed with the SEC on March 16, 2006;
2. The description of our common stock
contained in our Registration Statement on Form 8-A, filed with the SEC under
Section 12 of the Securities Exchange Act of 1934, including any amendment or
report filed for the purpose of updating such description; and
3. All other reports filed by us pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
after the date of this prospectus and prior to the termination of the offering.
Information furnished to the SEC under Item 2.02 or Item 7.01 in
Current Reports on Form 8-K, and any exhibit relating to such information,
filed prior to, on or subsequent to the date of this prospectus is not
incorporated by reference into this prospectus.
You may request a copy of these filings, at no cost, by writing or
calling us at Sonus Pharmaceuticals, Inc., 22026 20th Avenue S.E., Bothell,
Washington 98021, telephone number (425) 487-9500.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and
Distribution
The following table sets forth all costs and expenses, other than
underwriting discounts and commissions, payable by us in connection with the
sale of the common stock being registered hereunder. All of the amounts shown
are estimates except for the SEC registration fee.
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To be paid by
Sonus
Pharmaceuticals
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SEC registration fee
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$
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5,885
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Legal fees
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$
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75,000
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Accounting fees
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$
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10,000
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Miscellaneous expenses
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$
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5,000
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Total
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$
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95,885
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Item 15. Indemnification of Directors and
Officers
(a) As permitted by the Delaware
General Corporation Law, our Certificate of Incorporation eliminates the
liability of directors to the Company or its stockholders for monetary damages
for breach of fiduciary duty as a director, except to the extent otherwise
prohibited by the Delaware General Corporation Law.
(b) Our Certificate of
Incorporation provides that we 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 Company 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. Our Bylaws
provide for a similar indemnity to our directors and officers to the fullest
extent authorized by the Delaware General Corporation Law.
(c) Our Certificate of
Incorporation also gives us the ability to enter into indemnification
agreements with each of our officers and directors. We have entered into
indemnification agreements with each of our directors and executive officers.
The indemnification agreements provide for the indemnification of directors and
officers against any and all expenses, judgments, fines, penalties and amounts
paid in settlement, to the fullest extent permitted by law.
Item 16. Exhibits
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Exhibit Number
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Description
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1.1
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Form of Underwriting Agreement.**
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5.1
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Opinion of Stradling Yocca Carlson & Rauth.*
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23.1
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Consent of Independent Registered Public Accounting Firm.
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23.2
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Consent of Stradling Yocca Carlson & Rauth (see Exhibit 5.1).*
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24.1
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Power of Attorney (Included in the signature pages hereof).
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*
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Previously filed.
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**
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To be filed, if necessary, by amendment or as an exhibit to a report
Pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act.
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II-1
Item 17. 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;
(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;
and
(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 clauses (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in our periodic reports filed with or furnished to the
Commission pursuant to Section 13 of Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each filing of the
registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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) The undersigned registrant hereby undertakes
that:
(1) For purposes of determining any liability under the Securities Act
of 1933, to treat the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act of 1933 as part of this registration
statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time as the initial bona
fide offering thereof.
(d) Insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of 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 Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by us 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, we will, unless in the opinion of our counsel the matter has been
settled by controlling precedent, submit to a court of
II-2
appropriate jurisdiction the
question of whether such indemnification by us is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
II-3
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-3 and has duly caused this amendment to registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Bothell, State of Washington, on the 16 day of
March, 2006.
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SONUS PHARMACEUTICALS,
INC.
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By:
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/s/ Michael A. Martino
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Michael A. Martino, Chief
Executive Officer
(Principal Executive Officer)
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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.
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Signature
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Title
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Date
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/s/ Michael A. Martino
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President, Chief
Executive Officer and Director
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March 16, 2006
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Michael A. Martino
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(Principal Executive
Officer)
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/s/ Alan Fuhrman
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Chief Financial Officer
(Principal Financial Officer)
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March 16, 2006
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Alan Fuhrman
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/s/ Craig Eudy
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Vice President,
Corporate Controller (Principal Accounting Officer)
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March 16, 2006
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Craig Eudy
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/s/ George W. Dunbar,
Jr.*
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Director
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March 16, 2006
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George W. Dunbar, Jr.
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/s/ Robert E. Ivy*
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Director, Chairman of
the Board of Directors
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March 16, 2006
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Robert E. Ivy
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/s/ Dwight Winstead*
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Director
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March 16, 2006
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Dwight Winstead
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/s/ Michelle Burris*
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Director
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March 16, 2006
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Michelle Burris
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*By:
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/s/ Michael A. Martino
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Michael A. Martino,
Attorney-In-Fact
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S-1
EXHIBIT
INDEX
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Exhibit Number
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Description
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1.1
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Form of Underwriting
Agreement.**
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5.1
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Opinion of Stradling
Yocca Carlson & Rauth.*
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23.1
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Consent of Independent
Registered Public Accounting Firm.
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23.2
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Consent of Stradling
Yocca Carlson & Rauth (see Exhibit 5.1).*
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24.1
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Power of Attorney
(Included in the signature pages hereof).
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*
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Previously filed.
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**
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To be filed, if necessary,
by amendment or as an exhibit to a report Pursuant to Section 13(a), 13(c) or
15(d) of the Exchange Act.
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