Exhibit 10.36
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of October 17,
2005 is made by and among Sonus Pharmaceuticals, Inc., a Delaware corporation,
with headquarters located at 22026 20th Avenue S.E., Bothell, Washington 98021
(the "Company"), and Schering AG, a German corporation ("Schering AG"), and
Schering Berlin Venture Corporation, a Delaware corporation ("SBVC", and
collectively with Schering AG, the "Investor").
RECITALS:
A.
The Company and Investor are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by Section 4(2) of the Securities Act and Rule 506 under Regulation D.
B.
The Investor desires, upon the terms and conditions stated in this
Agreement, to purchase 3,900,000 shares of the Company's Common Stock (the
"Common Shares") and a warrant in the form of Exhibit A hereto, to purchase
975,000 shares of the Company's Common Stock (the "Warrant" and collectively
with the Common Shares, the "Securities") for an aggregate purchase price of
Fifteen Million Seven Hundred Ninety Nine Thousand Eight Hundred Seventy-Five
Dollars ($15,799,875).
The purchase price per share of the Common Shares is
$4.02, which is equal to the per share closing sale price as reported on Nasdaq
for the trading day immediately preceding the date of this Agreement, or, if
this Agreement is entered into after 4:00 p.m. Eastern Standard Time, the day of
this Agreement.
The purchase price for the Warrant is $.125 multiplied by the
number of shares of Common Stock exercisable under the Warrant (the "Warrant
Shares").
C.
Contemporaneously with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Registration Rights
Agreement under which the Company has agreed to provide certain registration
rights under the Securities Act, the rules and regulations promulgated
thereunder and applicable state securities laws.
D.
The capitalized terms used herein and not otherwise defined have
the meanings given them in Article IX hereof.
In consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and Investor hereby agrees as follows:
ARTICLE I
PURCHASE AND SALE OF SECURITIES
1.1
PURCHASE AND SALE OF SECURITIES.
ON THE CLOSING DATE, SUBJECT TO
THE TERMS OF THIS AGREEMENT AND THE SATISFACTION OR WAIVER OF THE CONDITIONS SET
FORTH IN ARTICLES VI AND VII HEREOF, THE COMPANY WILL ISSUE AND SELL TO
(A) SBVC, AND SBVC WILL PURCHASE DIRECTLY FROM THE COMPANY, 3,900,000 COMMON
SHARES, TO BE REGISTERED IN THE NAME OF SBVC, AND (B) SCHERING AG, AND SCHERING
AG WILL PURCHASE DIRECTLY FROM THE COMPANY, THE WARRANT, TO BE REGISTERED IN THE
NAME OF SCHERING AG.
1.2
PAYMENT.
AT THE CLOSING, INVESTOR WILL PAY THE PURCHASE PRICE FOR
THE SECURITIES, BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS IN ACCORDANCE
WITH THE WIRE INSTRUCTIONS SET FORTH ON
1
EXHIBIT B HERETO.
THE COMPANY SHALL DELIVER TO INVESTOR A CERTIFICATE
REPRESENTING THE COMMON SHARES AND A CERTIFICATE REPRESENTING THE WARRANT SO
PURCHASED BY INVESTOR ON THE