-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AtR+t09TolhU3Rsup0Np6AJ02h+DM6lmTwclDR8TGs9q37NdgHsRmrCbVv+4nH7o o5KDHZ8G3c5QfHZSSxJBEA== 0000899140-02-000437.txt : 20020624 0000899140-02-000437.hdr.sgml : 20020624 20020624140132 ACCESSION NUMBER: 0000899140-02-000437 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20020624 GROUP MEMBERS: WARBURG PINCUS LLC GROUP MEMBERS: WARBURG, PINCUS &CO. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SONUS CORP CENTRAL INDEX KEY: 0001029260 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MISC HEALTH & ALLIED SERVICES, NEC [8090] IRS NUMBER: 000000000 STATE OF INCORPORATION: A1 FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-52147 FILM NUMBER: 02685254 BUSINESS ADDRESS: STREET 1: 111 S W FIFTH AVE STE 1620 CITY: PORTLAND STATE: OR ZIP: 97204 BUSINESS PHONE: 5032259152 MAIL ADDRESS: STREET 1: 111 S W FIFTH AVENUE SUITE 1620 CITY: PORTLAND STATE: OR ZIP: 97204 FORMER COMPANY: FORMER CONFORMED NAME: HEALTHCARE CAPITAL CORP DATE OF NAME CHANGE: 19970220 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: WARBURG PINCUS VENTURES LP CENTRAL INDEX KEY: 0000942263 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 133784037 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: E M WARBURG PINCUS & CO INC STREET 2: 466 LEXINGTON AVE 10TH FL CITY: NEW YORK STATE: NY ZIP: 10017-3147 BUSINESS PHONE: 2128780600 MAIL ADDRESS: STREET 1: E M WARBURG PINCUS & CO INC STREET 2: 466 LEXINGTON AVE 10TH FL CITY: NEW YORK STATE: NY ZIP: 10017-3147 SC 13D/A 1 pin1061963b.txt AMENDMENT NO. 2 TO SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 2)* Sonus Corp. - -------------------------------------------------------------------------------- (f/k/a HealthCare Capital Corp.) (Name of Issuer) Common Shares, without par value - -------------------------------------------------------------------------------- (Title of Class of Securities) 835691106 - -------------------------------------------------------------------------------- (CUSIP Number) Scott A. Arenare, Esq. Warburg Pincus LLC 466 Lexington Avenue New York, New York 10017 (212) 878-0600 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copies to: Steven J. Gartner Willkie Farr & Gallagher 787 Seventh Avenue New York, NY 10019 (212) 728-8000 June 18, 2002 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of ss. ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following: [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required of the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D - -------------------- CUSIP No. 835691106 - -------------------- - ----------- -------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (Entities Only) Warburg, Pincus Ventures, L.P. I.D. #13-3784037 - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [X] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) Not Applicable - ----------- -------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - --------------------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 --------- ------------------------------------------------ NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 8,858,664 OWNED BY --------- ------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 8,858,664 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 8,858,664 - ----------- -------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 59.1% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) PN - ----------- -------------------------------------------------------------------- SCHEDULE 13D - -------------------- CUSIP No. 835691106 - -------------------- - ----------- -------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (Entities Only) Warburg, Pincus & Co. I.D. #13-6358475 - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [X] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) Not Applicable - ----------- -------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York - ----------- --------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 --------- ------------------------------------------------ NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 8,858,664 OWNED BY --------- ------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 8,858,664 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 8,858,664 - ----------- -------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 59.1% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) PN - ----------- -------------------------------------------------------------------- SCHEDULE 13D - -------------------- CUSIP No. 835691106 - -------------------- - ----------- -------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Warburg Pincus LLC (formerly E.M. Warburg, Pincus & Co., LLC) I.D. #13-3536050 - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [X] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) Not Applicable - ----------- -------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York - ----------- --------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 --------- ------------------------------------------------ NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 8,858,664 OWNED BY --------- ------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 8,858,664 - ---------- --------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 8,858,664 - ----------- -------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 59.1% - ---------- --------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) OO - ---------- --------------------------------------------------------------------- This Amendment No. 2 amends the Schedule 13D filed on behalf of the Reporting Entities on December 31, 1997, as amended by Amendment No. 1 thereto, filed on October 7, 1999 (the "Schedule 13D"), and is being filed pursuant to Rule 13d-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). This Amendment No. 2 relates to the securities of Sonus Corp., formerly known as HealthCare Capital Corp. (the "Company"). Unless otherwise indicated, all capitalized terms used but not defined herein shall have the same meaning as set forth in the Schedule 13D. Of the Reporting Entities, only Ventures has acquired indirect ownership of the Common Stock through its ownership of Series A Convertible Preferred Shares, Series B Convertible Preferred Shares and Warrants. Item 4. Purpose of Transaction. Item 4 of the Schedule 13D is hereby amended by adding the following paragraphs at the end of the discussion: On June 18, 2002, the Company and Amplifon (USA), Inc. ("Amplifon"), entered into a Purchase Agreement (the "Purchase Agreement") pursuant to which Amplifon will acquire all of the outstanding equity interests of certain of the Company's subsidiaries and certain of the assets of the Company for $38,438,000 in cash, less certain adjustment amounts (the "Purchase Price"). In connection with the Purchase Agreement, Ventures and Amplifon entered into a Voting Agreement (the "Voting Agreement"), pursuant to which, among other things, Ventures agreed (i) to vote the Securities in favor of the transactions contemplated by the Purchase Agreement and any other business combination with Amplifon and against any Acquisition Proposal (as defined in the Purchase Agreement) or any other action which is intended, or could reasonably be expected to, impede, interfere with, delay, postpone, or materially adversely affect the transactions contemplated 5 by the Voting Agreement or the Purchase Agreement, (ii) not to solicit, initiate or encourage any Acquisition Proposal, (iii) not to engage in negotiations or discussions concerning, or provide any non-public information to any person or entity in furtherance of or in connection with, any Acquisition Proposal, (iv) not to negotiate, respond to any inquiries or proposals, or otherwise engage in discussions with any person, concerning any Acquisition Proposal, (v) not to offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of the Securities (subject to certain exceptions) and (vi) upon Amplifon's request, to deliver proxies in favor of Amplifon voting in favor of the transactions contemplated by the Purchase Agreement and against any Acquisition Proposal or any other action which is intended, or could reasonably be expected to, impede, interfere with, delay, postpone or materially adversely affect the transactions contemplated by the Voting Agreement or the Purchase Agreement. The Voting Agreement shall terminate on October 31, 2002 if the Purchase Agreement is terminated by the Company upon receipt of a Superior Proposal (as defined in the Purchase Agreement) in accordance with the terms of the Purchase Agreement and shall terminate upon termination of the Purchase Agreement for any other reason. The foregoing summary of the Voting Agreement is qualified in its entirety by reference to the Voting Agreement, a copy of which is filed as Exhibit 4 hereto and incorporated herein by reference. In connection with the Purchase Agreement, the Company and Ventures entered into an Agreement (the "Allocation Agreement"), pursuant to which, among other things, the Company agreed (i) as soon as practicable after receipt by the Company of the portion of the Purchase Price to be paid to the Company at Closing (as defined in the Purchase Agreement), to pay to holders of Common Stock an amount equal to $1.00 per share of Common Stock issued and outstanding as of 6 the Closing, (ii) within one business day of receipt by the Company of the portion of the Purchase Price to be paid to the Company at Closing, to pay to Ventures an aggregate amount equal to $35,438,000, less (1) up to $1,297,500 to be paid pursuant to the terms of a Separation Agreement and Release of Claims, dated as of March 22, 2002, between the Company and Brandon M. Dawson, (2) any Purchase Price Reduction (as defined in the Purchase Agreement), (3) amounts paid to the holders of Common Stock as described in clause (i) above, (4) a provision for payment of any fees and expenses incurred by the Company in connection with the transactions contemplated by the Purchase Agreement, such amount to be determined in good faith by Ventures based on discussions with the Company's management and (5) $50,000 as a provision for payment of the debts and other liabilities of the Company after Closing and (iii) not to (1) split, combine or reclassify any of its outstanding capital stock or other equity interests or (2) issue, sell or dispose of any (A) shares of its capital stock or other equity interests, (B) securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock or other equity interests, or (C) of its other securities, other than Common Stock issued upon the exercise of options outstanding on, and in accordance with option plans in effect on, the date of the Allocation Agreement. The foregoing summary of the Allocation Agreement is qualified in its entirety by reference to the Allocation Agreement, a copy of which is filed as Exhibit 5 hereto and incorporated herein by reference. Item 5. Interest in Securities of the Issuer. Item 5(a) of the Schedule 13D is hereby amended in its entirety to read as follows: (a) As of June 18, 2002, Ventures beneficially owns 2,666,666 shares of Series A Preferred Stock (convertible into an aggregate of 2,666,666 shares of Common Stock), 2,500,000 7 shares of Series B Preferred Stock (convertible into an aggregate of approximately 4,191,998 shares of Common Stock) and Warrants to purchase up to an aggregate of 2,000,000 shares of Common Stock. By reason of their respective relationships with Ventures, each of the Reporting Entities may be deemed under Rule 13d-3 under the Exchange Act to own beneficially all of the Securities which Ventures beneficially owns. As of June 18, 2002, 8,858,664 shares of Common Stock represented approximately 59.1% of the outstanding shares of Common Stock. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. Item 6 of the Schedule 13D is hereby amended by adding the following paragraphs at the end of the discussion: As described in Item 4, Ventures and Amplifon have entered into the Voting Agreement. The information set forth in Item 4 above with respect to the Voting Agreement is incorporated herein by reference. As described in Item 4, the Company and Ventures have entered into the Allocation Agreement. The information set forth in Item 4 above with respect to the Allocation Agreement is incorporated herein by reference. Item 7. Material to be Filed as Exhibits. Item 7 of the Schedule 13D is hereby amended by adding the following listing to the end of the item: 4. Voting Agreement, dated as of June 18, 2002, by and between Ventures and Amplifon. 5. Agreement, dated as of June 18, 2002, by and between the Company and Ventures. 8 SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: June 24, 2002 WARBURG, PINCUS VENTURES, L.P. By: Warburg, Pincus & Co., General Partner By: /s/ David J. Wenstrup ------------------------------ David J. Wenstrup, Partner WARBURG, PINCUS & CO. By: /s/ David J. Wenstrup ------------------------------ David J. Wenstrup, Partner WARBURG PINCUS LLC By: /s/ David J. Wenstrup ------------------------------ David J. Wenstrup, Member EX-4 4 wpv1062202.txt VOTING AGREEMENT Exhibit 4 --------- EXECUTION COPY VOTING AGREEMENT ---------------- THIS VOTING AGREEMENT (the "Agreement") dated as of June 18, 2002 is by and between Amplifon (USA), Inc., a Delaware corporation (the "Buyer"), and Warburg, Pincus Ventures, L.P., a Delaware limited partnership ("Warburg"). RECITALS -------- Buyer and Sonus Corp., a corporation organized under the laws of the Yukon Territory, Canada (the "Seller"), have entered into a Purchase Agreement (as such agreement may be executed and amended from time to time, the "Purchase Agreement"), pursuant to which (and subject to the terms and conditions specified therein) Buyer will acquire, directly or indirectly, all of the subsidiaries and certain of the assets of the Seller. As a condition to Buyer's negotiating and entering into the Purchase Agreement, Buyer requires that Warburg enter into, and Warburg has agreed to enter into, this Agreement with Buyer. AGREEMENT --------- To implement the foregoing and in consideration of the mutual agreements contained herein, the parties hereby agree as follows: 1. Representations and Warranties of Warburg. Warburg represents and warrants to Buyer as follows: (a) Ownership of Stock. (1) Warburg is the record holder and beneficial owner of shares of Series A Preferred Shares, Series B Preferred Shares and Warrants to acquire Common Shares of the Seller as is set forth on Schedule I attached hereto (such shares and warrants, together with any shares of capital stock of the Seller acquired of record or beneficially by Warburg in any capacity after the date hereof and prior to the termination hereof, whether upon exercise of options, warrants, conversion of convertible securities, purchase, exchange or otherwise, shall constitute the "Stock"). (2) On the date hereof, the Stock set forth on Schedule I hereto constitutes all of the outstanding shares and warrants to acquire shares of the share capital of the Seller owned of record or beneficially by Warburg. Warburg does not have record or beneficial ownership of shares of the share capital of the Seller not set forth on Schedule I hereto. (3) Warburg has sole power of disposition with respect to all of the Stock, with no restrictions on such right, subject to applicable federal securities laws and the terms of this Agreement. (b) Power; Binding Agreement. Warburg has the legal capacity, power and authority to enter into and perform all of Warburg's obligations under this Agreement. The execution, delivery and performance of this Agreement by Warburg will not violate any other agreement to which Warburg is a party or by which Warburg is bound including, without limitation, any trust agreement, voting agreement, shareholders agreement, voting trust, partnership or other agreement. This Agreement has been duly and validly executed and delivered by Warburg and constitutes a valid and binding agreement of Warburg, enforceable against Warburg in accordance with its terms. (c) No Conflicts. (1) No filing with, and no permit, authorization, consent or approval of, any state or federal public body or authority is necessary for the execution of this Agreement by Warburg and the consummation by Warburg of the transactions contemplated hereby and (2) neither the execution and delivery of this Agreement by Warburg nor the consummation by Warburg of the transactions contemplated hereby nor compliance by Warburg with any of the provisions hereof shall (A) conflict with or result in any breach of any agreement or organizational documents applicable to Warburg, (B) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, material modification or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, license, contract, commitment, arrangement, understanding, agreement or other instrument or obligation of any kind to which Warburg is a party or by which Warburg or any of Warburg's properties or assets may be bound or (C) violate any order, writ, injunction, decree, judgment, statute, rule or regulation applicable to Warburg or any of Warburg's properties or assets. (d) Liens. The Stock and the certificates or other instruments representing the Stock are now and at all times during the term hereof will be held by Warburg, or by a nominee or custodian for the benefit of Warburg, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, understandings or arrangements or any other encumbrances whatsoever. (e) Acknowledgement. Warburg understands and acknowledges that Buyer is entering into the Purchase Agreement in reliance upon Warburg's execution and delivery of this Agreement with Buyer. 2. Certain Covenants of Warburg. Except in accordance with the terms of this Agreement, Warburg covenants and agrees as follows: (a) No Solicitation. From and after the date of this Agreement until the earlier of the termination of this Agreement or the Closing Date (as defined in the Purchase agreement), Warburg will not, and will not permit any of its partners, employees, representatives, advisors, agents or other intermediaries, to, directly or indirectly, (1) solicit, initiate or encourage any Acquisition Proposal (as defined in the Purchase Agreement), (2) engage in negotiations or discussions concerning, or provide any non-public information to any person or entity in furtherance of or in connection with, any Acquisition Proposal, or (3) negotiate, respond to any inquiries or proposals, or otherwise engage in discussions with any Person, concerning any Acquisition Proposal. If Warburg receives any such inquiry or proposal or is involved in connection with an Acquisition Proposal, Warburg shall then promptly inform Buyer in writing of the terms and conditions, if any, of such inquiry, solicitation, negotiation or proposal and the identity of the person making it. Warburg will immediately cease and cause to be terminated any 2 existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. (b) Restriction on Transfer, Proxies and Noninterference. Warburg shall not, directly or indirectly: (1) except pursuant to the terms of the Purchase Agreement, offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of (including by gift), enforce or permit the execution of the provisions of any redemption agreement with the Seller or enter into any contract, option or other arrangement or understanding with respect to, or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance, assignment or other disposition of, any or all of the Stock or any interest therein; (2) grant any proxies or powers of attorney with respect to any Stock, deposit any Stock into a voting trust or enter into a voting agreement with respect to any Stock, except as provided in this Agreement; or (3) take any action that would make any representation or warranty of Warburg contained herein untrue or incorrect or have the effect of preventing or disabling Warburg from performing Warburg's obligations under this Agreement. (c) Voting of Stock. At any meeting (whether annual or special and whether or not an adjourned or postponed meeting) of the shareholders of the Seller (the "Meeting"), however called, or in connection with any written consent or resolutions of the shareholders of the Seller, Warburg will appear at the Meeting or otherwise cause the Stock entitled to vote on any matter presented to be counted as present thereat for purposes of establishing a quorum and vote or consent (or cause to be voted or consented) the Stock to the extent such Stock is entitled to vote or consent, except as otherwise agreed to in writing in advance by the Buyer in its sole discretion, in favor of the transactions contemplated by the Purchase Agreement and any other business combination with Buyer and against the following actions: (1) any Acquisition Proposal or (2) any other action which is intended, or could reasonably be expected, to impede, interfere with, delay, postpone or materially adversely affect the transactions contemplated by this Agreement or the Purchase Agreement. Warburg agrees that it will not enter into any agreement or understanding with any Person the intended or reasonably anticipated effect of which would be inconsistent with or violative of any provision contained in this Section 2(c). Any such vote or consent shall be deemed a consent for purposes of Section 4(m) of the Securities Purchase Agreements, dated as of October 1, 1999 and November 21, 1997, by and between Seller and Warburg. (d) Granting of Proxy; Appointment of Proxy. Warburg hereby revokes any and all previous proxies granted with respect to the Stock. Warburg shall, from time to time, within five days after Buyer's request, deliver or cause to be delivered to the Buyer duly executed proxies in favor of Buyer or Buyer's agent or nominee voting in favor of the transactions contemplated by the Purchase Agreement and voting against any action that Warburg has agreed to vote against pursuant to Section 2(c) hereof, together with a certified copy of the directors' resolutions authorizing such proxies, if applicable, and Warburg agrees that it will not revoke any such proxy prior to the termination of this Agreement in accordance with Section 6 hereof. (e) Escrow Agreement. Warburg agrees to execute and deliver to the Buyer the Escrow Agreement in the form attached as Exhibit F to the Purchase Agreement. 3. Further Assurances. From time to time, at the other party's request and without further consideration, each party hereto shall execute and deliver such additional documents and 3 take all such further action as may be necessary to consummate and make effective the transactions contemplated by this Agreement. 4. Certain Events. This Agreement and the obligations hereunder shall attach to the Stock and shall be binding upon any Person to which legal or beneficial ownership of the Stock shall pass, whether by operation of law or otherwise, including without limitation Warburg's successors and assigns. 5. Stop Transfer. Warburg shall not request that the Seller or its transfer agent register the transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any of the Stock, unless such transfer is made in compliance with this Agreement. 6. Termination. The obligations set forth in this Agreement will terminate upon termination of the Purchase Agreement in accordance with Section 9.1(a), (b), (c), (d), (e) or (f) thereof, and shall terminate on October 31, 2002 if the Purchase Agreement is terminated in accordance with Section 9.1(g) thereof. 7. Miscellaneous. ------------- (a) Entire Agreement; Assignment. This Agreement (1) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof and (2) shall not be assigned by operation of law or otherwise without the prior written consent of the other party. (b) Amendments. This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by the parties hereto. (c) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given; as of the date of delivery, if delivered personally; upon receipt of confirmation, if telecopied or upon the next business day when delivered during normal business hours to an overnight courier service, such as Federal Express, in each case to the parties at the following addresses or at such other addresses as shall be specified by the parties by like notice; unless the sending party has knowledge that such notice or other communication hereunder was not received by the intended recipient: If to Warburg: Warburg Pincus LLC 466 Lexington Avenue New York, NY 10017 Attention: David Wenstrup Fax: 212 -878-9361 4 with a copy to: Willkie Farr & Gallagher 787 Seventh Avenue New York, NY 10019 Attn: Steven J. Gartner, Esq. Fax: 212-728-9222 If to Buyer: Amplifon (USA), Inc. 5000 Cheshire Lane North Plymouth, Minnesota 55446 Attn: Jeffrey P. Bilas Fax: 763/268-4323 with a copy to: Katten Muchin Zavis Rosenman 525 West Monroe Street, Suite 1600 Chicago, IL 60661-3693 Attn: David R. Shevitz Bruce G. Wilson Fax: 312/577-8768 312/577-8753 or to such other address as the person to whom notice is given may have previously furnished to the others in writing in the manner set forth above. (d) Governing Law. The validity, interpretation and effect of this Agreement shall be governed exclusively by the laws of the State of Delaware, without giving effect to the principles of conflict of laws thereof. (e) Costs. Each party will be solely responsible for and bear all of its own respective expenses, including, without limitation, expenses of legal counsel, accountants, and other advisors, incurred at any time in connection with pursuing or consummating this Agreement or the Purchase Agreement and the transactions contemplated thereby. (f) Enforcement. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement. 5 (g) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same Agreement. (h) Descriptive Headings. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. (i) Severability. If any term or provision of this Agreement or the application thereof to any party or set of circumstances shall, in any jurisdiction and to any extent, be finally held invalid or unenforceable, such term or provision shall only be ineffective as to such jurisdiction, and only to the extent of such invalidity or unenforceability, without invalidating or rendering unenforceable any other terms or provisions of this Agreement under any other circumstances, and the parties shall negotiate in good faith a substitute provision which comes as close as possible to the invalidated or unenforceable term or provision, and which puts each party in a position as nearly comparable as possible to the position it would have been in but for the finding of invalidity or unenforceability, while remaining valid and enforceable. (j) Definitions; Construction. For purposes of this Agreement: (1) "Beneficially own" or "beneficial ownership" with respect to any securities shall mean having "beneficial ownership" of such securities (as determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), including pursuant to any agreement, arrangement or understanding, whether or not in writing. Without duplicative counting of the same securities by the same holder, securities beneficially owned by a Person shall include securities beneficially owned by all other Persons with whom such Person would constitute a "group" as described in Section 13(d)(3) of the Exchange Act. (2) "Person" shall mean an individual, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity. (3) In the event of a stock dividend or distribution, or any change in the capital stock of the Seller by reason of any stock dividend, split-up, recapitalization, combination, exchange of shares or the like, the term "Stock" shall be deemed to refer to and include the Stock as well as all such stock dividends and distributions and any shares into which or for which any or all of the Stock may be changed or exchanged. [signature page follows] 6 IN WITNESS WHEREOF, Buyer and Warburg have caused this Agreement to be duly executed as of the day and year first written above. AMPLIFON (USA), INC. By: /s/ Jeffrey P. Bilas ----------------------------------- Its: President ----------------------------------- WARBURG, PINCUS VENTURES, L.P. By: Warburg, Pincus & Co., its general partner By: /s/ David J. Wenstrup ----------------------------------- Its: Partner ----------------------------------- SCHEDULE I Warrants -------- Series A Series B to acquire --------- --------- ---------- Preferred Preferred Common --------- --------- ------ Record Holder Shares Shares Shares ------------- ------ ------ ------ Warburg, Pincus Ventures, 2,666,666 2,500,000 2,000,000 L.P. EX-5 5 wpv1042262.txt AGREEMENT Exhibit 5 --------- EXECUTION COPY AGREEMENT --------- THIS AGREEMENT (the "Agreement"), dated as of June 18, 2002, is made by and between Sonus Corp. (the "Company"), a corporation continued and existing under the laws of Yukon Territory, Canada, and Warburg, Pincus Ventures, L.P. ("Warburg"), a Delaware limited partnership. RECITALS -------- WHEREAS, the Company desires to enter into a Purchase Agreement (the "Purchase Agreement"), by and between the Company and Amplifon (USA), Inc. (the "Buyer"), a Delaware corporation, pursuant to which the Buyer will acquire all of the outstanding equity interests of certain of the Company's subsidiaries and certain of the assets of the Company; and WHEREAS, pursuant to the terms of those certain Securities Purchase Agreements, dated as of December 24, 1997 and October 1, 1999, each by and between the Company and Warburg, the consent of Warburg is required in order for the Company to enter into the transactions contemplated by the Purchase Agreement; and WHEREAS, it is a condition to the granting of such consent that the Company enter into this Agreement. NOW, THEREFORE, in consideration of the provisions hereof and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. Liquidation Rights. The transactions contemplated by the Purchase Agreement constitute the sale of all or substantially all of the assets of the Company for purposes of the Company's Amended and Restated Terms of Series A Convertible Preferred Shares (the "Series A Charter") and the Company's Terms of Series B Convertible Preferred Shares (the "Series B Charter" and, together with the Series A Charter, the "Charters"). Accordingly, the Company hereby acknowledges that the transactions contemplated by the Purchase Agreement constitute the liquidation, dissolution or winding up of the Company for purposes of Section 3 of the Charters and that, upon consummation of the transactions contemplated by the Purchase Agreement, Warburg shall be entitled to the liquidation rights described in the Series A Charter in respect of each share of Series A Convertible Preferred Shares (the "Series A Preferred Shares"), without par value, of the Company held by it and shall be entitled to the liquidation rights described in the Series B Charter in respect of each share of Series B Convertible Preferred Shares (the "Series B Preferred Shares"), without par value, of the Company held by it. 2. Liquidation Amount; Promissory Note Payoff Amount. ------------------------------------------------- (a) On and as of May 31, 2002, the amount accrued and payable out of the assets of the Company available for distribution to shareholders in accordance with the provisions of Section 3 of the Series A Charter upon the consummation of the transactions contemplated by the Purchase Agreement is $8.2481 per share of Series A Preferred Shares held by Warburg (the "Series A Liquidation Amount"). The Series A Liquidation Amount shall be increased by $.0009374 per day from and including June 1, 2002 until it is paid in full in accordance with the provisions of Section 3 of the Series A Charter. (b) On and as of May 31, 2002, the amount accrued and payable out of the assets of the Company available for distribution to shareholders upon the consummation of the transactions contemplated by the Purchase Agreement is $4.8533 per share of Series B Preferred Shares held by Warburg (the "Series B Liquidation Amount"). The Series B Liquidation Amount shall be increased by $.0008888 per day from and including June 1, 2002 until it is paid in full in accordance with the provisions of Section 3 of the Series B Charter. (c) On and as of the date hereof, the aggregate amount of principal outstanding on the Unsecured Promissory Note (the "Promissory Note"), made by the Company in favor of Warburg on December 19, 2001 in the original principal amount of $1,500,000 is $749,583.33 (the "Promissory Note Payoff Amount"), reflecting a prepayment by the Company of $825,000 on the date hereof and Warburg's application (i) of the first $74,583.34 of such amount to the payment of interest accrued on the Promissory Note through the date hereof and (ii) of the remainder to the reduction of the outstanding principal balance of the Promissory Note. The Company shall use its best efforts to pay the Promissory Note Payoff Amount out of available cash after the approval by the shareholders of the Company of the transactions contemplated by the Purchase Agreement by the Required Vote (as such term is defined in the Purchase Agreement) at the Special Meeting (as such term is defined in the Purchase Agreement) and prior to Closing (as such term is defined in the Purchase Agreement) in accordance with the provisions of the Promissory Note. The Promissory Note Payoff Amount shall be increased per day from and including June 19, 2002 by the amount shown in the table below until it is paid in full in accordance with the provisions of the Promissory Note. Period Per Day Amount - ------ -------------- June 19, 2002 $208.21 June 20, 2002 until July 19, 2002 $249.93 July 20, 2002 until August 19, 2002 $252.42 August 20, 2002 until September 19, 2002 $254.95 September 20, 2002 until October 19, 2002 $257.50 October 20, 2002 until November 19, 2002 $260.08 November 20, 2002 and thereafter The amount resulting from an equation, the numerator of which is (1.01 raised to the power of the number of full 30 day periods elapsed since June 20, 2002) multiplied by $7,497.91 and the denominator of which is 30. -2- 3. Application of Proceeds. ----------------------- (a) As soon as practicable after receipt by the Company of the portion of the Purchase Price (as such term is defined in the Purchase Agreement) to be paid to the Company at Closing, the Company shall pay to holders of Common Shares (the "Common Shares"), without par value, of the Company, an amount equal to $1.00 per Common Share issued and outstanding as of the Closing (the "Common Share Liquidation Amount"), such number of Common Shares not to exceed 5,702,228. (b) (i) Within one (1) business day of receipt by the Company of the portion of the Purchase Price to be paid to the Company at Closing, the Company shall pay to Warburg, by wire transfer of immediately available funds, an aggregate amount equal to $35,438,000, less (1) any amounts paid by the Company to Brandon M. Dawson ("Dawson") pursuant to Section 9(b)(i) of the Separation Agreement and Release of Claims, dated as of March 22, 2002, by and between the Company and Dawson, such amount not to exceed $1,297,500, (2) any Purchase Price Reduction (as such term is defined in the Purchase Agreement), (3) the Common Share Liquidation Amount, (4) a provision for payment of any fees and expenses (other than amounts included in the Purchase Price Reduction) incurred or likely to be incurred by the Company in connection with the transactions contemplated by the Purchase Agreement, such amount to be determined in good faith by Warburg based on discussions with the Company's management and (5) $50,000 as a provision for payment of the debts and other liabilities of the Company after Closing (the "Retained Amount"). The amount paid to Warburg pursuant to the previous sentence shall be applied first to the Promissory Note Payoff Amount until the Promissory Note Payoff Amount shall have been paid in full and then, if any amount shall be remaining, pro rata to the Series A Liquidation Amount and Series B Liquidation Amount until the Series A Liquidation Amount and Series B Liquidation Amount shall have been paid in full. (ii) Ninety (90) days after Closing, the Company shall pay to Warburg by wire transfer of immediately available funds, an aggregate amount equal to the Retained Amount then remaining after payment of the debts and other liabilities of the Company. Such amount shall be applied by Warburg first to the Promissory Note Payoff Amount until the Promissory Note Payoff Amount shall have been paid in full and then, if any amount shall be remaining, pro rata to the Series A Liquidation Amount and Series B Liquidation Amount until the Series A Liquidation Amount and Series B Liquidation Amount shall have been paid in full. (c) Any amounts received by Warburg distributed from the Escrow Account (as such term is defined in the Purchase Agreement) shall be applied by Warburg first to the Promissory Note Payoff Amount, if any, until the Promissory Note Payoff Amount shall have been paid in full and then, if any amount shall be remaining, pro rata to the Series A Liquidation Amount and Series B Liquidation Amount until the Series A Liquidation Amount and Series B Liquidation Amount shall have been paid in full. Within one (1) business day of receipt by the Company of any amounts distributed from the Escrow Account, the Company shall pay to Warburg by wire transfer of immediately available funds, an aggregate amount equal to 100% of any amount so received, which amounts shall be applied by Warburg in the manner described in the immediately preceding sentence. -3- 4. Issuance of Shares. From the date of this Agreement until each of the Promissory Note Payoff Amount, the Series A Liquidation Amount and the Series B Liquidation Amount shall have been paid in full, the Company shall not (i) split, combine or reclassify any of its outstanding capital stock or other equity interests or (ii) issue, sell or dispose of any (A) shares of its capital stock or other equity interests, (B) securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock or other equity interests, or (C) of its other securities, other than Common Shares issued upon the exercise of options outstanding on the date hereof in accordance with option plans as in effect on the date hereof. 5. Defense of Actions. In the event the Buyer asserts that the Company has become obligated to the Buyer pursuant to Section 8 of the Purchase Agreement, or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Company may become obligated to the Buyer pursuant to Section 8 of the Purchase Agreement, the Company shall give written notice to Warburg. Warburg may, at its option, participate in and defend, contest or otherwise protect the Company against any such suit, action, investigation, claim or proceeding by counsel of Warburg's choice at its sole cost and expense. Warburg may settle or compromise any such suit, action, investigation, claim or proceeding on behalf of the Company without the prior written consent of the Company. 6. Notices. ------- (a) Any notice hereunder shall be in writing and shall be effective when delivered in person or by facsimile transmission, or seven business days after being mailed by certified or registered mail, postage prepaid, return receipt requested, to the appropriate party at the following addresses (or such other address designated by written notice given by such party): If to Warburg: Warburg, Pincus Ventures, L.P. 466 Lexington Avenue New York, New York 10017-3147 Facsimile: (212) 878-9351 Attention: Mr. Joel Ackerman with a copy to: Willkie Farr & Gallagher 787 Seventh Avenue New York, NY 10019-6099 Facsimile: (212) 728-8111 Attention: Steven J. Gartner, Esq. If to the Company: Sonus Corp. 111 SW Fifth Avenue, Suite 1620 Portland, Oregon 97204 -4- Facsimile: (503) 225-9309 Attention: Brian S. Thompson, Esq. with a copy to: Miller Nash LLP 111 S.W. Fifth Avenue, Suite 3500 Portland, Oregon 97204 Facsimile: (503) 224-0155 Attention: Mary Ann Frantz (b) Upon receipt by the Company of any notice, demand or other communication given or delivered under or by reason of the provisions of the Purchase Agreement or any of the agreements contemplated by the Purchase Agreement, the Company shall deliver a copy of such notice, demand or other communication promptly (but in no event later than two (2) business days after receipt thereof by the Company) to Warburg at the address provided by Warburg pursuant to paragraph (a) of this Section 6. 7. Severability. In the event that any one or more of the provisions (or parts thereof) contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not in any way be impaired or affected, it being intended that all of the rights and privileges of each party shall be enforceable to the fullest extent permitted by law. 8. Governing Law. The validity, interpretation and performance of this Agreement shall be governed by and construed under the laws of the state of New York without regard to conflicts of laws principles. 9. Headings. Headings in this Agreement are included for convenience of reference only and shall not be deemed a part of or in any manner affect this Agreement or any provision hereof. 10. Counterparts. This Agreement may be executed in counterparts with the same effect as if all parties hereto had signed the same document. All counterparts so executed shall be deemed to be an original, shall be construed together and shall constitute one agreement. [Signature Page Follows] -5- IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by its duly authorized officer, each as of the date first above written. SONUS CORP. By: /s/ Daniel J. Kohl ------------------------------ Name: Daniel J. Kohl Title: Chief Executive Officer WARBURG, PINCUS VENTURES, L.P. By: Warburg, Pincus & Co., General Partner By: /s/ David J. Wenstrup ------------------------------ Name: David J. Wenstrup Title: Partner -6- -----END PRIVACY-ENHANCED MESSAGE-----