UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported)
May 27, 2008
SONUS PHARMACEUTICALS, INC.
(Exact name of
Registrant as Specified in its Charter)
Delaware
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000-21243
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95-4343413
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(State or other jurisdiction
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(Commission
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(IRS Employer
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of incorporation)
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File Number)
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Identification No)
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1522 217
th
Place S.E., Bothell, Washington 98021
(Address of principal executive offices)
(425) 487-9500
(Registrants telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the
registrant under any of the following provisions:
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Written communications pursuant to Rule 425
under the Securities Act (17 CFR 230.425)
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x
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Soliciting material pursuant to Rule 14a-12
under the Exchange Act (17 CFR 240.14a-12)
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o
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Pre-commencement communications pursuant to
Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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o
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Pre-commencement communications pursuant to
Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01.
Entry
into a Material Definitive Agreement
.
Arrangement
Agreement
On
May 27, 2008, Sonus Pharmaceuticals, Inc., a Delaware corporation (
Sonus
),
entered into an Arrangement Agreement with OncoGenex Technologies Inc., a
privately held corporation existing under the federal laws of Canada (
OncoGenex
),
providing for a business combination between OncoGenex and Sonus. Under the terms of the Arrangement
Agreement, Sonus will acquire all of the outstanding shares of capital stock of
OncoGenex pursuant to a Plan of Arrangement (the
Arrangement
) under Section 192
of the Canada Business Corporations Act.
Assuming the Arrangement is completed, it would have the effect of
making OncoGenex a wholly owned subsidiary of Sonus.
Upon
consummation of the Arrangement, Sonus will issue to the securityholders of
OncoGenex a number of shares of Sonus common stock equal to the number of
common shares of Sonus outstanding immediately prior to the closing, such that
immediately after the closing of the Arrangement, Sonus stockholders and
OncoGenex securityholders will each own 50%, respectively, of the outstanding
shares of Sonus common stock. As of the
date of the Arrangement Agreement, 37,062,049 shares of Sonus common stock were
outstanding. Assuming no additional
shares of Sonus common stock are issued prior to the closing, 37,062,049 shares
of Sonus common stock will be issued to OncoGenex securityholders upon the
effectiveness of the Arrangement.
In
addition to the shares of Sonus common stock issued upon the effectiveness of
the Arrangement, the former holders of OncoGenex capital stock are also
entitled to receive up to an aggregate of 25,000,000 additional shares of Sonus
common stock (the
Milestone Shares
) upon the achievement of certain
agreed-upon milestones, as more particularly set forth in escrow agreements to
be executed prior to the closing, a form of which is attached as Appendix 1 to
the Plan of Arrangement, which is attached as an exhibit to the Arrangement
Agreement and incorporated herein by reference.
The 25,000,000 Milestone Shares will be placed into escrow at the
closing of the Arrangement. If the
Milestone Shares are not earned within six (6) years after the closing of
the Arrangement, they will be returned to Sonus for cancellation.
Each
option to purchase OncoGenex Common Shares will be assumed by Sonus and will be
exercisable by its holder for shares of Sonus Common Stock, as adjusted for the
share exchange ratio.
The
Arrangement Agreement also contemplates that, concurrently with the closing of
the Arrangement and subject to the approval of Sonus stockholders, Sonus will (i) effect
a reverse stock split of outstanding common stock of Sonus by a whole-number
ratio of between 1-for-10 and up to 1-for-20, or by such other ratio as agreed
upon by Sonus and OncoGenex pursuant to the terms of the Arrangement Agreement
(the
Reverse Stock Split
); (ii) adjust the number of authorized
shares of Sonus common stock such that, immediately following the Reverse Stock
Split, the authorized share capital of Sonus consists of approximately two
times the number of shares of Sonus common stock outstanding immediately
following the closing of the Arrangement (including the Milestone Shares
deposited into escrow) (collectively, the
Capital Adjustment
); and (iii) change
the name of the corporation from Sonus Pharmaceuticals, Inc. to OncoGenex
Pharmaceuticals, Inc. (the
Name Change
).
The
Arrangement is subject to a number of closing conditions, including, without
limitation, (i) the approval of the Arrangement by the securityholders of
OncoGenex, (ii) the approval of the issuance of shares of Sonus common
stock in respect of the Arrangement, the Reverse Stock Split, the Capital
Adjustment and the Name Change by the stockholders of Sonus, (iii) the
receipt of a final
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order from the Supreme Court of British
Columbia approving the Arrangement, (iv) the exemption of the issuance of
Sonus common shares and substitute options in respect of the Arrangement from
U.S. securities registration requirements under section 3(a)(10) of the
Securities Act of 1933, and (v) other customary closing conditions.
Sonus
and OncoGenex have made customary representations, warranties and covenants in
the Arrangement Agreement, including, among others, covenants (i) to hold
meetings of their respective stockholders to consider the approval of the
transactions contemplated by the Arrangement Agreement, and (ii) not to
solicit alternative business combination transactions or enter into discussions
concerning, or provide information in connection with, an alternative business
combination transaction, subject to a fiduciary-out exception in the case of
Sonus.
The
Arrangement Agreement contains certain termination rights for both Sonus and
OncoGenex and further provides that, upon termination of the Arrangement
Agreement under certain specified circumstances, Sonus may be (or may in the
future become) required to pay OncoGenex a termination fee of $500,000, plus OncoGenexs
out-of-pocket expenses up to $350,000.
The
foregoing description of the Arrangement and the Arrangement Agreement does not
purport to be complete and is qualified in its entirety by reference to the
full text of the Arrangement Agreement filed as Exhibit 2.1 hereto. The Arrangement Agreement has been included
to provide investors and security holders with information regarding its terms.
It is not intended to provide any other factual information about Sonus. The representations,
warranties and covenants contained in the Arrangement Agreement were made only
for purposes of that agreement and as of specific dates, were solely for the
benefit of the parties to the Arrangement Agreement, may be subject to
limitations agreed upon by the contracting parties, including being qualified
by confidential disclosures made for the purposes of allocating contractual
risk between the parties to the Arrangement Agreement instead of establishing
these matters as facts, and may be subject to standards of materiality
applicable to the contracting parties that differ from those applicable to
investors. Investors are not third-party beneficiaries under the Arrangement
Agreement and should not rely on the representations, warranties and covenants
or any descriptions thereof as characterizations of the actual state of facts
or condition of Sonus, OncoGenex or any of their respective subsidiaries or
affiliates. Moreover, information concerning the subject matter of the
representations and warranties may change after the date of the Arrangement
Agreement, which subsequent information may or may not be fully reflected in
the Sonus public disclosures.
Voting
Agreements
Simultaneously
with the execution of the Arrangement Agreement, each of the directors and
certain of the officers and principal stockholders of OncoGenex (the
OncoGenex
Affiliated Securityholders
), on the one hand, and each of the directors
and certain of the officers of Sonus, on the other hand, executed and delivered
voting agreements (collectively, the
Voting Agreements
), pursuant to
which, among other things, such parties have agreed to vote the securities held
by them in favor of the Arrangement and the transactions contemplated thereby,
including, with respect to Sonus, the Reverse Stock Split, the Capital
Adjustment and the Name Change.
The
Voting Agreements signed by the OncoGenex Affiliated Securityholders will
terminate on August 31, 2008 if the Sonus proxy statement is not subject
to a review by the Securities and Exchange Commission, or on September 30,
2008 if the Sonus proxy statement is reviewed by the Securities and Exchange
Commission.
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The
foregoing description of the Voting Agreements does not purport to be complete
and is qualified in its entirety by reference to the full text of the Voting
Agreements, forms of which are filed herewith as Exhibits 10.1 and 10.2,
respectively.
Third
Amendment to Amended and Restated Rights Agreement
In
connection with the Arrangement Agreement, effective as of May 27, 2008,
Sonus entered into a Third Amendment to Amended and Restated Rights Agreement
(the
Amendment
) with Computershare Trust Company, N.A., as Rights
Agent, which amended that certain Amended and Restated Rights Agreement, dated July 24,
2002, by and between Sonus and U.S. Stock Transfer Corporation, as predecessor
Rights Agent, as amended by the First Amendment to Amended and Restated Rights
Agreement, dated October 17, 2005, and the Second Amendment to Amended and
Restated Rights Agreement, dated August 10, 2006 (as amended, the
Rights
Agreement
).
The Amendment provides that (i) neither
OncoGenex nor any of its Affiliates (as defined in the Rights Agreement),
Associates (as defined in the Rights Agreement), securityholders, or group of securityholders
shall be deemed an Acquiring Person (as defined in the Rights Agreement) as a
result of the approval and execution of the Arrangement Agreement or the
completion of the transactions contemplated thereunder, and (ii) no Stock
Acquisition Date, Distribution Date or Triggering Event (each as defined in the
Rights Agreement) shall be deemed to have occurred solely as a result of the
approval and execution of the Arrangement Agreement or the completion of the
transactions contemplated thereunder.
The
foregoing description of the Amendment does not purport to be complete and is
qualified in its entirety by reference to the full text of the Amendment, a
copy of which is attached hereto as Exhibit 4.1 and is incorporated herein
by this reference.
Item 3.03
Material
Modification of Rights of Securityholders.
The description of the Third
Amendment to Amended and Restated Rights Agreement in Item 1.01 above is
incorporated into this Item 3.03 by reference.
Additional Information about the Arrangement and Where to Find It
In
connection with the proposed Arrangement, Sonus will file a proxy statement
with the Securities and Exchange Commission.
Before making any voting or investment decision,
investors and security holders are urged to carefully read the entire proxy
statement when it becomes available, as well as any amendments or supplements
thereto, because they will contain important information about the proposed
Arrangement.
A definitive
proxy statement will be sent to the stockholders of Sonus. Investors and security holders may also obtain
a free copy of the proxy statement (when available) and other documents filed
by Sonus with the Securities and Exchange Commission at the Securities and
Exchange Commissions web site at http://www.sec.gov. Free copies of the proxy statement (when
available) and other documents filed by Sonus with the Securities and Exchange
Commission may also be obtained by requesting them in writing from Sonus at
1522 217th Place S.E., Bothell, Washington 98021, or by telephone at (425)
487-9500.
Proxy Solicitation
Sonus
and OncoGenex, and certain of their directors, executive officers and other
members of management and employees, may be deemed to be participants in the
solicitation of proxies in connection with the proposed transaction. Information about the directors and executive
officers of
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Sonus, including their respective security
holdings, is set forth in Sonus Amendment No. 1 to Form 10-K for the
fiscal year ended December 31, 2007, filed with the Securities and
Exchange Commission on April 29, 2008.
As of May 27, 2008, OncoGenexs directors and executive officers
beneficially owned approximately 1,755,019 shares, or 14.5%, of OncoGenexs
capital stock. Investors may obtain additional information regarding the
interests of OncoGenex, Sonus and their respective executive officers and
directors in the proposed transaction by reading the proxy statement for such
transaction when it becomes available.
Item 9.01
Financial
Statements and Exhibits.
(d) Exhibits.
Exhibit Number
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Description
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2.1*
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Arrangement Agreement dated May 27, 2008, by
and between Sonus Pharmaceuticals, Inc., and OncoGenex Technologies Inc.
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4.1
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Third Amendment to Amended and Restated Rights
Agreement dated May 27, 2008, by and between Sonus
Pharmaceuticals, Inc. and Computershare Trust Company, N.A., as Rights
Agent.
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10.1
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Form of OncoGenex Voting Agreement.
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10.1.1
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Schedule of Parties to OncoGenex Voting Agreement.
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10.2
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Form of Sonus Voting Agreement.
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10.2.1
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Schedule of Parties to Sonus Voting Agreement.
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*
Schedules and similar attachments to the Arrangement Agreement have been
omitted pursuant to Item 601(b)(2) of Regulation S-K. Registrant will furnish
supplementally a copy of any omitted schedule or similar attachment to the
Securities and Exchange Commission upon request.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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SONUS PHARMACEUTICALS, INC.
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Date:
May 30, 2008
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By:
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/s/
Alan Fuhrman
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Alan
Fuhrman
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Senior
Vice President and Chief Financial Officer
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Exhibit Index
Exhibit Number
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Description
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2.1*
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Arrangement Agreement dated May 27, 2008, by
and between Sonus Pharmaceuticals, Inc., and OncoGenex Technologies Inc.
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4.1
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Third Amendment to Amended and Restated Rights
Agreement dated May 27, 2008, by and between Sonus
Pharmaceuticals, Inc. and Computershare Trust Company, N.A., as Rights
Agent.
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10.1
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Form of OncoGenex Voting Agreement.
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10.1.1
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Schedule of Parties to OncoGenex Voting Agreement.
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10.2
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Form of Sonus Voting Agreement.
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10.2.1
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Schedule of Parties to Sonus Voting Agreement.
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*
Schedules and similar attachments to the Arrangement Agreement have been
omitted pursuant to Item 601(b)(2) of
Regulation S-K. Registrant will furnish supplementally a copy of any omitted
schedule or similar attachment to the Securities and Exchange Commission upon
request.
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